HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/20/2001 - FIRST READING OF ORDINANCE NO. 50, 2001, AUTHORIZI AGENDA ITEM SUMMARY ITEM NUMBER: 20
DATE: March 20, 2001
FORT COLLINS CITY COUNCIL STAFF: Alan Krcmarik/
Jay Hardy
SUBJECT:
First Reading of Ordinance No. 50, 2001, Authorizing the Issuance of City of Fort Collins
Downtown Development Authority Tax Increment Revenue Refunding Bonds Series 2001 in the
Amount of $3,690,000 for the Purpose of Refunding a Portion of the 1992 DDA Refunding
Bonds.
RECOMMENDATION:
Staff recommends adoption of the Ordinance on First Reading.
FINANCIAL IMPACT:
The 1992 Downtown Development Authority Bonds carry an interest rate of over 6.5%. Due to
the recent drop in interest rates, the City may now issue bonds in the 4% range. Depending on
market rates on the day of sale the City and the DDA may be able to reduce the remaining
payments by about $200,000. By providing a surety policy in lieu of the reserve fund, the City
will be able to release an additional $172,000 from the reserve fund. These savings and funds
from the reserve will allow the DDA to participate in projects consistent with the Plan of
Development.
EXECUTIVE SUMMARY:
In 1992, the City refunded and restructured the outstanding debt of the Downtown Development
Authority (DDA) through the issuance of $11,380,000 of revenue refunding bonds. When
issued, the bonds carried an interest rate of about 6.5%, very favorable compared to interest rates
in prior years. Based on the covenants made during the 1992 issue, a majority of the bonds are
now eligible for refunding. The 2006 maturity bonds were issued on a non-callable basis and
will not be included in this refunding. The 2001-2004 and 2007 bonds are subject to early call
and will be refunded.
Based on current market estimates, the 2001 refunding bonds should save the City and the DDA
approximately $200,000. The DDA may use the Tax Increment Savings to fund other
worthwhile projects consistent with its Plan of Development. Second Reading is scheduled for
April 17, 2001. This will allow time for the Finance Department to mail the bond call notice to
holders of the 1992 bonds on May 1, 2001.
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DATE: March 20, 2001 2 ITEM NUMBER: 20
I
( BACKGROUND
I
The Colorado Revised Statutes (Part 8 of Article 25 of Title 31, the "Act") provide the legal
foundation for creation of downtown development authorities. Following the procedures in the
Act, the City Council and the qualified electors of the Downtown Development Authority
District form the Authority. At a special election held on March 17, 1981, the qualified electors
of the District voted to approve the formation of the Authority. Subsequently, on April 21, 1981,
the City Council adopted Ordinance No. 46, 1981, establishing the Authority with the powers
provided in the Act.
Under the Act, the city council of a city in which an authority is sought to be formed must
determine that such an authority is necessary to protect the public health, safety, prosperity,
security and welfare of the inhabitants thereof. Following such determination, the city council
adopts a resolution submitting to the qualified electors within the authority's proposed
boundaries the question of establishing the authority. If a majority of the qualified electors
voting on the question vote to establish the downtown development authority, the authority is
established by ordinance pursuant to the requirements of the Act.
Once formed, the authority has various express powers under the Act. These powers include:
the power to plan and propose plans of development for public facilities and other improvements
to public or private property; to sell or dispose of property; to borrow money and accept grants;
to cooperate with the municipality in which the authority is located; and to enter into contracts
with such body and, in connection with public facilities, to improve land and operate
improvements. As provided for in the Act, the city forming the authority acts as the issuer of
bonds for authority projects. The DDA acts for the City of Fort Collins in making various public
improvements within the central business district of the City.
In order to effectuate the purposes of the Authority and to provide the means to finance the
proposed programs and projects, the City Council called a special election, and on June 1, 1982,
the qualified electors authorized the City to pledge the Tax Increment Revenue as security for
bonds in an aggregate amount not to exceed $25 million. Prior to this refunding bond issue, the
City has issued $14,153,100 of bonds based on the 1982 authorization. This leaves a balance of
$10,846,900 of bonds that are authorized but as yet unissued.
i Under the Act, a downtown development authority may not begin development projects unless
the municipality has approved a plan of development for such projects. By a resolution adopted
on September 8, 1981, the Council approved the Plan of Development and authorized the
Downtown Development Authority to undertake certain development projects.
The property included in the Fort Collins DDA District comprises much of the City's older
downtown shopping and business district. In the 1970s and early-1980s, the construction of
shopping centers and malls outside of the downtown area, along with various demographic and
economic factors had led to a gradual decline in the economic viability of the downtown area,
particularly for retail stores.
According to the Plan of Development, the DDA places a high priority on coordinating and
integrating its public expenditures directly with private projects that serve a public purpose. The
DDA's goal was to leverage significant private development within five years of its inception.
DATE: March 20, 2001 3 ITEM NUMBER: 20
The development activities of the Authority have also encouraged and stimulated additional
. development by private interests with the District.
The chart below illustrates the financial success of the Authority. Since 1981, the tax increment
(tax revenue from redevelopment and new projects) has grown dramatically. After ten years of
steady growth, the valuation within the district dipped in the 1992-1994 period. Since then
valuations have grown at an even stronger pace. For the years 2002-2006, staff has made a
conservative estimate of 2% annual growth.
DDA Tax Increment Growth
$2,"O,ON
52,000,000
$1,500,000 y.= "':�s ' 4` p'.a,,y.vt'°
$1,000,000 14
$500,000
ter 5 I F-
Year 2% Projection 2002-2006
Based on the strong revenue growth, the Authority has reached the point where annual tax
increment collections exceed the debt service on the bonds. This has allowed the Authority to
participate in the financing of additional projects and participate in the new Civic Center Parking
Structure and the Northern Hotel redevelopment.
The proposed refunding will save the Authority and the City approximately $200,000 of debt
service payments in 2001, which in turn may be invested in other projects.
DATE: March 20, 2001 4 ITEM NUMBER: 20
Sources and Uses of the Bonds
Sources
Bond Proceeds $3,515,000
Accrued Interest 10,863
Use of 1992 Bond Reserve 1,227,306
Payment on 1992 Bonds 557,345
Total $5,485,515
Uses
Escrow Deposit 5,314,445
Bond Insurance 30,096
Surety Bond 26,000
Underwriters Fee 17,195
Accrued Interest 10,863
Bond Ratings 16,000
Bond Counsel 50,000
Financial Advisor 8,500
Printing&Mailing 7,000
Paying Agent&Misc. Costs 3,501
Contingency 1,915
Total Uses $5,485,515
Recommendation
Staff recommends adoption of the Ordinance on First Reading. The level of savings projected
on the refunding is about 3.7% of the refunded bonds, which accomplishes the desired level of
savings for a refunding. Staff believes the historically low market rates now available make this
an optimal time to refund.
. ORDINANCE NO. 50, 2001
AN ORDINANCE AUTHORIZING THE ISSUANCE OF CITY OF FORT COLLINS,
COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY TAX INCREMENT
REVENUE REFUNDING BONDS, SERIES 2001, DATED APRIL 1, 2001, IN THE
AGGREGATE PRINCIPAL AMOUNT OF$3,690,000, FOR THE PURPOSE OF
REFUNDING, PAYING AND DISCHARGING CERTAIN OUTSTANDING DOWNTOWN
DEVELOPMENT AUTHORITY TAX INCREMENT REVENUE REFUNDING BONDS OF
THE CITY; AND PROVIDING FOR THE PLEDGE OF CERTAIN INCREMENTAL AD
VALOREM TAX AND SALES AND USE TAX REVENUES TO PAY THE PRINCIPAL OF
AND INTEREST ON THE BONDS
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS,
COLORADO, THAT:
Section 1. Definitions and Construction.
A. Definitions. In this Ordinance the following terms have the following
respective meanings unless the context hereof clearly requires otherwise:
(1) Additional Parity Bonds: any Parity Securities issued after the
issuance of the Bonds.
• (2) Authority: the City of Fort Collins, Colorado, Downtown
Development Authority.
(3) Average Annual Debt Service Requirements:the aggregate of all Debt
Service Requirements(excluding any redemption premiums)due on the Bonds or any other
issue of Parity Securities for all Bond Years beginning with the Bond Year in which Debt
Service Requirements of the Bonds or such Parity Securities are first payable and ending
with the Bond Year in which the last of the Debt Service Requirements are payable,divided
by the number of such years.
(4) Beneficial Owners: those Persons having beneficial ownership
interests in Bonds registered in the name of the Securities Depository or a nominee therefor.
(5) Bond Insurance Commitment: the Commitment to Issue a Financial
Guaranty Insurance Policy, dated March_, 2001, from the Bond Insurer to the City.
(6) Bond Insurance Policy: the Financial Guaranty Insurance Policy
issued by the Bond Insurer pursuant to the Bond Insurance Commitment guaranteeing the
payment of the principal of and interest on the Bonds.
(7) Bond Insurer: MBIA Insurance Corporation in its capacity as insurer
of the Bonds or any successor to its function as issuer of the Bond Insurance Policy.
(8) Bond Purchase Agreement: the Bond Purchase Agreement, dated
April _, 2001, between the City and the Purchaser.
(9) Bond Year: the twelve (12)months commencing on the second day
of December of any calendar year and ending on the first day of December of the next
succeeding calendar year.
(10) Bonds: the City of Fort Collins,Colorado,Downtown Development
Authority Tax Increment Revenue Refunding Bonds,Series 2001,dated April 1,2001,in the
aggregate principal amount of$3,690,000.
(11) Charter: the Home Rule Charter of the City, as amended.
(12) City: the City of Fort Collins, Colorado.
(13) Combined Average Annual Debt Service Requirements: the sum of
the Average Annual Debt Service Requirements for all issues of Parity Securities for which
the computation is being made.
(14) Commercial Bank: a state or national bank or trust company which
is a member of the Federal Deposit Insurance Corporation and of the Federal Reserve
System, that has a combined capital and surplus of $75,000,000 or more, or such lesser
amount as may be approved by the Bond Insurer,and that is located within the United States
of America.
(15) Council: the governing body of the City.
(16) Debt Service Requirements: the principal of, interest on and any
premium due in connection with the redemption of the Bonds,any Additional Parity Bonds,
any Parity Securities or any other securities payable from the Tax Increment Revenues.
(17) Development and Expense Fund: the special fund created in
Ordinance No. 142, 1985,of the City,designated therein as the 'Development Account" of
the "City of Fort Collins, Colorado, Downtown Development Authority Tax Increment
Bonds, Bond Fund" and referred to in Section 5A hereof.
(18) District: the area referred to in the Plan of Development and described
in Ordinance No.46, 1981,of the City,as amended by Ordinance No. 162, 1981,of the City
and Ordinance No. 2, 1983, of the City.
(19) Downtown Development Authority Act: part 8 of article 25 of
title 31, Colorado Revised Statutes, as amended.
(20) Escrow Agreement: the Escrow Agreement,dated as of April 1,2001,
between the City and the Escrow Bank.
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• (21) Escrow Bank: The Bank of Cherry Creek, N.A., or its successors.
(22) Escrow Fund: the special fund created in Section 5A hereof.
(23) Event of Default: one of the events described in Section 10A hereof.
(24) Excess Investment Earnings: the aggregate of the amounts computed
as of each installment computation date, consisting of the excess of:
(a) the amounts earned on investments (other than in tax-exempt
obligations) of gross proceeds of the Bonds held in the Escrow Fund,the Development and
Expense Fund, the Tax Increment Fund, the Tax Increment Principal and Interest Account
(if the amounts earned exceed$100,000),the Tax Increment Reserve Account,the Sales and
Use Tax Fund, the Sales and Use Principal and Interest Account (if the amounts earned
exceed $100,000) and the Sales and Use Tax Reserve Account (but not the Excess
Investment Earnings Fund), including unrealized gains or losses upon the retirement of the
last Bond, over
(b) the amounts that would have been earned on such investments at the
yield on the Bonds determined on a present value basis from the date of issuance of the
Bonds without adjustment for costs of issuance.
Notwithstanding the provisions of this Section IA(24), the City shall construe the term
Excess Investment Earnings in conformity with all applicable federal statutes and regulations
as the same may be amended from time to time.
(25) Excess Investment Earnings Fund: the special fund created in Section
5M hereof.
(26) Federal Securities: bills,certificates of indebtedness,notes,bonds or
similar securities that are direct obligations of the United States of America or are obligations
the principal and interest of which are unconditionally guaranteed by the United States of
America.
(27) Fiscal Year: the twelve (12)months commencing on the first day of
January of any calendar year and ending on the last day of December of such calendar year
or such other twelve-month period as may from time to time be designated by the Council
as the Fiscal Year of the City.
(28) Guaranty Agreement: the Financial Guaranty Agreement,dated as of
April 1, 2001, between the City and the Bond Insurer.
(29) Independent Accountant: any certified public accountant,or any firm
of such accountants, duly licensed to practice and practicing as such under the laws of the
State,appointed and paid by the City,who or which(a)is,in fact,independent and not under
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the domination of the City or the Council, (b)does not have any substantial interest, direct
or indirect, in any of the affairs of the City, and (c) is not connected with the City as a
member, officer or employee of the Council, but who may be regularly retained to make
annual or similar audits of any books or records of the City.
(30) Insurance Pan}_ng_Agent: State Street Bank and Trust Company,N.A.,
in New York, New York, or its successors under the Bond Insurance Policy.
(31) Interest Payment Date: a date designated by ordinance for the payment
of interest on the Bonds or any other designated security.
(32) Investment Earnings: all income derived from the investment of the
Tax Increment Revenues or any proceeds of the Bonds deposited in the Development and
Expense Fund, the Tax Increment Principal and Interest Account or the Tax Increment
Reserve Account to the extent not subject to federal arbitrage rebate requirements.
(33) Letter of Representations: the Blanket Issuer Letter of
Representations, dated April 1, 2001, from the City to the Securities Depository.
(34) Maturity Date: a date designated by ordinance for the payment at
maturity of principal of the Bonds or any other designated security.
(35) MSRB: the Municipal Securities Rulemaking Board.
(36) 1983 Tax Increment Revenue Bond Anticipation Notes: the City of
Fort Collins, Colorado, Downtown Development Authority Tax Increment Bond
Anticipation Notes, Series April 1, 1983, dated April 1, 1983, in the aggregate principal
amount of$3,100,000.
(37) 1984 Tax Increment Revenue Bonds: the City of Fort Collins,
Colorado, Downtown Development Authority Tax Increment Bonds, Series 1984A, dated
October 1, 1984, in the aggregate principal amount of$8,200,000.
(38) 1985 Tax Increment Revenue Refunding Bonds: the City of Fort
Collins, Colorado, Downtown Development Authority Tax Increment Refunding Bonds,
Series 1985A, dated November 1, 1985, in the original aggregate principal amount of
$8,885,000.
(39) 1988 Tax Increment Revenue Refunding and Improvement Bonds:
the City of Fort Collins, Colorado, Downtown Development Authority Tax Increment
Revenue Refunding and Improvement Bonds, Series 1988, dated May 15, 1988, in the
aggregate principal amount of$13,545,000.
(40) 1992 Tax Increment Revenue Refunding Bonds: the City of Fort
Collins, Colorado,Downtown Development Authority Tax Increment Revenue Refunding
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. Bonds, Series 1992, dated March 15, 1992, in the aggregate principal amount of
$11,380,000.
(41) NRMSII2: a nationally recognized municipal securities information
repository, recognized by the Securities and Exchange Commission pursuant to SEC
Rule 15c2-12.
(42) Ordinance: this Ordinance No. _, 2001, of the City.
(43) Ordinance No. 58, 1967: Ordinance No. 58, 1967,of the City which
provides for the imposition of the initial one percent(1%) sales and use tax within the City.
(44) Ordinance No. 140, 1979: Ordinance No. 140, 1979, of the City,
which provides for the imposition of the additional one percent(1%)sales and use tax within
the City.
(45) Ordinance No. 149, 1981: Ordinance No. 149, 1981, of the City,
which provides for the imposition of the additional twenty-five hundredths percent (.25%)
sales and use tax within the City.
(46) Outstanding or outstanding: as of any particular date,the Bonds, any
Additional Parity Bonds, any Parity Securities or any such other securities payable in whole
. or in part from the Tax Increment Revenues that have been authorized, executed and
delivered, except the following:
(a) Any Bond, Additional Parity Bond, Parity Security or other
security cancelled by the City,by the Paying Agent or otherwise on behalf of the City
on or before such date;
(b) Any Bond, Additional Parity Bond, Parity Security or other
security held by or on behalf of the City;
(c) Any Bond, Additional Parity Bond, Parity Security or other
security of the City for the payment or the redemption of which moneys or Federal
Securities sufficient(including the known minimum yield available for such purpose
from Federal Securities in which such amount wholly or in part may be initially
invested) to meet all of the Debt Service Requirements of such Bond, Additional
Parity Bond, Parity Security or other security to the Maturity Date or specified
Redemption Date thereof shall have theretofore been deposited in escrow or in trust
with a Trust Bank for that purpose; and
(d) Any lost, destroyed, or wrongfully taken Bond, Additional
Parity Bond, Parity Security or other security of the City in lieu of or in substitution
for which another bond or other security shall have been executed and delivered.
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(47) Owner: the holder of any bearer instrument or registered owner of any
registered instrument.
(48) Parity Securities: bonds, warrants, notes, securities, leases or other
contracts evidencing borrowings and payable from the Tax Increment Revenues equally or
on a parity with the Bonds.
(49) Participants: underwriters,securities brokers or dealers,banks,trust
companies, closing corporations or other Persons for whom or which the Securities
Depository holds the Bonds.
(50) Paving Agent: the Financial Officer of the City, or his successors.
(51) Permitted Investments: except to the extent limited by law,any of the
obligations specified in the Bond Insurance Commitment.
(52) Person: any individual, firm, partnership, corporation, company,
association,joint-stock association,or body politic or any trustee,receiver,assignee,or other
similar representative thereof.
