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HomeMy WebLinkAboutordinance.council.067-92 ORDINAiqCE NO. ~ (Series of 1992) AN EMERGENCY ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF ASPEN, COLORADO, OF ITS GENERAL OBLIGATION REFUNDING BONDS, SERIES 1992B, IN THE PRINCIPAL AMOUNT OF $4,940,000, FOR THE PURPOSE OF PROVIDING FUNDS FOR THE REFUNDING OF CERTAIN OUTSTANDING INDEBTEDNESS OF THE CITY, AND PAYING ALL NECESSARY INCIDENTAL AND APPURTENANT COSTS AND EXPENSES IN CONNECTION THEREWITH; PRESCRIBING THE FORM OF SAID BONDS; PROVIDING FOR THE SALE OF SAID BONDS AND APPROVING A BOND PURCHASE AGREEMENT AND ESCROW AGREEMENT; PROVIDING A PLEDGE OF THE FULL FAITH AND CREDIT OF THE CITY AS SECURITY FOR SAID BONDS; PROVIDING OTHER DETAILS IN CONNECTION WITH SAID BONDS; APPROVING THE FORM OF THE OFFICIAL STATEMENT; AND DECLARING AN EMERGENCY. 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, Section 10.6 of the Charter provides in part 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, 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 WP129702-017/5] 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, the City has previously issued its General Obligation Street Improvement Bonds, Series 1979, of which $455,000 remains outstanding (the "1979 Refunded Bonds") and its General Obligation Housing Bonds, Series 1989A, of which $4,350,000 remains outstanding (the "1989A Refunded Bonds"), and the City desires to refund the 1979 Refunded Bonds and the 1989A Refunded Bonds (collectively, the "Refunded Bonds") as provided herein; and WHEREAS, in accordance with the authority granted by the Charter, the Council determines to issue its General Obligation Refunding Bonds, Series 1992B (the "Bonds"), in the principal amount of $4,940,000 pursuant to the Charter, for the purpose of providing funds to refund the Refunded Bonds, and to pay 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 -2- WP129702-017/51 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; and WHEREAS, it is necessary for the preservation of public property, health, peace and safety that this Ordinance be adopted as an emergency. 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 shail 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 September 14, 1992 between the City and the Underwriter. (c) "Escrow Agreement" shall mean the Escrow Agreement dated as of October 1, 1992 between the City and Colorado National Bank, as escrow agent. (d) "Paying Agent" shall mean Colorado National Bank, or any successor paying agent appointed by the City, acting as, among other things, paying agent, registrar and authenticating agent under this Ordinance. (e) "Rebate Fund" shall mean the fund by that name created pursuant to Section 15 hereof. -3- WP 12970'2-017/51 (f) "Record Date" shall mean the May 15 or November 15 (whether or not a business day) prior to each interest payment date with respect to the Bonds. (g) "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. (h) "Tax Code" shall mean the Internal Revenue Code of 1986, as amended and any Income Tax Regulations promulgated thereunder. (i) "Tax Letter of Instructions" shall mean the Tax Letter of Instructions, dated the date of delivery of the Bonds, delivered by Kutak Rock to the City, as the same may be sUperseded or amended as provided in Section 15 hereof. (j) "Underwriter" shall mean George K. Baum & Company. Section 2. Authorization of Bonds. For the purpose of providing funds for the refunding of the Refunded Bonds in accordance with the provisions of the Escrow Agreement and paying all necessary incidental and appurtenant costs and expenses in connection therewith, the City shall issue its "General Obligation Bonds, Series 1992B," in the aggregate principal amount of $4,940,000. The Bonds shall be general obligation bonds of the City, and the principal of and WP]29702-0]7/5] interest on the Bonds shall be payable from and be secured by a pledge of the full faith and credit of the City, as more particularly hereinafter set forth. Section 3. Bond Details. (a) The Bonds 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 October 1, 1992, 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 t~ansfer 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 October 1, 1992. Interest on the Bonds shall be payable on June 1 and December 1 of each year, commencing June 1, 1993. (c) The Bonds shall be consecutively numbered, shall mature on the 1st day of each December in the principal amounts and years, and shall bear interest at the rates per annum, as shown in the following schedule: Maturity Principal Interest (December 1) Amount Rate 1993 $225,000 % 1994 275,000 1995 280,000 1996 285,000 1997 295,000 -5- WP129702-0] 7/51 1998 310 000 1999 255 000 2000 265 000 2001 280 000 2002 295 000 2003 310 000 2004 330 000 2005 350 000 2008 1,185 000 (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 principal corporate trust 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 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. WP129702-017/51 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 absolut~ owner thereof for all purposes, whether or not payment on any Bond shall be overdue, and neither the City nor any ~aying Agent shall be affected by any notice to the contrary. Section 5. Redemption. The Bonds maturing on and after December 1, __ shall be callable for redemption at the option of the City, in whole or