HomeMy WebLinkAboutordinance.council.019-05ORDINANCE NO. 19 (SERIES OF 2005)
AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF
ASPEN, COLORADO, OF ITS SALES TAX REVENUE REFUNDING
BONDS, SERIES 2005, 1N THE AGGREGATE PRINCIPAL AMOUNT NOT
TO EXCEED $13,000,000, FOR THE PURPOSE OF .ADVANCE REFUNDING
THE CITY'S SALES TAX REVENUE BONDS, SERIES 1999; PRESCRIBING
THE FORM OF THE SERIES 2005 BONDS; PROVIDING FOR THE
PAYMENT OF THE SERIES' 2005 BONDS FROM THE SAME REVENUES
PLEDGED TO THE PAYMENT OF THE SERIES 1999 BONDS T.O BE
REFUNDED (CONSISTING OF THE cITY'S ORIGINAL 1.0% OPEN SPACE
SALES TAX AND ITS ADDITIONAL 0.5% OPEN SPACE SALES TAX);
PROVIDING OTHER DETAILS AND APPROVING OTHER DOCUMENTS
IN CONNECTION WITH THE SERIES 2005 BONDS; DELEGATING THE
AUTHORITY TO THE CITY'S FINANCE DIRECTOR TO MAKE A FINAL
DETERMINATION OF CERTAIN TERMS OF THE SERIES 2005 BONDS;
DLKECT~G THE CITY'S FINANCE DIRECTOR TO EXECUTE CERTAIN
DOCUMENTS 1N CONNECTION WITH SUCH REFUNDING BONDS; AND
DECLARING AN EMERGENCY
,
WHEREAS, the City of Aspen (the "City"), in the County of Pitkin and State of
COlorado, is a legally and regularly created, established, organized and existing municipal
corporation under the provisions of Article XX of the Constitution of the State of Colorado and
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the home role charter of the City (as more particularly defined in Section 1 herein, the "Charter")
(all capitalized terms used and not otherwise de£med in the recitals hereof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS,' under the Charter, the City is possessed ofall powers which are necessary,.
requisite or proper for the government and administration of its local and municipal matters, all
powers which are granted to home rule municipalities by the Colorado Constitution, and all
fights and powers that now or hereafter may be granted to municipalities by the laws of the State .
of Colorado; and
WHEREAS, pursuant to Section 10.6 of the Charter, the City Council of the City-(the
."City CoUncil'') may authorize, by ordinance, .without an election, the issuance of refunding
bonds for. the purpose of refunding and providing for the payment of' the City's outstanding
bonds; '
WHEREAS, Article X, Section 20 of the Colorado Constitution ("TABOR") provides
that voter approval in advance is required for the creation of any district (as such term is defined
in TABOR, which includes governmental entities such as the City) direct or indirect debt or
other multiple-fiscal year financial obligation whatsoever except for refinancing district bonded
debt at a lower interest rate; and
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WHEREAS, on August 4, 1999, the City issued its Sales Tax Revenue Bonds, Series
1999 (the "Refunded Bonds") pursuant to its Ordinance No. 31, Series of 1999 (the "Series 1999
Ordinance"); and
WHEREAS, pursuant to the City's Ordinance No. 16, Series of 1970 (the "Original Parks
and Open Space Sales Tax Ordinance"), the City levies a one percent (1.00%) sales tax (the
"Original Parks and Open Space Sales Tax") on all sales of tangible property and services
specified in Section 23.32.090 of the City's Municipal Code for the payment of food tax refunds,
and for the acquisition of real. property including open space or construction of capital
improvements for municipal purposes, or the payment of indebtedness incurred for such
acquisition or construction of capital improvements for municipal purposes, for the expenditures
necessary to protect such property against loss, damage or destruction; and
WHEREAS, receipts from the Original Parks and OPen Space Sales Tax are required by
Section 23.32.060(c)(3) of the City's Municipal Code to be set aside in a separate fund entitled
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"Parks and Open Space .Fund" and expended by the City Council solely for the acquisition 'of
parks, trails and open space real property, for the construction of improvements on any real
property, oWned or purchased by the City for parks, trails and open space purposes, for the
maintenance of real property owned by the city and used for parks, trails and open space, and for
payment of indebtedness incurred for acquisition or improvement of parks, trails and open space
real .property, food tax refunds payable by the City, and for such expenditures as may be
necessary to protect real property or the improvements thereon owned by the City for parks,
trails and open space purposes and for the payment of sales tax revenue, bonds issued by the City;
and
WHEREAS, a majority of the City's qualified electors voting at the City's November 7,
2000 election approved the imposition of an additional 0.5% sales tax (as defined herein,, the
"Additional Parks and Open Space Sales Tax" and, collectively with the Original Parks and
Open Space Sales Tax, the "Parks and Open Space Sales Tax") and the issuance of sales tax
revenue bonds for the purpose of buying, improving and maintaining trail, recreation and open
space properties and ancillary facilities; and
WHEREAS, the City, pursuant to Ordinance No. 7, Series of 2001 (the "Additional Parks
and Open Space Sales Tax Ordinance" and, together with the Original Parks and Open Space
Sales Tax Ordinance, the "Parks and Open Space Tax Ordinances"), has since January 1, 2001
levied the Additional Parks and Open Space Sales Tax and, pursuant to Section 23.32.060(c)(7)
of the City's Municipal Code, deposits the revenues of the Additional Parks and OPen Space
Sales Tax in the Parks and Open Space Fund; and
WHEREAS, the net revenues of the Parks and. Open Space Sales Tax are pledged to the
payment of the principal 'of and interest on the Refunded Bonds pursuant to the Series 1999
Ordinance; and
WHEREAS, on August 21, 2001, the City issued the City of Aspen, Colorado, Parks and
Open.Space Sales Tax Revenue Bonds, Series 2001 (the "Series 2001 Bonds") for the purpose of
providing, funds for buying, improving and maintaining trail, recreation and open space
properties and ancillary facilities; and
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WHEREAS, the Series 2001 Bonds are secured by a lien on the Parks and .Open Space
Sales Tax revenue on parity with the lien of the Refunded Bonds on such Parks and Open Space
'Sales Tax revenue and will also be on parity with the Series 2005 Bonds; and
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WHEREAS,. the Refunded Bonds maturing on or before November 1, 2009 are not
subject to redemption prior to their respective maturities, and the Refunded Bonds maturing on
and after November 1, 2010 are subject to redemption prior to their maturity, at the option of the
City, on November 1, 2009 at a redemption price equal to the principal amount of the bonds so
redeemed, plus accrued interest to the redemption date; and
WHEREAS, the.City Council has determined that it is in the best interests of the City and
its residents to issue the City of Aspen, Colorado, Sales Tax Refunding Bonds, Series'2005, in
the aggregate principal amount not to exceed. $13,000,000 (the "Series 2005 Bonds"), for the
purposes of advance_'refunding all of the Refunded Bonds at a lower interest rate, acquiring a
reserve fund surety bond, and paying the costs of issuance of the Bonds; and
WHEREAS; proceeds of the Series 2005 Bonds shall be deposited' in an escrow account
and used to purchase, from the United States Department of the Treasury, direct obligations of,
or obligations the principal of and interest on which are unconditionally guaranteed by, the
United States of America and which are not callable before maturity by the issuer of such
obligations, in accordance with the defeasance provisions of the Series 1999 Ordinance (the
"Escrow Securities");
WHEREAS, a certified public accountant licensed to practice in' the State of Colorado
(the "Verification Agent") will issue a report-verifying that the cash receipts from the payment of
principal of and.interest On the Escrow Securities. will be sufficient and will be received in due
time to pay the principal of and interest on the RefUnded Bonds coming due and paYable to and
through the redemption date of November 1, 2009 and to pay the redemption price of the .
Refunded Bonds on such call date of November 1, 2009; and
WHEREAS, pursUant to Section 6.8 of'the Charter, the City's Director of Finance (the
"City Finance Director") shall perform such duties pertaining to the City's department of finance
as required by the City Council; and
WHEREAS, the City Council desires to 'delegate_ the. aUthority 'to the City Finance
Director to make a final determination of the par amount, interest rates, amount of principal
maturing in any year, redemption price or prices, denominations and price or prices at which the
Series 2005 Bonds shall be sold; and
WHEREAS, the City Council also desires to delegate the authority to the City Finance
Director to determine whether it is economically beneficial to obtain a financial guaranty
insurance policy insuring the payment of the Series 2005 Bonds and, if so determined, to confirm
'that Ambac Assurance Corporation shall be, or otherwise identify, the Bond Insurer and execute
the Commitment; to determine whether a surety bond is to be obtained to secure payments on the
Series 2005 Bonds, and to execute and deliver the Bond Purchase Agreement and approve
certain terms thereof, all in accordance with the provisions of this Ordinance;
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WHEREAS, pursuant to Section 4.11 of the Charter, the City is authorized to adopt
emergency ordinances for the preservation of public property, health, peace, or safety; and
WHEREAS, the savings derived from the timely issuance of the Series 2005 Bonds is
anticipated to be greater if the Series 2005 Bonds can be issued in a timely fashion,, thus'
benefiting the City's inhabitants with such savings; and
WHEREAS, there is a need for issuing the Series 2005 Bonds in a timely manner in order
to take advantage of existing market conditions and obtain the greatest savings to the City's
inhabitants, thus freeing up City revenues which can be used for the purposes of preserving
.public property, health, peace and safety; and
WHEREAS, this ordinance is being adopted to authorize the issuance, sale and delivery
of the Series 2005 Bonds, to provide for the .details of and the security for the Series 2005 Bonds;
NOW, THEREFORE, BE IT ORDAINED by the City Council of. City of 'Aspen,
Colorado:
Section 1. Definitions.
in this Ordinance'
The following terms shall have the following meanings as used
"Additional Parks and Open Space Sales Tax" means the 0.5% sales tax that is levied in
addition to the Original Parks and Open Space Sales Tax by the City pursuant to the authority
granted by the Ballot Question, the Additional Parks and Open Space Sales Tax Ordinance and
Section 23.32.060(c)(7) of the City's Municipal Code;
"Additional Parity Bon&" means any bonds or other obligations (which may Or may not
be multiple-fiscal year financial obligations) permitted to be issued pursuant to Section 13 hereof
with a lien that is equal and on a parity with the lien of the Series 2001 Bonds and the Series"
2005 Bonds on the Pledged Revenues, the Bond Fund and the Revenue Fund.
"Ballot Question" means the ballot question approved by City voters on November'7,
2000 authorizing the Additional Parks and Open Space Sales'Tax.
"Bond Counsel" means (a)as of the date of issuance of the Series 2005 Bonds, Kutak
· Rock LLP, and (b) as of any other date, Kutak Rock LLP or such other attorneys selected by the
City with nationally recognized expertise in the issuance of municipal bonds.
"Bond Fund" means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds Bond Fund" which fund is reaffirmed as such in Section 10(b) hereof.
"Bond Insurance Policy" means the' policy issued by the Bond Insurer that guarantees
payment of principal of and interest on the Series 2005 Bonds.
"Bond Insurer" means Ambac Assurance Corporation, and its successors.
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"Bond Purchase Agreement" means the Bond Purchase Agreement dated March 16, 2005
pursuant to which the Original PurChaser has agreed to purchase the Series 2005 Bonds at the
price and on the terms set forth therein.
· "Bonds" means, cOllectively, the Series 2001 Bonds,' the Series 2005 Bonds and any
Additional Parity Bonds.
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in the State are authorized or obligated by law 'or executive order to be
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closed for business.
"Charter" means the charter of the City of Aspen, adopted June 16, 1970, as amended.
"City" means the City of Aspen, Colorado, and any successor thereto.
"City Council" means the City Council of the City, and any successor body.
"Code" means the Internal Revenue Code of 1986', as amended. Each reference to a
'section of the Code herein shall be deemed to include the United. States Treasury Regulations
proposed or in effect thereunder and applicable to the Series 2005 Bonds or the use of proceeds
thereof, unless the context clearly reqUires otherwise..
'"Defeasance Securities" means Permitted Investments that are bills, certificates of
indebtedness, notes, bonds or similar securities which are direct non-callable .obligations of the
United States of America or which are fully and unconditionally guaranteed as to the. timely
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payment of principal and interest by .the United States of America.
"Escrow Agent" means American National Bank, Denver, Colorado, in its capacity as
escrow agent under the Escrow Agreement, its successors and assigns.
"Escrow Agreement" means the Escrow Agreement dated as of March 24, 2005 between
the City and the Escrow Agent, relating to the deposit of funds thereunder for the purpose of
defeasing the Refunded Bonds. .
"Event'ofDefault" means any of the events specified in SeCtion.23 hereof.
"Fitch" means Fitch Investors Service, Inc. and its successors.
"Interest payment Date" means any date on which a payment of principal Of, premium, if
any, or interest on the Bonds is due pursuant tO Section 3(c) hereof.
"Letter oflnstructions" means the Letter of Instructions, dated the date of issuance of the '
Series 2005 Bonds, delivered by Bond Counsel to the City, as it may be superseded or amended
in accordance with its terms.
"Moody's" means Moody's Investor Service and its successors.
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"Ordinance" means this Ordinance, which authorizes the issuance of the .Series 2005
Bonds, inclUding any amendments or supplements hereto.
"Original Parks and Open Space Sales Tax" means the 1.0% Open Space Sales Tax
levied by the City pursuant to the Original Parks and Open Space Sales Tax Ordinance.
"Original Parks and Open Space. Sales Tax Ordinance'' means the City's Ordinance No.
16, Series of 1970.
"Original Purchaser" means Stifel, Nicolaus & Company, IncOrporated Hanifen Imhoff
Division.
"Outstanding" means, as of any date, all Bonds, except the following:
(a) any Bond cancelled by the City or the Paying Agent, or otherwise on the
City's behalf, at or before such date;
(b) any Bond held by or on behalf of the City;
(c) any Bond for the payment or the redemption of which moneys or
Defeasance Securities sufficient to meet all of the payment requirements of the principal
of, interest on, and any premium due in connection with the redemption of such Bond to
the date of maturity or any redemption date thereof, shall have theretofore been deposited
in trust for such purpose in accordance with Section 22 hereof; and
(d) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in
substitution for which another bond or other security shall have been executed and
delivered.