(53) Plan of Development: the plan approved by Resolution No. 81-129
of the City, as amended.
(54) Pledged Revenues: the Tax Increment Revenues, the Investment
Earnings and the Sales and Use Tax Revenues.
(55) Preliminary Official Statement: the Preliminary Official Statement,
dated March_, 2001, relating to the Bonds.
(56) Prior Sales and Use Tax Revenue Bonds: the City of Fort Collins,
Colorado, Sales and Use Tax Revenue Refunding Bonds, Series 1993, dated June 1, 1993,
in the original aggregate principal amount of$26,210,000.
(57) Property Tax Base Dates: September 15, 1980, with respect to the
District described in Ordinance No.46, 1981,of the City;September 15, 1981,with respect
to the area added to the District by Ordinance No. 162, 1981, of the City; September 15,
1982, with respect to the area added to the District by Ordinance No. 2, 1983, of the City.
(58) Purchaser: U.S. Bancorp Piper Jaffray Inc.
(59) Redemption Date: the date fixed for the redemption prior to maturity
of any designated securities payable from the Tax Increment Revenues in any notice of prior
redemption given by or on behalf of the City.
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• (60) Refunded Bonds: the 1992 Tax Increment Revenue Refunding Bonds
maturing from June 1, 2001,through December 1, 2004, and on June 1, 2007.
(61) Refunding Act: part 1 of article 56 of title 11, Colorado Revised
Statutes, as amended.
(62) Registrar: the Financial Officer of the City, or his successors.
(63) Regular Record Date: the fifteenth day of the calendar month next
preceding an Interest Payment Date for the Bonds.
(64) Sales and Use Tax Fund: the special fund created in Ordinance No.
87, 1981,of the City,designated therein as the"City of Fort Collins,Colorado,Sales and Use
Tax Fund" and referred to in Section 5F hereof.
(65) Sales and Use Tax Principal and Interest Account the special fund
created in Ordinance No. 87, 1981, of the City, designated therein as the "City of Fort
Collins, Colorado, Sales and Use Tax Revenue Bonds,Principal and Interest Account" and
referred to in Section 5G hereof.
(66) Sales and Use Tax Reserve Account: the special fund created in
Ordinance No. 87, 1981, of the City, designated therein as the "City of Fort Collins,
. Colorado, Sales and Use Tax Revenue Bonds,Reserve Account" and referred to in Section
5H hereof.
(67) Sales and Use Tax Revenues: all revenues derived in each Fiscal Year
from the imposition of the sales and use tax established by Ordinance No. 58, 1967,
Ordinance No. 140, 1979, and Ordinance No. 149, 1981, upon sales and purchases of
tangible personal property at retail and storage,use,distribution and consumption of tangible
personal property purchased or acquired at retail,within the City,in the percentages set forth
in such ordinances,less any collection expense allowance retained by the retailer or vendor,
plus all income or gain, if any,from any investment of such revenues and of the proceeds of
Securities payable therefrom(except any income or gain from investment of the proceeds of
Securities deposited in an escrow account for the payment of refunded Securities) to the
extent not subject to federal arbitrage rebate requirements.
(68) Securities Depository; The Depository Trust Company, a limited
purpose trust company organized under the laws of the State of New York.
(69) Security or Securities: any bond or bonds issued by the City or any
other evidence of the advancement of money to the City.
(70) SID. the state information depository for the State,if any,recognized
• by the Securities and Exchange Commission pursuant to SEC Rule 15c2-12.
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(71) Special Record Date: the date fixed by the Paying Agent for the
determination of ownership of Bonds for the purpose of paying interest not paid when due
or interest accruing after maturity.
(72) State: the State of Colorado.
(73) Subordinate Bonds or Subordinate Securities: bonds or securities
payable from the Tax Increment Revenues having a lien thereon subordinate or junior to the
lien thereon of the Bonds.
(74) Superior Bonds or Superior Securities: bonds or securities payable
from the Tax Increment Revenues having a lien thereon superior or senior to the lien thereon
of the Bonds.
(75) Surety Bond: the Debt Service Reserve Surety Bond issued by the
Bond Insurer pursuant to the Surety Bond Commitment guaranteeing certain payments into
the Tax Increment Reserve Account as provided and subject to the limitations set forth
therein.
(76) Surety Bond Commitment: the Commitment to Issue a Debt Service
Reserve Surety Bond, dated March_, 2001, from the Bond Insurer to the City.
(77) Tax Increment Fund: the special fund created in Ordinance No. 142,
1985, of the City designated therein as the "City of Fort Collins, Colorado, Downtown
Development Authority Tax Increment Bonds, Bond Fund" and referred to in Section 5B
hereof.
(78) Tax Increment Principal and Interest Account:the special fund created
in Ordinance No. 142, 1985, of the City, designated therein as the 'Principal and Interest
Account" of the "City of Fort Collins, Colorado, Downtown Development Authority Tax
Increment Bonds,Bond Fund" and referred to in Section 5C hereof.
(79) Tax Increment Reserve Account: the special fund created in
Ordinance No. 142, 1985, of the City, designated therein as the "City of Fort Collins,
Colorado,Tax Increment Bonds,Reserve Fund" and referred to in Section 5D hereof.
(80) Tax Increment Revenues: all revenues derived in each Fiscal Year
from the levy of ad valorem taxes at the rate fixed each year by or for each public body
having taxing power over all or any portion of the District upon that portion of the valuation
for assessment of all taxable property within the District and the boundaries of such public
body that is in excess of the valuation for assessment of all taxable property within the
District and the boundaries of such public body on the Property Tax Base Dates, all in
accordance with Section 31-25-807(3)(a)(II)of the Downtown Development Authority Act,
less any collection fees lawfully payable to the City or Larimer County, Colorado, for
services rendered in connection with the collection of such ad valorem taxes;provided,that
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• in the event of a general reassessment of taxable property in the City, the valuation for
assessment of taxable property within the District on the Property Tax Base Dates will be
proportionately adjusted as required by the Downtown Development Authority Act or other
applicable law.
(81) Transfer Agent: the Financial Officer of the City, or his successors.
(82) Trust Bank: a Commercial Bank which is authorized to exercise and
is exercising trust powers.
(83) 2000 Tax Increment Revenue Bonds: the City of Fort Collins,
Colorado,Downtown Development Authority Subordinate Tax Increment Revenue Bonds,
Series 2000A, dated March 1, 2000, in the aggregate principal amount of$608,000.
B. Construction. This Ordinance,except where the context by clear implication
herein otherwise requires, shall be construed as follows:
(1) Words in the singular number include the plural, and words in the
plural include the singular.
(2) Words in the masculine gender include the feminine and the neuter,
and when the sense so indicates words of the neuter gender refer to any gender.
(3) Articles, sections, subsections, paragraphs and subparagraphs
mentioned by number, letter or otherwise correspond to the respective articles, sections,
subsections, paragraphs and subparagraphs of this Ordinance so numbered or otherwise so
designated.
(4) The titles and headlines applied to articles, sections and subsections
of this Ordinance are inserted only as a matter of convenience and ease in reference and in
no way define or limit the scope or intent of any provisions of this Ordinance.
(5) Any inconsistency between the provisions of this Ordinance and those
of the Downtown Development Authority Act or the Refunding Act is intended by the
Council. To the extent of any such inconsistency the provisions of this Ordinance shall be
deemed made pursuant to the Charter and shall supersede to the extent permitted by law the
conflicting provisions of the Downtown Development Authority Act or the Refunding Act.
Section 2. Recitals.
A. Establishment of Authority and Approval of Plan of Development Pursuant
to Ordinance No.46, 1981,the City has heretofore established the Authority. Pursuant to Resolution
81-129 the City has heretofore approved the Plan of Development. The Plan of Development so
. approved and thereafter amended contained a provision for division of taxes as authorized by the
Downtown Development Authority Act.
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B. Special Election and Canvass of Returns. At a special election held in the City
on Tuesday, June 1, 1982, in accordance with law and pursuant to due notice there was submitted
to the qualified electors of the District the following question:
Shall the City of Fort Collins issue bonds or otherwise provide for loans, advances
or indebtedness from time to time in an amount not to exceed $25,000,000 at a
maximum net effective interest rate not to exceed 18 per centum per annum,the use
of which shall be to finance capital improvements and capital projects within the
parameters of the Plan of Development of the Fort Collins Downtown Development
Authority, and irrevocably pledge the special fund into which all of that portion of
property taxes in excess of such taxes which are produced by the levy at the rate fixed
each year by or for any public body upon the valuation for assessment of taxable
property within the boundaries of the District last certified prior to the effective date
of approval by the Fort Collins City Council of the Plan of Development of the
Downtown Development Authority or,as to an area later added to the boundaries of
the District, the effective date of the modification of the Plan of Development from
which special fund shall be paid the principal of, the interest on, and any premiums
due in connection with the bonds of, loans or advances to, or indebtedness incurred
by, whether funded, refunded, assumed, or otherwise, the City of Fort Collins for
financing or refinancing, in whole or in part, development projects within the
boundaries of the Plan for Development area?
As evidenced by the canvass of the returns of said election and the Statement and Certificate of
Determination of Result thereof made by the Board of Elections of the City on June 4, 1982, a
majority of said electors voted affirmatively on said question.
C. Previous Bonds. Pursuant to the authority so conferred at said election the
City has heretofore issued and sold the 1983 Tax Increment Revenue Bond Anticipation Notes in
order to finance capital improvements and capital projects as provided in the Plan of Development.
Pursuant to the authority so conferred at said election the City has heretofore issued and sold the
1984 Tax Increment Revenue Bonds in order to refund, pay and discharge the 1983 Tax Increment
Revenue Bond Anticipation Notes and finance capital improvements and capital projects as provided
in the Plan of Development. Pursuant to the authority so conferred at said election the City has
heretofore issued and sold the 1985 Tax Increment Revenue Refunding Bonds in order to refund,
pay and discharge the 1984 Tax Increment Revenue Bonds. Pursuant to the authority so conferred
at said election the City has heretofore issued and sold the 1988 Tax Increment Revenue Refunding
and Improvement Bonds in order to refund, pay and discharge the 1985 Tax Increment Revenue
Refunding Bonds and finance capital improvements and capital projects as provided in the Plan of
Development. Pursuant to the authority so conferred at said election the City has heretofore issued
and sold the 1992 Tax Increment Revenue Refunding Bonds in order to refund, pay and discharge
the 1988 Tax Increment Revenue Refunding and Improvement Bonds. Pursuant to the authority so
conferred at said election the City has heretofore issued and sold the 2000 Tax Increment Revenue
Bonds in order to finance capital improvements and capital projects as provided in the Plan of
Development.
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D. 1992 Tax Increment Revenue Refunding Bonds. There is Outstanding of the
1992 Tax Increment Revenue Refunding Bonds the principal amount of$7,570,000, consisting of
bonds maturing on the following dates in the following aggregate principal amounts and bearing
interest at the following per annum interest rates:
Principal Interest
Dates Amounts Rates
June 1, 2001 $ 395,000 6.20%
December 1, 2001 405,000 6.20
June 1, 2002 430,000 6.30
December 1, 2002 445,000 6.30
June 1, 2003 475,000 6.30
December 1, 2003 490,000 6.30
June 1, 2004 520,000 6.40
December 1, 2004 535,000 6.40
December 1, 2006 2,465,000 7.75
June 1, 2007 1,410,000 6.50
The 1992 Tax Increment Revenue Refunding Bonds maturing on December 1,2006,are not subject
• to optional redemption prior to their Maturity Date. The 1992 Tax Increment Revenue Refunding
Bonds maturing from December 1, 2001, through December 1, 2004, and on June 1, 2007, are
subject to optional redemption prior to their respective Maturity Dates,in whole or in part in inverse
order of maturity and by lot within a maturity, on June 1, 2001, and on any Interest Payment Date
thereafter at a price equal to the principal amount of each 1992 Tax Increment Revenue Refunding
Bond so redeemed plus accrued interest thereon to the Redemption Date plus a premium expressed
as a percentage of the principal amount of each 1992 Tax Increment Revenue Refunding Bond so
redeemed, depending on the Redemption Date, as follows:
Redemption Date Premium
June 1, 2001, and December 1, 2001 1%
June 1, 2002, and Thereafter None
The City desires to refund,pay and discharge the Refunded Bonds for the purpose of
reducing the net effective interest rate; reducing the total principal and interest payable or the
principal and interest payable in any particular year or years,or effecting other economies;modifying
or eliminating restrictive contractual limitations; or any combination of the foregoing.
E. Authority. Pursuant to art. XX, §6 of the Colorado Constitution, Art. V,
Sections 19.3, 19.4 and 19.8 of the Charter, the Downtown Development Authority Act and the
Refunding Act,the City is authorized by Council action and without an election to issue the Bonds
for the purpose of refunding, paying and discharging the Refunded Bonds. Pursuant to art X, Sec.
11
20(4)(b) of the State Constitution,the Bonds may be issued without voter approval for the purpose
of refinancing the Refunded Bonds at a lower interest rate.
Section 3. The Bonds.
A. Authorization. The Bonds are hereby authorized to be issued to refund, pay
and discharge the Refunded Bonds and to pay the costs of issuing the Bonds.
B. Bond Details.
(1) Generally. The Bonds shall be issuable in fully registered form and
shall initially be registered in the name of the Securities Depository or a nominee therefor.
Purchases by Beneficial Owners shall be made in book-entry form in the principal amount
of $5,000 or any integral multiple thereof. The Beneficial Owners shall not receive
certificates evidencing their interests in the Bonds. No Bond shall be issued in any
denomination larger than the aggregate principal amount maturing on the Maturity Date of
such Bond,and no Bond shall be made payable on more than one Maturity Date. The Bonds
shall be initially issued so that a single Bond shall evidence the obligation of the City to pay
all principal due on each of the Maturity Dates set forth herein.
Pursuant to the recommendations of the Committee on Uniform Security
Identification Procedures, CUSIP numbers may be printed on the Bonds.
The Bonds shall mature on the following dates in the following aggregate
principal amounts and shall bear interest from April 1, 2001, or the Interest Payment Dates
to which interest has been paid next preceding their respective dates, whichever is later, to
their respective Maturity Dates,except if redeemed prior thereto,at the following per annum
interest rates:
Principal Interest
Dates Amounts Rates
December 1, 2001 $265,000 %
June 1, 2002 505,000
December 1, 2002 515,000
June 1, 2003 540,000
December 1, 2003 550,000
June 1, 2004 575,000
December 1, 2004 580,000
June 1, 2005 40,000
December 1, 2005 40,000
June 1, 2006 40,000
December 1, 2006 40,000
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. Said interest shall be payable on December 1,2001,and semiannually thereafter on the first
day of June and the first day of December of each year. If upon presentation at maturity the
principal of any Bond is not paid as provided herein, interest shall continue thereon at the
same interest rate until the principal is paid in full.
The Debt Service Requirements of the Bonds shall be payable in lawful
money of the United States of America to the Owners of the Bonds by the Paying Agent.
The principal and the final installment of interest shall be payable to the Owner of each Bond
upon presentation and surrender thereof at maturity,by check or draft mailed to such Owner
at the address appearing on the registration books of the City maintained by the Registrar or
by wire transfer to such bank or other depository as the Owner shall designate in writing to
the Paying Agent. Except as hereinbefore and hereinafter provided, the interest shall be
payable to the Owner of each Bond determined as of the close of business on the Regular
Record Date,irrespective of any transfer of ownership of the Bond subsequent to the Regular
Record Date and prior to the Interest Payment Date, by check or draft or wire transfer
directed to such Owner as aforesaid. Any interest not paid when due and any interest
accruing after maturity shall be payable to the Owner of each Bond entitled to receive such
interest determined as of the close of business on the Special Record Date,irrespective of any
transfer of ownership of the Bond subsequent to the Special Record Date and prior to the
date fixed by the Paying Agent for the payment of such interest, by check or draft or wire
transfer directed to such Owner as aforesaid. Notice of the Special Record Date and of the
date fixed for the payment of such interest shall be given by sending a copy thereof by
certified or registered first-class, postage prepaid mail,at least fifteen (15)days prior to the
Special Record Date,to the Owner of each Bond upon which interest will be paid determined
as of the close of business on the day preceding such mailing at the address appearing on the
registration books of the City. If the date for making or giving any payment,determination
or notice described herein is a Saturday,Sunday,legal holiday or any other day on which the
office of the Paying Agent or Registrar is authorized or required by law to remain closed,
such payment, determination or notice shall be made or given on the next succeeding day
which is not a Saturday,Sunday,legal holiday or other day on which the office of the Paying
Agent or Registrar is authorized or required by law to remain closed.
So long as the Owner of any Bond is the Securities Depository or a nominee
therefor, the Securities Depository shall disburse any payments received, through its
Participants or otherwise, to the Beneficial Owners.
Neither the City nor the Paying Agent shall have responsibility or obligation
for the payment to any Participant, any Beneficial Owner or any other person (except an
Owner of Bonds) of the Debt Service Requirements of the Bonds.
(2) Payments under the Bond Insurance Policy. In the event that, on the
second business day,and again on the first business day,prior to any Interest Payment Date
on the Bonds,the Paying Agent has not received sufficient moneys to pay all principal of and
• interest on the Bonds due on the second following or following,as the case may be,business
day,the Paying Agent shall immediately notify the Bond Insurer or its designee on the same
13
business day by telephone or telegraph,confirmed in writing by registered or certified mail,
of the amount of the deficiency.
If the deficiency is made up in whole or in part prior to or on the payment
date, the Paying Agent shall so notify the Bond Insurer or its designee.
In addition,if the Paying Agent has notice that any Owner of Bonds has been
required to disgorge payments of principal or interest on the Bonds to a trustee in bankruptcy
or creditors or others pursuant to a final judgment by a court of competent jurisdiction that
such payment constitutes a voidable preference to such Owner within the meaning of any
applicable bankruptcy laws, then the Paying Agent shall notify the Bond Insurer or its
designee of such fact by telephone or telegraphic notice,confirmed in writing by registered
or certified mail.
