HomeMy WebLinkAbout131 - 11/19/1991 - AUTHORIZING ISSUANCE OF STORM DRAINAGE REVENUE BONDS, SERIES 1991, IN THE AGGREGATE PRINCIPAL AMOUNT ORDINANCE NO. 131, 1991
AN ORDINANCE AUTHORIZING THE ISSUANCE OF CITY OF FORT
COLLINS, COLORADO, STORM DRAINAGE REVENUE BONDS, SERIES
1991, DATED DECEMBER 1, 1991, IN THE AGGREGATE PRINCIPAL
AMOUNT OF $6, 230, 000.
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) Acauire or Acauisition: the design,
construction, reconstruction, purchase, lease, gift, transfer,
assignment, option to purchase, grant from the federal
government or any public body or other person, endowment,
bequest, devise, installation, condemnation, contract, or
other acquirement or other provision, or any combination
thereof, of facilities, other property, any project, or an
interest therein, as authorized by the Act.
(2) Act: part 4 of article 35 of title 31,
Colorado Revised Statutes, as amended.
(3) Additional Parity Bonds: any Parity Securities
issued after the issuance of the Bonds.
(4) Average Annual Debt Service Requirements: the
aggregate of all Debt Service Requirements (excluding any
redemption premiums) due on the Bonds or other given 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.
(5) Beneficial Owners: those Persons having
beneficial ownership interests in Bonds registered in the name
of the Securities Depository or a nominee therefor.
(6) Bond Purchase Agreement: the Bond Purchase
Agreement, dated November 19, 1991, between the City and the
Purchaser.
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(7) Bonds: the City of Fort Collins, Colorado,
Storm Drainage Revenue Bonds, Series 1991, dated December 1,
1991, in the aggregate principal amount of $6,230, 000.
(8) 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.
(9) Charter: the Home Rule Charter of the City.
(10) City: the City of Fort Collins, Colorado.
(11) Code: the Code of the City.
(12) 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.
(13) 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, which
has capital and surplus of $1, 000, 000 or more and which is
located within the United States of America.
(14) Comparable Bond Year: in connection with any
Fiscal Year, the Bond Year which ends in such Fiscal Year.
For example, for the Fiscal Year commencing on January 1,
1992 , the Comparable Bond Year for the Bonds commences on
December 2 , 1991, and ends on December 1, 1992 .
(15) Construction Account: the special fund created
and referred to in Section 5A hereof.
(16) Consulting Engineer: an independent consulting
engineer or engineering firm or corporation having skill,
knowledge and experience in analyzing the operations of storm
drainage systems.
(17) Cost of the Project: all or any part of the
cost of Acquisition, Improvement and Equipment of all or any
part of the Project, including without limitation all or any
property, rights, easements, privileges, agreements, and
franchises deemed by the City to be necessary or useful and
convenient therefor or in connection therewith, interest or
discount on the Bonds, costs of issuance of the Bonds,
engineering and inspection costs and legal expenses, costs of
financial, professional, and other estimates and advice,
contingencies, any administrative, operating, and other
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expenses of the City prior to and during such Acquisition,
Improvement and Equipment and additionally during a period of
not exceeding one year after the completion thereof, as may
be estimated and determined by the City, and all such other
expenses as may be necessary or incident to the financing,
Acquisition, Improvement, Equipment, and completion of the
Project or any part thereof, and the placing of the same in
operation, provision of reserves for working capital,
operation, maintenance, or replacement expenses, or for
payment or security of principal of or interest on the Bonds
during or after such Acquisition, Improvement or Equipment as
the City may determine, and also reimbursements to the City
or to any Person of any moneys theretofore expended for the
purposes of the City or other public body or to the federal
government of any moneys theretofore expended for or in
connection with the Project.
(18) Council: the governing body of the City.
(19) Debt Service Requirements: the principal of,
and interest on, and any premium due in connection with the
redemption of Bonds, any Additional Parity Bonds, any Parity
Securities or any other securities payable from the Net
Pledged Revenues.
(20) Debt Service Reserve Account: the special fund
created and referred to in Section 5E hereof.
(21) Equip or Equipment: the furnishing of all
necessary or desirable, related or appurtenant machinery and
other facilities, or any combination thereof, appertaining to
any property, project or interest therein, as authorized by
the Act.
(22) Event of Default: any one of the events
described in Section 10A hereof.
(23) Excess Investment Earnings Account: the
special fund created and referred to in Section 5J hereof.
(24) Federal Securities: bills, certificates of
indebtedness, notes, or bonds which are direct obligations
of, or the principal and interest of which obligations are
unconditionally guaranteed by, the United States of America.
(25) 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
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designated by the Council or by State statute as the fiscal
year of the City.
(26) Improve or Improvement: the addition,
extension, enlargement, betterment, replacement or improvement
or any combination thereof, of facilities, other property, any
project, or any interest therein, as authorized by the Act,
but not including reconstruction, replacement, repair or other
renewal of existing facilities that does not increase the
capacity of the Storm Drainage Facilities.
(27) Income: all income from rates, fees, tolls
and charges for the services furnished by, or the direct or
indirect use of, the Storm Drainage Facilities, including
without limitation the stormwater basin fees and the
stormwater utility fees imposed under Secs. 26-511 through
26-523 of the Code but excluding special assessments for storm
drainage purposes levied under Secs. 22-31 through 22-143 of
the Code, and all income or other gain, if any, from
investment of the Income and of the proceeds of securities
payable from the Net Pledged Revenues (except income or other
gain from any investment of moneys held in any escrow fund for
the payment of any refunded securities) to the extent not
required to be rebated to the federal government.
(28) 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 (a) is, in fact,
independent and not under 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.
(29) Interest Payment Date: a date designated by
ordinance for the payment of interest on the Bonds or any
other designated securities.
(30) Letter of Representations: the letter of
representations, dated the date of issue of the Bonds, from
the City to the Securities Depository.
(31) Net Pledged Revenues: all Income remaining
after the deduction of Operation and Maintenance Expenses.
(32) Operation and Maintenance Expenses: such
reasonable and necessary current expenses of the City, paid
or accrued, of operating, maintaining and repairing the Storm
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Drainage Facilities as may be determined by the Council. The
term may include at the option of the Council, except as
limited by contract or otherwise limited by law, without
limiting the generality of the foregoing:
(a) Engineering, auditing, legal and other
overhead expenses of the City directly related and
reasonably allocable to the administration, operation
and maintenance of the Storm Drainage Facilities;
(b) Insurance and surety bond premiums
appertaining to the Storm Drainage Facilities;
(c) The reasonable charges of any paying
agent, registrar, transfer agent, depository or escrow
bank appertaining to the Storm Drainage Facilities or any
bonds or other securities issued therefor;
(d) Annual payments to pension, retirement,
health and hospitalization funds appertaining to the
Storm Drainage Facilities;
(e) Any taxes, assessments, franchise fees or
other charges or payments in lieu of the foregoing;
(f) Ordinary and current rentals of equipment
or other property;
(g) Contractual services, professional
services, salaries, administrative expenses, and costs
of labor appertaining to the Storm Drainage Facilities
and the cost of materials and supplies used for current
operation or routine maintenance and repair of the Storm
Drainage Facilities;
(h) The costs incurred in the collection of
all or any part of the Income;
(i) Any costs of utility services furnished
to the Storm Drainage Facilities by the City or
otherwise; and
(j) Any other such expenses considered by the
City in determining the amount of stormwater utility fees
imposed for operation and maintenance.
"Operation and Maintenance Expenses" does not include:
(a) Any allowance for depreciation;
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(b) Any costs of Improvement, extensions, or
betterments;
(c) Any accumulation of reserves for capital
replacements;
(d) Any accumulation of reserves for
operation, maintenance, or repair of the Storm Drainage
Facilities;
(e) Any allowance for the redemption of any
bonds or other securities or the payment of any interest
thereon;
(f) Any liabilities incurred in the
Acquisition of any properties comprising the Storm
Drainage Facilities or any existing properties comprising
the Storm Drainage Facilities or any combination thereof;
and
(g) Any other ground of legal liability not
based on contract.
(33) Operation and Maintenance Account: the special
fund created and referred to in Section 5C hereof.
(34) Ordinance: this Ordinance No. 131, 1991, of
the City.
(35) Outstanding: as of any particular date, all
the Bonds, Additional Parity Bonds, Parity Securities or any
such other securities payable in whole or in part from the
Net Pledged Revenues which have been authorized, executed and
delivered, except the following:
(a) Any Bond, Additional Parity Bond, Parity
Security or other security cancelled 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
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pay 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.
(36) Owner: the holder of any bearer instrument or
registered owner of any registered instrument.
(37) Parity Securities: bonds, warrants, notes
securities, leases or other contracts payable from the Net
Pledged Revenues equally or on a parity with the Bonds.
(38) Participants: underwriters, securities brokers
or dealers, banks, trust companies, closing corporations or
other Persons for which or whom the Securities Depository
holds the Bonds.
(39) Paying Agent: the Financial Officer of the
City.