"Owner" means the Person. or Persons in whose name or names a Series 2005 Bond is
registered on the registration books maintained by the Paying Agent pursuant hereto.
"Parks and Open Space Fund" means the City's Parks and Open Space FUnd maintained
by the City pursuant to Section 23.32.060(c)(3) of the City's Municipal Code.
· "Parks and Open Space Sales Tax" means, collectively, the Original' Parks and Open
Space Sales Tax and the Additional Parks 'and Open Space Sales Tax.
"Parks and Open Space Sales Tax Ordinances', means, collectively the Original Parks
and Open Space Sales Tax Ordinance and the Additional Parks and Open Space Sales Tax
Ordinance.
"Paying Agent" means American National Bank, and its successors in interest or assigns
approved by the City.
"Permitted Investments'' means any investment which is permitted for investment of City
Funds by the Charter and all other applicable laws which are included on the 'following list:
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(a)
Cash (insured at all times by the Federal Deposit Insurance Corporation);
(b) Direct obligations of (including obligations issued~or held in book entry
form on the books of) the Department of the Treasury of the United States of America;
(c) obligations of any of the following federal agencies which obligations
represent full faith and credit of the United States of America, including:
Export - Import Bank
Rural Economic Community Development Administration
U.S. Maritime Administration
--- Small Business Administration
U.S. Department of Housing & Urban Development .(PHA' s)
Federal Housing Administration
~ Federal Financing Bank;
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(d) direct obligations of any of the following federal agencies which
obligations are not fully guaranteed by the full faith and credit of the United States of
America: senior debt obligations issued by the Federal National.Mortgage Association
(FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC); obligations of the
Resolution' Funding Corporation (REFCORP); senior debt obligations of the Federal
Home Loan Bank .System; and senior debt obligations of other Government Sponsored
Agencies approved by Ambac;
(e) U.S. dollar denominated deposit accounts, federal funds and banker's
acceptances with domestic commercial banks which have a rating on their short-term
certificates of deposit on the date of purchase of "A 1" or "A 1+" by S&P and "P 1" by
Moody's and maturing 'no more than 360 days after the date of purchase, where ratings
on holding companies are not considered as the rating of the bank;
(f) commercial paper which is rated at the time of purchase in the single
highest classification, "A 1+" by S&P and "P 1'~ by Moody's, and which matures not
more than 270 days after the date of purchase;
(g)
better by S&P;
investments in a money market fund rated "AAAm" or "AAAm---G" or
(h)
pre-refunded municipal obligations defined as follOws:
Any bonds or other obligations, of any state of the United States' of America or of any
agency, instrumentality or local governmental unit of any such state which are not
callable at the option of the obligor prior to maturity or as to which irrevocable
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instructions have been given by the obligor t° call on the date specified in the notice; and
(i) which are rated, based on an irrevocable escrow account or fund (the "escrow"), in the
highest rating category of S&P and Moody's or any successors thereto; or (ii)(A) which
are fully secured as to principal and interest and redemption premium, if any, by an
escrow Consisting only of cash or obligations described in paragraph (a) above, which
escrow may be applied only to the payment of such principal of and interest and
redemption premium, if any, on such bonds or other obligations on the maturity date or
dates thereof or the specified redemption date or dates pursuant to such irrevocable
instructions, as appropriate; and (B) which escrow is sufficient, as verified by a nationally.
recognized independent certified public accountant, to pay principal of and interest and
redemption premium, if any, on the bonds or other obligations described in this paragraph
on the maturity date or dates thereof or on the redemption date or dates specified in the
irrevocable instructions referred to above, as appropriate;
(i) municipal obligations rated "Aaa/AAA", or,general obligations of states
with a rating of at least "A2/A", or higher by both Moody's and S&P; and
(j) investment agreements
writing by the Bond Insurer.
and other forms of investments
approved in
"Person" means a .corporation, firm, other body corporate, partnership, association or
individual and also includes an executor, administrator, truStee,' receiver or other representative
appointed according to law.
"Pledged Revenues" means, for each fiscal year,-all of the proceeds of the Parks and
Open Space Sales Tax after deduction of the reasonable and necessary costs and expenses of
collecting and enforcing the Parks and Open Space Sales, Tax, if any.
"Rebate Fund" means the City of Aspen, Colorado, SaleS Tax Revenue Refunding
Bonds, Series 2005, Rebate Fund created in Section 10 hereof
"Refunded Bonds" means the outstanding City of Aspen, Colorado, Sales Tax Revenue
Bonds, Series 1999 issued pursuant to the Series 1999 Ordinance.
"Reserve Fund" means, as the' context requires, any one or more of the Series 2001
Reserve Fund, the Series 2005 Reserve Fund, and/or any reserve fund or funds established for
Additional Parity Bonds.
"ReServe Fund Contract" has the meaning specified in Section 16(c)(i) hereof.
"Reserve Fund Requirement" means, as of any date on which it is calculated, with respect
to each series of Bonds, the least of (a).10% of the principal amount of such series of. Bonds,
(b) the maximum annual debt service in any calendar year on the Outstanding Bonds of such
series or (c) 125.% of the average annual debt service on the Bonds of such series; provided,
however, that the Reserve Fund Requirement may. be reduced if, in the opinion' of Bond Counsel,
the funding or maintenance of it at the level otherwise determined pursuant to this definition will
adversely affect the exclusion from gross income tax for federal income tax purposes of interest
on any of the Bonds.
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"Revenue Funa~' means the "City of Aspen, Colorado, Parks' and Open Space Sales Tax
Revenue Bonds Revenue Fund" which fund is reaffirmed as such pursuant to Section 10(b)
hereof.
"Sale Certificate" means the certificate executed by the Finance Director under the'
authority delegated pursuant to this Ordinance, including but not limited to the SectiOns hereof
entitled "Bond Details," "Redemption of Bonds Prior to Maturity" and "ApProval of Related
Documents" which set forth, among other things, the prices at which the Bonds will be sold, the
delivery date of the Bonds, interest rates and annual maturing principal for the Bonds, as well as
the dates on which the Bonds may be redeemed and the redemption prices therefor.
"S&P" means Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc., and its successors.
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"Series 1999 Ordinance" means the City's Ordinance No. 31, Series of 1999, pursuant to
which the Refunded Bonds were issued.
"Series 2001 Bonds" means the City of Aspen, Colorado, Open Space Sales Tax.
Revenue Bonds, Series 2001, authorized pursuant to the Series 2001' Ordinance.
"Series 2001 Ordinance" means the City's Ordinance No. 29' Series of 2001, pursuant to
which the Series 2001 Bonds were issued.
"Series 2001 Reserve Fund" means the Reserve Fund established for the Series 2001
Bonds pursuant to Section 10(a)(ii) of the Series 2001 Ordinance.
"Series 2005 Reserve Fund" means the City of Aspen, Colorado, Sales Tax Revenue
Refunding Bonds, Series 2005, Reserve Fund created in Section 10(a)(ii) hereof.
"Series 2005 Surety Bonar' means the Reserve Fund Contract issued by the Bond Insurer
guaranteeing certain payments from the Series 2005 Reserve Fund with respect.to the Series
2005 Bonds.
"State" means the State of Colorado.
Section 2. Authorization and Purpose of Series 2005 Bonds. Pursuant to and in
accordance with the Charter, the City hereby authorizes, and directs that there shall be issued, the
"City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2005" in the aggregate
principal amount set forth in the Sale Certificate (the "Series 2005 Bonds") for the purpose of
refunding the Refunded Bonds, purchasing the Series 2005 Surety Bond, and paying the costs of
issuance of the Series 2005 Bonds.
Section 3. Series 2005 Bond Details.
(a) Registered Form, Denominations, Original Dated Date and Numbering.
The 'Series 2005 Bonds shall .be issued as fully registered bonds in the denominations set
forth in the Sale Certificate, shall be dated as of the date set forth in the Sale Certificate,
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shall be consecutively numbered in the manner determined by the Paying Agent and shall
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be registered in the names of the Persons identified in the registration books of the City
maintained by the ['aying Agent.
(b) Maturity Dates, Principal Amounts and Interest Rates. The Series 2005
Bonds shall mature on November 1 of the years and in the principal amounts, and shall
bear interest at the rates per annum (calculated based on a 360-day year of twelve. 30-day
months) set forth in the Sale Certificate. The City Council hereby delegates to the City
Finance Director the authority to determine the dated date of the. Series 2005 Bonds, the
price at which the Series 2005 Bonds will be sold, the amount of principal of the Series
2005 Bonds maturing in any particular year and'the rate of interest on the Series 2005
Bonds; provided, however, that such final determination made by the City Finance
Director shall be within the parameters set forth below:
(i) The aggregate original principal amount of the Series 2005 Bonds
shall not exceed $13,000,000;
.. (ii) The net effective interest rate of the Series 2005 .Bonds shall not
exceed 4.90% per annum;
(iii) The price or prices at which the Series 2005 Bonds are sold shall
be not less than 98%; and
(iv)
exceed 101%.
The redemption price or prices of the Series 2005 Bonds shall not
(c) Accrual and Dates of Payment of lnterest. Interest on the Series 2005
Bonds shall accrue at the rates set forth in the Sale Certificate from the later of the
original dated date or the latest interest payment date (or in the case of defaulted interest,
the latest date) to which interest has been paid in full and shall be payable on May 1 and
N°vember~l of each year, commencing on the date. set forth in the Sale Certificate. The
City Finance Director is hereby authorized to determine the first interest payment date on
the Series 2005 Bonds.
(d) Manner and Form of Payment. Principal of, premium, if any, and the
final installment of interest on each Series'2005 Bond shall be payable to the Owner
thereof upon presentation and surrender of such bond at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof. Interest
(other than the final installment of interest) on each Series 2005 Bond shall be payable by
check or draft of'the Paying Agent mailed on the interest payment date to the Owner
thereof as of the close of business on the fifteenth day (whether or not such day is a
Business Day) of the month preceding the month in which the Interest Payment Date'
occurs. All payments of the principal of, premium, if any, and interest on the Series 2005
Bonds shall be made in lawful money of the United States of America.
(e) Book-Entry Registration. Notwithstanding any other 'provision hereof,
the Series 2005 Bonds shall be delivered only in book-entry form registered in.the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New
York, acting as securities depository of the Series 2005 Bonds and principal of, premium,
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if any, and interest on the Series 2005 Bonds shall be paid by wire transfer to DTC;
provided, however, if at any time the Paying Agent determines, and notifies the City of
its determination, that DTC is no longer able to act. as, or is no longer satisfactorily
performing its duties as, securities depository for the Series 2005 Bonds, the Paying
Agent may, at its discretion, either (i) designate a substitute securities depository for DTC
and reregister the Series 2005 Bonds as directed by Such substitute securities depository
or (ii) terminate the book-entry registration system and reregister the Series 2005 Bonds
in the names of the beneficial owners thereof provided to it by DTC. Neither the City nor
the Paying Agent shall have any liability to DTC, Cede & Co., any substitute securities
depository, any Person in whose name the series 2005 Bonds are reregistered at the
direction of any substitute securities depository, any beneficial owner of the Series 2005
Bonds or any other Person for (A) any determination made by the Paying Agent pursuant
to the proviso at the end of the immediately preceding sentence or (B) any action taken to
implement such determination and the procedures related thereto that is taken pursuant to
any direction of or in reliance on any information provided by DTC, Cede & Co., any
substitute securities depository or any Person in whose name the Series 2005 l~onds are
reregistered.
Section 4. Form of Series 2005 Bonds. The Series 2005 Bonds shall be in substantially
the form set forth in Appendix A hereto, with such changes thereto,-not inconsistent herewith, as
may be necessary or desirable and approved by the officials of the City executing the same
(whose manual or facsimile signatures thereon shall constitute conclusive evidence of such
approval). Although attached as an appendix for the convenience of the reader, Appendix A is
an integral part of this Ordinance 'and is incorporated herein as if set forth in full in the body of
this Ordinance.
Section 5. Registration, Transfer and Exchange of Series 2005 Bonds. The Paying
Agent shall maintain registration books in which the ownership, transfer and exchange of Series
2005 Bonds shall be recorded. The Person in whose name any Series 2005 Bond shall be
registered on such regiStration books shall be deemed to be the absolute owner thereof for all
purposes, whether or not payment on any Series 2005 Bond shall be overdue, and neither the
City nor the Paying Agent shall be affected by any notice or other information to the contrary.
The Series 2005 Bonds may be transferred or exchanged, at the principal office of the Paying
Agent in the City identified in the definition of Paying Agent in Section 1 hereof, for a like
aggregate principal amount of Series 2005 Bonds of other authorized denominations of the same
maturity and interest rate, upon payment by the transferee of a transfer fee, any tax or
governmental charge required to be paid with respect to such transfer or exchange and any cost
of printing bonds in connection therewith. Upon surrender for transfer of any Series 2005 Bond,
duly endorsed for transfer or.accompanied by an assignment duly executed by the Owner or his
or her attorney duly.authorized in writing, the City shall execute and the Paying Agent shall
authenticate and deliVer in the name of the transferee a new Series 2005 Bond.
Section 6. Replacement of Lost, Destroyed or Stolen Series 20.05 Bonds. If any
Series 2005 Bond shall become lost, apparently destroyed, stolen or wrongfully taken' it may be
replaced in the form and tenor of the lost, destroyed, stolen or taken bond and the City shall
execute and the Paying Agent shall authenticate and deliver a replacement Series 2005 Bond
upon the Owner furnishing, .to the satisfaction of the Paying Agent: (a) proof of ownership
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(which shall be shown by the registration books of the Paying Agent), (b)proof of loss,
destruction or theft, (c) an indemnity to the City and the Paying Agent with respect to the Series
2005 Bond lost, destroyed or taken, and (d) payment of the cost of preparing and executing the
new bond or bonds.
