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HomeMy WebLinkAboutordinance.council.046-83 ORDINANCE NO. ~6 AN ORDINANCE FORMING A DISTRICT AND AUTHORIZING THE CONSTRUCTION OF LOCAL IMPROVEMENTS IN ASPEN MOUNTAIN PARK; PROVIDING FOR THE METHOD OF THE COLLECTION OF A SPECIAL ASSESSMENT TO BE LEVIED UPON COMPLETION OF SUCH IMPROVEMENTS TO DEFRAY THE COSTS THEREOF; APPROVING PLANS AND SPECIFICATIONS RELATING TO THE IMPROVEMENTS; PROVIDING FOR THE ISSUANCE OF SPECIAL ASSESSMENT LOCAL IMPROVEMENT BONDS; PRESCRIBING DETAILS IN CONNECTION WITH SUCH ASSESSMENT, BONDS, AND DISTRICT, INCLUDING THE MANNER OF ADDITIONALLY SECURING AND EFFECTING THE PAYMENT OF SUCH BONDS; PRESCRIBING DUTIES OF CERTAIN PUBLIC OFFICIALS IN CONNECTION WITH SUCH ASSESSMENT, BONDS AND DISTRICT; APPOINTING A PAYING AGENT AND BOND REGISTRAR; RATIFYING ACTION HERETOFORE TAKEN IN CONNECTION THEREWITH; PROVIDING OTHER MATTERS RELATING THERETO; AND PROVIDING THE EFFECTIVE DATE HEREOF. WHEREAS, the City of Aspen in the County of Pitkin and State of Colorado (the "City") is a municipal corporation duly organized and existing as a home rule city under Article ~[X of the Constitution of the State of Colorado; and WHEREAS, the City Council of the City (the "Council") desires to create and establish within the corporate limits of the City a local improvement district (the "District") to be known and designated as "City of Aspen, Colorado, Special Improvement District No. 1," for the purpose of making certain local public improvements in the District in the nature of landscaping, road improvements, lighting improvements and drainage improvements (the "Improvements") and assessing the cost thereof against real properties benefited thereby, pursuant to the Charter of the City of Aspen, Colorado (the "Charter"); and WHEREAS, plans have been presented to the Council for the design of the Improvements, such Improvements ~o be made to, in and around Aspen Mountain Park in the City; and WHEREAS, the total estimated cos~ of the Improvements together with costs for final design plans, bond issuance and incidental expenses is $525,000, $100,000 of such costs to be paid by the City and $425,000 to be assessed against benefited property within the District; and WHEREAS, notice of a public hearing at which any interested party might appear and be heard with respect to the District and the Improvements has been mailed to the affected property owner at the last known address of such property owner per the real property assessmen~ roll for general (ad valorem) taxes of Pitkin County, Colorado as of a date five (5) days before the date of mailing, such notice having been mailed postage prepaid, first class mail, no~ more than twenty (20) but no~ less than ten (10) days prior to the date of the hearing and in accordance with Section 10.7 of the Charter; and WHEREAS, the public hearing referred to in said notice has been held, and the Council has considered any objections, remonstrances and protests which have been timely made; and '2-- WHEREAS, based upon all evidence presented at the public hearing, the Council has determined, and does hereby determine, that the creation of the District and the construction or installation of the Improvements is in and would serve the public interest, and that special benefits are anticipated ~o result ~o the affected property owner and general benefits are anticipated ~o result to the City; and WHEREAS, the Council has determined, and does hereby determine, that it is necessary and for the best interests of said City and the inhabitants thereof that, pursuant to the Charter, it issue and sell its fully registered bonds, without coupons, designated as "City of Aspen, Colorado, Special Improvement District No. 1, Special Assessment Local Improvement Bonds" (the "BondE") in the aggregate principal amount of $525,000, for the purpose of financing the cost of the Improvements and paying all proper incidental expenses and costs of issuance related to the Bonds. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. That all action not inconsistent with the provisions of this ordinance heretofore taken by the City, the Council and the officers of the City, directed toward the creation of the District, the making of the Improvements, and the sale and issuance of the Bonds, be, and the same hereby is, ratified, approved and confirmed. -3- Section 2o That a local improvement district for certain improvements in Aspen Mountain Park, as hereinafter described, is hereby ordered to be created and established in accordance with the Charter of the City, to be designated as "City of Aspen, Colorado, Special Improvement District No. 1." Section 3. That the extent of the District To be assessed for the costs of the Improvements and the area to be included within the boundary of the District are specifically described in Exhibit A hereto. Section 4. That the City Engineer's reports, together with all of the details, specifications, estimates, maps and schedules thereto attached or appended, as amended, be and they hereby are approved and adopted. Section 5. That the estimated cost of the Improvements, Together with costs for .final design plans, bond issuance and incidental expenses, is $525,000, $100,000 of such costs to be paid by the City and $425,000 of such costs to be assessed against benefited property within the District. The assessment will be levied by ordinance after .completion of construction of the Improvements and will be levied against the sole property owner benefited within the District. Section 6. That the assessment will be due and payable without demand within thirty (30) days after publication of an ordinance levying the final assessment, after its final passage. Alternatively, the total assessment against such property may be paid in not more than eleven (11) annual installments equal to 81~ of the principal coming due on the Bonds in each year, over an eleven (11) year period, with interest on the unpaid balance payable on said annual installment dates, at a rate not exceeding 12.50~ per annum. Section 7. That the City be, and it hereby authorized, empowered and directed, and it shall be its duty, to receive, collect and enforce the payment of the assessment to be made and levied to pay the Bonds issued for the purpose of financing the Improvements, and all installments thereof, including all interest thereon, and all penalties actually assessed, and to pay and disburse said payments, the installments thereof, the interest thereon, and penalties actually assessed, to any person or persons lawfully entitled thereto. In furtherance thereof, the Clerk of the City shall prepare an assessment roll, and deliver the same to the Director of Finance of the City (the "Director of Finance"). All assessments shall, from the date of final publication of the assessing ordinance, constitute a perpetual lien against the benefited property, with priority over all prior liens except liens for general property taxes. Section 8. That the Director of Finance be, and hereby is, authorized, empowered and directed, and it shall be her duty, to receive and collect within thirty (30) days after final publication of the assessment ordinance and to certify to the Treasurer of Pitkin County, Colorado thereafter, the assessment, all installments thereof, including the interest thereon, and the penalties accrued, levied Eo defray payment of the principal of and interest on the Bonds issued for the purpose of financing the Improvements, including, without limiting the generality of the foregoing, the cost of constructing or otherwise acquiring the Improvements, engineering and clerical services and supplies, cost of inspection, cost of collecting the assessment, advertising, printing, the payment of interest on Bonds as it accrues until an assessment installment is available to defray the same, financial advice, accounting and fiscal services, legal services for preparing proceedings and advising in regard thereto, and other incidental costs, and to pay and disburse such payments to the person or persons lawfully entitled to receive the same, in accordance with the laws of the State of Colorado, with the Charter, and with all the ordinances and resolutions of the City heretofore or to be hereafter adopted. Ail moneys received from the assessment, except moneys representing the City's administrative costs with respect thereto, and except as otherwise provided herein, including, but not limited to, as provided in --6-- Sections 16 and 17 hereof, shall be placed in a separate fund to be designated "City of Aspen, Colorado, Special Improvement District No. 1, Special Assessment Local Improvement Bonds, Bond Fund" (the "Bond Fund"), and said moneys in the Bond Fund shall be used as soon as they are available for the purpose of paying the principal of (whether at maturity or upon redemption) and interest on the Bonds and for no other purpose whatsoever, and as security for such paymen~ the Bond Fund is hereby exclusively pledged. There shall be deposited in the Bond Fund, from the proceeds of the Bonds, the sum of $25,000, to be used to pay inueresE on the Bonds on June 1, 1984. Section 9. That the Director of Finance shall be, and also hereby is, authorized, empowered and directed, and it shall be her duty Eo proceed as follows: (a) To receive and collect surplus special or local improvement district moneys pursuant to Section 10.7 of the Charter, to place all said moneys in the City's Special Surplus and Deficiency Fund, a special fund of the City hereby created pursuant to Section 10.7 of the Charter (the "Surplus and Deficiency Fund"), and to disburse therefrom said moneys for the payment of the principal of and interest on the City's special or local improvement district bonds, including the Bonds, if and to the extent necessary; -7- (b) To pay, on the City's behalf, the principal of and interest on the Bonds when due from any available moneys and to reimburse the City by collecting the unpaid assessments due the District, whenever three-fourths of the Bonds have been paid and canceled, and for any reason the remaining assessments are not paid in time to take-up the remaining Bonds when due and interest due thereon, and there is not sufficient money in the Surplus and Deficiency Fund therefor; (c) To the extent hereinafter provided in Section 17 hereof, to receive and collect all of the municipal taxes levied and collected pursuant to Section 10.7 of the Charter under the authority of this ordinance, if any, to place all said taxes and moneys in the City's