(40) Permitted Investments: except to the extent
limited by law, any of the following obligations:
(a) Direct obligations of the United States
of America and securities fully and unconditionally
guaranteed as to the timely payment of principal and
interest by the United States of America;
(b) Direct obligations and fully guaranteed
certificates of beneficial interest of the Export-Import
Bank of the United States; senior debt obligations of the
Federal Home Loan Banks; debentures of the Federal
Housing Administration; guaranteed mortgage-backed bonds
and guaranteed pass-through obligations of the Government
National Mortgage Corporation; guaranteed Title XI
financing of the U. S. Maritime Administration;
mortgage-backed securities and senior debt obligations
of the Federal Home Loan Mortgage Corporation;
(c) Repurchase agreements collateralized by
securities described in (a) or (b) above with any
registered broker/dealer subject to the jurisdiction of
the Securities Investors' Protection Corporation or any
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Commercial Bank, if such broker/dealer or Commercial Bank
has an uninsured, unsecured and unguaranteed obligation
rated "Prime-1" or "Aa-3" or better by Moody's Investors
Service, Inc. and "A-1" or "AA-" or better by Standard
& Poor's Corporation, provided:
1. a specific written agreement governs
the transaction;
2. the securities are held, free of any
lien, by the City or an independent third party
acting solely as agent for the City, and such third
party is a Federal Reserve Bank or a bank which is
a member of the Federal Deposit Insurance
Corporation and which has combined capital, surplus
and undivided profits of not less than $20, 000, 000
and the City shall have received written
confirmation from said third party that it holds
said securities, free of any lien, as agent for the
City;
3 . a perfected first security interest
under the Uniform Commercial Code or the book entry
procedures described in 31 C.F.R. 306. 1 et sea. or
31 C.F.R. 350.0 et sea. in such securities is
created for the benefit of the City;
4 . the repurchase agreement has a term
to maturity of thirty (30) days or less, or the City
will value the collateral securities no less
frequently than monthly and will liquidate the
collateral securities if any deficiency in the
required collateral percentage is not restored
within two (2) business days of such valuation; and
5. the fair market value of the
securities in relation to the amount of the
repurchase obligation, including principal and
interest, is equal to at least 100%;
(d) Certificates of deposit in "eligible
public depositories, " as defined by Colorado statutes,
which are insured by FDIC or collateralized in the manner
provided by Colorado statutes; and
(e) Guaranteed investment contracts written
by domestically regulated insurance companies with claims
paying ability ratings of "AA" or better from Standard
& Poor's Corporation.
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(41) Person: any individual, firm, partnership,
corporation, company, association, joint stock association or
body politic or any trustee, receiver, assignee or similar
representative thereof.
(42) Principal and Interest Account: the special
fund created and referred to in Section 5D hereof.
(43) Preliminary Official Statement: the
Preliminary Official Statement, dated November 11, 1991,
relating to the Bonds.
(44) Project: that portion of the Storm Drainage
Facilities for the Acquisition of which the Bonds are issued
hereunder.
(45) Purchaser: George K. Baum & Co. , Kirchner
Moore Division, Denver, Colorado, and its associates, if any.
(46) Redemption Date: the date fixed for the
redemption prior to maturity of any Bonds or other designated
securities payable from the Net Pledged Revenues in any notice
of prior redemption given by or on behalf of the City.
(47) Registrar: the Financial Officer of the City.
(48) Regular Record Date: the fifteenth day of the
calendar month next preceding an Interest Payment Date for the
Bonds.
(49) Securities Depository: The Depository Trust
Company, a limited purpose trust company organized under the
laws of the State of New York.
(50) Security or securities: any bond issued by
the City or any other evidence of the advancement of money to
the City.
(51) 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.
(52) Storm Drainage Fund: the special fund created
by Sec. 8-86 of the Code and referred to in Section 5B hereof.
(53) Storm Drainage Facilities: any one or more of
the various properties used in the collection or disposition
of storm, flood, or surface drainage waters, including without
limitation open drainageways and piped drainageways, bridges,
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roadside drainage ditches and gutters, flood control
facilities, including detention and retention basins, dikes,
overflow channels, pump stations, land, rights-of-way, and all
other necessary, incidental, or appurtenant properties,
equipment, and facilities relating to the foregoing.
(54) State: the State of Colorado.
(55) Subordinate Bonds or Subordinate Securities:
bonds or securities payable from the Net Pledged Revenues
having a lien thereon subordinate or junior to the lien
thereon of the Bonds.
(56) Superior Bonds or Superior Securities: bonds
or securities payable from the Net Pledged Revenues having a
lien thereon superior or senior to the lien thereon of the
Bonds.
(57) Tax Code: the Internal Revenue Code of 1986,
as amended.
(58) Transfer Agent: the Financial Officer of the
City.
(59) Trust Bank: a Commercial Bank which is
authorized to exercise and is exercising trust powers.
B. Construction. This Ordinance, except where the
context by clear implication herein otherwise requires, shall be
construed as follows:
(1) Words in the singular 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.
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(5) Any inconsistency between the provisions of
this Ordinance and those of the 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 Act.
Section 2 . Recitals.
A. Necessity. The City has need for and desires to
Acquire, Improve and Equip the Project for the benefit of the
health, property, safety, and welfare of the City and its
inhabitants.
B. Authority. Pursuant to art. XX, sec. 6 of the
Colorado Constitution, Article V, Section 19. 3 of the Charter, and
the Act, the City is authorized by Council action and without an
election to issue the Bonds.
Section 3 . The Bonds.
A. Authorization. The Bonds, payable as to all Debt
Service Requirements solely out of Net Pledged Revenues, are hereby
authorized to be issued, the proceeds of the Bonds to be used
solely to defray the Cost of the Project.
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 December 1 in the following
years in the following aggregate principal amounts and shall bear
interest from December 1, 1991, or the Interest Payment Dates to
which interest has been paid next preceding their respective dates,
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whichever is later, to their respective maturity dates, except if
redeemed prior thereto, at the following per annum interest rates:
Principal Per Annum
Years Amounts Interest Rates
1993 $ 170, 000 4 .850%
1994 175, 000 5. 000
1995 185, 000 5. 200
1996 195, 000 5. 400
1997 205,000 5. 600
1998 220,000 5. 800
1999 230,000 5. 900
2000 245, 000 6. 000
2001 260, 000 6. 000
2002 275, 000 6.200
2003 295, 000 6. 300
2006 1, 000, 000 6. 600
2011 2 ,775, 000 6. 625
Said interest shall be payable on June 1, 1992 , and semiannually
thereafter on the first day of December and the first day of June
of each year. If upon presentation at maturity the principal of
any Bond is not paid as provided therein, interest shall continue
thereon at the same interest rate until the principal thereof 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 or upon
prior redemption, 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 such 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
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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. Any premium shall
be payable to the Owner of each Bond redeemed upon presentation and
surrender thereof upon prior redemption, by check or draft or wire
transfer directed to such Owner as aforesaid. 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 any
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.
Notwithstanding any other provision of this Ordinance to
the contrary, so long as any Bond is registered in the name of Cede
& Co. , as nominee for the Securities Depository, all payments with
respect to the Debt Service Requirements of the Bonds shall be made
in the manner provided in the Letter of Representations.
(2) Redemption. Bonds maturing in the years 1993
through 2001 shall not be subject to optional redemption prior to
their respective maturity dates. Bonds maturing in the year 2002
and thereafter shall be 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 December 1,
2001, and on any Interest Payment Date thereafter, at a price equal
to the principal amount of each Bond so redeemed plus accrued
interest thereon to the Redemption Date plus a premium expressed
as a percentage of the principal amount of each Bond so redeemed,
depending on the Redemption Date, as follows:
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Redemption Dates Premiums
December 1, 2001, and June 1, 2002 1. 0%
December 1, 2002, and June 1, 2003 0. 5
December 1, 2003 , and Thereafter None
Bonds maturing in the year 2006 shall also be subject to
mandatory sinking fund redemption prior to their maturity date, by
lot, on the dates specified below at a price equal to the principal
amount of each Bond so redeemed plus accrued interst thereon to the
Redemption Date. Such Bonds shall be redeemed on December 1 in the
following years in the following aggregate principal amounts:
Years Principal Amounts
2004 $ 315,000
2005 330, 000
2006 355, 000
Bonds maturing in the year 2011 shall also be subject to
mandatory sinking fund redemption prior to their maturity date, by
lot, on the dates specified below at a price equal to the principal
amount of each Bond so redeemed plus accrued interest thereon to
the Redemption Date. Such Bonds shall be redeemed on December 1
in the following years in the following aggregate principal
amounts:
Years Principal Amounts
2007 $ 375, 000
2008 400, 000
2009 425, 000
2010 455, 000
2011 1, 120, 000
Bonds which are redeemable prior to their respective
maturity dates may be redeemed in part if issued in denominations
which are integral multiples of $5, 000. Such Bonds shall be
treated as representing a corresponding number of separate Bonds
in the denomination of $5, 000 each. Any such Bond to be redeemed
in part shall be surrendered for partial redemption in the manner
hereinafter provided for transfers of ownership. Upon payment of
the redemption price of any such Bond redeemed in part the Owner
thereof shall receive a new Bond or Bonds of authorized
denominations in aggregate principal amount equal to the unredeemed
portion of the Bond surrendered.