Section 7. Execution of Series 2005 Bonds. The Series 2005 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 of the City, shall bear a manual or facsimile of the seal of the City and shall be
attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant City Clerk,
all of whom are hereby authorized and directed to prepare and execute the Series 2005 Bonds in
accordance with the requirements hereof. Should any officer whose manual or facsimile
signature appears on the Series 2005 Bonds cease to be such officer before delivery of any Series
2005 Bond, such manual or facsimile signature shall nevertheless be valid and sufficient for all
purposes. When the Series 2005 Bonds have been duly executed, the officers of the City are
authorized to, and shall, deliver the Series 2005 Bonds to the Paying Agent for authentication.
No Series 2005 Bond shall be secured by or entitled to the benefit of this Ordinance, or shall be
valid or obligatory for any purpose, unless the certificate of authentication of the Paying Agent
has been manually' executed by an authorized signatory of the Paying Agent. The executed
certificate of authentication of the Paying Agent upon any Series 2005 Bond shall be conclusive
evidence, and the only competent evidence, that 'such Series 2005 Bond has been properly
authenticated and delivered hereunder.
Section 8. Redemption of Series 2005 Bonds Prior to Maturity.
(a) Optional Redemption. The Series 2005 Bonds shall be subject ~o
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 on such dates as set
forth in the Sale Certificate. The City Council hereby delegates to the City' Finance
Director the authority to determine the dates on which the Series 2005 Bonds shall be
.
subject to optional redemption and the redemptiOn price or prices at which such
· redemption may be made, provided, however, that such redemption price'or prices shall
not exceed 101% of the principal amount so redeemed.
(b) Mandatory Sinking Fund Redemption.' The Series 2005 Bonds shall be
subject to mandatory sinking fund redemption by lot on November 1 of the years and in
the principal amounts specified in the Sale Certificate, at a redemption price equal to the
principal amount to be redeemed (with no redemption premium), plus accrued interest to
the redemption date. The City Council hereby delegates to the City Finance Director the
authority to determine the dates on which the Series 2005 Bonds shall be subject to
mandatory sinking fund redemption.
If the Sale Certificate designates mandatory sinking fund redemption dates for the
Series 2005 Bonds, the. City, at its option, to be exercised on or before the forty-fifth day
next preceding each sinking fund redemption date, may (i)purchase and cancel any
Series 2005 Bonds with the same maturity date as the Series 2005 Bonds subject to such
sinking fund redemption and (ii) receive a credit in respect of its sinking fund redemption
obligation for any Series 2005 Bonds with the same maturity date as the Series 2005
02-200005.4 12
Bonds subject to such sinking fund redemption which priOr to such date have been
redeemed (otherwise than through the operation of the sinking fund) and cancelled and
not theretofore applied as a credit against any sinking fund redemption obligation. Each
Series 2005 Bond so purchased and cancelled or previously redeemed shall be credited at
the principal amount thereof to the obligation of the City on such sinking fund
redemption date, and the principal amount of Series 2005 Bonds to be redeemed by
operation of such sinking fund on such date shall be accordingly reduced.
(c) Redemption Procedures. Notice of any redemption of Series 2005 Bonds
shall be given by sending a copy of such notice by first-class, postage prepaid mail, not
less than 30 days prior to the redemption date, to the Owner of each Series 2005 Bond
being redeemed. Such notice shall specify the number or numbers of the Series 2005
Bonds so to be redeemed '(if redemption shall be in part) and the redemption date. If any
Series 2005 Bond shall have been duly called for redemption and if, on or before the
redemption date, the City shall have set aside funds sufficient to pay the redemption price
of such' Series 2005 'Bond on the redemption date, then such Series.20.05 Bond shall
become due and payable at suCh redemption date, and from and after such date interest
will cease to accrue thereon. Failure to deliver any redemption notice or any defect in
any redemption notice shall not affect the. validity of the proceeding for the redemption of
Series 2005 Bonds with respect to which such failure or defect did not occur. Any Series
2005' Bond redeemed prior to its maturity by prior redemption or otherwise shall not be
reissued and shall be cancelled.
Section 9. Delivery of Series 2005 Bonds Upon Original Issuance. Prior to the
authentication and delivery by the Paying Agent of the Series 2005 Bonds in connection with
their original issuance there shall be filed with _the Paying Agent (a)a certified copy of this
Ordinance and (b)a request and authorization to the Paying Agent on behalf of the City and
signed by the Mayor or Mayor Pro Tem to authenticate the Series 2005 Bonds and to deliver the
Series 2005 Bonds to the Original Purchaser or the Persons designated therein, upon payment to
the City of a sum.specified in such request and authorization plus accrued interest thereon to the
date of delivery. Upon the authentication of the Series 2005 Bonds, the Paying Agent shall
deliver the same to the Original Purchaser or its designee as directed in such request and
authorization.
Section 10. Creation and Reaffirmation of Funds and Accounts.
(a)
There is hereby created by the City the following funds and accounts:
(i) the Series 2005 Rebate Fund, designated as the "City of Aspen,
Colorado, Sales Tax Revenue Refunding Bonds, Series 2005, Rebate Fund;" and
(ii) the Series 2005 Reserve Fund, designated as the "City of Aspen,
Colorado, Sales Tax Revenue.Refunding Bonds, Series 2005, Reserve Fund."
(b) The following funds, originally created pursuant to Section 13 of the
Series 1999 Ordinance and renamed pursuant to Section 10(b) of the Series 2001
Ordinance, are hereby reaffirmed as follows:
02-200005.4 13
(i) the Bond Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Bond Fund;" and
.(ii) the Revenue Fund is hereby reaffirmed as the "City of 'Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Revenue Fund."
Section 11. Application of Proceeds of Series 2005 Bonds. The proceeds received by
the City from the sale of the Series 2005 Bonds shall be applied in the manner set forth in the
Sale Certificate. The City Council hereby authorizes the City Finance Director to make such
determinations as to the application of such proceeds in' accordance with the provisions of this
Ordinance. The City Council hereby authorizes the City 'Finance Director to allocate such
proceeds to the purchase of the Series 2005 Surety Bond or to deposit proceeds in the Series
2005 Reserve Fund, as determined by the City Finance Director.
Section 12. Special Obligations; Pledge and Lien. for Payment of Bonds.
(a) · Series 2005 Bonds. The City hereby ~pledges the pledged Revenues, the
Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund for'the payment .of the
principal of, premium, if any, and interest on the Series 2005 Bonds at any time
Outstanding, and grants an irrevocable and first lien for such purpose on the Pledged
Revenues, the Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund.
(b) Series 2001 Bonds. The City hereby further pledges the Pledged'
Revenues, the Bond Fund, the Series 2001 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2001 Bonds at
any time Outstanding, and grants an irrevocable and first lien for such purpose on the
Pledged Revenues, the Bond Fund, the Series 2001 Reserve' Fund and the Revenue Fund.
(c) Additional-Parity Bonds. Subject to Section 13 hereof, the City also
hereby pledges the Pledged Revenues, the Bond Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on any Additional Parity Bonds
at any time Outstanding, and grants an irrevocable and first lien for such purpose on the
Pledged Revenues, the Bond Fund and the Revenue Fund.
(d) Equally and Ratably SecUred. The Bonds shall be equally and ratably
secured by the pledge of and lien on the Pledged Revenues, the Bond Fund and the
Revenue Fund granted by this Section and shall not be entitled to any priority one over
the other in the application of Pledged Revenues or the moneys on deposit at any time in
the Bond Fund and the Revenue Fund.
(e) Superior Liens Prohibited. The City shall not pledge or create any other
lien on the revenues and moneys pledged pursuant to this Section that is superior to the
pledge thereof or lien thereon pursuant hereto.
(f) Subordinate Liens Permitted. Nothing herein shall prohibit the City from
pledging or creating a. lien on the.revenues and moneys pledged and the lien created
pursuant to subsections (a), (b) and (c) of this Section that is subordinate to the pledge'
thereof or lien thereon pursuant to such subsections, provided that no such subordinate
02-200005.4 14
pledge or lien shall be created unless and until there is delivered to the Paying Agent a
written certification by the Mayor that no Event of Default has occurred and is
continuing.
(g) No Prohibition on Additional Security.. Nothing herein shall prohibit the
City from (i) using, Pledging or granting a lien on any revenues from the Parks and Open
Space Sales Tax that are not Pledged Revenues or any other moneYs for the payment of
the principal of, premium, if any, or interest on the Bonds or (ii) depositing any revenues
from the Parks and Open Space Sales Tax that are not Pledged Revenues or any other
moneys into the Bond Fund or the Revenue Fund (and thereby subjecting the moneys so
deposited to the pledge made and lien granted by this Section).
: ·
(h) Bonds are Special, Limited Obligations of the City. The Bonds are
special, limited obligations of the City payable solely from and secured solelY by the
Pledged Revenues and the other sources specified in this Ordinance and shall not be
deemed or construed as creating a debt or indebtedness of the City within the meaning of
any constitutional or. statutory limitation.
· Section 13. Conditions to Issuance of Additional Parity Bonds. So long as any Bonds
may be Outstanding:
(a) Limitations Upon Issuance of Additional Parity Bonds. Nothing in this
Ordinance shall be construed to prevent the issuance by the City of Additional Parity
Bonds (including refunding obligations) payable in whole or in part from the Pledged
Revenues (or any designated part thereof) and constituting a lien thereon on a parity with,
but not prior or superior to, the lien of the Series 2005 Bonds, Series 2001 Bonds and any
previously issued Additional Parity Bonds; provided, however, that before. any such
Additional Parity Bonds are authorized or actually issued:
(i) The City is then current in all payments required to have been
accumulated in the Bond Fund, the Series 2005 Reserve Fund, the Series 2001
Reserve Fund and any reserve fund .maintained with respect to any then
Outstanding series of Additional Parity Bonds, and there is not otherwise an
Event of DefaUlt as defined in Section 23 hereof.
(ii) The revenues derived from the entire Pledged Revenues for the
twelve consecutive calendar months immediately preceding the month of issuance
of such Additional Parity Bonds shall have been sufficient to pay an amount equal
to 150% of the combined maximum annual princiPal and interest requirements (to
and including the final maturity of each then-Outstanding series of Bonds) on the
then-Outstanding Bonds and on the Additional Parity Bonds then proposed to be
issued (including any reserve requirements therefor).
(iii) The ordinance authorizing such Additional Pa. rity Bonds shall
require that a reserve fund for Additional Parity Bonds be Created in an amount
equal to the Reserve Fund Requirement for such Additional Parity Bonds. The
02-200005.4 1 5
City may, however, comply with the Reserve Fund Requirement. through a
Reserve Fund Contract that meets the standards established in Section 16 hereof.
(b) Certificate of Revenues. A written certification by a certified public
accountant who is not a regular Salaried employee of the City that such Pledged Revenues
are sufficient to pay the amounts required by paragraph (a)(ii) of this Section shall be
conclusively presumed to be accurate in determining the fight of the City to authorize,
issue,, sell and deliver Additional Parity Bonds.
(c) Subordinate Obligations Permitted. Nothing in this Ordinance shall be
construed to prevent the issuance by 'the City of additional obligations (including
refunding obligations) payable from the Pledged Revenues (or any designated part
thereof) and having a lien thereon subordinate or junior to the lien of the Bonds.
(d) Superior Obligations Prohibited. Nothing' in this Ordinance shall be
construed to permit the City to issue additional obligations (including refunding
obligations) payable from the Pledged Revenues (or any designated part. thereof)' having a
lien thereon prior and superior to the lien of the Bonds.
(e) Refunding Obligations. The provisions of this Section are subject to the
following exception:
(i) Privilege of Issuing Refunding Obligations. If at any time after '
any of the Bonds, or any part thereof, shall have been issued and remain
Outstanding, the City shall' find it .desirable to refund all or any part of the
Outstanding Bonds, such Bonds, or any part thereof, may be refunded (but only
with the consent of the Owner or Owners thereof, unless such Bonds, at the time
of their required surrender for payment, shall then x:namre, or shall then be subject
to redemption prior to maturity).
(ii) Limitations Upon Issuance of Parity Refunding Obligations. No
refunding obligations payable from the Pledged Revenues (or any designated part
thereof) shall be issued on a parity with the Series 2001 Bonds and Series 2005
Bonds, unless:
(A) the lien on such Pledged Revenues of the outstanding
obligations so refunded is on a parity with the lien thereon of the Series
2001 Bonds and Series 2005 Bonds; or
(B) the.refunding obligations are issued in compliance with
subsection (a)of this Section.
(iii) Partial Refunding of Bbnds. Any refunding obligations so issued
to refund any of the Bonds shall enjoy complete equali.ty of lien with any Bonds
which are not refunded.
(iv) Limitations Upon Refundings. Any refunding obligations payable
from the Pledged Revenues may be issued with such,details as the City may by
02-200005.4 .! 6
ordinance provide, but without any impairment of any contractual obligations
imposed upon the City by this Ordinance.
Section 14. Application of .Pledged Revenues. So long as any of the Bonds shali
remain Outstanding, all Pledged Revenues, as they are received, shall be transf6rred from 'the
Parks and Open Space Fund or any other funds or accounts to which they are required to be
deposited by the .Section 23-32-060(c)(7) of the City's Municipal Code or otherwise, and shall
thereupon be deposited into the Revenue Fund, and the Pledged Revenues are hereby
appropriated for such purpose. Moneys on deposit in the Revenue Fund shall be transferred from
the Revenue Fund and applied to the following purposes and in the following order of priority:
(a) FIRST, there shall be credited to the Bond Fund an amount necessary,
together with any moneys therein and available therefor, to pay the next due installment
of principal of, premium, if any, and interest on the Bonds;
(b)- SECOND, there, shall be credited,-on a pro rata basis, to the Series 2005
Reserve Fund, the Series 2001 Reserv~ Fund and any reserve fund or funds created with
respect to any series of Additional Parity Bonds an amount, if any, necessary to increase
the amount on deposit in each of such funds to the Reserve Fund Requirement for such
· fund or to repay the provider of a Reserve Fund Contract for a drawing thereon. No
paYment need be made into any such fund so long as the.moneys therein shall equal not
less than the Reserve Fund Requirement for such fund and no draw has been made on anY
Reserve Fund Contract deposited in such fund. The Reserve Fund Requirement.for each
such fund shall be accumulated and maintained in each such fund as a continuing reserve
to be used, except as hereinafter provided, only to prevent deficiencies in the payment of
the principal of, premium, if any, and interest on the Bonds.