Local Improvement and Reserve Fund, a special fund of the City hereby created pursuant to Section 10.7 of the Charter (the "Local Improvement and Reserve Fund"), and to disburse therefrom said moneys for the payment of the benefits conferred on the City from the construction or installation of improvements in special or local improvement districts, including the Improvements, or for the payment of the principal of and interest on the City's special or local improvement district bonds, including the Bonds, if any, to the extent necessary; and --8-- (d) To receive all moneys transferred from the Local Improvement and Reserve Fund or otherwise in accordance with Section 17 hereof, and to place all said moneys in the Bond Fund, to disburse therefrom said moneys for the payment of the principal of and interest on the Bonds, and to otherwise maintain and manage said fund in the manner hereinafter specified. The moneys in each of said funds, i.e., 'the Bond Fund, the Surplus and Deficiency Fund and the Local Improvement and Reserve Fund, shall each constitute separate trust funds for the benefit of the owners of the Bonds, but may be commingled with other funds for the purpose of investment and be invested in such securities as are permitted by the laws of the State of Colorado. Ail references herein to "funds" shall, for accounting purposes, be deemed to be "accounts." Section 10~ That for the purpose of financing the cost and expense of making the Improvements, including all such proper incidental expenses and interest on the Bonds, the Bonds shall be issued by the City in the form of fully registered bonds without coupons designated "City of Aspen, Colorado, Special Improvement District No. 1, Special Assessment Local Improvement Bonds," in the aggregate principal amount of $600,000, consisting of bonds in the denomination of $5,000 each or any integral multiple thereof, and numbered consecutively. The Bonds shall be --9-- dated as of the June 1 or December 1 next preceding their date of issue, or if issued on a June 1 or a December 1, as of such date, provided that Bonds issued prior to June 1, 1984 shall be dated as of October 1, 1983. The Bonds shall bear interest payable commencing on the first day of June 1984, and semiannually thereafter on the first days of December and June in each year a~ the rates per annum set forth below, and interes~ shall be paid by check or draft mailed uo the registered owners thereof by Central Bank of Denver at the address appearing on the registration books of the City maintained by Central Bank of Denver as of the fifteenth business day prior ~o the interest payment date. The Bonds shall mature on December 1 of each of the years, and in the principal amounts, and shall bear interest at the rates per annum, as follows: Year Principal Interest (December 1) Amount Rate 1984 $25,000 6.75~ 1985 50,000 7.25 1986 50 000 7.75 1987 50 000 8°25 1988 50 000 8°50 1989 50 000 9.00 1990 50 000 9.25 1991 50 000 9'.50 1992 50 000 9.75 1993 50 000 10.00 1994 50 000 10.00 Both principal of and interest on the Bonds shall be payable in lawful money of the United States of America, without deduction for exchange or collection charges. Principal of the Bonds shall be paid at the office of Central Bank of Denver, in Denver, Colorado. If, upon presentation of any Bond a~ maturity, or after call for redemption, payment is no~ made as herein provided, interest thereon shall continue at the same rate per annum until the principal thereof is paid in full. Central Bank of Denver is hereby appointed paying agent and bond registrar for the City in connection with the Bonds and the responsibilities set forth above and in the Bonds. The City may, by ordinance, designate another entity, including itself, to act as paying agent and Bond registrar with respect to the Bonds. The Bonds shall be transferable in the manner and as provided in the Bond, and the person in whose name any Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, as provided in the Bond. The owner of any Bond may exchange such Bond for other Bonds of other authorized denominations of the same maturity and interest rate, provided that such owner shall pay all expenses of such exchange, including any costs of printing. -11- The City will transfer to Central Bank of Denver, or any successor paying agent, funds sufficient to pay all debt service on the Bonds as the same becomes due. Section 11. That all of the Bonds maturing on or after December 1, 1989 shall be subject to redemption prior to maturity on December 1, 1988 and on any interest payment date thereafter, in inverse order of maturity and by lot within a maturity, at the option of the City, at a price equal to the principal amount thereof plus a premium of 1~ of the principal amount thereof plus accrued interest to the redemption date. The City shall exercise such option to redeem Bonds at the earliest possible redemption date from moneys in the Bond Fund which represent (i) Bond proceeds remaining after completion of the Improvements, which are required to be deposited in the Bond Fund pursuant to Section 9 hereof; (ii) the assessment, if any, collected during the thirty (30) days after publication of the assessing ordinance following its final passage; or (iii) amounts in excess