Unless waived by the Owners of any Bonds to be redeemed,
notice of redemption shall be given by the Paying Agent in the name
of the City by sending a copy thereof by certified or registered
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first-class postage prepaid mail, not less than thirty (30) nor
more than sixty (60) days prior to the Redemption Date, to the
Owner of each of the Bonds being redeemed determined as of the
close of business on the day preceding the first mailing of such
notice, at the address appearing on the registration books of the
City. Such notice shall specify the number or numbers of the Bonds
to be redeemed, whether in whole or in part, the principal amounts
thereof and the date fixed for redemption and shall further state
that on the Redemption Date there will be due and payable upon each
Bond or part thereof so to be redeemed the principal amount or part
thereof plus accrued interest thereon to the Redemption Date plus
any premium due and that from and after such date interest will
cease to accrue. In addition, the Paying Agent is hereby
authorized to comply with any operational procedures and
requirements of the Securities Depository relating to redemption
of Bonds and notice thereof. Failure to mail any notice as
aforesaid or any defect in any notice so mailed with respect to any
Bond shall not affect the validity of the redemption proceedings
with respect to any other Bond. Any Bonds redeemed prior to their
respective maturity dates by call for prior redemption or otherwise
shall not be reissued and shall be cancelled the same as Bonds paid
at or after maturity.
Notwithstanding any other provision of this Ordinance to
the contrary, so long as any Bond is registered in the name of Cede
& Co. , as nominee for the Securities Depository, all notices with
respect to the Bonds shall be given in the manner provided in the
Letter of Representations.
(3) Interest Rates. The maximum net effective interest
rate authorized for the Bonds is 15% per annum, and the actual net
effective interest rate for the Bonds is 6. 6117% per annum.
(4) 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 of the
City, 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.
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(5) 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. The Registrar or
Transfer Agent shall accept a Bond for registration or transfer
only if the Owner is to be an individual, a corporation, a
partnership, or a trust. 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
and, if the transferee is a trust, the names and social security
numbers of the settlors and the beneficiaries of the trust. The
Transfer Agent shall not be required to transfer ownership of any
Bond during the fifteen (15) days prior to the first mailing of any
notice of redemption or to transfer ownership of any Bond selected
for redemption on or after the date of such mailing. 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 Registrar
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shall authenticate and 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 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 obligations 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 principal of and interest on 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.
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.
(6) 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 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
78
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.
(7) 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 Sec. 8-41 of the Code.
(8) Recitals in Bonds. Each Bond shall recite in
substance that the Bond is a special and limited obligation of the
City payable solely out of and secured by an irrevocable (but not
necessarily exclusive) pledge of the Net Pledged Revenues, that the
Bond does not constitute a debt or an indebtedness of the City
within the meaning of any constitutional, Charter or statutory
provision or limitation, that the Bond is not payable in whole or
in part from the proceeds of general property taxes, and that the
full faith and credit of the City is not pledged for the payment
of the principal of or interest on the Bond. Each Bond shall
further recite that it is issued under the authority of the
Colorado Constitution, the Charter, the Act and this Ordinance.
Such recital shall conclusively impart full compliance with all of
the provisions of the Act, and all Bonds issued containing such
recital shall be incontestable for any cause whatsoever after their
delivery for value.
(9) Form of Bonds. The Bonds shall be in substantially
the following form:
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[Form of Bond]
(Text of Face)
UNITED STATES OF AMERICA
STATE OF COLORADO COUNTY OF LARIMER
CITY OF FORT COLLINS
STORM DRAINAGE REVENUE BOND
SERIES 1991
No. R- $
Interest Maturity Original
Rate Date Date CUSIP
December 1, December 1, 1991
REGISTERED OWNER: Cede & Co.
PRINCIPAL SUM:
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 June 1, 1992 , 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 is not made
as provided herein, interest continues at the Interest Rate until
the Principal Sum is paid in full.
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REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS BOND SET FORTH ON THE REVERSE HEREOF.
This Bond is a special and limited obligation of the City
payable solely out of and secured by an irrevocable (but not
necessarily exclusive) pledge of the Net Pledged Revenues, 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. This Bond is not payable in whole or in part from the
proceeds of general property taxes, 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 of Fort Collins, Colorado,
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 the facsimile or manual impression of the seal
of the City, to be signed and 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 Signature)
City Clerk Countersigned:
_(Facsimile or Manual Signature)
Financial Officer
CERTIFICATE OF AUTHENTICATION
This Bond is one of the series issued pursuant to the Ordinance
herein described. Printed on the reverse hereof is the complete
text of the opinion of bond counsel, Ballard Spahr Andrews &
Ingersoll, 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:
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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.
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(Text of Reverse)
Bonds maturing in the years 1993 through 2001 are not
subject to optional redemption prior to their respective maturity
dates. Bonds of this issue maturing in the year 2002 and
thereafter 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 December 1, 2001, and on
any interest payment date thereafter, at a price equal to the
principal amount of each Bond so redeemed plus accrued interest
thereon to the redemption date plus a premium expressed as a
percentage of the principal amount of each Bond so redeemed,
depending on the redemption date, as follows:
Redemption Dates Premiums
December 1, 2001, and June 1, 2002 1. 0%
December 1, 2002, and June 1, 2003 0.5
December 1, 2003 , and Thereafter None
Bonds maturing in the year 2006 are also subject to
mandatory sinking fund redemption prior to their maturity date, by
lot, on the dates specified below at a price equal to the principal
amount of each Bond so redeemed plus accrued interest thereon to
the redemption date. Such Bonds are to be redeemed on December 1
in the following years in the following aggregate principal
amounts:
Years Principal Amounts
2004 $ 315, 000
2005 330,000
2006 355, 000
Bonds maturing in the year 2011 are also subject to
mandatory sinking fund redemption prior to their maturity date, by
lot, on the dates specified below at a price equal to the principal
amount of each Bond so redeemed plus accrued interest thereon to
the redemption date. Such Bonds are to be redeemed on December 1
in the following years in the following aggregate principal
amounts:
Years Principal Amounts
2007 $ 375, 000
2008 400, 000
2009 425, 000
2010 455, 000
2011 1, 120, 000
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Bonds which are redeemable prior to their respective
maturity dates may be redeemed in part if issued in denominations
which are integral multiples of $5,000. In such case the Bond is
to be surrendered in the manner provided for transfers of
ownership. Upon payment of the redemption price the Registered
Owner is to receive a new Bond or Bonds of authorized denominations
in aggregate principal amount equal to the unredeemed portion of
the Bond surrendered.
Unless waived by the registered owners of any Bonds to
be redeemed, notice of redemption is to be given by the paying
agent in the name of the City by sending a copy of such notice by
certified or registered first-class postage prepaid mail, not less
than thirty (30) nor more than sixty (60) days prior to the
redemption date, to the registered owner of each of the Bonds being
redeemed determined as of the close of business on the day
preceding the first mailing of such notice at the address appearing
on the registration books of the City. Such notice is to specify
the number or numbers of the Bonds to be redeemed, whether in whole
or in part, the principal amounts thereof and the date fixed for
redemption and is further to state that on the redemption date
there will be due and payable upon each Bond or part thereof so to
be redeemed the principal amount or part thereof plus accrued
interest thereon to the redemption date plus any premium due and
that from and after such date interest will cease to accrue. In
addition, the paying agent is authorized to comply with any
operational procedures and requirements of The Depository Trust
Company relating to redemption of Bonds and notice thereof.
Failure to mail any notice as aforesaid or any defect in any notice
so mailed with respect to any Bond does not affect the validity of
the redemption proceedings with respect to any other Bond.
The principal of, interest on and any premium due in
connection with the redemption of this Bond are payable to the
Registered Owner by the Financial Officer of the City, as paying
agent. The principal and the final installment of interest are
payable to the Registered Owner upon presentation and surrender of
this Bond at maturity or upon prior redemption, 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, 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
84
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. Any premium is payable to the
Registered Owner upon presentation and surrender of this Bond upon
prior redemption, by check or draft or wire transfer directed to
the Registered Owner as aforesaid. 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 hereof or any other person (except the
Registered Owner) of the principal of, interest on or any premium
due in connection with the redemption of 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, interest on and any premium
due in connection with the redemption of this Bond is to be made
solely from, and as security for such payment there are irrevocably
(but not necessarily exclusively) pledged, pursuant to the
85
ordinance authorizing the issuance of this Bond (the Ordinance) ,
two special funds, thereby identified as the Principal and Interest
Account and the Debt Service Reserve Account, into which the City
has covenanted in the Ordinance to pay, from certain revenues
derived from the operation and use of and otherwise pertaining to
the storm drainage facilities of the City (the Income) after
provision is made only for the payment of all necessary and
reasonable current expenses of operating, maintaining and repairing
the storm drainage facilities (such remaining revenues being the
Net Pledged Revenues) , sums sufficient to pay when due the
principal of, interest on and any premium due in connection with
the redemption of the Bonds and any parity securities payable from
such revenues, and to accumulate and maintain a specified reserve
for such purposes. In addition, the City may at its option augment
such funds with any other moneys of the City legally available for
expenditure for the purposes thereof as provided in the Ordinance.