The Paying Agent is hereby irrevocably designated, appointed,directed and
authorized to act as attorney-in-fact for the Owners of the Bonds as follows:
If and to the extent there is a deficiency in amounts required to pay
interest on the Bonds, the Paying Agent shall execute and deliver to the Insurance
Paying Agent, in form satisfactory to the Insurance Paying Agent, an instrument
appointing the Bond Insurer as agent for the Owners of such Bonds in any legal
proceeding related to the payment of such interest and an assignment to the Bond
Insurer of the claims for interest to which such deficiency relates and that are paid by
the Bond Insurer, shall receive as designee of the respective Owners of Bonds (and
not as Paying Agent) in accordance with the tenor of the Bond Insurance Policy
payment from the Insurance Paying Agent with respect to the claims for interest so
assigned, and shall disburse the same to such respective Owners; and
If and to the extent of a deficiency in amounts required to pay
principal of the Bonds, the Paying Agent shall execute and deliver to the Insurance
Paying Agent, in form satisfactory to the Insurance Paying Agent, an instrument
appointing the Bond Insurer as agent for the Owners of such Bonds in any legal
proceeding relating to the payment of such principal and an assignment to the Bond
Insurer of any of the Bonds surrendered to the Insurance Paying Agent of so much
of the principal amount thereof as has not previously been paid or for which moneys
are not held by the Paying Agent and available for such payment (but such
assignment shall be delivered only if payment from the Insurance Paying Agent is
received), shall receive as designee of the respective Owners of Bonds (and not as
Paying Agent) in accordance with the tenor of the Bond Insurance Policy payment
therefor from the Insurance Paying Agent and shall disburse the same to such
Owners.
Payments with respect to claims for interest on and principal of Bonds
disbursed by the Paying Agent from proceeds of the Bond Insurance Policy shall not be
considered to discharge the obligation of the City with respect to such Bonds, and the Bond
14
• Insurer shall become the Owner of such unpaid Bonds and claims for the interest in
accordance with the tenor of the assignment made to it under the provisions hereof or
otherwise.
Irrespective of whether any such assignment is executed and delivered, the
City and the Paying Agent hereby agree for the benefit of the Bond Insurer as follows:
The City and the Paying Agent recognize that to the extent the Bond
Insurer makes payments, directly or indirectly (as by paying through the Paying
Agent),on account of principal of or interest on the Bonds,the Bond Insurer shall be
subrogated to the rights of the Owners of such Bonds to receive the amount of such
principal and interest from the City,with interest thereon as provided and solely from
the sources stated in this Ordinance and the Bonds.
The City and the Paying Agent shall accordingly pay to the Bond
Insurer the amount of such principal and interest (including principal and interest
recovered under subparagraph(ii)of the first paragraph of the Bond Insurance Policy,
which principal and interest shall be deemed past due and not to have been paid),
with interest thereon as provided in this Ordinance and the Bonds,but only from the
sources and in the manner provided herein for the payment of principal of and
interest on the Bonds to Owners thereof,and will otherwise treat the Bond Insurer as
the Owner of such unpaid Bond and the rights to the amount of such principal and
• interest.
In connection with the issuance of Additional Parity Bonds or Subordinate
Bonds,the City shall deliver to the Bond Insurer a copy of the disclosure document, if any,
circulated with respect to such Additional Parity Bonds or Subordinate Bonds.
Copies of any amendments made to the documents executed in connection
with the issuance of the Bonds which are consented to by the Bond Insurer shall be sent to
Fitch, Inc., Moody's Investors Service, Inc. and Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.
The Bond Insurer shall receive notice of the resignation or removal of the
Paying Agent and the appointment of a successor thereto.
The Bond Insurer shall receive copies of all notices required to be delivered
to Owners of Bonds and copies of the City's audited financial statements,on an annual basis,
and copies of the City's biannual budget.
Any notice that is required to be given to an Owner of Bonds or to the Paying
Agent pursuant to this Ordinance shall also be provided to the Bond Insurer. All notices
required to be given to the Bond Insurer under this Ordinance shall be given as provided in
• Section 12G hereof.
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(3) Redemption. The Bonds shall not be subject to optional redemption
prior to their respective Maturity Dates.
(4) Interest Rates. The maximum net effective interest rate for the Bonds
is 18% per annum. The weighted average interest rate of the Refunded Bonds is 6.4158%
per annum. The net effective interest rate of the Bonds is % per annum.
(5) Execution and Authentication. The Bonds shall be executed by and
on behalf of the City with the facsimile or manual signature of the Mayor, shall bear a
facsimile or manual impression of the seal of the City,shall be attested with the facsimile or
manual signature of the City Clerk, shall be countersigned with the facsimile or manual
signature of the Financial Officer and shall be authenticated with the manual signature of the
Registrar. Should any officer whose facsimile or manual signature appears on the Bonds
cease to be such officer before delivery of the Bonds to the Purchaser, such facsimile or
manual signature shall nevertheless be valid and sufficient for all purposes. No Bond shall
be valid or become obligatory for any purpose or be entitled to any security or benefit under
this Ordinance unless and until the certificate of authentication on such Bond shall have been
duly executed by the Registrar, and such executed certificate upon any such Bond shall be
conclusive evidence that such Bond has been authenticated and delivered under this
Ordinance.
(6) Registration. Transfer and Exchange. Upon their execution and
authentication and prior to their delivery the Bonds shall be registered for the purpose of
payment of principal and interest by the Registrar. Initially, each Bond shall be registered
in the name of the Securities Depository or a nominee therefor. Except as hereinafter
provided, all of the Bonds shall continue to be registered in the name of the Securities
Depository or a nominee therefor. To the extent that typewritten Bonds, rather than printed
Bonds, are to be delivered, such modifications to the form of Bond as may be necessary or
desirable in such case are hereby authorized and approved. There shall be no substantive
change to the terms and conditions set forth in the form of Bond, except as otherwise
authorized by this Ordinance or any amendment thereto.
Neither the City nor the Registrar shall have any responsibility or obligation
with respect to the accuracy of the records of the Securities Depository or a nominee therefor
or any Participant regarding any ownership interest in the Bonds or the delivery to any
Participant,Beneficial Owner or any other person(except an Owner of Bonds)of any notice
with respect to the Bonds.
The Bonds shall be transferable only upon the registration books of the City
by the Transfer Agent at the request of the Owner thereof or his, her or its duly authorized
attorney-in-fact or legal representative. A Bond may be transferred upon surrender thereof
together with a written instrument of transfer duly executed by the Owner or his, her or its
duly authorized attorney-in-fact or legal representative with guaranty of signature satisfactory
to the Transfer Agent,containing written instructions as to the details of the transfer, along
with the social security number or federal employer identification number of the transferee
16
and, if the transferee is a trust,the names and social security numbers of the settlors and the
beneficiaries of the trust. The Owner of any Bond or Bonds may also exchange such Bond
or Bonds for another Bond or Bonds of authorized denominations. Transfers and exchanges
shall be made without charge,except that the Transfer Agent may require payment of a sum
sufficient to defray any tax or other governmental charge that may hereafter be imposed in
connection with any transfer or exchange of Bonds. No transfer of any Bond shall be
effective until entered on the registration books of the City. In the case of every transfer or
exchange, the Transfer Agent shall deliver to the new Owner a new Bond or Bonds of the
same aggregate principal amount,maturing in the same year and bearing interest at the same
per annum interest rate as the Bond or Bonds surrendered. Such Bond or Bonds shall be
dated as of their date of authentication. New Bonds delivered upon any transfer or exchange
shall be valid obligations of the City, evidencing the same obligation as the Bonds
surrendered,shall be secured by this Ordinance,and shall be entitled to all of the security and
benefits hereof to the same extent as the Bonds surrendered. The City may deem and treat
the Person in whose name any Bond is last registered upon the books of the City as the
absolute owner thereof for the purpose of receiving payment of the Debt Service
Requirements of such Bond and for all other purposes, and all such payments so made to
such Person or upon his,her or its order shall be valid and effective to satisfy and discharge
the liability of the City upon such Bond to the extent of the sum or sums so paid,and the City
shall not be affected by any notice to the contrary.
Upon the occurrence of an Event of Default which would require payment by
the Bond Insurer under the Bond Insurance Policy,the Bond Insurer and its designated agents
shall be afforded access to the registration books of the City.
Neither the City nor the Transfer Agent shall have any responsibility or
obligation with respect to the accuracy of the records the Securities Depository or its
Participants regarding any ownership interest in the Bonds or transfers thereof.
(7) Resignation or Removal of Agents. If the Paying Agent, Registrar,
Transfer Agent or Escrow Bank shall resign as such,or if the City shall reasonably determine
that the Paying Agent, Registrar, Transfer Agent or Escrow Bank has become incapable of
fulfilling its duties hereunder or under the Escrow Agreement, as the case may be,the City
may, upon notice mailed to the Bond Insurer and to each Owner of Bonds at the addresses
lat shown on the registration books of the City, accept the resignation of the Paying Agent,
Registrar, Transfer Agent or Escrow Bank and appoint a successor paying agent, registrar,
transfer agent or escrow bank. Every such successor paying agent, registrar, transfer agent
or escrow bank shall be a Trust Bank unless otherwise approved in writing by the Bond
Insurer. It shall not be required that the same institution serve as paying agent, registrar,
transfer agent or escrow bank, but the City shall have the right to have the same institution
serve as paying agent, registrar, transfer agent or escrow bank. Any such resignation or
removal shall become effective only upon the appointment of a successor and acceptance by
the successor of its duties hereunder or under the Escrow Agreement, as the case may be.
17
(8) Resignation or Removal of Securities Depository. The City may
remove the Securities Depository and the Securities Depository may resign by giving sixty
(60) days' written notice to the other of such removal or resignation. Additionally, the
Securities Depository shall be removed sixty (60) days after receipt by the City of written
notice from the Securities Depository to the effect that the Securities Depository has received
written notice from Participants having interests, as shown in the records of the Securities
Depository, in an aggregate principal amount of not less than fifty percent (50%) of the
aggregate principal amount of the then Outstanding Bonds to the effect that the Securities
Depository is unable or unwilling to discharge its responsibilities or a continuation of the
requirement that all of the Outstanding Bonds be registered in the name of the Securities
Depository or a nominee therefor is not in the best interests of the Beneficial Owners. Upon
the removal or resignation of the Securities Depository,the Securities Depository shall take
such action as may be necessary to assure the orderly transfer of the computerized book-entry
system with respect to the Bonds to a successor securities depository or, if no successor
securities depository is appointed as herein provided,the transfer of the Bonds in certificate
form to the Beneficial Owners or their designees. Upon the giving of notice by the City of
the removal of the Securities Depository, the giving of notice by the Securities Depository
of its resignation or the receipt by the City of notice with respect to the written notice of
Participants referred to herein,the City may, within sixty (60) days after the giving of such
notice, appoint a successor securities depository upon such terms and conditions as the City
shall impose. Any such successor securities depository shall at all times be a registered
clearing agency under the Securities and Exchange Act of 1934, as amended, or other
applicable statute or regulation,and in good standing thereunder.If the City fails to appoint
a successor securities depository within such time period, the Bonds shall no longer be
restricted to being registered in the name of the Securities Depository or a nominee therefor,
but may be registered in whatever name or names Owners transferring or exchanging Bonds
shall designate.
(9) Replacement of Bonds. If any Bond shall have been lost, destroyed
or wrongfully taken,the City shall provide for the replacement thereof in the manner set forth
and upon receipt of the evidence,indemnity bond and reimbursement for expenses provided
in Ordinance No. 80, 1984.
(10) Recitals in Bonds. Each Bond shall recite in substance that the Bond
is payable solely from the Pledged Revenues and the funds and accounts hereby pledged and
that the Bond is not a general obligation of the City and that the full faith and credit of the
City is not pledged to pay the Debt Service Requirements of such Bond. Each Bond shall
further recite that it is issued under the authority of the Constitution of the State of Colorado,
the Charter, the Downtown Development Authority Act, the Refunding Act and this
Ordinance. The Refunding Act provides that such recital conclusively imparts full
compliance with all of the provisions and limitations thereof and that the Bonds containing
such recital are incontestable for any cause whatsoever after their delivery for value.
(11) Form of Bonds. The Bonds shall be in substantially the following
form:
18
• [Form of Bond]
UNITED STATES OF AMERICA
STATE OF COLORADO COUNTY OF LARIMER
CITY OF FORT COLLINS
DOWNTOWN DEVELOPMENT AUTHORITY
TAX INCREMENT REVENUE REFUNDING BOND
SERIES 2001
No. R-_ $
Interest Rate Maturity Date Original Date CUSIP
% — I,— April 1, 2001 _
• REGISTERED OWNER: Cede &Co.
PRINCIPAL SUM: Thousand Dollars
The City of Fort Collins, in the County of Larimer and State of Colorado, for value
received, hereby promises to pay to the Registered Owner(specified above), or registered assigns,
solely from the special funds provided therefor,as hereinafter set forth,the Principal Sum(specified
above), in lawful money of the United States of America, on the Maturity Date (specified above),
with interest thereon from the Original Date(specified above),or the interest payment date to which
interest has been paid next preceding the date hereof,whichever is later,to the Maturity Date,except
if redeemed prior thereto,at the per annum Interest Rate(specified above),payable semiannually on
the first day of June and the first day of December of each year,commencing on December 1,2001,
or the first such date after the date hereof,whichever is later,in the manner provided herein. If upon
presentation at maturity payment of the Principal Sum of this Bond is not made as provided herein,
interest continues at the Interest Rate until the Principal Sum is paid in full.
This Bond is not subject to optional redemption prior to the Maturity Date.
The principal of and interest on this Bond are payable to the Registered Owner by the
Financial Officer of the City, or his successors, as paying agent. The principal and the final
19
installment of interest are payable to the Registered Owner upon presentation and surrender of this
Bond at maturity,by check or draft mailed to the Registered Owner at the address appearing on the
registration books of the City maintained by the Financial Officer of the City, or his successors, as
registrar,or by wire transfer to such bank or other depository as the Registered Owner shall designate
in writing to the paying agent. Except as hereinbefore and hereinafter provided, the interest is
payable to the Registered Owner determined as of the close of business on the regular record date,
which is the fifteenth day of the calendar month next preceding the interest payment date,
irrespective of any transfer of ownership hereof subsequent to the regular record date and prior to
such interest payment date, by check or draft or wire transfer directed to the Registered Owner as
aforesaid. Any interest hereon not paid when due and any interest hereon accruing after maturity is
payable to the Registered Owner determined as of the close of business on the special record date,
which is to be fixed by the paying agent for such purpose, irrespective of any transfer of ownership
of this Bond subsequent to such special record date and prior to the date fixed by the paying agent
for the payment of such interest,by check or draft or wire transfer directed to the Registered Owner
as aforesaid. Notice of the special record date and of the date fixed for the payment of such interest
is to be given by sending a copy thereof by certified or registered first-class postage prepaid mail,
at least fifteen (15)days prior to the special record date,to the registered owner of each Bond upon
which interest will be paid determined as of the close of business on the day preceding such mailing
at the address appearing on the registration books of the City. If the date for making or giving any
payment,determination or notice described herein is a Saturday,Sunday,legal holiday or any other
day on which the office of the paying agent or registrar is authorized or required by law to remain
closed, such payment, determination or notice is to be made or given on the next succeeding day
which is not a Saturday,Sunday, legal holiday or other day on which the office of the paying agent
or registrar is authorized or required by law to remain closed.
So long as the Registered Owner is the securities depository or a nominee therefor,
the securities depository is to disburse any payments received,through its participants or otherwise,
to the beneficial owner or owners hereof.
Neither the City nor the paying agent has any responsibility or obligation for the
payment to any participant,any beneficial owner or any other person(except the Registered Owner)
of the principal of and interest on this Bond.
Neither the City nor the registrar has any responsibility or obligation with respect to
the accuracy of the records of the securities depository or a nominee therefor or any participant with
respect to any ownership interest in the Bonds or the delivery to any participant, beneficial owner
or any other person (except the Registered Owner) of any notice with respect to the Bonds.
Payment of the principal of and interest on this Bond is to be made solely from, and
as security for such payment there are pledged,pursuant to the Ordinance authorizing the issuance
of this Bond, special funds designated as the Tax Increment Fund and, unless released and
discharged as provided in the Ordinance,the Sales and Use Tax Fund,each including a Principal and
Interest Account and a Reserve Account, into which accounts the City has covenanted in the
Ordinance to pay, respectively, from the pledged revenues described in the Ordinance sums
sufficient to pay when due the principal of and interest on this Bond and any additional parity
20
. securities heretofore or hereafter issued and payable from such revenues and to accumulate and
maintain a specified reserve for such purposes.
It is hereby recited, certified and warranted that for the payment of the principal of
and interest on this Bond the City has created and will maintain said special funds and accounts and
will deposit therein the required amounts out of the revenues described in the Ordinance and out of
said special funds will pay the principal of and interest on this Bond in the manner provided by the
Ordinance.
The Bonds are equitably and ratably secured by a lien on the pledged revenues, and
such Bonds constitute an irrevocable and first lien (but not necessarily an exclusive first lien)upon
the pledged tax increment revenues,investment earnings and sales and use tax revenues. Bonds and
other types of securities,in addition to the Bonds,subject to expressed conditions,may be issued and
made payable from the pledged revenues having a lien thereon subordinate and junior to the lien of
the Bonds of this issue or, subject to additional expressed conditions, having a lien thereon on a
parity with the lien of such Bonds in accordance with the provisions of the Ordinance. Except as
otherwise expressly provided in this Bond and the Ordinance, the pledged revenues are assigned,
pledged and set aside to the payment of the principal of and interest on the Bonds of this issue in
anticipation of the collection of the pledged revenues.