of six (6) months' interest on the Bonds outstanding. Notice of prior redemption shall be given by the Director of Finance in the name of the City by publication of such notice at least once not less than fifteen (15) days prior to the date of redemption in a newspaper of general circulation in the City, or a copy of such notice shall be sent by registered or certified mail not less than fifteen (15) days prior to such date to the -12- registered owners of the Bonds. Such notice shall specify the number or numbers of the Bonds to be so redeemed and the date fixed for redemption, and shall further state that on such date there will become and be due and payable upon each Bond so called, at the office of the Director of Finance, the redemption price thereof plus accrued interest to such redemption date, and that from and after such date interest will cease ~o accrue. Notice having been given in the manner hereinbefore provided, the Bond or Bonds so called shall become due and payable on the date so designated, and upon presentation thereof a~ the office of the paying agent, the City shall pay the Bond or Bonds so called. For purposes of selecting Bonds by lot, Bonds in denominations greauer than $5,000 shall be considered as separate Bonds of $5,000 each. Section 12. That the Bonds shall be fully negotiable and shall have all the qualities of negotiable paper, subject to the payment provisions stated herein, and the owner or owners thereof shall possess all rights enjoyed by owners of negotiable instruments under the provisions of the Uniform Commercial Code--Investment Securities, article 8, title 4, C.R.S. 1973, as amended. Section 13. That each of the Bonds shall be signed, subscribed, and executed in the name of and on behalf of the City by the manual or facsimile signature of the Mayor or Mayor Pro Tem, and shall be attested by the manual or -13- facsimile signature of the City Clerk or Deputy City Clerk, provided that at least one such signature on the Bonds shall be a manual signature. The seal of the City or a facsimile thereof shall be affixed or imprinted thereon. The Bonds bearing the signatures of the officers in office at the time of the slgning thereof shall be the valid and binding obligations of the City, nouwithstanding that before the delivery thereof and paymen~ therefor, any or all of the persons whose signatures appear thereon shall have ceased to fill their respective offices. Section 14. That excep~ as hereinafter stated, the principal of and interest on the Bonds shall be payable solely from the Bond Fund, consisting only of all the moneys collected (principal, interest and penalties, if any) from the assessment ~o be levied with respect uo the Improvements, provided that any proceeds from the sale of the Bonds remaining after the payment of all the costs and expenses of making the Improvements shall be deposited in the Bond Fund. Any moneys remaining in the Bond Fund after the principal of and interest on the Bonds are paid in full shall be deposited in the Surplus and Deficiency Fund, except to the extent that the City reimburses itself pursuant to Section 16 or Section 17 of this ordinance. Immediately upon the collection of the assessment or any installment thereof, the moneys therefrom shall be deposited in the Bond Fund except as otherwise provided in Section 23 hereof; and said fund is and will continue to be irrevocably and exclusively pledged for the payment of the principal of and the interest on the Bonds. Section 15. That the Bonds, together with bonds with respect to other special or local Improvemen~ districts, are and shall continue Eo be additionally secured and their payment shall be supplemented by the Surplus and Deficiency Fund, said fund consisting of moneys remaining to the credit of special or local improvement districts the bonds with respect to which have been paid in full, both as to principal and interest; and whenever there is a deficiency in the Bond Fund to meet the payment of the principal of or interest on outstanding Bonds, as the same become due, the deficiency shall be paid out of the Surplus and Deficiency Fund to the extent that moneys are available therefor therein. Section 16. That whenever three-fourths of the Bonds have been paid and canceled and for any reason the remaining assessments therefor are not paid in time to take up the remaining Bonds when due and interest due thereon, and there is not sufficient money therefor in the Surplus and Deficiency Fund, then the City shall pay the remaining Bonds when due and interest due thereon and shall reimburse itself by collecting the unpaid assessments due the District. Section 17. That the Bonds, together with bonds with respect to other special or local improvement districts, are -15- and shall continue to be additionally secured and their payment shall be supplemented by the Local Improvement and Reserve Fund, said fund consisting of proceeds received from taxes levied on all taxable proper~y within the City at a ra~e no~ exceeding four (4) mills in any one (1) year or funds otherwise transferred thereto not in excess of such amount. Such moneys shall be disbursed for the purpose of p~ylng for the benefits conferred on the City from the construction or installation of improvements in special