It is hereby recited, certified and warranted that for
the payment of the principal of, interest on, and any premium due
in connection with the redemption of this Bond, the City has
created and will maintain said special funds and will deposit the
Net Pledged Revenues therein, and out of said special funds, as an
irrevocable charge thereon, will pay the principal of, interest on,
and any premium due in connection with the redemption of this Bond
in the manner provided by the ordinance.
The Bonds of this issue are equitably and ratably secured
by a lien on the Net Pledged Revenues, and such Bonds constitute
an irrevocable and first lien (but not necessarily an exclusive
first lien) upon the Net Pledged Revenues. Bonds and other types
of securities, in addition to the Bonds of this issue, subject to
expressed conditions, may be issued and made payable from the Net
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.
The City covenants and agrees with the Registered Owner
that it will keep and will perform all of the covenants of this
Bond and of the Ordinance.
This Bond is authorized and issued for the purpose of
defraying the cost of acquiring, constructing and installing
certain storm drainage facilities under the authority of and in
full conformity with the Constitution of the State of Colorado,
the City Charter, part 4 of article 35 of title 31, Colorado
Revised Statutes, as amended, all other laws of the State of
Colorado thereunto enabling and pursuant to the Ordinance duly
adopted prior to the issuance of this Bond. This recital
86
conclusively imparts full compliance with all of the provisions of
the above-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 of this
issue 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,
interest on, and any premium due in connection with the redemption
of 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, interest on, and any premium
due in connection with the redemption of 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
Ordinance may be discharged at or prior to the maturity or prior
redemption 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 the Ordinance; that this Bond does not contravene any
constitutional or statutory provision or limitation of the State
of Colorado, or any provision or 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, as transfer
agent, at the request of the Registered Owner or his, her or its
duly authorized attorney-in-fact or legal representative, upon
surrender hereof together with a written instrument of transfer
87
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 transfer agent is not required to transfer
ownership of this Bond during the fifteen (15) days prior to the
first mailing of any notice of redemption or to transfer ownership
of any Bond selected for redemption on or after the date of such
mailing. 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
registrar is to authenticate and 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 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, interest on, and any premium
due in connection with the redemption of this Bond and for all
other purposes, and all such payments so made to such person or
entity 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 50% of the aggregate principal
amount of the then outstanding Bonds to the effect that the
88
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 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 terms 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.
89
(Assignment)
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 its successors,
to transfer this Bond on the books kept for registration thereof.
Dated:
Signature guaranteed:
(Bank, Trust Company or Firm)
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]
90
C. Bonds Egually 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 and any other Parity Securities then Outstanding, 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 and any other Parity Securities then Outstanding over
any other thereof, except as otherwise expressly provided in or
pursuant to this Ordinance.
D. Special Obligations. All of the Bonds, as to all
Debt Service Requirements thereof, shall be payable solely out of
the Net Pledged Revenues. The Owners of the Bonds may not look to
the general fund or any other fund of the City for the payment of
the Debt Service Requirements, except the special funds pledged
therefor. The Bonds shall not constitute a debt or indebtedness
of the City within the meaning of any constitutional, Charter or
statutory provision or limitation, and the Bonds shall not be
considered or held to be general obligations of the City but shall
constitute special and limited obligations of the City. The Bonds
are not payable in whole or in part from the proceeds of general
property taxes, 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 has been received
from the Purchaser, and the Financial Officer of the City has
recommended that said 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 to execute the Bond Purchase
Agreement on behalf of the City.
C. Approval of Preliminary Official Statement. The
Council hereby approves the Preliminary Official Statement and
ratifies the use and distribution thereof by the Purchaser in
marketing the Bonds.
Section 5. Disposition of Bond Proceeds and Income; Funds
and Accounts Adopted or Created by Ordinance; Security for Bonds.
The proceeds of the Bonds and the Income 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.
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Neither the Purchaser nor any subsequent Owner of any
Bonds shall be in any manner 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.
The Net 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 are hereby pledged to secure the payment of the Debt
Service Requirements of the Bonds, subject to the provisions herein
relating to the Construction Account and the Excess Investment
Earnings Account and subject to the application of the Net Pledged
Revenues for the payment of Debt Service Requirements of Parity
Securities. This 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 pledged, shall immediately be
subject to the lien of this pledge without any physical delivery
thereof, any filing, or further act. The lien of this 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 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. Construction Account. The proceeds of the Bonds,
except the sums required in Sections 5D and 5E hereof to be
deposited in the Principal and Interest Account and the Debt
Service Reserve Account, shall be deposited in the Construction
Account hereby created within the Storm Drainage Fund and shall be
maintained, used and withdrawn only as provided in this Section 5A.
The proceeds of the Bonds so deposited in the
Construction Account, except as herein otherwise expressly
provided, shall be used and paid out from time to time solely for
the purpose of paying the Cost of the Project and are pledged
therefor. Any such proceeds remaining in the Construction Account
after completion of the Project, excluding investment earnings
which may be required to be deposited in the Excess Investment
Earnings Account or rebated to the federal government, shall be
deposited in the Principal and Interest Account and used for the
purposes of the Principal and Interest Account or shall be used to
the extent feasible to call and redeem Bonds in advance of
maturity. The City shall use any proceeds of the Bonds credited
to the Construction Account, without further order, to pay the Debt
Service Requirements of the Bonds as the same become due whenever
and to the extent moneys in the Principal and Interest Account and
the Debt Service Reserve Account or moneys otherwise available
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therefor are insufficient for that purpose, unless such proceeds
shall be needed to defray obligations accrued and to accrue under
any contracts then existing and pertaining to the Project. Any
moneys so used shall be restored to the Construction Account from
the first Net Pledged Revenues thereafter received and not needed
to meet the requirements provided in Sections 5D and 5E hereof.
B. Storm Drainage Fund. Except as otherwise provided
herein, the entire Income, upon receipt thereof from time to time
by the City, shall be set aside and credited immediately to the
Storm Drainage Fund. In addition, the City may at its option
credit to the Storm Drainage Fund any other moneys of, the City
legally available for expenditure for the purposes of the Storm
Drainage Fund as provided herein.
The Storm Drainage Fund shall be administered and the
moneys on deposit therein shall be deposited and applied in the
following order of priority:
(1) First, to the Operation and Maintenance Account
to pay Operation and Maintenance Expenses in the manner set
forth in Section 5C hereof;
(2) Second, to the Principal and Interest Account
to pay the Debt Service Requirements of the Bonds, any
Additional Parity Bonds and any other Parity Securities then
Outstanding in the manner set forth in Section 5D hereof;
(3) Third, to the Debt Service Reserve Account, in
the manner set forth in Section 5E hereof;
(4) Fourth, to the payment of the Debt Service
Requirements of Subordinate Bonds or other Subordinate
Securities in accordance with Section 5G hereof; and
(5) Fifth, to be used in accordance with Section 5H
hereof.
In order to give effect to the requirements of both the Code and
this Ordinance the City shall to the extent necessary advance,
subject to reimbursement, Income required for the payment of
Operation and Maintenance Expenses from stormwater basin fees and
stormwater utility fees earmarked for capital facilities and shall
also to the extent necessary advance, subject to reimbursement, Net
Pledged Revenues required for the payment of the Debt Service
Requirements of the Bonds, any Additional Parity Bonds and any
other Parity Securities from stormwater utility fees earmarked for
operation and maintenance.
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C. Operation and Maintenance Account. As a first
charge on the Storm Drainage Fund, there shall be credited from
time to time to the Operation and Maintenance Account hereby
created within the Storm Drainage Fund moneys sufficient to pay
the Operation and Maintenance Expenses of the Storm Drainage
Facilities as they become due and payable, and thereupon the
Operation and Maintenance Expenses shall be promptly paid.
D. Principal and Interest Account. The City shall
deposit in the Principal and Interest Account hereby created within
the Storm Drainage Fund, forthwith upon receipt of the proceeds of
the Bonds, interest accrued thereon from their date to the date of
delivery thereof to the Purchaser, to apply to the payment of
interest first due on the Bonds.
Subject to the payments required by Section 5C hereof,
the City shall deposit in the Principal and Interest Account from
the Net Pledged Revenues on or before the last day of each month
beginning December, 1991, and ending May, 1992, the amount of
interest accruing on the Bonds during said month (with a credit for
the amount of any accrued interest deposited in the Principal and
Interest Account and not theretofore credited) and on or before
the last day of each month beginning June, 1992, the following
amounts:
(1) Interest Payments. One-sixth (1/6) of the
aggregate amount of the next installment of interest due in
the then-current Bond Year 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-twelfth (1/12) of the
aggregate amount of the next installment of principal due 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 Principal and Interest
Account, excluding investment earnings which may be required to be
deposited in the Excess Investment Earnings Account or rebated to
the federal government, shall be used to pay the Debt Service
Requirements of the Bonds, any Additional Parity Bonds and any
other Parity Securities then Outstanding, as such Debt Service
Requirements become due, except as otherwise provided in this
Ordinance. The Principal and Interest Account shall be maintained
as a sinking fund for the mandatory redemption of Bonds maturing
in the years 2006 and 2011. Any mandatory sinking fund redemption
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shall be treated as an installment of principal for purposes of
this Section 5D.