This Bond is authorized and issued for the purpose of refunding, paying and
discharging certain outstanding tax increment revenue refunding bonds pursuant to,by virtue of and
in full conformity with the Constitution of the State of Colorado, the City Charter, part 8 of article
25 of title 31, and part 1 of article 56 of title 11, Colorado Revised Statutes, as amended, and all
other laws of the State of Colorado thereunto enabling,and pursuant to the Ordinance duly adopted
prior to the issuance of this Bond. The foregoing recital conclusively imparts full compliance with
all of the provisions and limitations of the last-cited statute,and said statute provides that this Bond
is incontestable for any cause whatsoever after its delivery for value.
Reference is hereby made to the Ordinance, and to any and all modifications and
amendments thereof,for a description of the provisions,terms and conditions upon which the Bonds
are issued and secured, including, without limitation, the nature and extent of the security for the
Bonds, provisions with respect to the custody and application of the proceeds of the Bonds, the
collection and disposition of the revenues and moneys charged with and pledged to the payment of
the principal of and interest on the Bonds, the terms and conditions on which the Bonds are issued,
a description of the special funds referred to above and the nature and extent of the security and
pledge afforded thereby for the payment of the principal of and interest on the Bonds,and the manner
of enforcement of said pledge, as well as the rights, duties, immunities and obligations of the City
and the members of its Council and also the rights and remedies of the registered owners of the
Bonds.
To the extent and in the respects permitted by the Ordinance, the provisions of the
Ordinance, or any instrument amendatory thereof or supplemental thereto, may be modified or
• amended by action of the City taken in the manner and subject to the conditions and exceptions
provided in the Ordinance. The pledge of revenues and other obligations of the City under the
21
Ordinance may be discharged at or prior to the maturity of the Bonds upon the making of provision
for the payment of the Bonds on the terms and conditions set forth in the Ordinance.
It is hereby recited,certified and warranted that all the requirements of law have been
fully complied with by the proper officers of the City in the issuance of this Bond; that it is issued
pursuant to and in strict conformity with the Constitution and all other laws of the State of Colorado,
including the City Charter, and with the Ordinance; that this Bond does not contravene any
constitutional or statutory limitation of the State of Colorado or any limitation of the City Charter;
and that this Bond is issued under the authority of the Ordinance.
This Bond is transferable only upon the registration books of the City by the Financial
Officer of the City,or his successors,as transfer agent,at the request of the Registered Owner or his,
her or its duly authorized attomey-in-fact or legal representative,upon surrender hereof together with
a written instrument of transfer duly executed by the Registered Owner or his, her or its duly
authorized attorney-in-fact or legal representative with guaranty of signature satisfactory to the
transfer agent, containing written instructions as to the details of the transfer, along with the social
security number or federal employer identification number of the transferee and, if the transferee is
a trust,the names and social security numbers of the settlors and the beneficiaries of the trust. The
Registered Owner may also exchange this Bond for another Bond or Bonds of authorized
denominations. Transfers and exchanges are to be made without charge, except that the transfer
agent may require payment of a sum sufficient to defray any tax or other governmental charge that
may hereafter be imposed in connection with any transfer or exchange of Bonds. No transfer of this
Bond is to be effective until entered on the registration books of the City. In the case of every
transfer or exchange, the transfer agent is to deliver to the new registered owner a new Bond or
Bonds of the same aggregate principal amount,maturing in the same year and bearing interest at the
same per annum interest rate as the Bond or Bonds surrendered. Such Bond or Bonds are to be dated
as of their date of authentication. The City may deem and treat the person or entity in whose name
this Bond is last registered upon the books of the City as the absolute owner hereof for the purpose
of receiving payment of the principal of and interest on this Bond and for all other purposes, and all
such payments so made to such person or upon his, her or its order will be valid and effective to
satisfy and discharge the liability of the City upon this Bond to the extent of the sum or sums so paid,
and the City will not be affected by any notice to the contrary.
Neither the City nor the transfer agent has any responsibility or obligation with
respect to the accuracy of the records of the securities depository or its participants regarding any
ownership interest in the Bonds or transfers thereof.
The City may remove the securities depository and the securities depository may
resign by giving sixty (60) days' written notice to the other of such removal or resignation.
Additionally, the securities depository is to be removed sixty (60) days after receipt by the City of
written notice from the securities depository to the effect that the securities depository has received
written notice from participants having interests,as shown in the records of the securities depository,
in an aggregate principal amount of not less than fifty percent (50%) of the aggregate principal
amount of the then outstanding Bonds to the effect that the securities depository is unable or
unwilling to discharge its responsibilities or a continuation of the requirement that all of the
22
outstanding Bonds be registered in the name of the securities depository or a nominee therefor is not
in the best interests of the beneficial owners. Upon the removal or resignation of the securities
depository,the securities depository is to take such action as may be necessary to assure the orderly
transfer of the computerized book-entry system with respect to the Bonds to a successor securities
depository or, if no successor securities depository is appointed as herein provided, the transfer of
the Bonds in certificate form to the beneficial owners or their designees. Upon the giving of notice
by the City of the removal of the securities depository, the giving of notice by the securities
depository of its resignation or the receipt by the City of notice with respect to the written notice by
participants referred to herein, the City may, within sixty (60) days after the giving of such notice,
appoint a successor securities depository upon such terns and conditions as the City shall impose.
Any such successor securities depository must at all times be a registered clearing agency under the
Securities and Exchange Act of 1934, as amended, or other applicable statute or regulation and in
good standing thereunder. If the City fails to appoint a successor securities depository within such
time period,the Bonds are no longer to be restricted to being registered in the name of the securities
depository or a nominee therefor, but may be registered in whatever name or names registered
owners transferring or exchanging Bonds shall designate.
This Bond is a special and limited obligation of the City payable solely out of and
secured by an assignment and pledge (but not necessarily an exclusive assignment and pledge) of
certain tax increment revenues, certain income derived from the investment of such revenues and
of certain bond proceeds and certain sales and use tax revenues of the City, all as more specifically
provided in the Ordinance. This Bond does not constitute a debt or an indebtedness of the City
• within the meaning of any constitutional,charter or statutory provision or limitation of the State of
Colorado or of the City. This Bond is not a general obligation of the City, and the full faith and
credit of the City is not pledged for the payment of the principal of or interest on this Bond.
IN WITNESS WHEREOF,the City has caused this Bond to be executed in its name
and on its behalf with the facsimile or manual signature of the Mayor of the City, to be sealed with
a facsimile or manual impression of the seal of the City, to be attested with the facsimile or manual
signature of the City Clerk of the City and to be countersigned with the facsimile or manual signature
of the Financial Officer of the City.
CITY OF FORT COLLINS, COLORADO
(CITY) By: (Facsimile or Manual Signature)
(SEAL) Mayor
ATTEST:
(Facsimile or Manual Si nag ture)
City Clerk
. Countersigned:
23
(Facsimile or Manual Signature)
Financial Officer
CERTIFICATE OF AUTHENTICATION
This Bond is issued pursuant to the Ordinance herein described. Printed on the reverse side hereof
is the complete text of the opinion of bond counsel, Ballard Spahr Andrews & Ingersoll, LLP,
Denver, Colorado, a signed copy of which, dated the date of the first delivery of the Bonds herein
described, is on file with the undersigned.
FINANCIAL OFFICER OF THE
CITY OF FORT COLLINS, COLORADO
as registrar
(Manual Signature)
Dated:
24
• ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Bond,
shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants in
common
UNIF TRANS MIN ACT - Custodian
(Cust) (Minor)
under Uniform Transfers to Minors Act
(State)
Additional abbreviations may also be used
though not on the above list.
25
STATEMENT OF INSURANCE
MBIA Insurance Corporation (the "Insurer") has issued a policy containing the
following provisions, such policy being on file with the Financial Officer of the City.
The Insurer,in consideration of the payment of the premium and subject to the terms
of this policy, hereby unconditionally and irrevocably guarantees to any owner, as hereinafter
defined, of the following described obligations,the full and complete payment required to be made
by or on behalf of the City to the Financial Officer of the City,or his successor(the"Paying Agent"),
of an amount equal to (i) the principal of(either at the stated maturity or by any advancement of
maturity pursuant to a mandatory sinking fund payment)and interest on,the Obligations(as that term
is defined below) as such payments shall become due but shall not be so paid (except that in the
event of any acceleration of the due date of such principal by reason of mandatory or optional
redemption or acceleration resulting from default or otherwise, other than any advancement of
maturity pursuant to a mandatory sinking fund payment,the payments guaranteed hereby shall be
made in such amounts and at such times as such payments of principal would have been due had
there not been any such acceleration); and (ii) the reimbursement of any such payment which is
subsequently recovered from any owner pursuant to a final judgment by a court of competent
jurisdiction that such payment constitutes an avoidable preference to such owner within the meaning
of any applicable bankruptcy law. The amounts referred to in clauses (i) and (ii) of the preceding
sentence shall be referred to herein collectively as the"Insured Amounts." "Obligations"shall mean:
City of Fort Collins, Colorado
Downtown Development Authority
Tax Increment Revenue Refunding Bonds
Series 2001
Upon receipt of telephonic or telegraphic notice,such notice subsequently confirmed
in writing by registered or certified mail,or upon receipt of written notice by registered or certified
mail,by the Insurer from the Paying Agent or any owner of an Obligation the payment of an Insured
Amount for which is then due,that such required payment has not been made,the Insurer on the due
date of such payment or within one business day after receipt of notice of such nonpayment,
whichever is later, will make a deposit of funds, in an account with State Street Bank and Trust
Company, N.A., in New York, New York, or its successor, sufficient for the payment of any such
Insured Amounts which are then due. Upon presentment and surrender of such Obligations or
presentment of such other proof of ownership of the Obligations, together with any appropriate
instruments of assignment to evidence the assignment of the Insured Amounts due on the
Obligations as are paid by the Insurer, and appropriate instruments to effect the appointment of the
Insurer as agent for such owners of the Obligations in any legal proceeding related to payment of
Insured Amounts on the Obligations, such instruments being in a form satisfactory to State Street
Bank and Trust Company,N.A., State Street Bank and Trust Company,N.A. shall disburse to such
owners or the Paying Agent payment of the Insured Amounts due on such Obligations, less any
amount held by the Paying Agent for the payment of such Insured Amounts and legally available
therefor. This policy does not insure against loss of any prepayment premium that may at any time
be payable with respect to any Obligation.
26
As used herein,the term 'owner" shall mean the registered owner of any Obligation
as indicated in the books maintained by the Paying Agent,the City,or any designee of the City for
such purpose. The term owner shall not include the City or any party whose agreement with the City
constitutes the underlying security for the Obligations.
Any service of process on the Insurer may be made to the Issuer at its offices located
at 113 King Street, Armonk, New York 10504, and such service of process shall be valid and
binding.
This policy is non-cancellable for any reason. The premium on this policy is not
refundable for any reason including the payment prior to maturity of the Obligations.
MBIA Insurance Corporation
27
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee)
this Bond and does hereby irrevocably constitute and appoint
, or his, her or its successors, to transfer this Bond on the books kept for
registration thereof.
Dated:
Signature guaranteed:
Eligible Guarantor Institution
NOTICE: The signature to this assignment
must correspond with the name of the
Registered Owner as it appears upon the face
of this Bond in every particular without
alteration or enlargement or any change
whatever.
[End of Form of Bond]
28
. C. Bonds Equally Secured. The covenants and agreements herein set forth to be
performed on behalf of the City shall be for the equal benefit,protection and security of the Owners
of the Bonds, all of which, regardless of the time or times of their maturity, shall be of equal rank
without preference, priority or distinction of any of the Bonds over any other thereof, except as
otherwise expressly provided in or pursuant to this Ordinance.
D. Financial Obli ations. All of the Bonds,as to all Debt Service Requirements
thereof,shall be payable solely out of the Pledged Revenues. The Owners of the Bonds may not look
to the general or any other fund of the City for the payment of the Debt Service Requirements
thereof,except the special funds pledged therefor,and the Bonds shall constitute special and limited
obligations of the City. The Bonds are not general obligations of the City, and the full faith and
credit of the City is not pledged for payment of the Bonds.
Section 4. Sale of Bonds.
A. Purchaser's Proposal. A proposal for the purchase of the Bonds upon terms
favorable to the City,together with the disclosures,comparisons and other information required by
the Refunding Act, has been received from the Purchaser, and the Financial Officer of the City has
determined that such proposal is in the best interests of the City and has recommended that such
proposal be accepted by the Council.
B. Award of Contract: Execution of Bond Purchase Agreement The contract
for the purchase of the Bonds is hereby awarded to the Purchaser at the price specified in the Bond
Purchase Agreement and upon the terms set forth in this Ordinance. The City Manager is hereby
authorized and directed to execute the Bond Purchase Agreement on behalf of the City immediately
following the marketing of the Bonds,subject to ratification by the Council by final adoption of this
Ordinance.
C. Approval of Preliminary Official Statement. The Council hereby approves
the Preliminary Official Statement and authorizes and ratifies the use and distribution thereof by the
Purchaser in marketing the Bonds to potential customers until the final official statement is available.
D. Delivery. After the Bonds have been duly executed, authenticated and
registered as provided herein, the Financial Officer shall cause the Bonds to be delivered to the
Purchaser upon receipt of the agreed purchase price.
Section 5. Disposition of Bond Proceeds and Pledged Revenues;Funds and Accounts
Adopted or Created by Ordinance: Security For Bonds The proceeds of the sale of the Bonds and
the Pledged Revenues received by the City shall be deposited by the City in the funds described in
this Section 5, to be accounted for in the manner and priority set forth in this Section 5.
Neither the Purchaser nor any subsequent Owner of any Bond shall be responsible
for the application or disposal by the City or by any of its officers, agents and employees of the
moneys derived from the sale of the Bonds or of any other moneys designated in this Section 5.
29
The Pledged Revenues and all moneys and securities paid or to be paid to or held or
to be held in any fund or account hereunder (except the Escrow Fund) are hereby assigned and
pledged to secure the payment of the Debt Service Requirements of the Bonds,any Additional Parity
Bonds and any other Parity Securities. This assignment and pledge shall be valid and binding from
and after the date of the first delivery of the Bonds, and the moneys, as received by the City and
hereby assigned and pledged, shall immediately be subject to the lien of this assignment and pledge
without any physical delivery thereof, any filing, or further act. The lien of this assignment and
pledge and the obligation to perform the contractual provisions hereby made shall have priority over
any or all other obligations and liabilities of the City(except as herein otherwise expressly provided),
and the lien of this assignment and pledge shall be valid and binding as against all parties having
claims of any kind in tort, contract or otherwise against the City (except as herein otherwise
expressly provided), irrespective of whether such parties have notice thereof.
A. Disposition of Bond Proceeds: Notice of Refunding and Redemption of
Refunded Bonds. The City shall deposit in a separate special fund and trust account hereby created
and designated as the "City of Fort Collins, Colorado, Downtown Development Authority Tax
Increment Refunding Bonds,Series 2001,Escrow Fund,"forthwith upon receipt of the proceeds of
the Bonds,proceeds of the Bonds in the approximate amount of$3,529,794 and other funds of the
City in the approximate amount of$1,784,651 to be used only as provided in this Section 5A. The
City shall apply said sums to the purchase of the Federal Securities in which the moneys in the
Escrow Fund are to be invested and the funding of any required cash balance as provided in the
Escrow Agreement. The Escrow Fund shall be maintained in an amount at the time of the deposit
therein,and at all times subsequently,at least sufficient,together with the known minimum yield to
be derived from the investment of the deposit therein or any part thereof in such Federal Securities,
to pay the Debt Service Requirements of the Refunded Bonds as the same become due. Moneys
shall be withdrawn by the Escrow Bank from the Escrow Fund in sufficient amounts and at times
to permit the payment of the Debt Service Requirements of the Refunded Bonds on the specified
Redemption Date. Any moneys remaining in the Escrow Fund after provision has been made for the
payment of the Refunded Bonds may be applied to any lawful purpose of the City. If for any reason
the amount in the Escrow Fund shall at any time be insufficient for the purposes hereinbefore set
forth,the City shall forthwith from the first Pledged Revenues available therefor deposit therein such
additional moneys as shall be necessary to permit the payment in full of the Debt Service
Requirements of the Refunded Bonds as herein provided.
The City hereby exercises its option to redeem the Refunded Bonds prior to their
respective Maturity Dates,on June 1,2001,at a price equal to the principal amount of each Refunded
Bond so redeemed plus accrued interest thereon to the Redemption Date plus a premium equal to
1% of the principal amount of each Refunded Bond so redeemed.
The Financial Officer, as paying agent for the 1992 Tax Increment Revenue
Refunding Bonds, is hereby authorized and directed on behalf of the City to give on May 1, 2001,
irrevocable notice of refunding and redemption of the Refunded Bonds. The notice of refunding and
redemption of the Refunded Bonds shall be given by sending a copy of such notice by certified or
registered first-class postage prepaid mail to the Owners of the Refunded Bonds at the addresses
appearing on the registration books of the City. The Financial Officer,as paying agent for the 1992
30
. Tax Increment Revenue Refunding Bonds, shall forthwith send such notice of refunding and
redemption to the Securities Depository by legible telecopy,registered or certified mail or overnight
delivery,and otherwise comply with the letter of representations relating to the 1992 Tax Increment
Revenue Refunding Bonds,dated March 15, 1992,between the City and the Securities Depository.