(c). THIRD, there shall be credited to the Parks and Open Space Fund or,
subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances
and the City's Municipal Code, used in any lawful manner by the City, any amounts
remaining after making the deposits required by subsections (a). and (b).of this Section.
(d) Notwithstanding subsections (a) and (b) of this Section, no payment need
be made pursuant to. subsection (a) or (b) of-this Section into either the Bond Fund, the
Series 2005 Reserve Fund, the Series 2001 Reserve Fund or any reserve fund created for
a series of Additional Parity Bonds if the on deposit in such funds total a sum at least
equal to the entire amount of the Outstanding Bonds as to any princiPal, premium, if any,
and interest requirements, to their respective maturities, or to any redemption date on
which the City shall have exercised its option to redeem all or a portion of the Bonds then
Outstanding and thereafter maturing, and both accrued and not accrued, in which case
moneys in such funds in an amount at least equal to such principal, Premium, if any, and
interest requirements shall be used solely to pay such as the same accrue, and any moneys
in excess thereof in such funds may, subject to any limitations in the Parks and Open
Space Sales Tax Ordinances or the City's Municipal Code, be used in any lawful manner
by the City.
02-200005.4 17
Secti°n 15. Bond Fund. Moneys in the Bond Fund shall be used solely for. the purpose
of paying the principal of, premium, if any, and interest on the Bonds.
Section 16. Series 2005 Reserve Fund.
(a) Use of Moneys .in Series 2005 Reserve Fund. If on any date specified in
Section 18 hereof, the City shall have for any reason failed to pay to the Paying Agent the
full-amount required to pay the next installment of principal of or interest on the Bonds,
then an amount equal to the mnount needed to bring the amount in. the Bond' Fund to the
full amount so required shall be immediately paid, pro rata, to the Paying Agent from: (i)
the Series 2005 Reserve Fund with respect to the portion of the deficiency cOrresponding
to the amounts due on the Series 2005 Bonds; (ii) the Series 2001 Reserve Fund with
respect to the portion of the deficiency corresponding to the amounts due on the Series
2001 Bonds; and (iii) any reserve fund or funds created with respect to any series of
Additional Parity Bonds with respect to the portion of the deficiency corresponding to the
amounts due on such series of Additional Parity Bonds. The money so used shall be
replaced in the Series"'2005 Reserve Fund, the Series 2001 Reserve Fund and any such
other reserve fund or funds on a pro rata basis from the first Pledged Revenues thereafter
received not required to be otherwise applied hereunder, but excluding any payments
required for any subordinate obligations. If in any period the City shall for any reason
fail to pay into the Series 2005 Reserve Fund, the Series 2001 Reserve fund or any such
other reserve fund or funds the full amount above stipulated from the Pledged Revenues,
the difference between the amount paid and the amount so stipulated shall in a like'
manner be deposited therein from the first Pledged Revenues thereafter received 'not
required to be applied otherwise by this Section, but excluding any payments required for
any subordinate obligations. Moneys in the Series 2005 Reserve Fund, the Series 2001
Reserve Fund and any such other reserve fund shall be used solely for the purpose of
paying the principal of, premium, if any, and interest on the series of Bonds with respect
to which such fund is maintained.
(b) Use of Moneys in Excess of Reserve Fund Requirement Any moneys at
any time in excess of the Reserve Fund Requirement in the Series 2005 Reserve Fund,
the Series 2001 Reserve Fund or any reserve fund or funds maintained with respect 'to
any series of Additional Parity Bonds may be withdrawn therefrom and, subject to any
limitation in the Charter, the Parks and Open Space Sales Tax' Ordinances and the City's
Municipal Code, used in any lawful manner by the City.
(c)
Reserve Fund Contract.
(i) The City may substitute for the cash or. Permitted Investments in
any Reserve Fund a surety bond issued by an insurance company rated in the
highest rating category by S&P and Moody's (a "Reserve Fund Contract"), so
long as the amount on deposit in any Reserve Fund after such substitution is at
least equal to the ReserVe Fund Requirement applicable to ..such ReServe Fund. In
the event the City shall substitute a Reserve Fund Contract for the cash or
Permitted Investments in any Reserve Fund, the amount on deposit in any
Reserve Fund shall be that amount available to be drawn or otherwise paid
02-200005.4 '18
pursuant to such surety bond at the time of calculation. If any Reserve Fund shall
include both cash or Permitted Investments and a Reserve Fund Contract, the cash
and Permitted Investments shall be used before any demand is made on any'
Reserve Fund Contract. Notwithstanding the foregoing, prior to such substitution,
the City must receive an opinion of nationally recognized municipal bond counsel.
to.the effect that such substitution and the intended use by the City of the cash or
Permitted Investments to be released from any Reserve Fund will not adversely
affect the exclusion from gross income for federal income tax purposes of interest
on the Bonds to which such Reserve Fund applies.
(ii) The Series 2005 Surety Bond is hereby recognized to be a Reserve
Fund Contract described in paragraph (i) of this subsection (c). Upon issuance
thereof by the Bond Insurer, the Series 2005 Surety Bond shall be deposited in the
Series 2005 Reserve Fund and shall be used in the' manner described in paragraph
(i) of this subsection (c)..
(d) ValUation of Deposits. Cash shall satisfy the Reserve Fund Requirement
for the .Series 2005 Reserve Fund by the amount of caSh on deposit. Permitted
Investments shall SatisfY the Reserve Fund Requirement by the value of such
investments. The value of each Permitted Investment on deposit in the Series 2005
Reserve Fund, the Series 2001 Reserve Fund and any reserve fund or funds created with
respect to any series of Additional Parity Bonds' shall be (i)its purchase price from the
date of purchase until the first date thereafter on which the Reserve Fund Requirement is
calculated pursuant to subsection (e) of this Section and (ii) following each date on which
the Reserve Fund Requirement is calculated pursuant to subsection (e) of this Section
until the next date on which the Reserve Fund Requirement is so calculated, its fair
market value determined as of such calculation date. A Reserve Fund Contract shall
·
satisfy the Reserve Fund Requirement by the amount payable to the. City pursuant to such
contract.
(e) Calculation of Reserve Fund Requirement and Transfers Resulting
from .Calculation. The Reserve Fund Requirement for each of the Series 2005 Reserve
Fund, the Series 2001 Reserve Fund and any reserve fund or funds created with respect to
anY series of Additional Parity. Bonds shall be calculated as of (i) the date of issuance of
the Series 2005 Bonds, (ii) the date of issuance of each series of Additional Parity,Bonds
and (iii)each November 1, commencing November 1, 2005. If, on any calculation date,
the amount on deposit in any of such funds is less than the Reserve Fund Requirement for
Such fund, Pledged Revenues shall be deposited into such fund as provided in Section 14
hereof to the extent necessary to satisfy the Reserve Fund Requirement in cash or by the
· purchase.of Permitted Investments or a Reserve Fund Contract.".
Section 17. Rebate Fund. The City shall deposit earnings from the investment of
proceeds of the Series 2005 Bonds, earnings from the investment of moneys on deposit in the
Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund or other, legally available
moneys in the Rebate Fund in the amounts and at the times provided in the. Letter of Instructions.
Earnings. from the investment of moneys on deposit in the Rebate Fund shall be retained in the
02-200005.4 1 9
Rebate Fund.
Instructions.
Moneys on deposit in the Rebate Fund shall be used as provided in the Letter of
Section 18. Payments to and by Paying Agent.
(a) Payments to Paying Ageng No later than the Business Day immediately
preceding each Interest Payment' Date, the City shall deliver moneys to the Paying Agent
in an amount sufficient to pay the principal of, premium, if any, and interest on the Bonds
on such date from the sources and in the Priority order set forth below:
First, from moneys on deposit in the Bond Fund; and
Second, if and to the extent the moneys on deposit in the Bond Fund are
not sufficient to pay the principal of, premium, if any, or interest due on the
Bonds on such date, from the Series 2005 Reserve Fund, the Series 2001 Reserve
Fund and any reserve fund maintained with respect to any series of Additional
Parity Bonds, on a pro rata basis, pursuant to Section 16 hereof.
(b) Payments by Paying Agent The Paying Agent shall use the moneys
'delivered to it pursuant to subsection (a) of this Section to pay the principal of, premium,
if any, and interest on the Bonds when due.
Section 19. General Administration of Funds.. The funds and accounts established
pursuant to this Ordinance, with the exception of the Rebate Fund, shall be administered as
follows, subject to the limitations stated in Sections 16 and 21 of this Ordinance:
(a) Investment of Money· Any moneys in any such fund and account may be
invested~ in permitted Investments. The obligations in which moneys in each fund or
account are invested shall be deemed at all times to be part of the respective fund or
account, and any appreciation or loss resulting therefrom shall be recorded to such fund
or account. Interest accruing on the inVestment of any moneys in the Series 2005
Reserve Fund shall be deposited as received into the Revenue Fund, and interest acCruing
on the investment of any moneys in any other such fund or account shall be credited to
the fund or account from which it is derived. The City Finance Director shall present for
redemption or sale.-in the prevailing market any obligations so purchased as an
investment of moneys in the fund or account whenever it shall be necessary to do so in
order to provide moneys to meet any payment or transfer from said fund or account.
(b) Deposits of Funds. The moneys and.investments comprising each of such
funds and accounts shall be deposited in one or more banks or 'savings and loans
associations, each of which is a member of the Federal Deposit Insurance Corporation.
Each payment shall be made into and credited to the proper fund or account on the date
specified, but if such date shall be other than a Business Day, such payment shall be
made on the next preceding Business Day. Nothing herein shall prevent the
establishment of one or more such bank accounts, for all of such fundg and accounts, or
shall prevent the combination of such funds and accounts with any other bank account or
accounts for other accounts of the City.
02-200005.4
'2o
Section 20. Additional General Covenants. In addition to the other covenants of the
City Contained herein, the City hereby further covenants for the benefit of Owners of the Bonds
that:
(a) Payment of Series 2005 Bonds. The City will promptly pay or cause to
be paid the principal of, premium, if any, and interest on the Series 2005 Bonds, at the
place, on 'the dates and in the manner provided in this Ordinance, according to the tree
intent and meaning of this Ordinance.
(b) No Repeal or Modification of Parks and Open Space Sales Tax
Ordinances or Applicable Sections of City's Municipal Code. The City shall not repeal
the Parks and Open Space Sales Tax Ordinances or adopt any modification of such
ordinances or any provisions of the City's Municipal Code which would impair the
Pledged Revenues.
(c) Duty to Impose Open Space Sales Tax. If the Parks. and Open .Space
Sales Tax Ordinances, the provisions of the City's .Municipal Code referred to in
subsection (b) of this Section or any modifying or supplemental instrument thereto not
contravening the limitations of subsection (b) of this Section, or any part of such
ordinances or such portions of the City's Municipal. Code, shall ever be held to be invalid
or unenforceable or shall otherwise be terminated, it shall be the duty of the City, to the
extent possible under then exiSting law, to adopt immediately such ordinances, to seek
such voter approval, if any, as may then be required by law, or to take any other action
necessary to produce at least the same .amount of Pledged Revenues as would have
otherwise been produced under, the terms of such ordinances and such portions of the
City's Municipal Code. '
(d) Impairment of Contract The City agrees that any law, ordinance or
resolution of the City in any manner affecting the Pledged Revenues or the Bonds, shall
not be repealed or otherwise directly or indirectly modified in such a manner as to impair
any Bonds Outstanding, unless in the case of this Ordinance the required consent of the
Owners of the then OutStanding Bonds is obtained pursuant to Section 25 of this
Ordinance.
(e) Records. So long as any of the Bonds remain Outstanding, proper books.
of record and account will be kept by the City, separate and apart from all other records
and accounts, showing complete and correct entries of all transactions relating to the
Pledged Revenues. The Owners of any Bonds shall have the fight at any reasonable time
to inspect, such records and accounts.
(f) Audits. The City further agrees that it will, Within 120 days following the
close of each fiscal year, cause an audit of such books and accounts to be .made by an
independent certified public accountant, showing the revenues and expenditures of the
Pledged Revenues. The City agrees to furnish forthwith a copy of each such audit to the
Owner of any Bond at his request, and without request to the original Purchaser. Any
such Owner shall have the right to discuss with the accountant or person making the audit
its contents and to ask for such additional information as he may reasonably require.
02-200005.4
21.
(g) Extending Interest Payments. In order to prevent any accumulation of
claims for interest after maturity, the City will not directly or indirectly extend or assent
to the extension of time for the payment of any claim for interest on any of the Bonds and
it will not directly or indirectly be a party to or approve any such arrangement; and in
case the time for payment of any interest shall be extended, such installment or
installments of interest after such extension or arrangement shall not be entitled in case of
default hereunder to the benefit or security of this Ordinance except subject' to the prior
payment in full of the principal of all Bonds and then Outstanding, and of matured
interest on such Bonds, the payment of which has not been extended.
(h) Performing'Duties. The City will faithfully and punctually perform all
duties with respect to the Pledged Revenues required by the Charter and the Constitution
and laws of the State of Colorado, and the ordinances, and resolutions of the City,
including but not limited to, the proper segregation of the Pledged Revenues and their
application to the respective hnds.
(i) Other Liens. Other than that granted for-the Bonds herein, there are
presently no other liens or encumbrances of any nature whatsoever on or against the
· Pledged Revenues.
(j) City's Existence. The City will maintain its corporate identity and
existence so long as any of the Bonds remain Outstanding, unless another body corporate
and politic by operation of law succeeds to the duties, privileges, powers, liabilities,
disabilities, immunities and fights of the City and is obligated by law to receive and
distribute the Pledged Revenues in place of the City, without affecting to any substantial
degree the privileges and fights of any Owner of any Outstanding Bond.
Section 21. Covenants Regarding Exclusion of Interest on Series 2005 Bonds from
Gross Income for Federal Income Tax Purposes. For purposes of ensuring that the interest on
the Series 2005 Bonds is and remains excluded from gross income for federal income tax
purposes, the City hereby covenants that:
(a) Prohibited Actions. The City will not use or permit the use of any
proceeds of the Series 2005 Bonds or any other funds of the City from whatever source
derived, directly or indirectly, to/~cquire any securities or obligations and shall r~ot take
or permit to be taken any other action or actions, which would cause any Series 2005
Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code, or would
otherwise cause the interest on any Series 2005 Bond to be includible in gross income for
0
federal income tax purposes.