Nothing herein shall be construed so as to prevent the
City from creating separate principal and interest accounts 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, if such action is deemed by the City to
be necessary or desirable in order to comply with any statute or
regulation governing the exemption from federal income taxes of
interest on the Bonds or any such Additional Parity Bonds, provided
that any such separate accounts shall have claims to the Net
Pledged Revenues equal to and on a parity with those of the other
such accounts.
E. Debt Service Reserve Account. The City shall
deposit in the Debt Service Reserve Account hereby created within
the Storm Drainage Fund, forthwith upon receipt of the proceeds of
the Bonds, the sum of $618, 542. Subject to the payments required
by Sections 5C and 5D hereof and except as provided in Section 5F
hereof, from the Net Pledged Revenues, there shall be credited from
time to time as hereinafter provided to the Debt Service Reserve
Account moneys sufficient to accumulate in and maintain the Debt
Service Reserve Account at an amount at least equal to 10% of the
proceeds of the Bonds and any other Parity Securities to which the
Debt Service Reserve Account is pledged. In the event that the
amount of the Debt Service Reserve Account falls below said amount,
the City shall credit to the Debt Service Reserve Account from the
Net Pledged Revenues that sum of money needed to accumulate or
reaccumulate the amount therein so that at all times the amount of
the Debt Service Reserve Account equals said amount. The moneys
required to be deposited in the Debt Service Reserve Account,
excluding investment earnings which may be required to be deposited
in the Excess Investment Earnings Account or rebated to the federal
government, shall be set aside, accumulated and, if necessary,
reaccumulated from time to time, and maintained as a continuing
reserve to be used, except as hereinafter provided in this
Section 5E and Sections 5F and 9 hereof, only to prevent
deficiencies in payment of the Debt Service Requirements of the
Bonds, any Additional Parity Bonds and any other Parity Securities
then Outstanding resulting from failure to deposit into the
Principal and Interest Account sufficient funds to pay such Debt
Service Requirements as the same become due.
If at any time the City shall for any reason fail to pay
into the Principal and Interest Account the full amount above
stipulated, then an amount shall be paid into the Principal and
Interest Account at such time from the Debt Service Reserve Account
equal to the difference between that paid from the Net Pledged
Revenues and the full amount so stipulated. The money so used
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shall be replaced to the Debt Service Reserve Account from the
first moneys credited to the Storm Drainage Fund thereafter
received and not required to be otherwise applied by Sections 5C
and 5D hereof. If Additional Bonds or other Parity Securities are
Outstanding and the ordinances authorizing the issuance of those
securities require the replacement of moneys in a separate reserve
account therefor, then the moneys replaced in the Debt Service
Reserve Account shall be replaced on a pro rata basis based upon
the principal amount of the then Outstanding Bonds and the total
principal amount of the then Outstanding Additional Parity Bonds
or other Parity Securities, including the Bonds, as moneys become
available therefor.
If at any time the City shall for any reason fail to pay
into the Debt Service Reserve Account the full amount stipulated
herein from the Net Pledged Revenues, the difference between the
amount paid and the amount so stipulated shall in a like manner be
paid therein from the first moneys credited to the Storm Drainage
Fund thereafter received and not required to be applied otherwise
by Sections 5C and 5D hereof.
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 be submitted to Moody's Investors Service,
Incorporated and shall not cause the then-current rating of the
Bonds to be adversely affected.
F. Termination of Deposits. No payment need be made
into the Principal and Interest Account or the Debt Service Reserve
Account if the amount in the Principal and Interest Account and the
amount in the Debt Service Reserve Account total a sum at least
equal to the entire amount of the Outstanding Bonds, any
Outstanding Additional Parity Bonds and any other Outstanding
Parity Securities, as to all Debt Service Requirements, 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
and any other Parity Securities, then Outstanding and thereafter
maturing (provided that, solely for the purpose of this Section 5F,
there shall be deemed to be a credit to the Debt Service Reserve
Account of 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
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any other Parity Security) , in which case moneys in the Principal
and Interest Account and the Debt Service 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. Any moneys in excess thereof
in the Principal and Interest Account and the Debt Service Reserve
Account and any other moneys derived from the Income or otherwise
pertaining to the Storm Drainage Facilities may be used in any
lawful manner determined by the City.
G. Payment of Subordinate Securities. After there has
been deposited to the Principal and Interest Account an amount
sufficient to pay all the Debt Service Requirements due during the
current Bond Year on all Bonds, Additional Parity Bonds and other
Parity Securities then outstanding and after the accumulations to
and replenishments of the Debt Service Reserve Account to be made
in the current Bond Year have been made, any moneys remaining in
the Storm Drainage Fund for such Bond Year may be used by the City
for the payment of Debt Service Requirements of Subordinate
Securities payable from the Net Pledged Revenues and authorized to
be issued in accordance with this Ordinance including reasonable
reserves for such Subordinate Securities; but the lien of such
Subordinate Securities on the Net Pledged Revenues and the pledge
thereof for the payment of such Subordinate Securities shall be
subordinate to the lien and pledge of the Bonds, any Additional
Parity Bonds and any other Parity Securities as herein provided.
H. Use of Remaining Revenues. After the payments
required to be made by Sections 5A through 5G hereof are made, at
the end of any Bond Year, or whenever in any Bond Year there shall
have been credited to the Principal and Interest Account and the
Debt Service Reserve Account all amounts required to be deposited
in those special funds during said Bond Year, as herein provided,
any remaining moneys credited to the Storm Drainage Fund may be
used for the Acquisition of Storm Drainage Facilities or for any
one or any combination of lawful purposes as the City may from time
to time determine.
I. Budget and Appropriation of Sums. The sums required
to pay Costs of the Project in the Fiscal Year 1991 are hereby
appropriated for said purpose. In succeeding Fiscal Years the sums
required to make the payments specified in this Section 5 shall be
included in the annual budget and the appropriation ordinance or
measures to be adopted or passed by the Council in each year while
any of the Bonds, either as to principal or interest, are
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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. Nothing herein shall
prohibit the Council from appropriating other funds of the City
legally available for this purpose to the Storm Drainage Fund for
the purposes thereof.
J. Excess Investment Earnings Account. The Financial
Officer shall transfer into and pay from the Excess Investment
Earnings Account hereby created within the Storm Drainage Fund the
amount of required arbitrage rebate, if any, due to the federal
government under Sections 103 and 148 (f) (2) of the Internal Revenue
Code of 1986, as amended, and regulations promulgated thereunder.
The Financial Officer shall determine such amounts in the manner
required by said sections and related regulations. Transfer of the
required arbitrage rebate amounts shall be made from the
Construction Account, the Principal and Interest Account and the
Debt Service Reserve Account, provided, however, that required
arbitrage rebate payments shall be made to the federal government
from legally available funds regardless of whether there are any
remaining proceeds or other funds attributable to the Bonds that
are available for the purpose.
All amounts in the Excess Investment Earnings Account,
including income earned from investment thereof, shall be held by
the Financial Officer free and clear of any lien created by this
Ordinance, and the Financial Officer shall pay over to the federal
government from time to time as the Financial Officer shall
determine provided that the Financial Officer shall so pay over to
the federal government (1) not less frequently than once each five
years after the date of issuance of the Bonds, an amount equal to
90% of the required arbitrage rebate amount earned during such
period (and not theretofore paid to the federal government) and (2)
not later than sixty (60) days after the redemption of the last
Bond, 100% of the required arbitrage rebate amount.
Section 6. General Administration of Funds.
A. Places and Times of Deposits. Each of the special
funds or accounts created or adopted in Section 5 hereof shall be
maintained in a Commercial Bank kept separate and apart from all
other funds or accounts of the City as trust funds solely for the
purposes herein designated. For purposes of investment of moneys,
nothing herein prevents the commingling of moneys accounted for in
any two or more such funds or accounts pertaining to the Income.
Such funds or accounts shall be continuously secured to the fullest
extent required or permitted by the laws of the State for the
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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 or 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. Any moneys in any fund or
account described in Section 5 hereof may be invested, reinvested
or deposited only in Permitted Investments. Securities or
obligations purchased as such investments 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 (with the exception of the Debt Service
Reserve Account and the Excess Investment Earnings Account) the
interest accruing on such investments and any profit realized
therefrom shall be credited to the Storm Drainage Fund, and any
loss resulting from such investments shall be charged to the
particular fund or account in question. Interest and profit
realized from investments in the Debt Service Reserve Account shall
be credited to the Debt Service Reserve Account, provided that, so
long as the amount in the Debt Service Reserve Account equals at
least the minimum amount specified in Section 5E hereof, such
interest and profit may be transferred to the Principal and
Interest Account and distributed in the same manner as other moneys
in the Principal and Interest Account. Any loss resulting from
such investments in the Debt Service Reserve Account shall be
charged to the Debt Service Reserve Account. 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 contained in Section SU 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 described 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
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time deposit account in or evidenced by a certificate of deposit
of a Commercial Bank pursuant to Sections 6A and 6B hereof,
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 designated
herein 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 Income.
Section 7. Priorities; Liens; Issuance of Additional
Bonds.
A. First Lien on Net Pledged Revenues; Ecuality of
Bonds. Except as expressly provided in this Ordinance with respect
to Additional Parity Bonds, other Parity Securities and Subordinate
Securities, the Net Pledged Revenues shall be and hereby are
irrevocably 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 Net Pledged
Revenues.