Any such notice of refunding and redemption sent to the Securities Depository shall include the
CUSIP numbers of the Refunded Bonds. The notice of refunding and redemption of the Refunded
Bonds shall be in substantially the following form:
i
31
[Form of Notice]
NOTICE OF REFUNDING AND REDEMPTION
OF CERTAIN
CITY OF FORT COLLINS, COLORADO
DOWNTOWN DEVELOPMENT AUTHORITY
TAX INCREMENT REVENUE REFUNDING BONDS
SERIES 1992
DATED MARCH 15, 1992 - $11,380,000
NOTICE IS HEREBY GIVEN to the registered owners of City of Fort Collins,
Colorado, Downtown Development Authority Tax Increment Revenue Refunding Bonds, Series
1992, dated March 15, 1992, in the original aggregate principal amount of$11,380,000, maturing
from June 1, 2001, through December 1, 2004, and on June 1, 2007 (collectively, the "Refunded
Bonds") that the City of Fort Collins, Colorado (the "City"), has issued Downtown Development
Authority Tax Increment Revenue Refunding Bonds, Series 2001, dated April 1, 2001, in the
aggregate principal amount of$3,690,000,and deposited a portion of the proceeds thereof and other
funds of the City in escrow with The Bank of Cherry Creek,N.A.,Denver,Colorado,which proceeds
and other funds have been invested in bills, certificates of indebtedness, notes, bonds or similar
securities that are direct obligations of the United States of America or are obligations the principal
and interest of which are unconditionally guaranteed by the United States of America for the
payment of the principal of, interest on and any premium due in connection with the redemption of
the Refunded Bonds as the same become due.
The escrow, including the known minimum yield from such investments, is fully
sufficient at the time of the deposit and at all times subsequently to pay the principal of, interest on
and any premium due in connection with the redemption of the Refunded Bonds as such payments
become due.
NOTICE IS FURTHER HEREBY GIVEN that the City has exercised its option to
redeem the Refunded Bonds, prior to their respective maturity dates, on June 1, 2001 (the
'Redemption Date"), at a price equal to the principal amount of each Refunded Bond so redeemed
plus accrued interest thereon to the Redemption Date plus a premium equal to I% of the principal
of each Refunded Bond so redeemed. The total aggregate principal amount of the Refunded Bonds
to be redeemed on the Redemption Date is $5,105,000, and the CUSIP numbers of the Refunded
Bonds are as follows:
[To be provided]
32-
• On the Redemption Date there will become due and payable at the office of the
Financial Officer of the City,as paying agent for the Refunded Bonds,the principal amount of each
Refunded Bond so redeemed,plus accrued interest thereon to the Redemption Date plus a premium
equal to I% of the principal amount of each Refunded Bond so redeemed, and from and after the
Redemption Date interest will cease to accrue. Each Refunded Bond will be redeemed on or after
the Redemption Date upon presentation and surrender thereof.
GIVEN BY ORDER OF THE CITY COUNCIL this 1 st day of May, 2001.
FINANCIAL OFFICER OF THE
CITY OF FORT COLLINS, COLORADO
as paying agent
Authorized Officer
[End of Form of Notice]
•
•
33
The City shall also deposit in the Development and Expense Fund forthwith upon
receipt thereof proceeds of the Bonds in the approximate amount of $143,010 to be used and
withdrawn only as provided in this Section 5A. The proceeds of the Bonds deposited in the
Development and Expense Fund shall be used and paid out from time to time solely for the purpose
of paying the costs of issuing the Bonds. Any proceeds of the Bonds remaining in the Development
and Expense Fund after payment in full of the costs of issuing the Bonds or so much thereof as may
be eligible for payment or reimbursement shall be transferred to the Tax Increment Principal and
Interest Account and used for the purposes thereof.
B. Disposition of Tax Increment Revenues. For so long as any of the Bonds shall
be Outstanding,as to any Debt Service Requirements,except as otherwise provided herein,the Tax
Increment Revenues,upon their receipt from time to time by the City,shall be set aside and credited
immediately to the Tax Increment Fund.
For so long as any of the Bonds shall be Outstanding as to any Debt Service
Requirements,the Tax Increment Fund shall be accumulated and administered,and the moneys on
deposit therein shall be applied, in the following order of priority:
(1) First,to the Tax Increment Principal and Interest Account to pay any
Debt Service Requirements of the Bonds, any Additional Parity Bonds and any other Parity
Securities then Outstanding in the manner set forth in Section 5C hereof;
(2) Second,to the Tax Increment Reserve Account,in the manner set forth
in Section 5D hereof;
(3) Third, to the payment of Debt Service Requirements of Subordinate
Bonds or other Subordinate Securities in accordance with Section 5J hereof, and
(4) Fourth, to the Sales and Use Tax Fund in reimbursement for any
moneys withdrawn from the Sales and Use Tax Principal and Interest Account to pay any
Debt Service Requirements of the Bonds or any Subordinate Securities.
C. Tax Increment Principal and Interest Account Payments. The City shall
deposit in the Tax Increment Principal and Interest Account forthwith upon receipt of the proceeds
of the Bonds, interest accrued thereon from their date of issue to the date of delivery thereof to the
Purchaser, to apply to the payment of interest first due on the Bonds.
The City shall deposit in the Tax Increment Principal and Interest Account from the
Tax Increment Revenues on or before the last day of May,2001,the amount of interest accruing on
the Bonds during said month (with a credit for the amount of any accrued interest deposited in the
Tax Increment Principal and Interest Account and not theretofore credited)and on or before the last
day or each month beginning June, 2001, the following amounts:
(1) Interest Payments. One-sixth(1/6)of the aggregate amount of the next
installment of interest due on the next Interest Payment Date in the then-current Bond Year
34
. plus any other amounts due for interest on the Bonds, any Additional Parity Bonds and any
other Parity Securities then Outstanding.
(2) Principal Payments. One-sixth (1/6) of the aggregate amount of the
next installment of principal due on the next principal payment date in the then-current Bond
Year plus any other amounts due for principal of the Bonds,any Additional Parity Bonds and
any other Parity Securities then Outstanding.
Such interest and principal shall be promptly paid when due.
The moneys credited to the Tax Increment Principal and Interest Account shall be
transferred to the Sales and Use Tax Principal and Interest Account on each June 1 and December
1 and shall then be used to pay the Debt Service Requirements of the Bonds then Outstanding, as
such Debt Service Requirements become due.
Nothing herein shall be construed so as to prevent the City from creating separate
subaccounts within the Tax Increment Principal and Interest Account for the Bonds and any
Additional Parity Bonds and accounting separately for any deposits made thereto on account of the
Bonds and any Additional Parity Bonds or from creating separate principal and interest accounts for
Additional Parity Bonds, if such action is deemed by the City to be necessary or desirable in order
to comply with any statute or regulation governing the exclusion from gross income under federal
income tax laws of interest on any such Additional Parity Bonds, provided that any such separate
subaccounts shall have claims to the Tax Increment Revenues equal to and on a parity with those of
the other such subaccounts and any such separate principal and interest account shall have a claim
to the Tax Increment Revenues equal to and on a parity with that of the Tax Increment Principal and
Interest Account,
D. Tax Increment Reserve Account Payments. The City shall retain in the Tax
Increment Reserve Account a sum equal to the Combined Average Annual Debt Service
Requirements of the Bonds and any other Parity Securities or,if the maximum amount permitted by
applicable federal tax law is either greater or lesser, said amount. Subject to the payments required
by Section 5C hereof,except as provided in Section 5E hereof,from and to the extent of any moneys
remaining in the Tax Increment Fund,or, if necessary, subject to the payments required by Section
5G and 5H hereof, except as provided in Section 5I hereof, from and to the extent of any moneys
remaining in the Sales and Use Tax Fund, there shall be credited as hereinafter provided and from
time to time thereafter to the Tax Increment Reserve Account moneys sufficient to accumulate in
and maintain the Tax Increment Reserve Account at an amount at least equal to the Combined
Average Annual Debt Service Requirements of all Outstanding Bonds,Additional Parity Bonds and
other Parity Securities for which the Tax Increment Reserve Account is maintained. Said amount
shall be maintained as a continuing reserve solely for the payment of the Debt Service Requirements
of the Bonds, any Additional Parity Bonds and any other Parity Securities for which the Tax
Increment Reserve Account is maintained,except as otherwise provided herein. No payment need
be made into the Tax Increment Reserve Account so long as the moneys therein shall equal not less
than said amount. In the event that the amount of the Tax Increment Reserve Account falls below
the minimum amount required to be maintained therein, the City shall credit to the Tax Increment
35
Reserve Account that sum of Tax Increment Revenues needed to accumulate or reaccumulate the
amount therein so that at all times the amount of the Tax Increment Reserve Account equals said
minimum amount. The moneys in the Tax Increment Reserve Account shall be set aside,
accumulated,and,if necessary,reaccumulated as provided herein,from time to time,and maintained
as a continuing reserve to be used,except as hereinafter provided in Section 5E and Section 9 hereof,
only to prevent deficiencies in the Tax Increment Principal and Interest Account resulting from
failure to deposit therein sufficient sums to pay the Debt Service Requirements of the Bonds, any
Additional Parity Bonds and any other Parity Securities for which the Tax Increment Reserve
Account is maintained as the same become due.
If at any time the City shall for any reason fail to pay into the Tax Increment Principal
and Interest Account the full amount required for payment of Debt Service Requirements on the
Bonds, then an amount shall be paid into the Tax Increment Principal and Interest Account at such
time from the Tax Increment Reserve Account equal to the difference between that paid from the
Tax Increment Revenues and the full amount required. The money so used shall be replaced to the
Tax Increment Reserve Account from the first moneys credited to the Tax Increment Fund thereafter
received and not required to be otherwise applied by Section 5C hereof or,if necessary,from the first
moneys credited to the Sales and Use Tax Fund thereafter received and not required to be otherwise
applied by Section 5G and Section 5H hereof.
If Additional Parity Bonds or other Parity Securities are Outstanding and a separate
reserve fund or account is maintained therefor, then the moneys replaced in the Tax Increment
Reserve Account and such separate reserve fund or account shall be replaced on a pro rata basis,as
moneys become available therefor.
If at any time the City shall for any reason fail to pay into the Tax Increment Reserve
Account the full amount required from the moneys credited to the Tax Increment Fund, the
difference between the amount paid and the amount required shall in a like manner be paid therein
from the first moneys credited to the Tax Increment Fund thereafter received and not required to be
applied otherwise by Section 5C hereof or, if necessary,from the first moneys credited to the Sales
and Use Tax Fund thereafter received and not required to be otherwise applied by Section 5G and
Section 5H hereof, unless such moneys have been released and discharged as provided in this
Ordinance.
Nothing in this Ordinance shall be construed as limiting the right of the City to
substitute for the cash deposit required to be maintained hereunder a letter of credit, surety bond,
insurance policy, agreement guaranteeing payment, or other undertaking by a financial institution
to ensure that cash in the amount otherwise required to be maintained hereunder will be available
to the City as needed, provided that any such substitution shall first be approved in writing by the
Bond Insurer.
Upon issuance of the Surety Bond, amounts shall be drawn thereunder as provided
in this Section 5D and in the Guaranty Agreement, and such amounts shall be reimbursed to the
Bond Insurer as provided in the Guaranty Agreement.
36
. E. Termination of Tax Increment Deposits. No payment need be made into the
Tax Increment Principal and Interest Account or the Tax Increment Reserve Account if the amount
in the Tax Increment Principal and Interest Account and the amount in the Tax Increment Reserve
Account total a sum at least equal to the entire remaining Debt Service Requirements of the
Outstanding Bonds and any Outstanding Additional Parity Bonds or other Parity Securities to their
respective Maturity Dates or to any Redemption Date or Redemption Dates on which the City shall
have exercised or shall have obligated itself to exercise its option to redeem,prior to their respective
Maturity Dates, any Bonds, any Additional Parity Bonds or any other Parity Securities then
Outstanding and thereafter maturing(provided that,solely for the purpose of this Section 5E,there
shall be deemed to be a credit to the Tax Increment Reserve Account moneys,Federal Securities and
bank deposits,or any combination thereof,accounted for in any other fund or account of the City and
restricted solely for the purpose of paying the Debt Service Requirements of the Bonds, any
Additional Parity Bonds or any other Parity Securities), in which case moneys in the Tax Increment
Principal and Interest Account and the Tax Increment Reserve Account in an amount,except for any
known interest or other gain to accrue from any investment or deposit of moneys pursuant to Section
6B hereof from the time of any such investment or deposit to the time or respective times the
proceeds of any such investment or deposit shall be needed for such payment, at least equal to such
Debt Service Requirements, shall be used together with any such gain from such investments and
deposits solely to pay such Debt Service Requirements as the same become due; and any moneys in
excess thereof in the Tax Increment Principal and Interest Account and the Tax Increment Reserve
Account and any other moneys derived from the Tax Increment Revenues may be used in any lawful
manner determined by the City and the Authority.
F. Disposition of Sales and Use Tax Revenues. For so long as any of the Bonds
shall be Outstanding,as to any Debt Service Requirements,except as otherwise provided herein,the
Sales and Use Tax Revenues,upon their receipt from time to time by the City,shall be set aside and
credited immediately to the Sales and Use Tax Fund.
For so long as any of the Bonds shall be Outstanding, as to any Debt Service
Requirements, except as otherwise provided herein, the Sales and Use Tax Fund shall be
accumulated and administered,and the moneys on deposit therein shall be applied,in the following
order of priority:
(1) First,to the Sales and Use Tax Principal and Interest Account to pay
any Debt Service Requirements of the Prior Sales and Use Tax Revenue Bonds and any other
Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith in the
manner set forth in Section 5G hereof;
(2) Second, to the Sales and Use Tax Reserve Account in the manner set
forth in Section 5H hereof;
(3) Third, to the payment of Debt Service Requirements of other
Securities of the City secured by the Sales and Use Tax Revenues on a subordinate basis in
accordance with Section 5J hereof; and
37
(4) Fourth, to be used in accordance with Section 5K hereof.
G. Sales and Use Tax Principal and Interest Account Payments. The City shall
deposit in the Sales and Use Tax Principal and Interest Account from the Sales and Use Tax
Revenues on or before the last day of each month beginning in May,2001,the following amounts:
(1) Interest Payments. One-sixth(1/6)of the aggregate amount of the next
installment of interest due on the next Interest Payment Date in the then-current Bond Year
plus any other amounts due for interest on the Prior Sales and Use Tax Revenue Bonds, any
other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith
and, to the extent necessary, the Bonds.
(2) Principal Payments. One-sixth (1/6) of the aggregate amount of the
next installment of principal due on the next principal payment date in the then-current Bond
Year plus any other amounts due for principal of the Prior Sales and Use Tax Revenue
Bonds, any other Securities of the City secured by the Sales and Use Tax Revenues on a
parity therewith and, to the extent necessary, the Bonds.
Such interest and principal shall be promptly paid when due.
The moneys credited to the Sales and Use Tax Principal and Interest Account shall
be used to pay the Debt Service Requirements of the Prior Sales and Use Tax Revenue Bonds, any
other securities of the City secured by the Sales and Use Tax Revenues on a parity therewith and,
to the extent necessary, the Bonds, as such Debt Service Requirements become due.
H. Sales and Use Tax Reserve Account Payments. The City shall maintain in
the Sales and Use Tax Reserve Account a sum at least equal to the Average Annual Debt Service
Requirements of the Prior Sales and Use Tax Revenue Bonds and any other Securities of the City
secured by the Sales and Use Tax Revenues on a parity therewith. Subject to the payments required
by Section 5G hereof,except as provided in Section 5I hereof,from and to the extent of any moneys
remaining in the Sales and Use Tax Fund,there shall be credited as hereinafter provided and from
time to time thereafter to the Sales and Use Tax Reserve Account moneys sufficient to accumulate
in and maintain the Sales and Use Tax Reserve Account at an amount at least equal to the Combined
Average Annual Debt Service Requirements of all Outstanding Prior Sales and Use Tax Revenue
Bonds and any other Securities of the City secured by the Sales and Use Tax Revenues on a parity
therewith for which the Sales and Use Tax Reserve Account is maintained. Said amount shall be
maintained solely as a continuing reserve for the payment of the Debt Service Requirements of the
Prior Sales and Use Tax Revenue Bonds and any other Securities of the City secured by the Sales
and Use Tax Revenues on a parity therewith for which the Sales and Use Tax Reserve Account is
maintained,except as otherwise provided herein. No payment need be made into the Sales and Use
Tax Reserve Account so long as the moneys therein shall equal not less than said amount. In the
event that the amount of the Sales and Use Tax Reserve Account falls below the minimum amount
required to be maintained therein, the City shall credit to the Sales and Use Tax Reserve Account
that sum of Sales and Use Tax Revenues needed to accumulate or reaccumulate the amount therein
so that at all times the amount of the Sales and Use Tax Reserve Account equals said minimum
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• amount. The moneys in the Sales and Use Tax Reserve Account shall be set aside, accumulated,
and, if necessary, reaccumulated as provided herein, from time to time, and maintained as a
continuing reserve to be used,except as hereinafter provided in Section SI and Section 9 hereof,only
to prevent deficiencies in the Sales and Use Tax Principal and Interest Account resulting from failure
to deposit therein sufficient sums to pay the Debt Service Requirements of the Prior Sales and Use
Tax Revenue Bonds and any other securities of the City secured by the Sales and Use Tax Revenues
on a parity therewith for which the Sales and Use Tax Reserve Account is maintained as the same
become due.
If at any time the City shall for any reason fail to pay into the Sales and Use Tax
Principal and Interest Account the full amount required,then an amount shall be paid into the Sales
and Use Tax Principal and Interest Account at such time from the Sales and Use Tax Reserve
Account equal to the difference between that paid from the Sales and Use Tax Revenues and the full
amount required. The money so used shall be replaced to the Sales and Use Tax Reserve Account
from the first moneys credited to the Sales and Use Tax Fund thereafter received and not required _
to be otherwise applied by Section 5G hereof.
If other Securities of the City secured by the Sales and Use Tax Revenues on a parity
with the Prior Sales and Use Tax Revenue Bonds are Outstanding and a separate reserve fund or
account is maintained therefor,then the moneys replaced in the Sales and Use Tax Reserve Account
and such separate reserve fund or account shall be replaced on a pro rata basis, as moneys become
available therefor.