(b) Affirmative Actions. The City will at all times do and perform all acts
permitted by law that are necessary in order to assure that interest paid by the City on the
Series 2005 Bonds shall not be includible in 'gross income for federal income tax
purposes under the Code or any other valid provision of law. In partigular, but without
limitation, the City represents, warrants and covenants to comply With the following roles
unless it receives an opinion of Bond Counsel stating that such compliance is not
necessary: (i) gross proceeds of the Series 2005 Bonds will not be used in a manner that
02-200005.4 22
will cause the Series 2005 Bonds to be considered "private activity bonds'.' within the
meaning of the Code; (ii) the Series 2005 Bonds are not and will not become directly or
indirectly "federally gUaranteed"; and (iii)the City will timely file Internal Revenue
Form 8038-G which shall contain the information required to be filed pursuant to
Section 149(e) of. the Code.
(c) Letter of Instructions. The City will 'comply with .the Letter of
Instructions, including but not limited by 'the provisions of the Letter of Instructions
regarding the application and investment of Series 20.05 Bond proceeds, the calculations,
the deposits, the disbursements, the investments and the retention of records described in
the Letter of Instructions; provided that, in the event the original Letter of Instructions is
superseded or amended by a new Letter of Instructions drafted by, and accompanied by
an Opinion of, Bond Counsel stating that the use of the new Letter of Instructions will not
cause the interest on 'the Series 2005 Bonds to become includible in gross income for
federal income tax purposes, the City will .thereafter comply 'with the new Letter of
Instructions.
Section 22. Defeasance. Any Series 2005 Bond shall not be deemed to be Outstanding
hereunder if it shall have been paid and cancelled or if cash or Defeasance Securities shall have
been deposited in trust for the payment thereo, f (whether upon or prior to the maturity of such
Series 2005 Bond, but if such Series 2005 Bond is to be paid prior to maturity, the City shall
have given the PaYing Agent irrevocable directions' to give notice of redemption as required by
this Ordinance, or such notice shall have been given'in accordance with this Ordinance). In
computing the amount of the deposit described above, the City may include interest to be earned
on the Defeasance Securities. If less than all the Series 2005 Bonds are to be defeased pursuant
to this Section, the City, in its sole discretion, may select which of the Series 2005 Bonds shall
be defeased.
Notwithstanding anything in this Bond Ordinance to the contrary, in the event that the..
principal and/or interest due on the Series 2005 Bonds shall b6 paid by the Bond Insurer pursuant
to the Bond Insurance Policy, the Series 2005 Bonds shall remain Outstanding for all purposes,
not be defeased or otherwise satisfied and not be cOnsidered paid by the .City, and the assignment
and pledge of the Pledged Revenues and all covenants, agreements and other obligations of the
City to the Owners shall continue to exist and shall run to the benefit of the Bond Insurer, and the
.Bond Insurer shall be subrogated to the fights of such Owners.
Section 23. Events · of Default.
declared to constitute an Event of Default:
If 'any of the following events occurs, it is hereby
(a) default in the due and punctual payment of the principal of, premium, if
any, or interest on any Bond whether at maturity thereof, or upon proceedings for
redemption thereof; or
(b)
hereunder; or
the City is for any reason rendered incapable of fulfilli.ng its obligations
02-200005.4 23
(c) default in the due and punctual performance of the City's covenants or
conditions, agreements and provisions as set forth in this Ordinance, other than those
delineated in paragraphs (a) and (b) of this Section, and such default has continued-for 60
days after written notice specifying the default and requiting the same to be remedied has
been given to the City by the Owners of 25% in principal amount of the Bonds then
Outstanding; or
(d) the City shall file a petition for bankruptcy or shall be declared insolvent
by a court of competent jurisdiction.
Section 24. Remedies for and Duties Upon Events of Default.
· .
(a) Remedies for Events of Default. Upon the happening and continuance of
any of the Events of Default as provided in SeCtion 23 of this Ordinance, then and in
every case, the Owner or Owners 6f not less than 25% in principal amount of the Bonds
then Outstanding, including but not limited to, a trustee or trustees therefor, may proceed
against the City and its "agents, officers and employees., .to protect and enforce the rights
of any Owner of Bonds under this Ordinance by mandamus or other suit, action or Special
proceedings in equity or at law, in any court of competent jurisdiction, either for the
specific performance of any covenant or agreement contained herein or in an award of
execution of any power herein granted for the enforcement of any proper legal or
equitable remedy as such Owner or Owners may deem most effectual to protect and
enforce the rights aforesaid, or thereby to enjoin any act or thing which may be unlawful
or in violation of any right of any Owner, or to require the governing body to act as if it
were the trustee of an express trust, or any combination of such remedies, All such
proceedings at law or in equity shall be instituted, had and maintained for the equal
benefit of all Owners of the Bonds then Outstanding. The failure of any such Owner so
to proceed shall not relieve the City or any of its officers, agents or' employees of any
liability for failure to perform'any duty. 'Each right or privilege of any such Owner (or
trustee thereof) is in addition and cumulative to any other right or privilege, and the
exercise of any fight or privilege by or on behalf of any Owner shall not be deemed a
waiver of any other right or privilege thereof.
',
(b) Duties Upon Events of Default. Upon the happening of any of the Events
of Default as provided in Section 23 of this Ordinance, the City will do and perform all
proper acts on behalf of and for the Owners of the Bonds to protect and preserve the
security created for the payment of their Bonds and to insure the payment of the principal
of, premium, if any, and interest on Bonds promptly as the same become due. All
proceeds derived from the Pledged Revenues, during such period of default and so long
as any of the Bonds, as to any principal, premium, if any, and interest are Outstanding
and unpaid, shall be' paid into the Bond Fund, and used for the purposes herein provided.
In the event the City fails or refuses to proceed as provided in this Section, the Owner or
Owners of not less than 25% in principal amount of the Bonds then Outstanding, after
demand in writing, may proceed to protect and enforce the fights of the. Owners as herein
provided.
02-200005.4 24
Section25. Amendment of Ordinance. This Ordinance may be' amended or
supplemented by ordinance adopted by the City Council in accordance with law, without receipt
by the City.of additional considerations and without the consent of the Owners, to make any
amendment or supplement to this Ordinan.ce which, in the opinion of Bond Counsel, .is not to the
material prejudice of the Owners. This Ordinance~ may be amended or supplement6d by
ordinance adopted by the City Council in accordance with law, without receipt by the City of any
additional consideration, but with the written consent of the Owners of 66-2/3% of the Bonds
Outstanding at the time of the adoption of the amendatory ordinance, excluding any Bonds held
for the account of the City; provided, however, that no such ordinance, without the consent of the
Owners of all Outstanding Bonds which will be adversely affected, shall have the effect of
permitting'
(a) an extension of the maturity of any Bond; or
·
(b) a reduction in the principal amount of any Bond, the rate of interest
thereon, or the premium payable thereon; or
(c) the creation of a lien upon or pledge of Pledged Revenues ranking prior to
the lien or pledge of Pledged Revenues created by this Ordinance; or
(d) a reduction of the principal amount of Bonds required for consent to sUch
amendatory or supplemental ordinance; or
(e) the establishment of priorities as between Bonds issued and Outstanding
under the provisions of this Ordinance; or ..
(f) the modification of or otherwise affecting the fights of the Owners of less
than all of any series of Bonds then Outstanding.
Section 26. Appointment and Duties of Paying Agent.
(a) The Paying Agent identified in Section 1 hereof is hereby appointed as
paying agent, registrar and authenticating agent for the Series 2005 Bonds unless and
until the City or the Bond Insurer removes it as such and appoints a successor Paying
Agent, in which event such successor shall, subject to subsection (b) of. this Section,
automatically su6ceed to the duties of the Paying Agent hereunder and its predecessor
shall immediately mm over all its records regarding the Series 2005 Bonds to such
successor. The Paying Agent, by accepting its duties as such, agrees to perform all duties
and to take all actions assigned to it hereunder in accordance with the terms hereof.
(b) Any successor Paying Agent appointed as such pursuant to subsection (a)
of this Section must: (i) be a trust company or bank in good standing located in or
incorporated under the laws of the State; (ii) be duly authorized to exercise trust powers
and subject to examination by federal or State authority; (iii) have a capital and surplus at
the time of such appointment of not less than $75,000,000; and (iv).be' acceptable to the
Bond Insurer.
02-200005.4 25
(¢) Notwithstanding any other provision of this Ordinance, no removal,
resignation or termination of the Paying Agent shali take effect until a successor,
acceptable to the Bond Insurer, shall be appointed.
Section 27. Provisions Relating to the Bond Insurer.
(a) Agreement by Owners of Series 2005 Bondsfor Benefit of Bond Insurer.
Each Owner of any Series 2005 Bond, by. its purchase of such Series 2005 Bond, grants
to the Bond Insurer all the rights and privileges contained in this Section and any other
fights and privileges granted by any other provision hereof to the Bond Insurer as a
condition to, and in consideration for, the'Bond Insurer's delivery of the Bond InsuranCe
Policy.
(b) Bond Insurer to Exercise Rights of Owners of Series 2005 Bonds. The
Bond Insurer shall be deemed to be the Owner of the Series 2005 Bonds for all purposes
other than the receipt of payments of principal of, premium, if any, and interest on the
Series 2005 Bonds, and the Bond Insurer shall be entitled to exercise all fights of the
Owner of the Series 2005 Bonds, except the fight to receive payments of principal,
premium, if any, and interest on the Series 2005 Bonds. These fights of the Bond Insurer
include, but are not limited to, (i) the right to control remedies following an Event of
Default pursuant to Section 24 hereof; (ii) the fight to remove or consent to the removal
of the Paying Agent or object to the appointment of a successor Paying Agent pursuant to
Section 26 hereof; (iii) the right, to consent to an amendment to this Ordinance pursuant
to Section 25(b) hereof; (iv) any fight to vote as Owner of the Series 2005 Bonds in any
reorga.nization, liquidation or similar proceeding relating to the City or with respect to
any plan of reorganization or liquidation relating to the City; and (v) any other fight to
consent, exercise fights or.control proceedings by or on behalf of the Owners.
(c) Rights of the Bond Insurer Following Payment of Principal or Interest
on Series 2005 Bonds. If the Bond Insurer pays the principal of or interest due on any
Series 2005 Bond pursuant to the Bond Insurance Policy, then, unless and until the Bond
Insurer has been reimbursed for the amount so paid by it:
..
(i) the Bond Insurer shall be subrogated to all rights of the Owner of
such Series 2005 Bond, including, but not limited to, the rights of such Owner to
payments of principal, Premium and interest on such Series 2005 Bond;
(ii) such Series 2005 Bond shall, notwithstanding the definition of
"Outstanding" in Section 1 hereof, remain Outstanding for all purposes'and such
Series 2005 Bond shall not be-defeased, nor shall the obligations of' the City with
respect to such Series 2005 Bond be deemed satisfied, paid or otherwise
discharged, without the Bond 'Insurer's written consent; and
(iii) the pledge of the Pledged Revenues pursuant .to Section 12 hereof
for the benefit of such Series 2005 Bond and all obligations of the City to the
Owners o'f the Series 2005 Bonds shall continue to exist and shall mn to the
benefit of the Bond Insurer. "
02-200005.4 26
(d) Bond Insurer as Third Party Beneficiary. To the extent that this
Ordinance confers upon or gives or grants to the Bond Insurer any fight, remedy or claim
under or by reason of this Ordinance, the Bond Insurer is hereby explicitly recognized as
being a third-party beneficiary hereunder and may enforce any such fight remedy or
claim conferred, given or granted hereunder.
(e) Valuation of Investments. Notwithstanding anything to the contrary
contained in this Ordinance, in computing the amount in any fund or account for any
purpose hereunder, investments shall be valued at. fair market value as' of the end of.each
calendar month based on the following rules:
(i) securities shall be.valued based on accepted industry standards and
from accepted industry providers as follows:
(A) the Closing bid price quoted by any one of the following:
Financial Times Interactive Data Corporation, Merrill Lynch, Salomon
Smith Barney, Bear steams, or Lehman Brothers; or
(B) a. valuation performed by a nationally recognized and
accepted pricing service acceptable to the Bond Insurer whose valuation
method consists of the composite average of various bid price quotes on
the valuation date;
(ii) certificates of deposit and bankers' acceptances shall be valued at
the face amount thereof, plus accrued interest; and
(iii) the value of any other investment shall be established by prior
agreement among the City, the Paying Agent and the Bond Insurer.
' (f) Adverse Effect on Rights of Owners. In determining whether rights of the
Owners of any Series 2005 Bonds will be adversely affected by any action taken pursuant
to the terms of this Ordinance, the effect on the Owners shall.be considered as if there
was no Bond Insurance Policy.-
(g) Payment Procedure Under Bond Insurance Policy. The Paying Agent
and the City shall comply with the following provisions regarding payments under the
Bond Insurance Policy:
(i) At least one day prior to each Interest Payment Date, the Paying
Agent will determine whether there will be sufficient funds in the Bond Fund and,
if required, the Series 2005 Reserve Fund, to pay the principal of or interest on the
Series 2005 Bonds on such Interest Payment Date. If the Paying Agent
determines that there .will be insufficient funds in such accounts, the Paying Agent
shall so notify the Bond Insurer. Such notice shall specify the amo.unt of the
anticipated deficiency, the Series 2005 Bonds to which' st/ch deficiency is
applicable and whether such Series 2005 Bonds will be deficient as to principal or
interest, or both. If the Paying Agent has not so notified the Bond Insurer at least
one day prior to an Interest Payment Date, the Bond Insurer will make payments
02-200005.4 27
02-200005.4
of principal or interest due on the Series 2005 Bonds on or before .the first day
next following the date on which the Bond Insurer shall have received'notice of
nonpayment from the Paying Agent. .'