The Bonds, any Additional Parity Bonds and any other
Parity Securities issued and from time to time Outstanding are
equitably and ratably secured by a lien on the Net Pledged Revenues
and shall not be entitled to any priority one over the other in the
application of the Net Pledged Revenues regardless of the time or
times of the issuance thereof, 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.
B. Issuance of Additional Parity Bonds. Nothing
herein, except the limitations stated in Section 7F hereof,
prevents the issuance by the City of Additional Parity Bonds
payable from the Net Pledged Revenues and constituting a lien on
the Net Pledged Revenues 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 City
shall satisfy the following conditions:
(1) Absence of Default. At the time of the
adoption of the supplemental ordinance or other instrument
authorizing the issuance of the Additional Parity Bonds as
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provided in Section 7F hereof, the City shall not be in
default in making any payments required by Section 5 hereof.
(2) Historic Revenues Tests. 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, the Net Pledged Revenues
for the last complete Fiscal Year prior to the issuance of the
proposed Additional Parity Bonds, as certified by a Consulting
Engineer or Independent Accountant, must have been equal to
at least 125% of the Combined Average Annual Debt Service
Requirements of the Bonds then outstanding, any Additional
Parity Bonds then Outstanding, and the Additional Parity Bonds
proposed to be issued. If any adjustment in stormwater basin
fees, stormwater utility fees or other storm drainage rates,
fees, tolls or charges is made by the City during such Fiscal
Year, the Consulting Engineer or Independent Accountant shall
adjust the calculation of the Net Pledged Revenues to reflect
the amount thereof that would have been received if such
adjustment had been in effect throughout such Fiscal Year.
For purposes of this Section 7B(2) , when computing the Average
Annual Debt Service Requirements for any issue of securities
bearing interest at a variable, adjustable, convertible or
other similar rate which is not fixed for the entire term
thereof, it shall be assumed that any such securities
Outstanding at the time of the computation will bear interest
during any period, if the interest rate for such period has
not been determined, at a fixed rate equal to the higher of
9.2% per annum or the highest interest rate borne during the
preceding twenty-four (24) months by Outstanding securities
of the City (excluding securities issued pursuant part 1 of
article 3 of title 29, Colorado Revised Statutes, as amended,
or other similar securities) bearing interest at a variable,
adjustable, convertible or other similar rate or, if no such
securities of the City are Outstanding at the time of the
computation, by any similar securities for which the interest
rate is determined by reference to an index comparable to that
to be utilized in connection with the securities proposed to
be issued, or if the interest rate for such period has been
determined and is not subject to variation, adjustment or
conversion prior to the expiration of such period, at the
fixed rate so determined. It shall further be assumed that
any such securities which may be tendered prior to maturity
for purchase at the option of the Owner thereof will mature
on their stated maturity or mandatory redemption dates. 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
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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.
(3) Adequate Reserves. The proceedings under which
any such Additional Parity Bonds are issued must provide for
the deposit of moneys to the Debt Service Reserve Account on
substantially the same terms as provided in Section 5E hereof
and contain a covenant by the City to maintain the Debt
Service Reserve Account in an amount equal to 10% of the
proceeds of the Additional Parity Bonds. 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 exemption from federal income taxes 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 account (other than the Debt
Service Reserve Account) established and maintained for such
Additional Parity Bonds on substantially the same terms as
provided in Section 5E hereof and contain a covenant by the
City to maintain such reserve fund or account in an amount
equal to 10% of the proceeds of the Additional Parity Bonds,
except as may be necessary to comply with such statute or
regulation. Any such reserve account shall have a claim to
the Net Pledged Revenues equal to and on a parity with that
of the Debt Service Reserve Account.
C. Certification of Revenues. where certifications of
revenues are required by this Ordinance, the specified and required
written certifications of the Consulting Engineer or Independent
Accountant revenues are sufficient to pay the required amounts
shall be conclusively presumed to be accurate in determining the
right of the City to authorize issue, sell and deliver Additional
Parity Bonds or other Parity Securities.
D. Subordinate Securities Permitted. Nothing herein,
except the limitations stated in Section 7F hereof, prevents the
City from issuing Subordinate Securities for any lawful purpose.
E. Superior Securities Prohibited. Nothing herein
permits the City to issue Superior Bonds or Superior Securities.
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
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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 Storm Drainage Fund in
accordance with this Ordinance. All additional securities shall
bear such date, shall be payable as to principal on December 1 and
as to interest on June 1 and December 1 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 payable from the Net Pledged Revenues, the
principal of which is payable more frequently than annually or the
interest on which is payable more frequently than semiannually.
Section 8. Covenants.
The City hereby particularly covenants and agrees with
the Owners of the Bonds from time to time, and makes provisions
which 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:
A. Rate Maintenance Covenant. The City shall
prescribe, revise, and collect stormwater basin fees, stormwater
utility fees and any other storm drainage rates, fees, tolls and
charges which shall produce Income sufficient, together with any
other moneys legally available therefor and credited to the Storm
Drainage Fund, to make the payments and accumulations required by
this Ordinance; and which shall produce Income sufficient, together
with all other moneys legally available therefor and credited to
the Storm Drainage Fund after payment of Operation and Maintenance
Expenses, to pay an amount at least equal to 125% of the Combined
Average Annual Service Requirements for the Outstanding Bonds and
every other issue of Outstanding Additional Parity Bonds or other
Parity Securities plus any amounts required to meet then existing
deficiencies pertaining to any fund or account relating to the Net
Pledged Revenues or any securities payable therefrom. For purposes
of this Section 8A, when computing the Average Annual Debt Service
Requirements for any issue of securities bearing interest at a
variable, adjustable, convertible or other similar rate which is
not fixed for the entire term thereof, it shall be assumed that any
such securities Outstanding at the time of the computation will
bear interest during any period, if the interest rate for such
period has not been determined, at a fixed rate equal to the higher
of 9.2% per annum or the highest interest rate borne during the
preceding twenty-four (24) months by Outstanding securities of the
City (excluding securities issued pursuant to part 1 of article 3
of title 29, Colorado Revised Statutes, as amended, or other
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similar securities) bearing interest at a variable, adjustable,
convertible or other similar rate or, if no such securities of the
City are Outstanding at the time of the computation, by any similar
securities for which the interest rate is determined by reference
to an index comparable to that to be utilized in connection with
the securities proposed to be issued, or if the interest rate for
such period has been determined and is not subject to variation,
adjustment or conversion prior to the expiration of such period,
at the fixed rate so determined. It shall further be assumed that
any such securities which may be tendered prior to maturity for
purchase at the option of the Owner thereof will mature on their
stated maturity or mandatory redemption dates.
In the event that the stormwater basin fees, stormwater
utility fees and any other storm drainage rates, fees, tolls and
charges at any time should not be sufficient to make all of the
payments and accumulations required by this Ordinance, the Council
will increase its stormwater basin fees, stormwater utility fees
and any other storm drainage rates, fees, tolls and charges to such
extent as to insure the payments and accumulations required by the
provisions of this Ordinance.
B. Collection of Charges. The City shall cause all
stormwater basin fees, stormwater utility fees, and any other storm
drainage rates, fees, tolls and charges to be billed promptly and
collected as soon as reasonable, shall prescribe and enforce rules
and regulations or impose contractual obligations for the payment
thereof, to the end that the Net Pledged Revenues shall be adequate
to meet the requirements of this Ordinance and any other ordinance
or instrument supplemental thereto. The stormwater basin fees,
stormwater utility fees, and any other storm drainage rates, fees,
tolls and charges shall be collected in any lawful manner.
C. Competent Management. The City shall employ
experienced and competent management personnel for each component
of the Storm Drainage Facilities. If the City shall fail to pay
the Debt Service Requirements of the Bonds promptly as the same
become due, or if the City shall fail to keep any of the covenants
herein contained, and if such default shall continue for a period
of sixty (60) days, or if in any Fiscal Year the Net Pledged
Revenues, together with any other moneys legally available therefor
and credited to the Storm Drainage Fund, should fail to equal at
least the amount of the Debt Service Requirements of the Bonds and
other obligations payable from the Net Pledged Revenues due in the
Comparable Bond Year, the City shall retain a firm of competent
management Persons skilled in the operation of storm drainage
facilities to assist in the management of the Storm Drainage
Facilities so long as such default or deficiency continues.
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D. Performance of Duties. The City, acting by and
through its officers, or otherwise, shall faithfully and punctually
perform, or cause to be performed, all duties with respect to the
Income and the Storm Drainage Facilities required by the
Constitution and laws of the State and the ordinances, resolutions
and contracts of the City, including without limitation the proper
segregation of the proceeds of the Bonds and the Income and their
application from time to time to the respective funds provided
therefor.
E. Costs of Issuance and of Performance. Except as
otherwise specifically provided herein, all costs and expenses
incurred in connection with the issuance of the Bonds, payment of
the Debt Service Requirements, or the performance of or compliance
with any covenant or agreement contained in this Ordinance shall
be paid exclusively (but only from the appropriate special fund in
the manner authorized herein) from the proceeds of the Bonds, the
Net Pledged Revenues, or other legally available moneys, and in no
event shall any of such costs or expenses be required to be paid
out of or charged to the general fund of the City.