• If at any time the City shall for any reason fail to pay into the Sales and Use Tax
Reserve Account the full amount required from the moneys credited to the Sales and Use Tax Fund,
the difference between the amount paid and the amount required shall in a like manner be paid
therein from the first moneys credited to the Sales and Use Tax Fund thereafter received and not
required to be applied otherwise by Section 5G hereof.
I. Termination of Sales and Use Tax Deposits. No payment need be made into
the Sales and Use Tax Principal and Interest Account or the Sales and Use Tax Reserve Account if
the amount in the Sales and Use Tax Principal and Interest Account and the amount in the Sales and
Use Tax Reserve Account total a sum at least equal to the entire remaining Debt Service
Requirements of all Prior Sales and Use Tax Revenue Bonds and any other Securities of the City
secured by the Sales and Use Tax Revenues on a parity therewith to their respective Maturity Dates
or to any Redemption Date or Redemption Dates on which the City shall have exercised or shall
have obligated itself to exercise its option to redeem, prior to their respective Maturity Dates, any
Prior Sales and Use Tax Revenue Bonds or any other Securities of the City secured by the Sales and
Use Tax Revenues on a parity therewith then Outstanding and thereafter maturing (provided that,
solely for the purpose of this Section 5I,there shall be deemed to be a credit to the Sales and Use Tax
Reserve Account moneys, Federal Securities and bank deposits, or any combination thereof,
accounted for in any other fund or account of the City and restricted solely for the purpose of paying
the Debt Service Requirements of the Prior Sales and Use Tax Revenue Bonds or any other
• Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith, in which
case the moneys in the Sales and Use Tax Principal and Interest Account and the Sales and Use Tax
39
Reserve Account in an amount, except for any known interest or other gain to accrue from any
investment or deposit of moneys pursuant to Section 6B hereof from the time of any such investment
or deposit to the time or respective times the proceeds of any such investment or deposit shall be
needed for such payment, at least equal to such Debt Service Requirements, shall be used together
with any such gain from such investments and deposits solely to pay such Debt Service
Requirements as the same become due; and any moneys in excess thereof in the Sales and Use Tax
Principal and Interest Account and the Sales and Use Tax Reserve Account and any other moneys
derived from the Sales and Use Tax Revenues may be used in any lawful manner determined by the
City.
J. Payment of Subordinate Securities. After there have been deposited in the
Tax Increment Principal and Interest Account or the Sales and Use Tax Principal and Interest
Account an amount sufficient to pay all the Debt Service Requirements due or to become due during
the current Bond Year on all Bonds,Additional Parity Bonds and other Parity Securities and all Prior
Sales and Use Tax Revenue Bonds and any other Securities of the City secured by the Sales and Use
Tax Revenues on a parity therewith then Outstanding and after the accumulations to and
replenishments of the Tax Increment Reserve Account or the Sales and Use Tax Reserve Account
to be made in the current Bond Year have been made, any moneys remaining in the Tax Increment
Fund or the Sales and Use Tax Fund in any Bond Year may be used by the City for the payment of
Debt Service Requirements of Subordinate Securities payable from the Tax Increment Revenues or
subordinate securities payable from the Sales and Use Tax Revenues and authorized to be issued in
accordance with this Ordinance, including reasonable reserves for such securities; but the lien of
such securities on the Tax Increment Revenues or the Sales and Use Tax Revenues and the pledge
thereof for the payment of such securities shall be subordinate to the lien and pledge for the payment
of all Bonds, any Additional Parity Bonds and any other Parity Securities or all Prior Sales and Use
Tax Revenue Bonds and any other Securities of the City secured by the Sales and Use Tax Revenues
on a parity therewith as herein provided.
K. Use of Remaining Sales and Use Tax Revenues. After the payments
hereinabove required to be made by Section 5F through Section 5H and Section 5J hereof are made,
at the end of any month, or whenever in any month there shall have been credited to the Sales and
Use Tax Principal and Interest Account and to the Sales and Use Tax Reserve Account for the
payment of all Securities of the City payable from the Sales and Use Tax Revenues all amounts
required to be deposited in those funds at that time,as herein provided,any remaining Sales and Use
Tax Revenues shall be transferred to such fund of the City as the City shall determine.
L. Budget and Appropriation of Sums. The sums provided to make the payments
specified in this Section 5 shall be appropriated for said purposes, and the amounts so required in
each year shall be included in the budget and the annual appropriation ordinance or measures to be
adopted or passed by the Council in each year while any of the Bonds, as to either principal or
interest,are Outstanding and unpaid. No provisions of any constitution,Charter,statute,ordinance,
resolution,or other order or measure enacted after the issuance of the Bonds shall in any manner be
construed as limiting or impairing the obligation of the City to keep and perform the covenants
contained in this Ordinance so long as any of the Bonds remain Outstanding and unpaid.
40
M. Excess Investment Earnings Fund. Within thirty (30) days after each
installment calculation date and not later than sixty(60)days after the payment of the last Bond,the
City shall compute the Excess Investment Earnings for the year just completed and shall transfer
from the Tax Increment Principal and Interest Account to the Excess Investment Earnings Fund an
amount equal to the amount so computed. If the amount so computed is a negative number, said
amount may be withdrawn from the Excess Investment Earnings Fund. All amounts in the Excess
Investment Earnings Fund,including income earned from the investment of such amounts,shall be
held by the City free and clear of the liens described in this Ordinance. The City shall pay over to
United States of America, not later than thirty (30) days after the fifth anniversary of the date of
issuance of the Bonds, an amount equal to ninety percent (90%) of the net aggregate amount
transferred to or earned in the Excess Investment Earnings Fund during such period and not
theretofore paid to the United States of America and,not later than sixty(60)days after the payment
of the last Bond, one hundred percent (100%) of the aggregate amount in the Excess Investment
Earnings Fund. Notwithstanding the provisions of this Section 5M, the City shall at all times
maintain and administer the Excess Investment Earnings Fund in conformity with all applicable
federal statutes and regulations as the same may be amended from time to time.
Section 6. General Administration of Funds and Accounts.
A. Places and Times of Dg op sits. Each of the special funds or accounts referred
to in Section 5 hereof shall be kept separate and apart from all other accounts or funds of the City
as trust accounts solely for the purposes herein designated therefor. For purposes of investment of
moneys, nothing, except as specifically provided herein, prevents the commingling of moneys
accounted for in any two or more such funds or accounts pertaining to the Pledged Revenues or to
such fund and account and any other funds or accounts of the City adopted or created under this
Ordinance. Such funds or accounts shall be continuously secured to the fullest extent required and
permitted by the laws of the State for the securing of public funds and shall be irrevocable and not
withdrawable by anyone for any purpose other than the respective designated purposes of such funds
and accounts. Each periodic payment shall be credited to the proper fund or account not later than
the date therefor herein designated,except that when any such date shall be a Saturday, a Sunday or
a legal holiday, then such payment shall be made on or before the next preceding business day.
B. Investment of Funds and Accounts. Any moneys in any fund or account
described in this Ordinance(except the Escrow Fund)may be deposited,invested,or reinvested only
in Permitted Investments. Securities or obligations purchased as such an investment shall either be
subject to redemption at any time at face value by the Owner thereof at the option of such Owner or
shall mature at such time or times as shall most nearly coincide with the expected need for moneys
from the fund or account in question. Securities or obligations so purchased as an investment of
moneys in any such fund or account shall be deemed at all times to be a part of the applicable fund
or account; provided that (except for the Escrow Fund, the Tax Increment Reserve Account, the
Sales and Use Tax Reserve Account and the Excess Investment Earnings Fund)the interest accruing
on such investments and any profit realized therefrom shall be credited to the Tax Increment Fund
or the Sales and Use Tax Fund, as the case may be, and any loss resulting from such investments
shall be charged to the particular fund or account in question. Interest and profit realized from
40 investments in the Tax Increment Reserve Account or the Sales and Use Tax Reserve Account shall
41
be credited thereto,provided that,so long as the amount therein equals at least the minimum amount
specified in Section 5D and Section 5H hereof,such interest and profit may be transferred to the Tax
Increment Principal and Interest Account or the Sales and Use Tax Principal and Interest Account,
as the case may be, and distributed in the same manner as other moneys therein. Any loss resulting
from such investments in the Tax Increment Reserve Account or the Sales and Use Tax Reserve
Account shall be charged thereto.Investments in the Tax Increment Reserve Account and the Sales
and Use Tax Reserve Account shall be valued by the City or its agent as frequently as deemed
necessary by the Bond Insurer,but not less often than quarterly, at the lesser of cost or market value
thereof. If on any valuation date the market value of investments in the Tax Increment Reserve
Account or the Sales and Use Tax Reserve Account is less than the amount required by Section 5D
and Section 5H hereof to be maintained therein due to market fluctuations, the deficiency shall be
remedied no later than the next quarterly valuation date. The City shall present for redemption or
sale on the prevailing market any securities or obligations so purchased as an investment of moneys
in a given fund or account whenever it shall be necessary to do so in order to provide moneys to meet
any required payment or transfer from such fund or account. The City shall not invest any moneys
accounted for hereunder if any such investment would contravene the covenant concerning arbitrage
in Section 8P hereof.
C. No Liability for Losses Incurred in Performing_Terms of Ordinance. Neither
the City nor any officer of the City shall be liable or responsible for any loss resulting from any
investment or reinvestment made in accordance with this Ordinance.
D. Character of Funds. The moneys in any fund or account herein authorized
shall consist of lawful money of the United States of America or Permitted Investments or both such
money and Permitted Investments. Moneys deposited in a demand or time deposit account in a
Commercial Bank, appropriately secured according to the laws of the State,shall be deemed lawful
money of the United States of America.
E. Accelerated Payments Optional. Nothing contained herein prevents the
accumulation in any fund or account herein designated of any monetary requirements at a faster rate
than the rate or minimum rate, as the case may be, provided therefor, but no payment shall be so
accelerated if such acceleration shall cause a default in the payment of any obligation of the City
pertaining to the Pledged Revenues.
Section 7. Priorities: Liens: Issuance of Additional Bonds.
A. Lien on Pledged Revenues. Except as expressly provided in this Ordinance
with respect to the issuance of Additional Parity Bonds,Parity Securities or Subordinate Securities,
the Tax Increment Revenues and the Investment Earnings shall be and hereby are irrevocably
assigned, pledged and set aside to pay the Debt Service Requirements of the Bonds. The Bonds
constitute an irrevocable and first lien (but not necessarily an exclusive first lien) upon the Tax
Increment Revenues and the Investment Earnings. The Bonds,any Additional Parity Bonds and any
other Parity Securities authorized to be issued and from time to time Outstanding are equitably and
ratably secured by a lien on the Tax Increment Revenues and the Investment Earnings and shall not
be entitled to any priority one over the other in the application thereof regardless of the time or times
42
of the issuance of the Bonds, any Additional Parity Bonds and any other Parity Securities, it being
the intention of the Council that there shall be no priority among the Bonds, any Additional Parity
Bonds and any other Parity Securities, regardless of the fact that they may be actually issued and
delivered at different times.
Except as expressly provided in this Ordinance or in Ordinance No. 26, 1993,of the
City with respect to the issuance of the Prior Sales and Use Tax Revenue Bonds and any other
Securities of the City secured by the Sales and Use Tax Revenues,the Sales and Use Tax Revenues
are assigned,pledged and set aside to pay the Debt Service Requirements of the Bonds. The Bonds
constitute a first lien (but not necessarily an exclusive first lien) upon the Sales and Use Tax
Revenues.
B. Issuance Of Additional Parity Bonds. Nothing herein, subject to the
limitations stated in Section 7F hereof,prevents the issuance by the City of Additional Parity Bonds
payable from the Tax Increment Revenues and the Investment Earnings and constituting a lien
thereon on a parity with, but not prior or superior to, the lien thereon of the Bonds; but before any
such Additional Parity Bonds are authorized or actually issued the following provisions must first
be satisfied:
(1) Absence of Default. At the time of the issuance of any Additional
Bonds, the City shall not be in default in making any payments required by the Bonds, this
Ordinance or ordinances authorizing Additional Parity Bonds.Such absence of default shall
• be certified in writing by the Financial Officer of the City.
(2) Historic Tax Increment Revenues Test. Except as hereinafter provided
in the case of Additional Parity Bonds issued for the purpose of refunding less than all of the
Bonds and other Parity Securities then Outstanding,either(i) the Tax Increment Revenues
derived in each of the last two(2) complete Fiscal Years immediately preceding the date of
the issuance of such Additional Parity Bonds,or(ii)the Tax Increment Revenues derived in
each of the last two (2) twelve-month periods, one (1)of which shall end not later than the
third calendar month prior to the month of issuance of Additional Parity Bonds and the other
of which shall end not earlier than the end of the last preceding Fiscal Year, as certified by
the Financial Officer of the City or by an Independent Accountant,shall have been sufficient
to pay in each period an amount at least equal to one hundred forty percent (140%) of the
Combined Average Annual Debt Service Requirements of all Bonds and other Parity
Securities then Outstanding and the Additional Parity Bonds proposed to be issued. In the
case of Additional Parity Bonds issued for the purpose of refunding less than all of the Bonds
and other Parity Securities then Outstanding, compliance with this Section 7B(2) shall not
be required so long as the Debt Service Requirements payable on all Bonds and other Parity
Securities Outstanding after the issuance of such Additional Parity Bonds on each Interest
Payment Date does not exceed the Debt Service Requirements payable on all Bonds and
other Parity Securities Outstanding prior to the issuance of such Additional Parity Bonds on
such Interest Payment Dates.
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(3) Adequate Reserves. The proceedings under which any such
Additional Parity Bonds are issued must provide for the deposit of moneys to the Tax
Increment Reserve Account on substantially the same terms as provided in Section 5D hereof
and contain a covenant by the City to maintain the Tax Increment Reserve Account in an
amount equal to the amount required by Section 5D hereof. Alternatively, if such action is
deemed by the City to be necessary or desirable in order to comply with any statute or
regulation governing the exclusion from gross income under federal income tax laws of
interest on any such Additional Parity Bonds, the proceedings under which any such
Additional Parity Bonds are issued may provide for the deposit of moneys to a reserve fund
or account(other than the Tax Increment Reserve Account)established and maintained for
any such Additional Parity Bonds on substantially the same terms as provided in Section 5D
hereof and contain a covenant by the City to maintain such reserve fund or account in an
amount equal to the amount required by Section 5D hereof, except as may be necessary to
comply with such statute or regulation. Any such reserve fund or account shall have a claim
to the Pledged Revenues equal to and on a parity with the Tax Increment Reserve Account.
C. Subordinate Securities Permitted. Nothing herein, subject to the limitations
stated in Section 7F hereof, prevents the City from issuing Subordinate Bonds or Subordinate
Securities for any lawful purpose payable from the Tax Increment Revenues and the Investment
Earnings and having a lien thereon subordinate, inferior and junior to the lien thereon of the Bonds.
D. Superior Securities Prohibited. The City shall not issue any Superior Bonds
or Superior Securities.
E. Refunding Bonds. Refunding bonds may be issued pursuant to law then in
effect,provided if less than all of the Bonds or Parity Securities Outstanding are to be refunded with
Additional Parity Bonds,the City must comply with the provisions of Section 7B hereof.
F. Supplemental Ordinances. Additional Parity Bonds or Subordinate Securities
shall be issued only after authorization thereof by ordinance, supplemental ordinance or other
instrument of the Council, in substantially the same form as this Ordinance, stating the purpose or
purposes of the issuance of such additional securities, directing the application of the proceeds
thereof to such purpose or purposes,directing the execution thereof and fixing and determining the
date,series designation,principal amount,maturity or maturities,maximum rate or rates of interest,
and prior redemption privileges of the City with respect thereto and providing for payments to and
from the applicable funds and accounts in accordance with this Ordinance. All additional securities
shall bear such date, shall be payable as to principal on June 1 or December 1 or both and as to
interest on June I and December I and shall be subject to redemption prior to maturity on such terms
and conditions, as may be provided, and shall bear interest at such rate or rates as may be fixed by
ordinance, instrument or other document of the Council. Nothing herein shall be construed to
prohibit the issuance of additional securities the principal of and interest on which is payable more
frequently than semiannually.
44
Section 8. Covenants.
The City hereby particularly covenants and agrees with the Bond Insurer and the
Owners of the Bonds from time to time,and makes provisions that shall be a part of its contract with
such Owners,which covenants and provisions shall be kept by the City continuously until all of the
Bonds have been fully paid and discharged, as follows:
A. Continuance and Collection of Tax Increment Revenues.
(1) The Plan of Development, as approved and amended as described in
this Ordinance, is now in full force and effect. The City shall not revoke its approval or
amend the Plan of Development in any manner that would diminish the Tax Increment
Revenues.
(2) The City shall continue to collect the Tax Increment Revenues in
accordance with the Downtown Development Authority Act.
(3) The City shall maintain the Tax Increment Fund as a fund of the City
separate and distinct from all other funds of the City and shall place the Tax Increment
Revenues therein. The Tax Increment Fund shall be subject to appropriation only as
authorized by the Downtown Development Authority Act and this Ordinance.
. (4) All of the Tax Increment Revenues shall be subject to the payment of
the Debt Service Requirements of all securities payable therefrom, including reserves
therefor, as provided herein or in any instrument supplemental or amendatory hereto.
B. Continuance and Collection of Sales and Use Tax Revenues.
(1) Ordinance No.58, 1967,Ordinance No. 140, 1979,and Ordinance No.
149, 1981, as originally adopted, have not been repealed or amended, except by Ordinance
No. 4, 1968, Ordinance No. 6, 1968, Ordinance No. 23, 1974, Ordinance No. 137, 1977,
Ordinance No. 87, 1981,and Ordinance No. 113, 1984,and are now in full force and effect.
The City shall not repeal or amend said ordinances in any manner that would diminish the
Sales and Use Tax Revenues.