or local improvement districts, including the Improvements, or for transfer into bond funds established in connection with such improvement districts, including the Bond Fund. Subject to the four (4) mill limitation levy set forth above, the City hereby agrees ~o levy a ~ax in each year on all taxable proper~y within the City sufficient to generate revenues equal to i9~ of the debt service on the Bonds in each year to pay for the benefits conferred on the City from the construction or installation of the Improvements° In addition, and subject to the four mill levy limitation set forth above, the City agrees to levy a tax on all taxable property in the City sufficient to operate up to $75,000 when necessary for transfer into bond funds established in connection with special or local improvement districts to pay debt service on bonds with respect thereto, and officials of the City shall take all actions to implement in -16- each year said tax if necessary. Whenever there is not, on any interest payment date, sufficient money in the Bond Fund and in the Surplus and Deficiency Fund to pay the principal of the Bonds and the interest thereon as the same become due, moneys shall be transferred from the Local Improvement and Reserve Fund ~o the Bond Fund in an amount sufficient to pay principal of and interest on such remaining Bonds as due. In lieu of such uax levies, the Council may transfer directly to the Bond Fund and other similar funds created with respecm to other special or local improvement districts any available money of the City, and to the extent such money is so transferred the tax levies shall to that extent be diminished, provided that the amount so transferred in any one (1) year shall not exceed the amount which would result from a four (4) mill tax levied in such year on all taxable property in the City. Any tax levy referred to above shall expire when there are no longer outstanding any bonds payable from the City's general fund or the Local Improvement and Reserve Fund. In addition, to the extent that any funds are transferred from the City's general fund or the Local Improvement and Reserve Fund to the Bond Fund or any similar fund, such transfer (except for transfers representing payments by the City for benefits conferred to it) shall be considered an advance on payments of special assessments, and the City thereafter shall collect said -17- special assessment and reimburse itself for said transfer by depositing the same in the Local Improvement and Reserve Fund. Section 18. That the obligations created by the payment provisions in Sections 16 and 17 of this ordinance shall not be construed or held to make the Bonds general obligations of the City, and the owner or owners of the Bonds shall have no claim on any general or other fund of the City for the paymen~ thereof, excep~ as herein provided. Section 19. That the Bonds shall be ~n substantially the following form: (Form of Bond) UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF PITKIN CITY OF ASPEN SPECIAL IMPROVEMENT DISTRICT NO. 1 SPECIAL ASSESSMENT LOCAL IMPROVEMENT BONDS NO. $ The City of Aspen, in the County of Pitkin and State of Colorado (the "City"), a municipal corporation duly organized and existing as a home rule city under Article XX of the Constitution of the State of Colorado, for value received, hereby promises to pay to , or registered assigns, but only from the special funds available therefor, as hereinafter described, the principal sum of THOUSAND DOLLARS -18- on the first day of December , with interest hereon au the ra~e of percent ( %) per annum, such interest being payable commencing on the first day of June 1984, and semiannually thereafter on the first days of December and June in each year. Both principal and interest are payable in lawful money of the United States of America, without deduction for exchange or collection charges. Interest is payable by check or draft mailed to the registered owner hereof at his address as it appears on the registration books of the City maintained by Central Bank of Denver on the fifteenth business day prior ~o any interest paymen~ date, and principal is payable at the principal office of Central Bank of Denver, in Denver, Colorado, upon presentation and surrender of this bond. If, upon presentation at maturity, payment of this bond is not made as herein provided, interest hereon shall continue at the same rate per annum until the principal hereof is paid in full. The City reserves the right to designate another entity to act as paying agent and registrar with respect to this bond. This bond is one of a series of bonds designated "City of Aspen, Colorado, Special Improvement District No. 1, Special Assessment Local Improvement Bonds (the "Bonds"). The Bonds are issued in the aggregate principal amount of $525,000, as fully registered bonds without coupons, in the denominations of $5,000 or any integral multiple thereof. -19- The Bonds are being issued to finance the cost of certain local improvements (the "Improvements") to be made in Special Improvement District No. 1 (the "District"). The Bonds are being issued pursuant to and in accordance with the Charter of the City (the "Charter"). The Bonds maturing on or after December 1, 1989 are subject to prior redemption