F. Contractual Obligations. The City will perform all
contractual obligations undertaken by it under the Bond Purchase
Agreement and any other agreements relating to the Bonds, the
Income or the Storm Drainage Facilities.
G. 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 Net Pledged
Revenues and other funds hereby pledged or assigned, or intended
so to be, or which the City may hereafter become bound to pledge
or assign, or as may be reasonable and required to carry 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 Net 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.
H. 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, the Code and 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, together with all
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other obligations of the City, shall 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,
the Charter or the Code.
I. Efficient Operation and Maintenance. The City shall
at all times operate the Storm Drainage Facilities properly and in
a sound and economical manner. The City shall maintain, preserve
and keep the Storm Drainage Facilities properly or cause the same
so to be maintained, preserved, and kept, with the appurtenances
and every part and parcel thereof in good repair, working order and
condition, and shall from time to time make or cause to be made all
necessary and proper repairs, replacements and renewals so that at
all times the maintenance of the Storm Drainage Facilities may be
properly and advantageously conducted. All salaries, fees, wages
and other compensation paid by the City in connection with the
repair, maintenance and operation of the Storm Drainage Facilities
shall be fair and reasonable.
J. Records and Accounts. The City will 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 referred to herein.
K. Rules, Regulations and Other Details. The City,
acting by and through its officers, shall establish and enforce
reasonable rules and regulations governing the construction,
operation, care, repair, maintenance, management, control, and use
of the Storm Drainage Facilities. The City shall observe and
perform all of the terms and conditions contained in this Ordinance
and shall comply with all valid acts, rules, regulations, orders
and directives of any legislative, executive, administrative or
judicial body applicable to the Storm Drainage Facilities or the
City.
L. Payment of Governmental Charges. The City shall
pay or cause to be paid all taxes and assessments or other
municipal or governmental charges, if any, lawfully levied or
assessed upon or in respect of the Storm Drainage Facilities, or
upon any part thereof, or upon any portion of the Income, when the
same shall become due, and shall duly observe and comply with all
valid requirements of any municipal or governmental authority
relative to the Storm Drainage Facilities, or any part thereof,
except for any period during which the same are being contested in
good faith by proper legal proceedings. The City shall not create
or suffer to be created any lien or charge upon the Storm Drainage
Facilities, or any part thereof, or upon the Income, except the
pledge and lien created by this Ordinance for the payment of the
Debt Service Requirements due in connection with the Bonds, and
except as herein otherwise permitted. The City shall pay or cause
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to be discharged or shall make adequate provision to satisfy and
to discharge, within ninety (90) days after the same shall become
payable, all lawful claims and demands for labor, materials,
supplies or other objects which, if unpaid, might by law become a
lien upon the Storm Drainage Facilities, or any part thereof, or
the Income, but nothing herein requires the City to pay or to cause
to be discharged or to make provision for any such tax, assessment,
lien or charge, so long as the validity thereof is contested in
good faith and by appropriate legal proceedings.
M. 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 Net 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 Bonds or other
securities payable from Net Pledged Revenues might be prejudicially
and materially impaired or diminished.
N. 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 Net
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 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.
O. Prompt Payment of Bonds. The City shall promptly
pay the Debt Service Requirements of every Bond at the places, on
the dates, and in the manner specified herein and in the Bonds
according to the true intent and meaning hereof.
P. Use of Principal and Interest Account and Debt
Service Reserve Account. The Principal and Interest Account and
the Debt Service Reserve Account shall be used solely and only for
the purpose of paying the Debt Service Requirements of the Bonds,
any Additional Parity Bonds and any other Parity Securities to
their respective maturities or any Redemption Date or Redemption
Dates on which the City is obligated to redeem Bonds, subject to
Section 9 hereof.
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Q. Additional Securities. The City shall not hereafter
issue any bonds or securities relating to the Storm Drainage
Facilities and payable from the Net Pledged Revenues, other than
the Bonds, without compliance with the requirements with respect
to the issuance of Additional Parity Bonds or other securities set
forth herein to the extent applicable.
R. Other Liens. There are no liens or encumbrances of
any nature whatsoever on or against the Storm Drainage Facilities
or any part thereof or on or against the Net Pledged Revenues.
S. Disposal of Storm Drainage Facilities Prohibited.
Subject to Section 8V hereof, except for the use of the Storm
Drainage Facilities and services pertaining thereto in the normal
course of business, neither all nor a substantial part of the Storm
Drainage Facilities shall be sold, mortgaged, pledged, encumbered,
alienated or otherwise disposed of, until all of the Bonds have
been paid in full, as to all Debt Service Requirements, or unless
provision has been made therefor, or until the Bonds have otherwise
been redeemed, including, without limitation, the termination of
the pledge as herein authorized. Subject to Section 8V hereof, the
City shall not dispose of its title to the Storm Drainage
Facilities or to any useful part thereof, including any property
necessary to the operation and use of the Storm Drainage Facilities
and the lands and interests in lands comprising the Storm Drainage
Facilities.
T. Surety Bonds. Each official or other person having
custody of the Income or responsible for its handling, shall be
fully bonded at all times with such bonds conditioned upon the
proper application of said moneys. The cost of such bonds shall
be considered an Operation and Maintenance Expense, unless
otherwise provided by law.
U. Tax Matters. The City shall make no investment or
other use of the proceeds of the Bonds, which, 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 Tax Code and the regulations thereunder
and shall comply with all requirements of the Tax Code and said
regulations throughout the term of the Bonds.
The Council hereby designates the Bonds as "qualified
tax-exempt obligations" under Section 265(b) of the Tax Code.
V. Disposal of Property. No part of the Storm Drainage
Facilities shall be sold, leased, mortgaged, pledged, encumbered
or otherwise disposed of or otherwise alienated, until all of the
Bonds have been paid in full, or unless provision has been made
therefor, or until the Bonds have otherwise been redeemed;
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to storm drainage facilities of like character against loss of or
damage to the Storm Drainage Facilities and against public and
other liability to the extent at least reasonably necessary to
protect the interest of the City and of each Owner of Bonds or any
other security payable from the Net Pledged Revenues, except as
herein otherwise provided. If any useful part of the Storm
Drainage Facilities shall be damaged or destroyed, the City shall,
as expeditiously as possible, commence and diligently proceed with
the repair or replacement of the damaged or destroyed property so
as to restore the same to use. The proceeds of any insurance
appertaining to the Storm Drainage Facilities shall be payable to
the City and (except for proceeds of use and occupancy insurance)
shall be applied to the necessary costs involved in such repair and
replacement, and to the extent not so applied shall (together with
the proceeds of any such use and occupancy insurance) be deposited
in the Storm Drainage Fund as Income. If the costs of such repair
and replacement of the damaged or destroyed property exceed the
proceeds of such property insurance available for payment of the
same, moneys in the Storm Drainage Fund shall be used to the extent
necessary for such purpose, as permitted by Section 5H hereof.
AA. Completion of Project; Estimated Life of Project.
The City, with the proceeds derived from the sale of the Bonds, and
any other legally available moneys, including the proceeds derived
from the issuance of Additional Parity Bonds and other Parity
Securities, shall proceed to cause the Project to be completed
without delay to the best of the City's ability and with due
diligence, as herein provided.
The Council hereby determines that the estimated life of
the Project is not less than the term of the Bonds.
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 pay all Debt Service Requirements of the Bonds, as the
same become due. The Federal Securities 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 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
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so needed to meet such schedule. 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 and to constitute an Event of Default:
(1) Nonpayment of Principal. Payment of the
principal of any of the Bonds is not made when the same
becomes due and payable, either at maturity or by proceedings
for prior redemption, or otherwise;
(2) Nonpayment of Interest. Payment of any
installment of interest 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 or to be performed by it under any contract
relating to the Income or to the Storm Drainage Facilities or
otherwise, including, without limitation, this Ordinance, and
such failure shall continue for sixty (60) days after receipt
of notice from the Owners of twenty-five percent (25%) 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) Failure to Reconstruct. The City discontinues
or unreasonably delays or fails to carry out with reasonable
dispatch the reconstruction of any essential part of the Storm
Drainage Facilities which is condemned, destroyed or damaged
and is not promptly repaired or replaced (whether such failure
to repair the same is due to impracticality of such repair or
replacement, or is due to a lack of moneys therefor, or for
other reason) ;
(6) 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
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receivers for the Storm Drainage Facilities or for the Income
and any other moneys subject to the lien to secure the payment
of the Bonds, or both the Storm Drainage Facilities and such
moneys, 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;
(7) 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 if 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 Owners of twenty-five percent (25%) in
aggregate principal amount of the Bonds then Outstanding;
provided that if such default cannot be cured within such
sixty (60) days and if during that period corrective action
has commenced to remedy such default and subsequently is
diligently pursued to the completion of such performance, an
Event of Default shall not be deemed to have occurred.
B. Remedies for Defaults. Upon the happening and
continuance of any of the Events of Default, as provided in Section
10A hereof, then and in every case the Owner or Owners of not less
than twenty-five percent (25%) 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 rights aforesaid, 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
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 Additional Parity
Bonds or other Parity Securities then Outstanding. Any receiver
or operating trustee appointed in any proceedings to protect the
rights of such Owners hereunder may collect, receive and apply all
Income arising after the appointment of such receiver or operating
trustee in the same manner as the City itself might do. The
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consent to any such appointment is hereby expressly granted by the
City.