(2) The City shall continue to levy, impose, administer, enforce and
collect the sales and use tax on sales and purchases of tangible personal property at retail and
storage, use, distribution and consumption of tangible personal property purchased or
acquired at retail, within the City, in accordance with Ordinance No. 58, 1967, Ordinance
No. 140, 1979,and Ordinance No. 149, 1981,without reduction in the percentage rate of the
sales and use tax as set forth therein.
(3) The City shall maintain the Sales and Use Tax Fund as a fund of the
City separate and distinct from all other funds of the City and shall place the Sales and Use
45
Tax Revenues therein. The Sales and Use Tax Fund shall be subject to appropriation only
as authorized by this Ordinance.
(4) All of the Sales and Use Tax Revenues shall be subject to the payment
of the Debt Service Requirements of all securities payable therefrom, including reserves
therefor, as provided herein or in any instrument supplemental or amendatory hereto.
C. Defense of Legality of Pledged Revenues. There is not pending or threatened
in writing any suit, action or proceeding against or affecting the City before or by any court,
arbitrator, administrative agency or other governmental authority which affects the validity or
legality of this Ordinance,any ordinance affecting the Tax Increment Revenues,Ordinance No. 58,
1967, Ordinance No. 140, 1979, Ordinance No. 149, 1981, or any of the City's obligations under
such ordinances.
The City shall,to the extent permitted by law,defend the validity and legality of all
ordinances affecting the Tax Increment Revenues, Ordinance No. 58, 1967, Ordinance No. 140,
1979,Ordinance No. 149, 1981,and all amendments thereto against all claims,suits and proceedings
that would diminish or impair the Pledged Revenues.
Except as permitted in this Ordinance, the City has not assigned or pledged the
Pledged Revenues in any manner that would diminish the security for payment of the Bonds.
D. Performance of Duties. The City,acting and through its officers,or otherwise,
shall faithfully and punctually perform, or cause to be performed, all duties with respect to the
Pledged Revenues required by the Constitution and laws of the State, the Charter and the various
ordinances, resolutions and contracts of the City, including, without limitation, the proper
segregation of the proceeds of the Bonds and the Pledged Revenues and their application from time
to time to the respective funds provided therefor.
E. Contractual Obli ate ions. The City shall perform all contractual obligations
undertaken by it under the contract with the Purchaser and any other agreements relating to the
Bonds and the Pledged Revenues.
F. Further Assurances. At any and all times the City shall, so far as it may be
authorized by law, pass, make, do, execute, acknowledge, deliver, and file or record all and every
such further instruments, acts, deeds, conveyances, assignments, transfers, other documents, and
assurances as may be necessary or desirable for the better assuring,conveying, granting, assigning
and confirming all and singular the rights, the Pledged Revenues and other funds and accounts
hereby pledged or assigned,or intended so to be,or which the City may hereafter become bound to
pledge or to assign,or as may be reasonable and required to cant'out the purposes of this Ordinance.
The City, acting by and through its officers,or otherwise, shall at all times,to the extent permitted
by law, defend, preserve and protect the pledge of the Pledged Revenues and other funds and
accounts pledged hereunder and all the rights of every Owner of any of the Bonds against all claims
and demands of all Persons whomsoever.
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• G. Conditions Precedent. Upon the date of issuance of any of the Bonds, all
conditions, acts and things required by the Constitution or laws of the United States of America,the
Constitution or laws of the State, the Charter, or this Ordinance, to exist, to have happened, and to
have been performed precedent to or in the issuance of the Bonds shall exist, have happened and
have been performed, and the Bonds do not contravene any debt or other limitation prescribed by
the Constitution or laws of the United States of America,the Constitution or laws of the State or the
Charter.
H. Records. The City shall keep proper books of record and account, separate
and apart from all other records and accounts, showing complete and correct entries of all
transactions relating to the funds and accounts described herein.
I. Protection of Security. The City,its officers,agents and employees,shall not
take any action in such manner or to such extent as might prejudice the security for the payment of
the Debt Service Requirements of the Bonds and any other securities payable from the Pledged
Revenues according to the terms thereof. No contract shall be entered into nor any other action taken
by which the rights of any Owner of any Bond or other security payable from Pledged Revenues
might be materially impaired or diminished.
I. Accumulation of Interest Claims. In order to prevent any accumulation of
claims for interest after maturity, the City shall not directly or indirectly extend or assent to the
extension of the time for the payment of any claim for interest on any of the Bonds or any other
• securities payable from the Pledged Revenues;and the City shall not directly or indirectly be a party
to or approve any arrangements for any such extension or for the purpose of keeping alive any of
such other claims for interest. If the time for the payment of any such installment of interest is
extended in contravention of the foregoing provisions, such installment or installments of interest
after such extension or arrangement shall not be entitled in case of default hereunder to the benefit
or the security of this Ordinance, except upon the prior payment in full of the principal of all of the
Bonds and any such securities the payment of which has not been extended.
K. Prompt Payment of Bonds. The City shall promptly pay the Debt Service
Requirements of every Bond on the dates and in the manner specified herein and in the Bonds
according to the true intent and meaning hereof.
L. Use of Funds and Accounts. The funds and accounts described in this
Ordinance shall be used solely and only, and the moneys credited to such accounts are hereby
pledged, solely for the purposes specified herein.
M. Additional Securities. The City shall not hereafter issue any bonds or
securities payable from the Pledged Revenues without compliance with the requirements with
respect to the issuance of such bonds or securities set forth herein to the extent applicable.
N. Other Liens. There are no liens or encumbrances of any nature whatsoever
• on or against any of the Tax Increment Revenues,except as permitted hereby and by the ordinances
47
authorizing the Parity Securities or the Subordinate Securities that are Outstanding as of the date of
issuance of the Bonds.
O. Surety Bonds. Each official or other person having custody of any Pledged
Revenues, or responsible for their handling, shall be fully bonded at all times, which bond shall be
conditioned upon the proper application of said moneys.
P. Tax Matters. The City shall make no investment or other use of the proceeds
of the Bonds at any time during the term thereof that, if such investment or other use had been
reasonably expected on the date the Bonds are issued,would have caused the Bonds to be arbitrage
bonds within the meaning of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder and shall comply with all the requirements thereof throughout the term of the Bonds.
Q. Annual Financial Reports: Events Reports.
(1) The City shall deliver to each NRMSIR and the SID, if any, within
two hundred forty(240) days after the end of each Fiscal Year:
(a) a copy of the annual financial statements of the City prepared
in accordance with generally accepted accounting principles applicable to
governmental entities and audited by an Independent Accountant, including (i) a
statement of the balances on deposit in each fund and account established under this
Ordinance, and (ii) a calculation of the ratio of Pledged Revenues to Debt Service
Requirements of the Bonds, any Additional Parity Bonds and any other Parity
Securities then Outstanding for said Fiscal Year; and
(b) an update of the information contained in the final official
statement pertaining to the Bonds under the sections thereof entitled "SECURYI Y
FOR THE BONDS -Pledged Revenues, -Tax Increment Revenues, -Property Tax
Collections and Procedures and- Sales and Use Tax Revenues."
(2) In a timely manner,the City shall deliver to the MSRB and to the SID,
if any, notice of any of the following events with respect to the Bonds, if material:
(a) Principal and interest payment delinquencies;
(b) Non-payment related defaults;
(c) Unscheduled draws on any debt service reserve reflecting
financial difficulties;
(d) Unscheduled draws on any credit enhancement reflecting
financial difficulties;
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(e) Substitution of any credit or liquidity provider, or its failure
to perform;
(f) Adverse tax opinions or events affecting the tax-exempt status
of the Bonds;
(g) Modifications to rights of Owners of the Bonds;
(h) Bond calls;
(i) Defeasances;
(j) Release, substitution or sale of property securing payment of
the Bonds; or
(k) Rating changes.
(3) In a timely manner, the City shall give to the MSRB and to the SID,
if any, notice of any failure by the City to provide any information required pursuant to (1)
above within the time limit specified therein.
(4) All information required by this Section 8Q to be given as provided
herein shall be given by the Financial Officer of the City. Any information given in any
manner by any other officer of the City is not authorized or given pursuant hereto and may
not be relied upon by any Owner of Bonds or any other Person.
(5) The City agrees that the provisions of this Section 8Q shall be for the
benefit of the Owners of the Bonds and shall be enforceable by any Owner in an action for
specific performance against the City. No money damages shall be recoverable against the
City for breach of any covenant contained in this Section 8Q.
(6) This Section 8Q may be amended to the extent required or permitted
by SEC Rule 15c2-12, provided that any such amendment either (a) does not, in the
determination of the City(which may be based on an opinion of counsel), materially impair
the interests of the Owners of the Bonds; or(b) is approved by the Owners of a majority in
aggregate principal amount of the Bonds.
(7) This Section 8Q shall be in effect from the date of delivery of the
Bonds until the earlier of(a)the date all Debt Service Requirements of the Bonds have been
legally defeased; (b) the date that the City shall no longer constitute an 'obligated person"
within the meaning of SEC Rule 15c2-12; or (c) the date on which those portions of SEC
Rule 15c2-12 that require this Section 8Q are held to be invalid by a court of competent
jurisdiction in a non-appealable action,have been repealed retroactively or otherwise do not
apply to the Bonds.
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Section 9. Defeasance.
When all Debt Service Requirements of the Bonds have been duly paid, the pledge
and lien and all obligations hereunder shall thereby be discharged and the Bonds shall no longer be
deemed to be Outstanding within the meaning of this Ordinance.There shall be deemed to be such
due payment when the City has placed in escrow or in trust with a Trust Bank located within or
without the State, moneys or Federal Securities in an amount sufficient (including the known
minimum yield available for such purpose from Federal Securities in which such amount wholly or
in part may be initially invested) to meet all Debt Service Requirements of the Bonds, as the same
become due to their respective Maturity Dates. The Federal Securities shall be non-callable and shall
become due prior to the respective times at which the proceeds thereof shall be needed, in
accordance with a schedule established and agreed upon between the City and such Trust Bank at
the time of the creation of the escrow or trust,or the Federal Securities shall be subject to redemption
at the option of the Owner thereof to assure such availability as so needed to meet such schedule.
The City shall cause a copy of the report verifying the sufficiency of such escrow or trust prepared
by an Independent Accountant acceptable in form and substance and addressed to the Bond Insurer,
a copy of the escrow agreement in form and substance acceptable to the Bond Insurer and an opinion
of nationally recognized bond counsel acceptable in form and substance and addressed to the Bond
Insurer that the Bonds are no longer Outstanding to be delivered to the Bond Insurer. Any Debt
Service Requirements of the Bonds paid by Bond Insurer shall not be deemed paid pursuant to this
Ordinance until paid by the City in accordance herewith. In the event that a forward purchase
agreement for Federal Securities is used in connection with any such escrow, such agreement shall
be acceptable in form and substance to the Bond Insurer and shall be accompanied by such opinions
of counsel as may reasonably be required by the Bond Insurer. Final drafts of all documents required
hereby shall be provided to the Bond Insurer not later than five(5)days prior to the deposit required
under the escrow agreement. Nothing herein shall be construed to prohibit a partial defeasance of
the Outstanding Bonds in accordance with the provisions of this Section 9.
Section 10. Default Provisions and Remedies of Bond Owners.
A. Events of Default. Each of the following events is hereby declared to be an
Event of Default by the City:
(1) PMMent of Principal. Payment of the principal of any of the Bonds
is not made when the same becomes due and payable;
(2) Nonpayment of Interest. Payment of any installment of interest on any
of the Bonds is not made when the same becomes due and payable;
(3) Incapacity to Perform. The City for any reason becomes incapable of
fulfilling its obligations hereunder;
(4) Nonperformance of Duties. The City shall have failed to carry out and
to perform(or in good faith to begin the performance of)all acts and things lawfully required
to be carried out to be performed by it under any contract relating to the Bonds or the Pledged
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• Revenues, or to all or any combination thereof, or otherwise including, without limitation,
this Ordinance,and such failure shall continue for sixty(60)days after receipt of notice from
the Bond Insurer or the Owners of ten percent (10%) in aggregate principal amount of the
Bonds then Outstanding,provided that if such failure cannot be cured within such sixty(60)
days and if during that period corrective action has commenced to remedy such failure and
subsequently is diligently pursued by the City to the completion of such performance, an
Event of Default shall not be deemed to have occurred;
(5) Appointment of Receiver. An order or decree is entered by a court of
competent jurisdiction, with the consent or acquiescence of the City, appointing a receiver
or receivers for the Pledged Revenues and any other moneys subject to the lien to secure the
payment of the Bonds,or if any order or decree,having been entered without the consent or
acquiescence of the City, is not vacated or discharged or stayed on appeal within sixty(60)
days after entry;
(6) Default of Any Provision. The City makes any default in the due and
punctual performance of any other of the representations,covenants,conditions,agreements
and other provisions contained in the Bonds or in this Ordinance on its part to be performed,
and such default continues for sixty (60) days after written notice, specifying such default
and requiring the same to be remedied, is given to the City by the Bond Insurer or by the
Owners of ten percent(10%)in aggregate principal amount of the Bonds then Outstanding,
provided that if such failure cannot be cured within such sixty (60) days and if during that
period corrective action has commenced to remedy such failure and subsequently is diligently
pursued by the City to the completion of such performance,an Event of Default shall not be
deemed to have occurred;
(7) Default on Parity Securities or Subordinate Securities. An event of
default has occurred and is continuing with respect to any Parity Securities or Subordinate
Securities.
B. Remedies for Defaults. Upon the happening and continuance of any Event
of Default, provided that the Bond Insurer has made all payments of principal and interest on the
Bonds as required by the Bond Insurance Policy,the Bond Insurer,acting alone,shall have the right
to direct all remedies against the City with respect to the Bonds, and no such remedies shall be
exercised without the consent of the Bond Insurer. Subject to the foregoing, the Owner or Owners
of not less than ten percent (10%) in aggregate principal amount of the Bonds then Outstanding,
including, without limitation, a trustee or trustees therefor, may proceed against the City and its
agents,officers and employees to protect and to enforce the rights of any Owner of Bonds under this
Ordinance by mandatory injunction or by other suit, action, or special proceedings in equity or at
law, in any court of competent jurisdiction,either for the appointment of a receiver or an operating
trustee or for the specific performance of any covenant or agreement contained herein or for any
proper legal or equitable remedy as such Owner or Owners may deem most effectual to protect and
to enforce the aforesaid rights, or thereby to enjoin any act or thing which may be unlawful or in
. violation of any right of any Owner of any Bond,or to require the City to act as if it were the trustee
of an expressed trust, or any combination of such remedies, or as otherwise may be authorized by
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any statute or other provision of law. All such proceedings at law or in equity shall be instituted,had
and maintained for the equal benefit of all Owners of the Bonds and any Parity Securities then
Outstanding. Any receiver or operating trustee appointed in any proceedings to protect the rights of
such Owners hereunder,the consent to any such appointment being hereby expressly granted by the
City, may collect, receive and apply all Pledged Revenues arising after the appointment of such
receiver or operating trustee in the same manner as the City itself might do. Notwithstanding the
foregoing or any other applicable provisions of law,no Event of Default shall result in acceleration
of any obligation of the City represented by the Bonds.
C. Ri2hts and Privileges Cumulative. The failure of any Owner of any
Outstanding Bond to proceed in any manner herein provided shall not relieve the City, or any of its
officers,agents or employees of any liability for failure to perform or carry out any duty,obligation
or other commitment. Each right or privilege of any such Owner or any trustee thereof is in addition
and is cumulative to any other right or privilege, and the exercise of any right or privilege by or on
behalf of any Owner shall not be deemed a waiver of any other right or privilege thereof._ Each
Owner of any Bond shall be entitled to all of the privileges, rights, and remedies provided or
permitted in this Ordinance and as otherwise provided or permitted by law or in equity or by statute,
except as provided in Section 12A and Section 12B hereof,and subject to the applicable provisions
concerning the Pledged Revenues and the proceeds of the Bonds.Nothing herein affects or impairs
the right of any Owner of any Bond to enforce the payment of the Debt Service Requirements due
in connection with his, her or its Bond or the obligation of the City to pay the Debt Service
Requirements of each Bond to the Owner thereof at the time and the place expressed in such Bond.
D. Duties Upon Defaults. Upon the happening of any of the Events of Default
as provided in Section 10A hereof, the City, in addition, shall do and perform all proper acts on
behalf of and for the Owners of the Outstanding Bonds to protect and to preserve the security created
for the payment of their Bonds and to insure the payment of the Debt Service Requirements of the
Bonds promptly as the same become due. During any period of default,so long as any of the Bonds,
as to any Debt Service Requirements,are Outstanding,except to the extent it may be unlawful to do
so, all Pledged Revenues shall be paid into the Sales and Use Tax Principal and Interest Account,
or, in the event of securities hereafter or heretofore issued and Outstanding during such period of
time on a parity with the Bonds, shall be applied as provided in Section 5C and Section 5G hereof
on an equitable and prorated basis, and used for the purposes therein provided. If the City fails or
refuses to proceed as in this Section lOD provided,the Owner or Owners of not less than ten percent
(10%) in aggregate principal amount of the Bonds then Outstanding, after demand in writing, may
proceed to protect and to enforce the rights of the Owners of the Bonds as hereinabove provided;and
to that end any such Owners of Outstanding Bonds shall be subrogated to all rights of the City under
any agreement or contract involving the Pledged Revenues entered into prior to the effective date
of this Ordinance or thereafter while any of the Bonds are Outstanding. Nothing herein requires the
City to proceed as provided herein if it determines in good faith and without any abuse of its
discretion that such action is likely materially and prejudicially to affect the Owners of the
Outstanding Bonds and any Outstanding Parity Securities.