(ii) The Paying Agent shall, after giving notice to the Bond Insurer as
provided in paragraph (i) of this subsection (g), make available to the Bond
Insurer and, at the Bond Insurer's direction, to the United States Trust Company
of New York, as inSurance trustee for the' Bond Insurer or any successor insurance
trustee (the "Insurance Trustee"), the registration books relating to the Series 2005
Bonds maintained by the Paying Agent and all records relating to the funds and
accounts maintained under this Ordinance and any amendment hereto.
(iii) The Paying Agent shall provide the Bond Insurer and the Insurance
Trustee with a list of'the Owners of Series 2005 Bonds entitled to receive
principal or interest payments from the Bond Insurer under the terms of the Bond
Insurance Policy, and shall make arrangements with the Insurance Trustee (A) to
mail checks~°r drafts to the Owners of Series '2005 Bonds entitled to receive full
or partial interest payments from the Bond Insurer and (B) to pay principal upon
Series 2005 Bonds surrendered to the Insurance Trustee by the Owners of Series
2005 Bonds entitled to receive full or partial principal payments from the Bond
Insurer.
(iv) The Paying. Agent shall, at the time it' provides notice to the Bond
InSurer pursuant to paragraph (i) of this .subsection (g), notify the Owners of
Series 2005 Bonds entitled to receive the payment of principal .or interest thereon ·
from the Bond Insurer (A) as to the .fact of such entitlement; (B) that the Bond
Insurer will. remit to them all or a part of the interest payments next coming due
upon proof of an Owner's entitlement to interest payments and delivery to the
Insurance Trustee, in form satisfactory to the Insurance Trustee, of an apPropriate'
assignment of the Owner's fight to payment; (C)'tha~ should they be entitled to
receive full payment of principal from the Bond Insurer, they must surrender their
Series 2005. Bonds (along with an appropriate inStrument of assignment in form
satisfactory to the Insurance Trustee to permit ownership of such Series 2005
Bonds to be registered in the name of the Bond Insurer) for payment to the
Insurance Trustee, and not the Paying Agent; and (D) that should they. be entitled
to receive partial payment of principal from the Bond Insurer, they must surrender
their Series 2005 Bonds for payment thereon first to the Paying Agent, who shall
note on such Series 2005 Bonds the portion of the principal paid by the Paying
Agent and then, along with an appropriate .instrument of assignment in form
satisfactory to the Insurance Trustee, to the Insurance Trustee, which will then
pay the unpaid portion of principal.
(v). In the event that the Paying Agent has notice that any payment of
principal of or interest on an Series 2005 Bond which has.become Due for
Payment (as defined in the Bond Insurance Policy) and which is made to an
Owner by or on behalf of the City has been deemed a preferential transfer and
theretofore recovered from 'its Owner .pursuant to the United States Bankruptcy
28
Code by a'tmstee in bankruptcy in accordance with the final, nonappealable order
of a court having competent jurisdiction, the Paying Agent shall, at the time the
Bond Insurer is notified pursuant to paragraph (i) of this subsection (g), notify all
Owners of Series 2005 Bonds that, in the event that any Owner's payment is s°
recovered, such Owner will be entitled to payment from the Bond Insurer to the
·
extent of such recovery if sufficient funds are not otherwise available, and the
Paying. Agent shall 'furnish to the Bond Insurer its records evidencing the
payments of principal of and interest on the Series 2005 Bonds Which.have been
made by the Paying Agent and subsequently rec6vered .from Owners and the dates
on which such payments were made.
(vi) In addition to those rights granted the Bond Insurer under this
Ordinance, the Bond Insurer shall, to the extent it makes payment of principal of
or interest on Series 2005 Bonds, become subrogated to the fights of the recipients
of such payments in accordance with the terms of the Bond Insurance.Policy, and
to evidence such subrogation .(A) in the case of subrogation'as to claims for past
due interest, the Paying Agent shall note the Bond Insurer's fights as subrogee on
the registration books relating to the Series 2005 Bonds maintained by the Paying
Agent upon reCeipt from the Bond. Insurer of proof of the payment of interest
thereon to the Owners of the Series 2005 Bonds, and (B)in the case of
subrogation as to claims for past due principal, the Paying Agent shall note the
Bond' Insurer's fights as subrogee on the registration books relating to the Series
2005 Bonds maintained by the Paying Agent upon surrender of the Series 2005
Bonds by the Owners thereof together with proof of the payment of principal
thereof.
(h) Payment Procedure Pursuant to Series 2005 Surety Bond. So long as
the .Series 2005 Surety Bond is in full force and effect, the City and the Paying Agent
agree to comply with the following provisionS:
,.
(i) In the'event and to the extent that moneys on deposit in the Bond
Fund, plus all amounts on deposit in and credited to the Series 2005 Reserve Fund
in excess of the amount of the Series 2005 Surety Bond, are insufficient to pay the
amoUnt of principal and interest coming due, then upon the later of: (i) one day
after receipt by the General Counsel of the Bond Insurer of a demand for payment
in the form attached to the Series 2005 Surety Bond .as Attachment 1 (the
"Demand for Payment"),' duly executed by the Paying Agent certifying that
payment, due under this Ordinance has not been made to the Paying Agent; or (ii)
the Payment date of the Bonds as specified in the Demand for Payment presented
by the Paying Agent to the General Counsel of the Bond Insurer, the Bond Insurer
will make a deposit of funds in an account with the Paying Agent or its successor,
in New York, New York, sufficient for the payment to the Paying Agent, of
amounts which are then due to the Paying Agent under this Ordinance (as
specified in the Demand for Payment) up to but not in excess of the SUrety Bond
Coverage, as defined in the Series 2005 Surety Bond; provided, however, that in
the event that the amount on deposit in, or credited to, the Series 2005 Reserve
Fund, in addition to the amount available under the Series 2005 Surety Bond,
02-200005.4 29
includes amounts available under a letter of credit, insurance policy, . surety .bond
or other such funding instrument (an "Additional Funding Instrument"), draws on
the Series 2005 Surety Bond and the Additional Funding Instrument shall be
made on a pro rata basis to fund the insufficiency.
(ii) The Paying Agent, after submitting to the Bond Insurer the
Demand for Payment as provided in paragraph (a) of this Section, shall make
available to the Bond Insurer all records relating to the funds and accounts
maintained under this Ordinance.
(iii) The Paying Agent shall, upon receipt of moneys received from the
draw on the Series 2005 Surety Bond, as specified in the Demand for Payment,
credit the Series 2005 Reserve Fund to the extent of moneys received pursuant to
such Demand for Payment.
(iv) The Series 2005 Reserve Fund shall be replenished in the
following priority: (i) principal and interest on the Series 2005 Surety Bond and
on any Additional Funding Instrument shall be paid from first available Revenues
on a pro rata basis; and (ii) after all such amounts are paid in full, amounts
necessary to fund the Series 2005 Reserve Fund to the required level, after taking
into account the amounts available under the Surety Bond and any Additional
Funding Instrument, shall be deposited from next available Revenues.
(i)
Information to be Provided to the Bond Insurer.
(i)
The citY shall deliver to the Bond Insurer's general counsel'
(A) notice immediately upon determining that the Pledged
Revenues and the moneys on deposit in the Parks and Open Space Fund
are insufficient to make any payment of principal of or interest on the
Series 2005 Bonds;
(B)
Default; and
notice immediately upon the occurrence of an Event of
(C) notice of the failure of the City to provide any notice-or
certificate required to be provided by the City hereunder.
(ii)
department:
The' City shall deliver to the Bond
Insurer's · surveillance
(A) within a reasonable period following the date the same is
delivered to any nationally recognized municipal securities information
repository, all financial information, operating data and notices that the
City delivers pursuant to any continuing disclosure undertaking relating to
the Series 2005 Bonds;
02-200005.4 30
(B) within a reasonable period following a written request by
the Bond. Insurer, any additional information regarding the City, of the
Bonds requested by the Bond Insurer; and
(C) any notice required to be delivered to the Owners of the
Series 2005 Bonds under this Ordinance:
(j) Access to Books and Records Relating to the Series 2005 Bonds. The
City and the Paying Agent shall permit the Bond Insurer to have access to and to make
copies of all books and records relating to the Series 2005 Bonds at any .reasonable time.
(k) Discussions with Officers of the City. The City shall permit the Bond
Insurer to discuss the affairs, finances and accounts of the City or any information the
Bond Insurer may reasonably.request regarding the security for the Series 2005 Bonds
with appropriate officers of the City.
(1) Right to Accounting. Upon the occurrence of an Event of Default, the
Bond Insurer shall have the right to require the City, at the City's expense, to conduct an
accounting of the funds ~and accounts securing the Series 2005 Bonds within 30 days of
the City's receipt of written notice of notice from the Bond Insurer, provided that, if the
accounting cannot be completed Within such period, such period will be extended so long
as the accounting is begun within such period and diligently pursued.
(m) Provisions Granting. Rights or Privileges to Bond Insurer and
References to Bond Insurer and Bond Insurance Policy Ineffective when No Series
2005 Bonds are Outstanding and Following Failure to Pay under Bond Insurance
Policy...Notwithstanding any other provision hereof, this Section, any other provision
hereof granting any fights or privileges to the Bond Insurer, and all references in this
Ordinance to the Bond Insurer and the Bond Insurance Policy shall be ineffective (i)
when no Series 2005 Bonds are Outstanding' or (ii) following a failure by the Bond
Insurer to pay the principal of or interest on any Series 2005 Bond pursuant to the Bond
Insurance Policy.
(n) No Amendment of Provisions Hereof Granting Rights or Privileges to
Bond Insurer without Bond Insurer Consent. Notwithstanding any other provision
hereof, (i) no provision of this Section or other provision hereof granting any rights or
privileges to the Bond Insurer may be amended without the Bond Insurer's written
consent and (ii) the Bond Insurer at any time may waive any or all the provisions of this
Section or other provision l~ereof granting any rights or privileges to the Bond Insurer
permanently or with respect to one or more transactions or events or for any period of
time.
Section 28. Parties Interested Herein. Nothing in this Ordinance expressed or implied
is intended or shall be construed to confer upon, or to. give or grant to, any persgn or entity, other
than the City, the Paying Agent, the Bond Insurer and the Owners of the Bonds, any right,
remedy or claim under or by reason of this Ordinance or any covenant, condition or stipulation
hereof, and all covenants, stipulations, promises and agreements in this Ordinance contained by
02-200005.4 31
and on behalf of the City shall be for the sole and exclusive benefit of the City, the Paying
Agent, the Bond Insurer and the Owners of the Bonds.
Section 29. Events Occurring on Days That Are Not Business Days. Except as
otherwise specifically provided herein with respect to a particular payment, event or action, if
any payment to be made hereunder or any event or action to occur hereunder which, but for this
Section, is to be made or is to occur on a day that is not a Business Day shall instead be made or
occur on the next succeeding day that is a Business Day.
Section 30. Approval of Documents and AUthOrization of Officers.. The City Council
hereby ratifies and approves the distribution and use of the Preliminary Official Statement
relating to the .Series 2005 Bonds prepared in connection with the offering of the Series 2005
Bonds; authorizes and directs the City staff to prepare a final Official' Statement for use in
connection With the sale of the Series 2005 Bonds in substantially the form thereof presented to
or made available 'to the City Council, with such changes therein, if any, not inconsistent
·
herewith, as are approved by the Finance Director or the City Attorney of the City; and
authoriZes and approves the Bond~ Purchase Agreement in'substantially the form Presented to or
made available to the City .Council, with such changes therein, not inconsistent herewith, as are
approved by the Finance Director or the City Attorney of the City. The Mayor or Mayor Pro
Tem is hereby authorized and directed to execute the final Official Statement. For a period of
sixty days following the adoption of this Ordinance, the City Finance Director is hereby
authorized and directed to execute the Bond Purchase Agreement with the terms therein as are
authorized by this Ordinance and which, once executed, shall constitute conclusive evidence of
approval of the City. The Mayor or Mayor..Pro Tem, the City Clerk and all other officers of. the
City are hereby authorized and directed to execute the financial guaranty agreement with respect
the Series 2005 Surety Bond between the City and the Bond Insurer; an undertaking to facilitate
compliance with Securities and Exchange Commission Rule 15c2-12 (17 C.F.R. §240.15c2-12);
an agreement with the Paying Agent concerning the duties and obligations of the Paying Agent
with respect t° the Bonds; the Escrow Agreement; a "Tax Compliance Certificate" or similar
certificate describing the City's expectations regarding the use and investment of proceeds of the
Series 2005 Bonds and other moneys and the use of the projects on which the amounts specified
in Section 1 l(d) hereof are expended; an Internal Revenue Service Form 8038-G with respect to
the Series 2005 Bonds; and all other documents and certificates necessary or desirable to
effectuate the issuance of the Series 2005 Bonds, the investment of proceeds of the Series 2005
Bonds and the Pledged Revenues, the administration of the Series 2005 Bonds, ~the advance
refunding of the Refunded Bonds, and the other transactions contemplated hereby.
Section 31. Findings and Determinations. The City Council hereby finds, determines
and declares that (a)i.t is in the best interest of the City and its residents that the Series 2005
'Bonds be authorized, sold, issued and delivered at the time, in the manner 'and for the purposes
provided herein and (b)all actions required by the Charter and any other applicable law to be
taken by the City for the issuance of the Series 2005 Bonds and the application of any of the
provisions hereof have been taken by the City.
Section 32. Ratification of Prior Actions. All actions heretofore taken not inconsistent
with the provisions of this Ordinance or the Charter by the City Council, the Finance-Director, or
02-200005.4 32
..
by the officers and employees of the City directed toward the issuance of the Series.2005 Bonds
for the purposes herein set forth are hereby ratified, approved and confirmed.
Section 33. Repeal of Inconsistent Resolutions; Contract with Owners of Series
2005 Bonds; Resolution Irrepealable. All ordinances and resolutions, or parts thereof, that are
in conflict with this Ordinance are hereby repealed. After the Series 2005 Bonds have been
issued, this Ordinance shall be and remain a contract between the City and the Owners of the
Series 2005 Bonds and shall be and remain irrepealable until all amounts due with respect to the
Series 2005 Bonds. shall be fully paid, satisfied and discharged and all other obligations of the
City with respect to the Series 2005 Bonds shall have been satisfied in the manner provided
herein.
.