in part, and if in part in such order of maturities as the City shall determine and by lot within a maturity in such manner as the Paying Agent may determine (giving proportionate weight to Bonds in --7-- WP129702-017/51 denominations larger than $5,000) on December 1, __, and on any date thereafter, at redemption prices (expressed as a percentage of principal amount), plus accrued interest to the redemption date as follows: RedemDtion Date Redemption Price December 1, __ through November 30, 101% December 1, and thereafter 100 The Bonds maturing on December 1, 2008 shall be subject to mandatory sinking fund redemption by lot at a price equal to the principal amount thereof plus accrued interest to the redemption date on December 1 of the years, and in the principal amounts, as follows: Year Principal Amount 2006 $370,000 2007 395,000 2008 420,000 Notice of any redemption of Bonds 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 mail, at least thirty (30) days prior to the redemption date, to the Registered Owner 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 any of the Bonds shall have been duly called for redemption and if, on or before the redemption date, there shall have been deposited 8 WP129702-0l 7/51 with the Paying Agent in accordance with this Ordinance funds sufficient to pay the redemption price of such Bonds at the redemption date, then said Bonds shall become due and payable at such redemption date, and from and after such date interest will cease to accrue thereon. Any Bond redeemed prio~ to its maturity by call for prior redemption or otherwise shall not be reissued and shall be cancelled. 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 or Mayor Pro-Tem and the City Clerk or Deputy or Assistant 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 -9- WP129702-017/51 of authentication of the Paying Agent, in substantially the form set forth in this Ordinance, has been duly executed by the ~aying 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, 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 -10- WP129702-0~7/51 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: WP129702-017/51 (Form of Bond) [Front Of Bond] UNITED STATES OF AMERICA CITY OF ASPEN, COLORADO GENERAL OBLIGATIoN REFuNDING BOND SERIES 1992B INTEREST RATE: MATURITY DATE: ORIGINAL ISSUE DATE: CUSIP: December 1, October. 1, 1992 REGISTERED OWNER: PRINCIPAL SUM: DOLLARS The CITY OF ASPEN, in the County of Pitkin 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 June 1, 1993, and semiannually thereafter on the 1st day of December and the 1st day of June of each year, the principal of this bond being payable upon the surrender of this bond to Colorado National Bank (together with its successors as such, the "Paying Agent") at the principal corporate trust offices of the Paying Agent in Denver, Colorado, and the interest hereon to be paid to such --12-- WP129702-017/51 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 May 15 or November 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 MEWING OF SECTION 265 OF THE INTERNAL RE~ElqUE CODE OF 1986, AS ~d~ENDED. REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE RE~-ERSE HEREOF WHICH SHALL FOR ALL PURPOSES HAVE THE SALVE EFFECT AS THOUGH FULLY SET FORTH HEREIN. 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. -13- WP]29702-017/5] 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. WP129702-017/51 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] WP129702-017/5l [Back of Bond] This bond is one of an issue of bonds of the City designated General Obligation Refunding Bonds, Series 1992B, issued in the principal amount of $4,940,000 (the "Bonds"). The Bonds are being issued by the City for the purpose of providing funds for the refunding of certain outstanding indebtedness of tke City, and to pay 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 maturing on and after December 1, __ are callable for redemption at the option of the City, in whole or in part in such order of maturities as the City shall determine and by lot within a maturity, on December 1, __, 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: Redemption Date Redemption Price December 1, __ through November 30, 101% December 1, and thereafter 100 WP129702-017/5l The Bonds maturing on December 1, 2008 are also subject to mandatory sinking fund redemption by lot at a price equal to the principal amount thereof plus accrued interest on the dates and amount provided in the Ordinance. Notice of any redemption will 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 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 will specify the number or numbers of the Bonds so to be redeemed and the redemption date. If this bond shall have been duly called for redemption and if on or before the redemption date there shall have been deposited with the Paying Agent, in accordance with the Ordinance, funds sufficient to pay the redemption price of this bond at the redemption date, then this bond shall become due and payable at such redemption date, and interest hereon shall cease to accrue after the redemption date~ This bond may be transferred or exchanged at the principal corporate trust 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 --17-- WP129702-017/51 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 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. -18-- WPl29702-0]7/5l (Form of Paying