E. Evidence of Security Owners. Any request,consent or other instrument which
this Ordinance may require or may permit to be signed and to be executed by the Owner of any
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• Bonds or other securities may be in one instrument or more than one instrument of similar tenor and
shall be signed or may be executed by each Owner in person or by his,her or its attorney appointed
in writing. Proof of the execution of any such instrument or of any instrument appointing any such
attorney,or the ownership by any Person of the securities,shall be sufficient for any purpose of this
Ordinance (except as otherwise herein expressly provided) if made in the following manner:
(1) Proof of Execution. The fact and the date of the execution by any
Owner of any Bonds or other securities or his,her or its attorney of such instrument may be
proved by the certificate, which need not be acknowledged or verified, of any officer of a
bank or trust company satisfactory to the City Clerk or of any notary public or other officer
authorized to take acknowledgments of deeds to be recorded in the state in which he or she
purports to act, that the individual signing such request or other instrument acknowledged
to him or her the execution, duly sworn to before such notary public or other officer; the
authority of the individual or individuals executing any such instrument on behalf of a
corporate Owner of any securities may be established without further proof if such
instrument is signed by an individual purporting to be the president or vice-president of such
corporation with the corporate seal affixed and attested by an individual purporting to be its
secretary or an assistant secretary; and the authority of any Person or Persons executing any
such instrument in any fiduciary or representative capacity may be established without
further proof if such instrument is signed by a Person or Persons purporting to act in such
fiduciary or representative capacity; and
• (2) Proof of Owners. The amount of Bonds owned by any Person
executing any instrument as an Owner of Bonds, and the numbers, dates and other
identification thereof, together with the dates of his ownership of the Bonds, shall be
determined from the registration books of the City. The amount of other securities, if
applicable, owned by any Person executing any instrument as an Owner of such securities,
and the numbers, dates and other identification thereof, together with the dates of his
ownership,if in bearer form,may be proved by a certificate which need not be acknowledged
or verified, in form satisfactory to the City Clerk,executed by a member of a financial firm
or by an officer of a bank or trust company, insurance company or financial corporation or
other depository satisfactory to the City Clerk, or by any notary public or other officer
authorized to take acknowledgments of deeds to be recorded in the state in which he or she
purports to act, showing at the date therein mentioned that such Person exhibited to such
member, officer, notary public or other officer so authorized to take acknowledgments of
deeds or had on deposit with such depository the securities described in such certificate or
if in registered form shall be determined from the related registration books; but the City
Clerk may nevertheless in his or her discretion require further or other proof in cases where
he or she deems the same advisable.
F. Warranty Unon Issuance of Bonds. Any of the Bonds as herein provided,
when duly executed and registered for the purposes provided for in this Ordinance, shall constitute
a warranty by and on behalf of the City for the benefit of each and every future Owner of any of the
• Bonds that the Bonds have been issued for a valuable consideration in full conformity with law.
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G. Bond Insurer as Bond Owner. So long as the Bond Insurance Policy is in
effect and the Bond Insurer is not then in default under the Bond Insurance Policy,the Bond Insurer
shall be deemed to be the Owner of all Bonds insured by it for purposes of exercising remedies,
waiving defaults, or granting consents pursuant to this Section 10, unless the Bond Insurer has
provided written notice to the City that it waives such rights. The rights granted to the Bond Insurer
under this Ordinance to request,consent to or direct any action are rights granted to the Bond Insurer
in consideration of its issuance of the Bond Insurance Policy. Any exercise by the Bond Insurer of
its contractual rights shall not be construed or deemed to be taken for the benefit of or on behalf of
the Owners of the Bonds nor shall such action evidence any position of the Bond Insurer,affirmative
or negative, as to whether consent of the Owners is required in addition to consent of the Bond
Insurer.
H. Immunities of Purchaser. The Purchaser and any associate thereof are under
no obligation to any Owner of the Bonds for any action that they may not take or in respect of
anything that they may or may not do by reason of any information contained in any reports or other
documents received by them under the provisions of this Ordinance. The immunities and exemption
from liability of the Purchaser and any associate thereof hereunder extend to their officers,directors,
successors, assigns,employees and agents.
Section 11. Amendment of Ordinance.
A. Amendment of Ordinance Not Requiring Consent of Bond Owners and Bond
Insurer. The City may, without the consent of, or notice to, the Owners of the Bonds or the Bond
Insurer,adopt such ordinances supplemental hereto(which amendments shall thereafter form a part
hereof) for any one or more or all of the following purposes:
(1) To cure or correct any formal defect, ambiguity or inconsistent
provision contained in this Ordinance;
(2) To appoint successors to the Paying Agent,Registrar,Transfer Agent,
Securities Depository or Escrow Bank;
(3) To designate a trustee for the Owners of the Bonds,to transfer custody
and control of the Pledged Revenues to such trustee, and to provide for the rights and
obligations of such trustee;
(4) To add to the covenants and agreements of the City or the limitations
and restrictions on the City set forth herein;
(5) To pledge additional revenues,properties or collateral to the payment
of the Bonds;
(6) To cause this Ordinance to comply with the Trust Indenture Act of
1939, as amended from time to time; or
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. (7) To effect any such other changes hereto that do not in the opinion of
nationally recognized bond counsel materially adversely affect the interests of the Owners
of the Bonds.
B. Amendment of Ordinance Requiring_Consent of Bond Owners and Bond
Insurer. Exclusive of the amendatory ordinances covered by Section 11A hereof,this Ordinance may
be amended or modified by ordinances or other instruments duly adopted by the Council, without
receipt by it of any additional consideration but with the written consent of the Owners of sixty-six
percent (66%) in aggregate principal amount of the Bonds Outstanding at the time of the adoption
of such amendatory ordinance and of the Bond Insurer,provided that no such amendatory ordinance
shall permit the following without the written consent of one hundred percent(100%)in aggregate
principal amount of the Bonds Outstanding and of the Bond Insurer:
(1) Changing Payment. A change in the maturity or in the terms of the
principal of any Outstanding Bond or any installment of interest thereon; or
(2) Reducing Return. A reduction in the principal amount of any Bond
or the rate of interest thereon, without the consent of the Owner of the Bond; or
(3) Prior Lien. The creation of a lien upon or a pledge of revenues
ranking prior to the lien or to the pledge created by this Ordinance; or
• (4) Modifying Amendment Terms. A reduction of the principal amount
or percentages of Bonds,or any modification otherwise affecting the description of Bonds,
otherwise changing the consent of the Owners of Bonds,that may be required herein for any
amendment hereto; or
(5) Priorities Among Bonds or Parity Securities. The establishment of
priorities as among Bonds issued and Outstanding under the provisions of this Ordinance or
as among Bonds and other Securities on a parity therewith; or
(6) Partial Modification. Any modifications otherwise materially and
prejudicially affecting the rights or privileges of the Owners of less than all of the Bonds then
Outstanding.
Whenever the Council proposes to amend or modify this Ordinance under the
provisions of this Section 11B it shall give notice of the proposed amendment by mailing such notice
to all Owners of Bonds at the addresses appearing on the registration books of the City and to the
Bond Insurer.Such notice shall briefly set forth the nature of the proposed amendment and shall state
that a copy of the proposed amendatory ordinance or other instrument is on file in the office of the
City Clerk for public inspection.
C. Time for and Consent to Amendment. Whenever at any time within one(1)
• year from the date of the completion of the notice required to be given by Section 1113 hereof there
shall be filed in the office of the City Clerk an instrument or instruments executed by the Owners
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of at least sixty-six percent(66%)in aggregate principal amount of the Bonds then Outstanding and
the Bond Insurer,which instrument or instruments shall refer to the proposed amendatory ordinance
or other instrument described in such notice and shall specifically consent to and approve the
adoption of such ordinance or other instrument,thereupon,but not otherwise,the Council may adopt
such amendatory ordinance or instrument and such ordinance or instrument shall become effective.
If the Owners of at least sixty-six percent (66%) in aggregate principal amount of the Bonds then
Outstanding, at the time of the adoption of such amendatory ordinance or instrument, or the
predecessors in title of such Owners,and the Bond Insurer shall have consented to and approved the
adoption thereof as herein provided,no Owner of any Bond, whether or not such Owner shall have
consented to or shall have revoked any consent as herein provided, shall have any right or interest
to object to the adoption of such amendatory ordinance or other instrument or to object to any of the
terms or provisions therein contained or to the operation thereof or to enjoin or restrain the City from
taking any action pursuant to the provisions thereof. Any consent given by the Owner of a Bond or
the Bond Insurer pursuant to the provisions hereof shall be irrevocable for a period of six(6)months
from the date of the completion of the notice above provided for and shall be conclusive and binding
upon all future Owners of the same Bond during such period and upon the Bond Insurer. Such
consent may be revoked at any time after six(6)months from the completion of such notice,by the
Owner who gave such consent or by a successor in title,or by the Bond Insurer, as the case may be,
by filing notice of such revocation with the City Clerk, but such revocation shall not be effective if
the Owners of sixty-six percent(66%)in aggregate principal amount of the Bonds Outstanding,and
the Bond Insurer,as herein provided,prior to the attempted revocation,shall have consented to and
approved the amendatory instrument referred to in such revocation.
D. Unanimous Consent. Notwithstanding anything in the foregoing provisions
contained, the terms and the provisions of this Ordinance, or of any ordinance or instrument
amendatory thereof, and the rights and the obligations of the City and of the Owners of the Bonds
may be modified or amended in any respect (except as would adversely affect the rights of the
Owners of any Parity Securities) upon the adoption by the City and upon the filing with the City
Clerk of an instrument to that effect and with the consent of the Owners of all the then Outstanding
Bonds and the Bond Insurer,such consent to be given in the manner provided in Section l IC hereof;
and no notice to Owners of Bonds shall be required as provided in Section 1113 hereof,nor shall the
time of consent be limited except as may be provided in such consent.
E. Exclusion of Bonds. At the time of any consent or of other action taken
hereunder the Registrar shall furnish to the City Clerk a certificate,upon which the City Clerk may
rely, describing all Bonds to be excluded for the purpose of consent or of other action or of any
calculation of Outstanding Bonds provided for hereunder,and,with respect to such excluded Bonds,
the City shall not be entitled or required with respect to such Bonds to give or obtain any consent or
to take any other action provided for hereunder.
F. Notation on Bonds. Any of the Bonds delivered after the effective date of any
action taken as provided in Section 11B hereof, or Bonds Outstanding at the effective date of such
action, may bear a notation thereon by endorsement or otherwise in form approved by the Council
as to such action; and if any such Bonds so delivered after such date does not bear such notation,
then upon demand of the Owner of any Bond Outstanding at such effective date and upon
56
presentation of his Bond for such purpose at the principal office of the City, suitable notation shall
be made on such Bond by the City Clerk as to any such action. If the Council so determines, new
Bonds so modified as in the opinion of the Council to conform to such action may be prepared,
executed and delivered; and upon demand of the Owner of any Bond then Outstanding,new Bonds
shall be prepared,executed and exchanged without cost to such Owner for Bonds then Outstanding.
G. Proof of Instruments and Bonds. The fact and date of execution of any
instrument under the provisions of this Section 11, the amount and number of the Bonds owned by
any Person executing such instrument, and the date of his registering the same may be proved as
provided by Section 10E hereof.
Section 12. Miscellaneous.
A. Character of Agreement. None of the covenants,agreements,representations,
or warranties contained herein or in the Bonds shall ever impose or shall be construed as imposing
any liability,obligation,or charge against the City(except for the special funds pledged therefor)or
against the general credit of the City payable out of general funds. Neither shall the covenants,
agreements,representations,or warranties contained herein or in the Bonds impose or be construed
as imposing any liability, obligation, or charge against the Bond Insurer.
B. No Pledge of Property. The payment of the Bonds is not secured by an
encumbrance,mortgage or other pledge of property of the City except for the Pledged Revenues.No
property of the City,subject to such exception with respect to the Pledged Revenues,pledged for the
payment of the Bonds, shall be liable to be forfeited or taken in payment of the Bonds.
C. Statute of Limitations. No action or suit based upon any Bond or other
obligation of the City shall be commenced after it is barred by any statute of limitations pertaining
thereto. Any trust or fiduciary relationship between the City and the Owner of any Bond or the
obligee regarding any such obligation shall be conclusively presumed to have been repudiated on the
Maturity Date or other due date thereof unless the Bond is presented for payment or demand for
payment of such other obligation is otherwise made before the expiration of the applicable limitation
period. Any moneys from whatever source derived remaining in any fund or account reserved,
pledged or otherwise held for the payment of any such obligation, action or suit, the collection of
which has been barred,shall revert to such fund as the Council shall provide by ordinance. Nothing
herein prevents the payment of any such Bond or other obligation after an action or suit for its
collection has been barred if the Council deems it in the best interests of the City or the public so to
do and orders such payment to be made.
D. Delegated Duties. The officers of the City are hereby authorized and directed
to enter into such agreements and take all action necessary or appropriate to effectuate the provisions
of this Ordinance and to comply with the requirements of law, including, without limitation:
(1) Printing. The printing of the Bonds or, if necessary or desirable, the
preparation of typewritten Bonds as provided herein;
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(2) Execution.Authentication.Registration and Delivery. The execution,
authentication and registration of the Bonds and the delivery of the Bonds to the Purchaser
pursuant to the provisions of this Ordinance;
(3) Information. The assembly and dissemination of financial and other
information concerning the City and the Bonds;
(4) Official Statement. The preparation of a final official statement in
substantially the same form as the Preliminary Official Statement with such changes as may
be approved by the Financial Officer and the use thereof in connection with the offering and
sale of the Bonds; and
(5) Closing Documents. The execution and delivery of the Bond
Insurance Commitment, the Bond Purchase Agreement, the Escrow Agreement, the Letter
of Representations, the Guaranty Agreement and such certificates as may be reasonably
required by the Purchaser, relating, inter alia, to:
(a) The signing of the Bonds;
(b) The tenure and identity of the officials of the City;
(c) If in accordance with fact, the absence of litigation, pending
or threatened, affecting the validity of the Bonds;
(d) The tax treatment of interest on the Bonds under federal and
State income tax laws;
(e) The delivery of the Bonds and the receipt of the Bond purchase
price;
(f) The accuracy and completeness of information provided in the
official statement prepared for prospective buyers of the Bonds.
E. Successors. Whenever herein the City is named or is referred to, such
provision shall be deemed to include any successors of the City, whether so expressed or not. All
of the covenants, stipulations, obligations and agreements by or on behalf of and other provisions
for the benefit of the City contained herein shall bind and inure to the benefit of any officer, board,
district, commission, authority, agency, instrumentality or other Person or Persons to whom or to
which there shall be transferred by or in accordance with law any right,power or duty of the City or
of its respective successors, if any, the possession of which is necessary or appropriate in order to
comply with any such covenants, stipulations, obligations, agreements or other provisions hereof.
F. Rights and Immunities. Except as herein otherwise expressly provided,
nothing herein expressed or implied is intended or shall be construed to confer upon or to give to any
Person, other than the City, the Bond Insurer, and the Owners from time to time of the Bonds, any
58
. right, remedy or claim under or by reason hereof or any covenant, condition or stipulation hereof.
All the covenants, stimulations,promises and agreements herein contained by and on behalf of the
City shall be for the sole and exclusive benefit of the City,the Bond Insurer and any Owner of any
of the Bonds.
No recourse shall be had for the payment of the Debt Service Requirements of the
Bonds or for any claim based thereon or otherwise upon this Ordinance authorizing their issuance
or any other ordinance or instrument pertaining thereto, against any individual member of the
Council, or any officer or other agent of the City,past,present or future,either directly or indirectly
through the City, or otherwise, whether by virtue of any constitution, statute or rule of law or by the
enforcement of any penalty or otherwise, all such liability, if any, being by the acceptance of the
Bonds and as a part of the consideration of their issuance specially waived and released.
G. Notices, Etc. Any notices, authorizations, requests or demands required or
permitted to be given to the Bond Insurer hereunder shall be in writing and sent by certified or
registered first-class postage prepaid mail addressed as follows:
MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
The Bond Insurer may designate,by written notice to the Financial Officer of the City,any different
address to which subsequent notices, authorizations, requests or demands shall be sent and may
designate any other reasonable means of communication.
H. Facsimile Signatures. Pursuant to the Uniform Facsimile Signature of Public
Officials Act,part 1 of article 55 of title 11,Colorado Revised Statutes,as amended,the Mayor,the
City Clerk and the Financial Officer of the City shall forthwith, and in any event prior to the time
the Bonds are delivered to the Purchaser, file with the Colorado Secretary of State their manual
signatures certified by them under oath.
I. Ordinance Irrepealable. This Ordinance is,and shall constitute,a legislative
measure of the City and after any of the Bonds are issued, this Ordinance shall constitute an
irrevocable contract between the City and the Owner or Owners of the Bonds of which the Bond
Insurer shall be a third-party beneficiary; and this Ordinance, subject to the provisions of Section 9
and Section I I hereof, if any Bonds are in fact issued,shall be and shall remain irrepealable until the
Bonds, as to all Debt Service Requirements, shall be fully paid, cancelled or discharged, as herein
provided.
J. Statutory Limitations Met. The Council hereby determines that the provisions
and limitations of the Refunding Act and any other applicable law imposed on the issuance of the
Bonds have been met.
K. Ratification. All action not inconsistent with the provisions of this Ordinance
heretofore taken by the City or its officers, and otherwise by the City directed toward the issuance,
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sale and delivery of the Bonds for that purpose, be, and the same hereby is, ratified, approved and
confirmed.
L. Repealer. All ordinances,resolutions,bylaws,orders,and other instruments,
or parts thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency.
This repealer shall not be construed to revive any ordinance, resolution, bylaw, order, or other
instrument, or part thereof, heretofore repealed.
M. Severability. If any section,subsection,paragraph,clause or other provision
of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability thereof shall not affect any of the remaining sections, subsections, paragraphs,
clauses or provisions of this Ordinance.
INTRODUCED, READ, APPROVED ON FIRST READING, AND ORDERED
PUBLISHED BY NUMBER AND TITLE ONLY this 20th day of March, A.D. 2001.
CITY OF FORT COLLINS, COLORADO
By:
(CITY) Mayor
(SEAL)
ATTEST:
City Clerk
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