on December 1, 1988 and on any interest payment date thereafter, in inverse order of maturities and by lot within a maturity, at the option of the City, at a price equal to the principal amount thereof plus a premium of 1% of the principal amount thereof plus accrued interest To the redemption date. The City shall exercise such option to redeem Bonds at the earliest possible redemption date from moneys in the Bond Fund (hereinafter defined) which represent (i) Bond proceeds remaining after completion of the Improvements, which are required to be deposited in the Bond Fund pursuant to the Ordinance, (ii) the assessment, if any, collected during the thirty (30) days after publication of the assessing ordinance following its final passage, or (iii) amounts in excess of six (6) months' interest on the Bonds outstanding° Redemption shall be made upon not less than fifteen (15) days' prior notice by publication or mailing in the manner and upon the conditions provided in the Ordinance. The principal of and the interest on the Bonds, except as hereinafter stated, shall be payable solely from a -20- special fund designated "City of Aspen, Colorado, Special Improvement District No. 1, Special Assessment Local Improvement Bonds, Bond Fund" (the "Bond Fund") consisting only of all the moneys collected by the City from the special assessment, (principal, interest and penalties, if any) to be levied upon the completion of the Improvements against the assessable parcel of land in the District, except as otherwlse provided in the Ordinance; provided that any proceeds from the sale of the Bonds remaining after the payment of all the costs and expenses of making the Improvements shall al~o be deposited in the Bond Fund. Said fund is irrevocably and exclusively pledged for the full and prompt payment of all of the Bonds as soon as and to the extent that moneys therein are available therefor, after payment of all interest then due. The Bonds, together with bonds with respec~ to other special or local improvement districts in the City, shall be additionally secured and their payment shall be supplemented by moneys in the City's Special Surplus and Deficiency Fund, a special fund of the City created pursuant to Section 10.7 of the Charter (the "Surplus and Deficiency Fund"). The Surplus and Deficiency Fund consists of moneys remaining to the credit of special or local improvement districts the Bonds with respect to which have been paid in full. Whenever there is a deficiency in the Bond Fund to meet the payment of the principal of or interest on outstanding -21- Bonds, as the same become due, the deficiency shall be paid out of the Surplus and Deficiency Fund to the extent that moneys therein are available therefor. Whenever three-fourths of the Bonds have been paid and canceled and for any reason the remaining assessments therefor are not paid in time ko take up the remaining Bonds when due and interest due thereon, and there is not sufficient money therefor in the Surplus and Deficiency Fund, then the City shall pay such remaining Bonds when due and interest due thereon and shall reimburse itself by collecting the unpaid assessments due the District. The Bonds, together with bonds with respect to other special or local improvement districts in the City, shall be additionally secured and their payment shall be supplemented by moneys in the City's Local Improvement and Reserve Fund, a special fund of the City created pursuan~ to Section 10.7 of the Charter (the "Local Improvement and Reserve Fund"). The Local Improvement and Reserve Fund consists of moneys to be received from taxes, if any, which may be levied on all taxable property within the City at a rate not exceeding four mills in any one year, such taxes to be initially levied to generate revenues equal to 19~ of the debt service on the Bonds to pay the City's portion of the cost of the Improvements and up to an additional $75,000 when necessary for transfer into bond funds established in connection with special or local improvement districts to pay debt on bonds -22- with respect thereto, subject in all cases to the four mill levy limitation described above. Such moneys shall be disbursed for the purpose of paying for the benefits conferred on the City from the construction or installation of improvements in special or local improvement districts, including the Improvements, or for transfer into bond funds established in connection with such improvement districts, including the Bond Fund described above. Whenever there is not, on any interest payment date, sufficient money in the Bond Fund and in the Surplus and Deficiency Fund to pay the principal of the Bonds and the interest thereon as the same become due, moneys shall be transferred from the Local Improvement and Reserve Fund to the Bond Fund in an amount sufficient to pay principal of and interest on such remaining Bonds as due° In lieu of such tax levies, the City Council may transfer directly to the Bond Fund any available money of the City and to the extent such money is so transferred, the tax levies shall to that extent be diminished; provided that the amount so transferred in any one year shall not exceed the amount which would result from a four (4) mill tax levied in such year on all taxable property