Agent's Certificate of Authentication) Date of Authentication: This bond is one of the Bonds described in the within mentioned Ordinance. By Authorized Representative (End of Form of Paying Agent's Certificate of Authentication) (Form of Assignment) FOR VALUE RECEI~-ED, 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, Bond Counsel, may be printed on the Bonds, including a certification by the City Clerk.] WP129702-0] 7/5l 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 October 1, 1992 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~ Neither the Underwriter nor the subsequent Registered Owner or Registered 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 Registered 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 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. -20- WP129702-017/51 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 pa!rment of the principal of and interest on the Bonds. It shall be the duty of the Council, annually, at the time and in the manner provided by law for levying other City taxes, if such action shall be necessary to effectuate the provisions of this Ordinance, to ratify and carry out the provisions hereof with reference to the levying and collection of taxes; and the Council shall require the proper officers of and for the City to levy, extend and collect such taxes in the manner provided by law for the purpose of depositing moneys into the Bond Fund for the payment of the principal of the Bonds and interest thereon, and any prior redemption premiums due in connection therewith, and such taxes, when collected, shall be kept for and applied only to the payment of the interest and principal of, and any prior redemption premiums due in connection with the Bonds as hereinbefore specified. Section 12. DisDosition 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; WP129702-017/51 (b) An amount of $ shall be deposited with the Underwriter to pay costs of issuing the Bonds; and (c) An amount equal to $ (plus $ of the City's funds) shall be deposited in the Escrow Account created by the Escrow Agreement. 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 therein 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 each fund shall be retained in the respective f'und. 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 -22- WP129702-017/51 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 Refunding Bonds, Series 1992B Bond Fund." The City shall credit to the Bond Fund 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 Refunding Bonds, Series 1992B 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 -23- WP129702-017/51 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 in~erest on the Bonds, shall employ at its expense a person or firm with recognized expertise in the area of rebate calculations to make such calculations~ The Tax Letter of Instructions may 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 and the Tax WP129702-017/51 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 June 1, 1997 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 Bondst 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 United States of America pursuant to this Section shall be filed with the Internal Revenue Service Center, Philadelphia, Pennsylvania 19255. Each payment shall be accompanied by an 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 -25- WP129702-017/51 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 lawo (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 maD_her which will cause the Bonds to be considered "private activity bonds." (2) The Bonds are not and shall not become directly or indirectly "federally guaranteed." (3) The City shall timely file Internal Revenue Form 8038 which shall contain the information rec~ired to be filed pursuant to subsection 149(e) of the Tax Code. -26- WPlZ9702-017/5] (4) The City shall comply with the Tax Letter of Instructions delivered to it on the date of issue of the Bonds with respectto the application and investment of Bond proceeds, subject to Section 15 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 1992. 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. -27- WP129702-017/51 Section 17. 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 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 18o Approval of Bond Purchase Agreement and Escrow Aqreement. The Bond Purchase Agreement and Escrow 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 Bond Purchase Agreement and Escrow 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 form hereby approved. -28- WP129702-017/51 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 21o 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. -29- W~129702-017/51 Section 23. Emergency. Due to fluctuating interest rates and expectations that interest rates will rise, the Council hereby finds that, for the preservation of public property, health, peace and safety, it is necessary to adopt this Ordinance as an emergency measure. Section 24. 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. WP129702-017/51 INTRODUCED AND READ AS AN EMERGENCY ORDINANCE as provided by law by the City Council of the City of Aspen on the 13th day of October 1992. [SEAL] By. Mayor Attest: By City Clerk FINALLY adopted, passed and approved as an emergency ordinance and ordered published as provided by law this day of 1992~ -- [SEAL] By Mayor Attest: By City Clerk WP129702-017/51