C. Rights 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 to carry out
any duty, obligation or other commitment. Each right or privilege
of any such Owner or trustee therefor 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 Sections 12A and 12B hereof, and subject to the
applicable provisions concerning the Income 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 this 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 Default. Upon the happening of any of
the Events of Default as provided in Section 10A hereof, the City,
in addition, will 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 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 Net Pledged Revenues
shall be paid into the Principal and Interest Account 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 10D provided, the Owner or Owners of not less than
twenty-five percent (25%) 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 Net 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 if it
so proceeds it is more likely than not to incur a net loss rather
than a net gain or such action is likely to affect materially and
prejudicially the Owners of the Outstanding Bonds and any
Outstanding Parity Securities.
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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 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 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 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 purports to act, that the individual signing such
request or other instrument acknowledged to him 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 Ownership. The amount of Bonds owned
by any Person executing any instrument as an Owner of Bonds,
and the numbers, date and other identification thereof,
together with the date 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, date and other identification thereof, together
with the date 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
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notary public or other officer authorized to take
acknowledgments of deeds to be recorded in the state in which
he 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 Upon 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.
G. 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 partners, directors, successors, assigns, employees
and agents.
Section 11. Amendment of Ordinance.
A. Amendment of Ordinance Not Requiring Consent of Bond
Owners. The City may, without the consent of, or notice to, the
Owners of the Bonds, 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 or Transfer Agent;
(3) To designate a trustee for the Owners of the
Bonds, to transfer custody and control of the Income to such
trustee, and to provide for the rights and obligations of such
trustee;
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(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
(7) To effect any such other changes hereto which
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. 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 City Council, without
receipt by it or any additional consideration, but with the written
consent of the Owners of sixty-six percent (66%) in aggregate
principal amount of the Bonds then Outstanding at the time of the
adoption of such amendatory ordinance, provided that no such
amendatory resolution shall permit:
(1) Changing Payment. A change in the maturity or
in the terms of redemption 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, which may be
required herein for any amendment hereto; or
(5) Priorities Between Bonds. The establishment
of priorities as between Bonds issued and Outstanding under
the provisions of this Ordinance; or
(6) Partial Modification. Any modifications
otherwise materially and prejudicially affecting the rights
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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 the
Purchaser, or to any successor thereof known to the City Clerk,
and to all Owners of Bonds at the addresses appearing on the
registration books of the City. 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 11B hereof there shall be
filed in the office of the City Clerk an instrument or instruments
executed by the Owners of at least sixty-six percent (66%) in
aggregate principal amount of the Bonds then Outstanding, 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, 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 pursuant to the provisions thereof 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. 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, 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 as herein provided, prior
to the attempted revocation, shall have consented to and approved
the amendatory instrument referred to in such revocation.
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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 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, such consent to be given in the
manner provided in Section 11C hereof; and no notice to Owners of
Bonds shall be required as provided in Section 11B 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 City 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 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,
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 executed
and 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 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 shall be prepared, executed and
delivered; and upon demand of the Owner of any Bond then
Outstanding, shall be exchanged without cost to such Owner for
Bonds then Outstanding upon surrender of such Outstanding Bonds.
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
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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 or out of any funds derived
from general property taxes.
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 Net Pledged Revenues. No property of
the City, subject to such exception with respect to the Net Pledged
Revenues is pledged for the payment of the Bonds, shall be liable
to be forfeited to 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 the
Storm Drainage Fund, unless the Council shall otherwise 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 of Bonds. The printing of the Bonds,
including the printing upon each such Bond of a copy of the
approving legal opinion of Ballard Spahr Andrews & Ingersoll,
bond counsel, duly certified by the Registrar, and, if
necessary or desirable, the preparation of typewritten Bonds
as provided herein;
(2) Execution. Authentication. Registration and
Delivery of Bonds. The execution, authentication and
registration of the Bonds and the delivery of the Bonds to the
Purchaser pursuant to the provisions of this Ordinance;
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(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 for the use of prospective buyers of the
Bonds, including, without limitation, the Purchaser and its
associates, if any; and
(5) Closing Documents. The execution of the Letter
of Representations 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; and
(f) The accuracy and completeness of
information provided in the official statement prepared
for prospective purchasers 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, and the Owners from time to time of the Bonds,
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any right, remedy or claim under or by reason hereof or any
covenant, condition or stipulation hereof. All the covenants,
stipulations, promises and agreements herein contained by and on
behalf of the City shall be for the sole and exclusive benefit of
the City, 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. 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 Acquisition
of the Storm Drainage Facilities and the issuance of the Bonds is
hereby ratified, approved and confirmed.
H. Facsimile Sicinatures. 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 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 Irreoealable. 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; and this Ordinance, subject to the provisions of
Sections 9 and 11 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 or discharged.
J. 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.
K. Severability. If any section, subsection,
paragraph, clause or other provision of this Ordinance shall for
121
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.
READ, AMENDED, FINALLY PASSED AS AMENDED ON SECOND
READING, AND ORDERED PUBLISHED BY NUMBER AND TITLE ONLY this 19th
day of November, 1991.
CITY OF FORT COLLINS, COLORADO
By:
(CITY) M or
(SEAL)
ATTEST:
City Clerk C
122
Council Member Edwards seconded the motion.
The question being upon the amendment of Ordinance
No. 131, 1991, the roll was called with the following results:
Council Members voting "AYE": Susan E. Kirkpatrick
Ann Azari
Dave Edwards
Cathy Fromme
Gerry Horak
Loren E. Maxey
Bob Winokur
Council Members voting "NAY": None
The Mayor declared that, a majority of the Council
Members present having voting in favor thereof, the motion was
carried and Ordinance No. 131, 1991, duly amended.
Council Member Horak then moved the final passage of
Ordinance No. 131, 1991, as amended. Council Member Edwards
seconded the motion.
The question being upon the final passage of Ordinance
No. 131, 1991, as amended, the roll was called with the following
results:
Council Members voting "AYE" : Susan E. Kirkpatrick
Ann Azari
Dave Edwards
Cathy Fromme
Gerry Horak
Loren E. Maxey
Bob Winokur
Council Members voting "NAY" : None
The Mayor thereupon declared that a majority of the
Council Members present having voted in favor thereof, the motion
was carried and Ordinance No. 131, 1991, finally passed as amended.
The Council deeming it appropriate, the Mayor ordered
Ordinance No. 131, 1991, published by number and title only
together with a statement that the text thereof is available for
public inspection and acquisition in the office of the City Clerk
and a notice of the final passage of the Ordinance in The
Coloradoan, a newspaper of general circulation published in the
City, within seven (7) days after final passage.
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After consideration of other business to come before the
Council the meeting was adjourned.
46���
Mayor
City of Fort Collins, Colorado
(CITY)
(SEAL)
ATTEST:
City Clerk
City of Fort Collins, Colorado
124
STATE OF COLORADO )
COUNTY OF LARIMER ) ss.
CITY OF FORT COLLINS )
I, Wanda M. Krajicek, City Clerk of the City of Fort
Collins, Colorado, do hereby certify that the attached copy of
Ordinance No. 131, 1991, is a true and correct copy; that the
Ordinance was introduced and approved on first reading by the
Council of the City of Fort Collins, Colorado, at a regular meeting
thereof held at Council Chambers, City Hall, 300 West LaPorte
Avenue, Fort Collins, Colorado, the regular meeting place thereof,
on Tuesday, the 5th day of November, 1991; that the Ordinance was
amended and finally passed as amended on second reading by the
Council at a regular meeting thereof held at Council Chambers, City
Hall, 300 West LaPorte Avenue, Fort Collins, Colorado, the regular
meeting place thereof, on Tuesday, the 19th day of November, 1991;
that a true copy of the Ordinance has been authenticated by the
signatures of the Mayor of the City and myself as City Clerk
thereof, sealed with the seal of the City, and numbered and
recorded in a book marked "Ordinance Record" kept for that purpose
in my office; that the Ordinance was duly published by number and
title only together with a statement that the text thereof was
available for public inspection and acquisition in the office of
the City Clerk and a notice giving the date when the Ordinance
would be presented for final passage and again by number and title
only together with a statement that the text thereof was available
for public inspection and acquisition in the office of the City
Clerk and a notice of the final passage thereof in The Coloradoan,
a newspaper of general circulation published in the City, in its
issues of November 10, 1991, and November 24, 1991, as evidenced
by the certificates of the publisher attached hereto at pages 126
and 127 . I further certify that the foregoing pages 1 through 124,
inclusive, constitute a true and correct copy of the record of the
proceedings of the Council at its aforesaid regular meetings,
insofar as the proceedings relate to the Ordinance; that the
proceedings were duly had and taken, that the meetings were duly
held; and that the persons were present at the meetings as therein
shown.
IN WITNESS WHEREOF, I have hereunto set my hand and the
seal of the City of Fort Collins, Colorado, this loth day of
December, 1991.
(CITY) City Clerk
(SEAL) City of Fort Collins, Colorado
125