Section 34.' Headings, Table of Contents and Cover Page. The headings to the
various sections and subsections to this Ordinance, and the cover page and table of contents that
appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are
not a part of this Ordinance and. shall not be used in any mannex~.to interpret this Ordinance.
Section 35. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In .order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
,
situation; and if any provision hereof or the application thereof is determined by a court or
administrative.body to be valid or enforceable only if its application 'is limited, its application
shall be limited as required to most fully implement its purpose.
Section 36. Recordation. A tree copy of this Ordinance, as adopted by the City Council
of the City, shall be numbered and recorded, and its adoption and publicatiOn shall be
authenticated by the signatures of the Mayor and the City Clerk and by a certification of
publication.
Section 37. Declaration of Emergency and Effective Date. Due to fluctuations in
municipal' bond prices and interest rates and due to currently favorable interest rates and due 'to
the need to preserve public property, health, peace and. safety;, it is hereby declared that,'in the
opinion of the City Council,' an emergency exists, and therefore this Ordinance shall be in full
force, and effect upon its' passage.
[remainder of this page intentionally' left blank]
02.200005.4 33
INTRODUCED, READ AND PASSED ON FIRST READING AS AN EMERGENCY
MEASURE by the City Council of the City of Aspen at its regular meeting on March 14, 2005,
as provided by the City's Charter and applicable law.
[SEAL]
Attest:
City Clerk
READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED
AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED. WITHIN 10 DAYS OF
SUCH FINAL PASSAGE by the City Council of the City of Aspen at its special meeting on
March 16, 2005, as provided by the City's Charter and applicable law.
[SEAL]
Attest:
By C~ty Clerk / '" . ....
[signature page to Bond Ordinance]
02-200005.4 34
APPENDIX A
FORM OF SERIES 2005 BOND
No.R-
UNITED STATES OF AMERICA
CITY OF ASPEN, COLORADO
PARKS AND .OPEN SPACE SALES TAX REVENUE BOND
SERIES 2005
Interest Rate' Maturity Date: Original Dated Date' CUSIP:
% November 1,
REGISTERED OWNER:
**CEDE & CO.**
Tax Identification Number: 13-2555119
PRINCIPAL SUM:
** DOLLARS** ,
The City of Aspen, Colorado (the "City"), a legally and regularly created, established,
.organized and existing municipal-corporation under the provisions of Article XX of the
Constitution of the State of Colorado (the "State") and the home role charter of the City (the
"Charter") .and political subdivision of the State, for value received, hereby promises to pay to
the order of the registered owner named above or registered assigns, solely from the special
funds as hereinafter set forth, on the maturity date stated above, the principal sum stated above,
-in .lawful money of the United States of America, with interes_t thereon from the. original dated
date stated above, at the interest rate per annum stated above, payable on May 1 and November 1
of each year, commencing November 1, 2005, the principal of and premium, if any, and the final
installment of interest 'on this bond being payable to the registered owner hereof upon
presentation and Surrender 'of this bond' at the principal office of American National Bank, as
Paying Agent (the "Paying Agent"), in Denver, Colorado, and the interest hereon (other than the'
final.installment of interest hereon) to be paid by check or draft of the Paying Agent mailed on
the interest payment date to the registered owner-hereof as of the. close of business on the
fifteenth day of the month (whether or not such day is a Business Day) preceding the month, in
which the interest payment date occurs, except that so long as Cede & Co. is the registered
owner of this bond, the principal of, premium, if any, and interest on this bond shall be paid by
wire transfer to Cede & Co.
This bond is One of an issue of bonds of the City of Aspen, Colorado Sales Tax Revenue
Refunding Bonds, Series 2005, issued in the principal amount of $12,380,000 (the "Series 2005
Bonds"). The Series 2005 Bonds are being issued by the City for the purpose of refunding the
City's Sales Tax Revenue BOnds, Series 1999 and the funding of a reserve fund surety bond for,
and the costs of issuance of, the Series 2005 Bonds, pursuant to and in full conformity with the
_
02-200005.4
State Constitution, the Charter and an ordinance (the "Ordinance") duly adopted.by the City
prior to the issuance hereof.
[Redemption provisions from Sale Certificate to be set forth herein]
The Paying Agent shall maintain registration books in which the ownership, transfer and
exchange of Series 2005 Bonds shall be recorded. The person in whose name this bond shall be
registered on such registration books shall be deemed to be the absolute owner hereof for all
purposes, whether or not payment on this bond shall be overdue, and neither the City nor the
Paying Agent shall be affected by any notice or other information to the contrary. This bond
may be 'transferred or exchanged, at the principal office of the Paying Agent in Denver,
Colorado, for a like aggregate principal amount of Series 2005 Bonds of other authorized
denominations ($5,000 or any integral multiple thereof) of the same maturity and interest rate,
upon payment by the transferee of a transfer fee, any.tax or governmental charge required to be
paid with respect to such transfer or exchange and any cost of printing bonds in connection
therewith.
The Series 2005 Bonds are special, limited obligations of the City payable solely from
and secured solely by the sourCes provided in the Ordinance and shall not constitute a debt of the
City within the .meaning of any constitutional or statutory limitation. Pursuant to the Ordinance
the City has pledged for the payment of the principal of, premium, if any, and interest on the
Series 2005 Bonds, and granted a lien for such purpose on the Pledged Revenues, constituting,
for each fiscal year, all of the proceeds of the Parks and Open Space Sales Tax (as defined in the
Ordinance) after deduction of the reasonable and necessary costs and expenses of collecting and
enforcing the Parks and Open Space Sales Tax, if any, the Bond Fund, the Series 2005 Reserve
Fund and the Revenue Fund (all as defined in the Ordinance)., The Series 2005 Bonds are.issued
on a parity with the City's Parks and Open SpaCe Sales Tax Revenue Bonds, Series 2001 (the
"Series 2001 Bonds"). The City is further authorized by the Ordinance to pledge and grant a
lien, on a parity with the lien for the payment of the principal of, premium, if any, and interest on
the Series 2005 Bonds and the Series 2001 Bonds, on the Pledged Revenues, the Bond Fund and
the Revenue for the payment of the principal of, premium, if any, and interest on additional
bonds or obligations (which may or may not be multiple-fiscal year obligations), upon
satisfaction of certain conditions set forth in the Ordinance. '
This bond, including the interest hereon, is payable solely from and secured solely by the
special funds provided in the Ordinance and shall not constitute a debt of the City'within the
meaning of any constitutional or statutory debt limitation or provision.
THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE
REGISTE~D OWNER OF THIS BOND AND THE CITY. THIS BOND IS ONLY
EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECTS TO
THE TERMS OF THE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT
STATEMENT iN THIS BOND.
The City agrees with the owner of this bond and with each and every person who may
become the owner hereof, that it will keep and perform all the covenants and agreements
contained in the Ordinance.
02-200005.4 A-2
The Ordinance may be amended or supplemented from time-to-time with or without the
consent of the registered owners of the Series 2005 Bonds as provided in the Ordinance.
The Ordinance grants certain fights to Ambac Assurance Corporation ("AmbacT),.
including, but not limited to,'the right to be deemed to be the Owner of the Series 2005 Bonds
.for all purposes other than, except .as otherwise provided in the Ordinance, the receipt of
payments of principal of, premium, if any, and interest on the Series 2005 Bonds, and the fight to
exercise all fights of the registered owner of the Series 2005 Bonds, other than, except as
otherwise provided in the Ordinance, the fight to receive payments of principal, premium, if any,.
and interest on the Series 2005 Bonds. These fights of Ambac include, but are not limited to,
(a) the right to control remedies following an Event of Default pursuant to the Ordinance; (b) the
right to remove or conSent to the removal of the Paying Agent or object to the appointment of a
successor Paying Agent pursuant to the Ordinance; (c)the fight to consent to an amendment to
the Ordinance pursuant thereto; (d)any fight to vote as registered owner of the Series 2005
Bonds in any reorganization, liquidation or similar proceeding relating to the City or with respect
to any plan of reorganization or liquidation .relating to the City; and'(e)any other fight to
consent, exercise fights.or control proceedings by or on behalf of the registered owners of the
Series 2005 Bonds.
It is hereby certified that all conditions, acts and things required by the State Constitution,
the Charter, and the ordinances and resolutions of the City, to exist, to happen and to be
performed, precedent to and in the issuance of this bond, exist, have happened and have been
performed, and that the Series 2005 Bonds do not exceed any limitations prescribed by the State.
Constitution, the Charter or the ordinances of the City.
This bond shall not be entitled to any benefit under the Ordinance, or become valid or
obligatory for any purpose, until the Paying Agent shall have signed the certificate of
authentication hereon.
[remainder of this page intentionally left blank]
02-200005.4 A-3
IN WITNESS WHEREOF, the City has Caused this bond to be executed with the manual
or facsimile signature of its Mayor and attested by the manual or facsimile signature of the City
Clerk, and has caused the seal of the City to be impressed or imprinted hereon, all as of the date
set forth above.
[SEAL]
CITY OF ASPEN, COLORADO
Attest:
By
MaYor
By
City Clerk
02-200005.4
A-4
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2005 Bonds described in the within-mentioned Ordinance.
AMERICAN NATIONAL BANK, as Paying
Agent
Date of Authentication:
By
~ity. FinanCe Director
02-200005.4 A-5
STATEMENT OF INSURANCE
Financial Guaranty Insurance Policy No. (the "Policy") with respect to
payments due for principal of and interest on this bond has 'been issued by Ambac Assurance
Corporation ("Ambac").. The Policy has been delivered to The Bank of New York, New York,
New York, as the Insurance Trustee under said Policy and will be held by such Insurance Trustee
or any successor insurance trustee. The Policy is on file and available for'inspection at the'
principal office of the Insurance Trustee and .a copy thereof may be secured from Ambac or the
Insurance Trustee. All payments required to be made under the Policy shall be made in
accordance with the provisions thereof. The owner of this bond acknowledges and csnsents to
the subrogation fights of Ambac as more fully set forth in the Policy.
02-200005.4 A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or typeWrite name and address of Transferee)
(Tax Identification or Social Security No.)
the within bond and all fights thereunder, and hereby irreVocably constitutes and appoints
attorney to transfer the withi.n bond on the books kept for
registration thereof, with full power of substitutiOn in the premises.
Dated:
Signature 'Guaranteed:
NOTICE' The signature to this assigmnent must
correspond with the name as it appears upon the
face of the within bond in every particular, without
alteration or enlargement or any change whatever.
Signature(s) must be guaranteed by a
national bank or trust company or by
a brokerage firm having a
membership in one of the major
stock exchanges..
TRANSFER FEE MAY BE REQUI~D
02-200005.4 A-7
PREPAYMENT PANEL
The following installments of principal (or portion thereof) of this Bond have been
prepaid in aCcordance with the terms of the Indenture.
Date of Principal
Prepayment ~
Signature of Authorized
.Representative of the Deposito,ry
02-200005.4 A-8
BOND SALE CERTIFICATE
$12,380,000 '
City Of Aspen, Colorado
Sales Tax Revenue Refunding Bonds
Series 2005
The undersigned hereby certifies that he is. the City Finance Director Of the City of
Aspen, Colorado (the "City"), and hereby certifies as follows:
1. On March 16, 2005, the City, on second and final reading, adopted Ordinance No.
19 (Series of 2005) (the "Bond Ordinance") authorizing the issuance of the City of Aspen,
Colorado, Sales Tax Revenue Refunding Bonds, Series 2005 (the "Bonds"). Pursuant to the
Bond Ordinance, the City Council of the City delegated to me, as City Finance .Director, the
authority to execute this Bond Sale Certificate setting forth, among other things, original.
principal amount of the. BondS, the rate of interest for the Bonds, the conditions on which and the
prices at which the Bonds may be redeemed prior to maturity, the Dated Date, the prices at
which the Bonds will be s°ld,_the principal amount of the Bonds, the amount of principal
maturing in particular years, and the dates on which the principal and interest 'payments on the.
Bonds shall commence. Capitalized terms used but not def'med herein shall have the meanings
set forth in the Bond Ordinance.
2. The Bonds shall be issued in the aggregate principal amount of $12,380,000.
.
3. The Bonds sh~ll mature on November 1 of the years and in the principal amounts,
and shall bear interest at th~ rates per annum (calculated based on a 360-day year of twelve
30-day months) set forth bel01w'
,
·
MaturityI
(November 1)
2005
2006
,,
2007
2008
Principal Amount
Interest Rate
$ 550,000. 5.000%
690,000 3.500
710,000 3.500
735,000 3.500
2009 760,000 3.500
2010 785,000 3.500
2011 815,000 3.750
20!2 845,000 4.000
2013 880,000 4.000
2014 915,000 4.125
2015 955,000 4.125
2016 990,000 4.750
2017 1,040,000 5.000
2018 1,090,000 5.250
2019 620,000 5.000
02-200708.1/1
4. The Series 2005 Bonds maturing on and before November 1, 2015 are not subject
t'o redemption prior to their respective maturity dates. The Series 2005 Bonds maturing on and
after November 1, 2016 are subject to redemption prior to maturity at the option of the City, in
whole or in part in integal multiples of $5,000, and if in part in such order of maturities as the
City shall determine and by lot within a maturity, on November 1, 2015, and on any date
thereafter, at a redemption price equal to par, plus accrued interest to the redemption date, with
no redemption premium.
5. The dated date for the Bonds shall be March 15, 2005 and the first Interest
Payment Date shall be November 1, 2005.
o
excess thereof.
The Bonds shall be sold in the denomination of $5,000 or any integral multiple in
7. The prices at which the Bonds shall be sold are set forth in the Bond Purchase
Ageement, which pricing information is hereby incorporated by reference as if fully set forth in
the body of this Bond Sale Certificate.
8. In my capacity as City Finance Director, I have determined that it is economically
beneficial to obtain a financial guaranty insurance policy insuring the payment of the Bonds.
The Bond Insurer shall be Ambac AssuranCe Corporation.
9. In my capacity as City Finance Director, I have determined that it is economically
benefiCial to obtain a surety bond issued by the Bond' Insurer for the purpose of funding the
Series 2005 Reserve Fund (as defined in the Bond Ordinance).