in the City. It is hereby certified, recited and declared that the proceedings taken to date with reference to issuing the Bonds, and to making the Improvements, have been regularly had and taken in compliance with law; that all prerequisites -23- to issuing the Bonds have been performed; and that all acts, conditions and things essential to the validity of this bond exist, have happened, and have been done in due time, form and manner as required by law. This bond is subject to the condition, and every owners hereof by accepting the same agrees with the obligor and every subsequent owners hereof, that (a) upon surrender for transfer of any Bond duly endorsed for transfer or accompanied by an assignment duty executed by the registered owner or his attorney duly authorized in writing at the office of Central Bank of Denver, as bond registrar, or any successor bond registrar, the City shall execute and deliver in the name of the transferee or transferees a new Bond or Bonds for a like aggregate principal amount, and (b) subject to provisions of the ordinance authorizing the issuance of the Bonds with regard to the mailing of interest to the person registered as the owner of the Bond on the fifteenth business day preceding any interest payment date, the person in whose name any Bond shall be registered shall be deemed and regarded as the absolute owners thereof for all purposes, and payment of either principal or interest on any Bond shall be made only to or upon the written order of the registered owner thereof or his legal representative, but such registration may be changed as hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. IN WITNESS WHEREOF, the City has caused this bond to be signed, subscribed and executed in the name of and on behalf of the City by the signature of the Mayor of the City, and to be attested by the City Clerk, and has caused the seal of the City ~o be affixed or imprinted hereon~ all as of the day of 19 (For Facsimile Signature) Mayor (SEAL) Attest: (For Manual Signature) City Clerk (Form for Transfer) FOR VALUE RECEIVED, , the undersigned, hereby sells, assigns and transfers unto (Tax Identification or Social Security No. ) the within Bond and all rights thereunder and hereby irrevocably constitutes and appoints -25- attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alternation, enlarge- ment or any change whatever. -26- Section 20. That when the Bonds have been duly sold, executed and registered, the Director of Finance shall deliver them to Kirchner Moore & Company (the "Original Purchaser") on receipt of the purchase price, as provided in Section 24 hereof. Except as otherwise provided herein, the funds realized from the sale of the Bonds shall be applied solely to defray issuance costs and the costs and expenses of making the Improvements, the cost of which is to be ultimately defrayed by the special assessment, provided that after said costs and expenses are paid any funds remaining from the sale of the Bonds shall be deposited in said Bond Fund. The Original Purchaser of the Bonds, however, shall in no manner be responsible for the application by the City, or any of its officers, of any of the funds derived from the sale thereof. Section 21. That so long as any of the Bonds remain outstanding, the City shall keep or cause to be kept true and accurate books of records and accounts showing full and true entries covering the collection and disposition of said special assessment as well as any delinquencies in the collection thereof, covering deposits and disbursements in each of said special funds herein designated, covering the redemption of the Bonds, payment of both principal and interest, and covering disbursements to defray the cost of the Improvements, including incidental expenses; and the City shall permit an inspection and examination of all books -27- and accounts at all reasonable times by a representative of the Original Purchaser of the Bonds. In addition, the City at least once a year shall cause an audit to be made relating to said books and accounts by an accountant to be employed by the City at its own expense, and a copy of said audit immediately after its completion shall be furnished by the City, without charge, to t~e Original Purchaser of the Bonds. Section 22. The assessment shall bear interest at the rate not exceeding twelve and five tenths percent (12.50%) per annum. The Council will adopt an ordinance levying the assessment in such manner as will provide sufficienu revenues to pay the principal of and interest on the Bonds and the reasonable administrative cosus of the City. Section 23. That any owners of the Bonds shall have the right and power for the equal benefit and protection of all owners of Bonds similarly situated: (1) By mandamus or by other suit, action, or proceeding at law or in equity, to enforce his rights against the City and against the Council and any of its officers, agents, and employees and to require and to compel the City or the Council or any such officers, agents or employees to perform and to carry out its and their ministerial duties, obligations or other commitments under this ordinance and under its and their covenants and agreements with the owners of the Bonds; -28- (2) By action or by suit in equity, to require the City and the Council to account as if they were the trustees of an express trust; (3) Upon the breach of any duty set forth in this ordinance, by action or by suit in equity, to have appointed a receiver, which receiver may take possession of any accounts and may collect, receive, and apply all revenues or other moneys pledged for the payment of the Bonds in the same manner as the City itself might do; (~) By action or by suit in equity, to enjoin any acts or things which would be unlawful or would violate the rights of the owners of the Bonds; and (5) To bring suit upon the Bonds. No right ar remedy conferred by this ordinance upon any owners of Bonds is intended to be exclusive of any other right or remedy, but each such right or remedy is cumulative and is in addition to every other right or remedy and may be exercised without exhausting and without regard to any other remedy conferred by this ordinance or by any other law. The failure of the owners of any Bond so to proceed as herein provided shall not relieve the City, the Council, or any of its officers, agents and employees of any liability for failure to perform or to carry out any duty, obligation or other commitment. -29- Section 24. That the Bonds are hereby sold to the Original Purchaser for a price equal to the principal amount thereof, less a discount of 3.2~, plus accrued interest. Section 25. The Preliminary Official Statement dated September 12, 1983, presented to this meeting, is hereby approved. The Mayor or Mayor Pro Tem of the City is authorized and directed to execute the final Official Statement in substantially the form now before this meeting, with such changes therein as shall be deemed necessary or desirable, the execution of the final Official Statement by the Mayor or Mayor Pro Tem go represent conclusively the approval of all changes from the form now before this meeting° The Original Purchaser is hereby authorized to use the final Official Statement in connection with the sale of the Bonds. Section 26~ That the officers of the City be, and they hereby are, authorized and directed to take all action necessary or appropriate to effectuate the provisions of this ordinance, including, without limiting the generality of the foregoing, the printing of the Bonds, including thereon, at their option, a certified tru~ copy of bond counsel's approving opinion, and the execution of such certificates as may reasonably be required by bond counsel and the Original Purchaser. -30- Section 27. That the Bonds may be refunded in accordance with and under the conditions imposed by the laws of the State of Colorado and the City. Section 28. That this ordinance may be amended or supplemented by an ordinance or ordinances adopted by the Council in accordance with the Charter, and without the receipt by the City of any additional consideration, with the written consent of the owners of seventy-five percent (75~) of the aggregate principal amount of the Bonds outstanding at the time of the adoption of such amendatory or supplemental ordinance, provided, however, that no such ordinance 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 or the rate of interest thereon without the written consenu of the owners of said Bond; or (c) The creation of a lien upon or a pledge of property, revenues or funds, ranking prior to the liens or pledges created by this ordinance; or (d) A reduction of the principal amount of Bonds required for consent of such amendatory or supplemental ordinance. Secton 29. That all ordinances, resolutions, bylaws and regulations of the City, in conflict with this ordinance, are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to -31- revive any ordinance, resolution, bylaw or regulation, or part thereof, heretofore repealed. Section 30. That if any section, paragraph, clause or provision of this ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceabiity of such section, paragraph, clause or provision shall no~ affect any of the remaining provisions of this ordinance. Section 31. That in accordance with Section 4.10 of the Charter, tke Council shall hold a public hearing on this ordinance, before final passage, at 5:00 p.m., on Monday, September 12, 1983, a~ the City Hall, 130 South Galena, Aspen, Colorado. Section 32. That this ordinance, after its final passage, shall be numbered and rendered, and the adoption and publication shall be authenticated by the signature of the Mayor and the City Clerk and by the certificate of publication following final passage. INTRODUCED at a regular meeting of the Council on the 22nd day of August 1983, and passed by a vote of ~-~ FOR and ~ AGAINST and ordered published in full in The Aspen Times on August~1983. PASSED ON FINAL READING, following a public hearing, by a vote of ~ FOR and ~ AGAINST, on the 12th day of -32- September 1983, and ordered published in full, as amended, in The Aspen Times on September/~, 1983. Attest: ACCEPTANCE OF PAYING AGENT AND BOND REGISTRAR DUTIES The undersigned, Central Bank of Denver, hereby accepts the duties of paying agen~ and bond registrar under the foregoing ordinance and bonds in connection with the "City of Aspen, Colorado, Special Improvement District No. 1, Special Assessment Local Improvemen~ Bonds." CENTRAL BANK OF DENVER By Title: -33-