10. The proceeds received by the City from the sale of the Bonds in the 'amount of
$12,721,495.70, representing the Purchase Price of the Bonds as set forth in paragraph 11 of the
Bond Purchase Agreement, shall be applied as follows (capitalized terms used and not otherwise
defined below shall have the meanings assigned in the Bond Ordinance):
· / (a)
$13,006.25, representing accrued interest, shall be deposited into the Bond
Fund;
\,/
(b) $58,995.33 shall be withheld by the Underwriter and paid, on behalf of the
City, to the Bond Insurer as the premium for the Bond Insurance .Policy;
(c) $15,000.00 shall be withheld by the Underwriter and paid, on behalf of the
City, to the Bond Insurer as the premium for the Series 2005 Surety Bond; and
Bonds;
(d)
· $50,265.24 shall be applied to the payment of the costs of issuance of the
(e) all remaining proceeds shall be delivered to American' National Bank, as
escrow agent ("EsCrow A~,ent ) under that certain Escrow Agreement between the City
and the Escrow Agent dated as of March 15, 2005 (the "Escrow Agreement"), for the
purpose of defeasing the City's outstanding Sales Tax ReVenue Bonds, Series 1999 (the
"Refunded Bonds") pursuant to the terms of such Escrow Agreement. In addition, the
0_-_00/08.1,. _
City shall deposit with the Escrow Agent the amount of $312,525.00, representing
amounts on deposit in the Bond Fund, for application to the interest payment coming due
on the Refunded Bonds on May 1, 2005.
[signature appears on following page]
0,.-.00/08.1:'3
IN WITNESS WHEREOF, I have hereunto set my hand as of March 16, 2005.
City of Aspen, Colorado
By
City Finance Director
[Signature Page.to Bond Sale Certificate]
0_-.00708.1,'4
City Council
City of Aspen, Colorado
130 South Galena
Aspen, Colorado 81611
$12,380,000
City Of Aspen, Colorado
Sales Tax Revenue Refunding Bonds
Series 2005
BOND PURCHASE AGREEMENT
Ladies and Gentlemen:
1. Stifel, Nicolaus & Company, Incorporated Hani£en Imhoff Division (the
"Underwriter"), hereby offers to enter into this Bond Purchase Agreement (this "Agreement")
with the City of Aspen, Colorado (the "City"). This offer is made subject to the City's execution
of thais Agreement and delivery of it 'to the Underwriter on the Date of this Agreement. Upon the
City's acceptance of this offer, this Agreement shall be binding upon the Underwriter and the
City, subject to the further provisions hereof. Capitalized terms not otherwise defined herein
shall have the meanings set forth for such terms in paragraph 11 below.
.
2. Subject to the further provisions hereof, the Underwriter agrees to purchase from
the City, and the City agrees to sell and deliver to the Underwriter, all of the City of Aspen,
Colorado, Sales Tax Revenue Refunding Bonds, Series 2005 (the "Bonds") at the Purchase
Price. The Bonds will mature, bear interest and be sold at the prices .indicated in Exhibit B
hereto.
3. The City shall deliver the duly issued and executed Bonds to American National
Bank (the '"Paying Agent"), to hold 'for The Depository Trust Company ("DTC") in New York,
New York, pursuant to' the FAST Balance Sheet Agreement currently in 'effect-between the
Paying Agent and DTC, prior to, and the Underwriter shall deliver the Purchase Price to the City
in federal funds by, 9:00 a.m., Denver Time, on the Closing Date, or at such other place and time
as shall be mutually agreed upon by the City and the Underwriter. (Such deliveries are referred
to as the "Closing.") The documents to support the Closing will be held and may be examined at
the offices of Kutak Rock LLP in Denver, Colorado at the same time on the Closing Date.
4. The City shall cooperate with, and shall take all actions reasonably requested by,
the Underwriter to facilitate the Underwriter's offer and sale .of the Bonds to third parties,
including but not limited to (i) the preparation of the Preliminary Official Statement relating 'to
the Bonds dated March 14, 2005, and any supplements or amendmenfs thereto that the
Underwriter reasonably determines are necessary (the "Preliminary. Official Statement") and the
final Official Statement relating to the Bonds to be dated prior to the date of the Closing and any
supplements or amendments thereto that the Underwriter reasonably determine are necessary
(the "Official Statement") and (ii) all actions necessary under the securities or "blue sky" laws of
02-200714.1
the jurisdictions specified by the Underwriter to enable them to offer and sell the Bonds in or to
residents of such jurisdictions. In addition, in order to facilitate compliance with Rule 15c2-12
of the United Stated Securities and Exchange Commission under the Securities Exchange Act of'
1934 ("Rule 15c2-12"), the City (A)has certified, and hereby affirms its certification, that the
Preliminary Official Statement is "final" as of its date as required by Rule 15c2-12, (B)hereby
authorizes and ratifies the distribution of the Preliminary Official Statement to' any potential
customers (as defined in Rule 15c2-12) until the Official Statement is available, (C)hereby
agrees to make available to the Underwriter, within seven business days of the Date of this
Ageement, as many copies of the Official Statement as the Underwriter deems sufficient for
purposes of complying with Rule 15c2-12, (D)hereby authorizes and approves the distribution
and use of the Official Statement in connection with the offering and sale of the Bonds and
(E) hereby agrees to enter into a written agreement or contract, constituting an undertaking (the
"Continuing DisclosUre Undertaking") to provide ongoing disclosure about the City, for the
benefit of the owners of the Bonds on or before the date of delivery of the Bonds as required by
Rule 15c2-12, which Undertaking shall be in the form attached as Appendix A to the Preliminary
Official Statement, With such changes as may be agreed .to in writing by the Underwriter.
5. The Underwriter's obligation to purchase the Bonds shall be subject to the
Underwriter's receipt of each of the following in form and substance satisfactory to the
.Underwriter: ,
(a) Certified copies of the ordinance authorizing the issuance of the Bonds
(the "Bond Ordinance");
(b) A certified copy of the Paying Agent and Registrar Agreement dated as of
March 15, 2005 (the "Paying Agent Agreement") between the City and the Paying Agent;
(c) A financial guaranty insurance policy (the "Bond Insurance Policy"),
insuring payment of the principal of and interest on the Bonds, issued by Ambac Assurance
Corporation (the "Bond Insurer")
(d) A surety bond issued by an insurance company rated in the highest rating
category by Standard and Poor's Ratings Services ("S&P") and Moody's Investors Service
Inc. ("Moody's") issued by the Bond Insurer (the "Series 2005 Surety Bond") for the
purpose of funding the Series 2005 Reserve Fund (as defined in the Bond Ordinance);
(e) A Financial Guaranty Agreement dated as of March 24, 2005 (the "Financial
Guaranty Agreement") between the City and the Bond Insurer, pertaining to the Series 2005
Surety Bond;
(f)
An executed copy of the Continuing Disclosure Undertaking;
(g)
The unqualified approving opinion of Kutak Rock LLP, Bond Counsel;
(h) A letter from Kutak Rock LLP as tO their participation in the preparation of,
and as to the material set forth in, the Official Statement;
02-200714.1 o
(i) The opinion of John Worcester, Esq., as City Attorney, in substantially the
form set forth as Exhibit A;
(j) Certificates of the City as to (i) the facts necessary to support the opinions
referred to in clauses (g), (h) and (i) above, (ii)the enforceability of the Paying Agent
Agreement, this Agreement, the Financial Guaranty Agreement and the Continuing
Disclosure Undertaking, (iii)the accuracy of the Preliminary Official Statement and the
Official Statement, (iv)litigation affecting the City, and (v)such other matters as are
customary with respect to the issuance of obligations such as the Bonds or as the
Underwriter may reasonably request;
(i) Evidence that the Bonds have been rated "Aaa" by Moody's based on the
Bond InsUrance Policy and evidence that the Bonds have been rated ~ by Moody's,
respectively, without taking into account the security provided by such policy; and
(j) Such .additional agreements, documents,
certificates as the Underwriter may reasonably request.
instruments, opinions and
6. The Underwriter's obligation to purchase the Bonds also shall be subject to the
Underwriter's right, in its absolute discretion, to elect to terminate this Agreement by written
notice to the City if at any time after the Date of this Agreement and prior to the Closing'
(a) Any event shall have occurred, or information becomes knbwn, which, in the
Underwriter's opinion, makes untrue,' in any material respect, any statement or information
contained in the Official Statement or the' Preliminary Official Statement (except as
modified by the Official Statement), or has the effect that the Official 'Statement or the
Preliminary Official Statement (except as modified by the Official Statement) contains any
untrue statement of a material fact Or omits to state any material fact necessary in order to
make the statements made therein, in light of the circumstances under which they were
made, not misleading;
(b) Additional material restrictions not in force as of the date hereof shall have
been imposed upon trading in securities generally by any governmental authoritY or by any
national securities exchange;
(c) The United States shall have become engaged in hostilities, whether or not a
war shall have 'been declared, or there shall have occurred an escalation of any hostilities
involving the armed forces of any country, or any other national emergency or other national
calamity relating to the effective operation of government or of the financial community
shall have occurred, which, in the Underwfiter's opinion, materially adversely affects the
market price of the Bonds;
(d) There shall have occurred a general suspension or material limitation of
trading on The New York Stock Exchange or any other national securities exchange as the
result of an event affecting the national economy, or minimum or maximum prices for
trading shall have been established on any exchange and be in force, or maximum ranges for
prices for securities shall be in force on any such exchange;
02-200714.1
(e) The New York Stock Exchange, any other national securities exchange or
any governmental authority shall impose, as to the Bonds or obligations of the general
character of the Bonds, any material restrictions not now in' force or being enforced, or-
increase materially those now in force or being enforced, with respect to the extension of
credit by, or charges to the net capital requirement of, or financial responsibility
requirements of, the Underwriter;
(f) A general banking moratorium shall have been established by federal, New
York'or Colorado authorities;
(g) Any rating of any obligations of the City shall have been downgraded or
withdrawn by any rating service, which, in the Underwriter's opinion, materially adversely
affects the market price of' the Bonds;
-(h) Legislation is adopted by either house of the United States Congress, or
favorably reported for passage .to. either house of the United States Congress by any
committee of such house to which such legislation has been referred for consideration,
legislation is actively considered for enactment by the United States Congress, legislation is
recommended to the Un/ted States Congress for passage .by the President of the United'
States, a decision by a court of the united States or the United St'ates Tax'Court is rendered,
or a ruling, regulation or official statement by or on behalf of the Treasury Dep. am'nent of
the Un/ted States, the Internal Revenue Service or other governmental agency is made, with
respect to federal taxation upon revenues or other income of the City or upon interest
payable on obligations of the general character of the Bonds or which would change directly
or indirectly the federal income tax consequences of interest on obligations of the 'general
character of the Bonds in the hands of the owners thereof, which, in the Underwriter's
opinion, materially adversely affects the market price of the Bonds; or
(i) Any change' shall have occurred which, in the reasonable jud~nent of the
Underwriter, makes unreasonable or unreliable any of the financing assumptions upon
which payment of debt service on the Bonds is predicated. .-
7. The City shall pay or cause to be paid, from the proceeds from the Sale of the
Bonds or other funds available to it, the expenses incident to the issuance and sale of the Bonds
(the "Costs of Issuance"), including but not limited to the Underwriter's Discount and the
expenses of the Underwriter, the premium Paid to Ambac Assurance Corporation relating to the
Bond Insurance Policy and the Series 2005 Surety Bond, the fees and disbursements, of Kutak
Rock LLP, the City Attorney, and any other attorneys, accountants or other experts or
consultants retained in connection with the issuance and sale of the Bonds (including but not
limited to the City's independent auditors), fees and charges of the paying agent or other agent
retained in connection with the payment of, or the administration of the payment of, the Bonds,
fees to register the Bonds with The Depository Trust Company of New York, CUSIP fees,
cleating and delivery fees, the costs of printing and distributing the Preliminary Official
Statement and the Official Statement, and any costs incurred in connection with the rating of the
Bonds, including but not limited to rating agency fees and expenses incurred in communicating
with or making presentations to rating agencies.
02-200714.1 4
8. The Underwriter shall withhold the premiums to be paid to Ambac Assurance
Corporation relating to the Bond Insurance Policy and the Series 2005 Surety Bond (collectively,
the "Insurance Premiums") in the amount of $73,995.33 from the Purchase Price to be paid to the
City pursuant to paragraph 2 hereof and shall pay the same directly to Ambac Assurance
Corporation.
9. This Agreement may be executed in several counterparts, which together shall
constitute one and the same instrument. Photostatic copies of executed counterparts hereof or
copies of executed counterparts hereof transmitted by facsimile transmission shall be binding to
the same effect as originally signed counterparts.
10.
11.
This Agreement shall be governed by the laws of the State of Colorado.
For purposes of this Agreement, the following terms have the meanings sPeCified:
Date of this Agreement:
Aggregate Principal Amount:
Original Issue Premium
Accrued Interest:
.Underwriter's Discount:
Purchase Price (Aggregate Principal
Amount, plus Original Issue
Premium, plus Accrued Interest,
minus Underwriter's Discount)
March 16, 2005
$12,380,000.00
$439,909.45
$13,006.25
$ (1..11,420.00)
$12,721,495.70
Closing Date:
March 24, 2005
02-200714.1
STIFEL, NICOLAUS & COMPANY,.
INCORPORATED
.By
Authorized Officer
ACCEPTED:
Date of Acceptance:
Time.of Acceptance:
CITY OF ASPEN, COLORADO
By
Finance Director
02-200714.1
EXHIBIT A
MATURITY SCHEDULE AND BOND PRICING
Years
Maturing
Amounts
Maturing
Interest Rate
(Per Annum)
Price
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
550,000 5.000O/o
690.000 3.500
710,000 3.500
735,000 3.500
760,000 3.500
785,000 3..500
815,000 3.750
845,000 4.000.
880,000 4.000
915,000 4.125
955,000 4.125
990,000 4.750
1,040,000 5.000
1,090,000 5.250
620,000 5.000
101.586%
101.433
101.693
101'.796
101.572.
1'01.115
101.577
102.503
101.968
102.106
101.674
106.247
107.850
109.623
106.520
Total
$12,380,0,00