HomeMy WebLinkAbout041 - 04/05/1988 - AUTHORIZING THE ISSUANCE OF STORM DRAINAGE REVENUE BONDS, SERIES 1988 ORDINANCE NO. 41, 1988
AN ORDINANCE AUTHORIZING THE ISSUANCE OF CITY OF FORT
COLLINS, COLORADO, STORM DRAINAGE REVENUE BONDS, SERIES
1988, DATED APRIL 15, 1988, IN THE AGGREGATE PRINCIPAL
AMOUNT OF $4, 455,000.
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) Acquire or Acquisition: 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) Bonds: the City of Fort Collins, Colorado,
Storm Drainage Revenue Bonds, Series 1988, dated April 15,
1988, in the aggregate principal amount of $4, 455,000.
(6) 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.
(7) Charter: the Home Rule Charter of the City.
BD1612 62 03/17/88
(8) City: the City of Fort Collins, Colorado.
(9) Code: the Code of the City.
( 10) 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.
( 11) 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.
(12 ) 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,
1989, the Comparable Bond Year for the Bonds commences on
December 2, 1988, and ends on December 1, 1989.
(13 ) Construction Account: the special fund
created and referred to in Section 5A hereof.
( 14) Consulting Engineer: an independent
consulting engineer or engineering firm or corporation
having skill, knowledge and experience in analyzing the
operations of storm drainage systems.
( 15) 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
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
BD1612 63 03/17/88
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.
(16) Council : the governing body of the City.
( 17) 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.
(18) Debt Service Reserve Account: the special
fund created and referred to in Section 5E hereof.
( 19) 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.
(20) Event of Default: any one of the events
described in Section 10A hereof.
(21) Excess Investment Earnings Account: the
special fund created and referred to in Section 5J hereof.
(22 ) 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.
(23) Fiscal Year: the twelve (12) months
commencing on the first day of January of any calendar year
and ending on the last day of December of such calendar year
or such other twelve-month period as may from time to time
be designated by the Council or by State statute as the
Fiscal Year of the City.
(24) 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.
(25) Income: all income from rates, fees, tolls
and charges for the services furnished by, or the direct or
BD1612 64 03/17/88
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 subject to federal arbitrage rebate
requirements.
(26) 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.
(27) Interest Payment Date: a date designated by
ordinance for the payment of interest on the Bonds or any
other designated securities.
(28) Net Pledged Revenues: all Income remaining
after the deduction of Operation and Maintenance Expenses.
(29) Operation and Maintenance Expenses: such
reasonable and necessary current expenses of the City, paid
or accrued, of operating, maintaining and repairing the
Storm 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
BD1612 65 03/17/88
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;
(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;
(a) 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
BD1612 66 03/17/88
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.
(30) Operation and Maintenance Account: the
special fund created and referred to in Section SC hereof.
(31) Ordinance: this Ordinance No. 41, 1988, of
the City.
(32) 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
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.
(33 ) Owner: the holder of any bearer instrument
or registered owner of any registered instrument.
BD1612 67 03/17/88
(34) Parity Securities: bonds, warrants, notes
securities, leases or other contracts payable from the Net
Pledged Revenues equally or on a parity with the Bonds.
(35) Paving Agent: First Interstate Bank of
Denver, N.A. , Denver, Colorado, or its successors.
(36) 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
Commercial Bank, if such broker/dealer or Commercial
Bank has an uninsured, unsecured and unguaranteed
obligation rated "Prime-l" 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;
BD1612 68 03/17/88
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
seg. or 31 C. F.R. 350. 0 et seg. 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 FSLIC 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.
(37) Person: any individual, firm, partnership,
corporation, company, association, joint stock association
or body politic or any trustee, receiver, assignee or
similar representative thereof.
(38) Principal and Interest Account: the special
fund created and referred to in Section 5D hereof.
(39) Project: that portion of the Storm Drainage
Facilities for the Acquisition of which the Bonds are issued
hereunder.
(40) Purchaser: Kirchner Moore & Company, Denver,
Colorado, a subsidiary of Drexel Burnham Lambert, Inc. , and
its associates, if any.
(41) 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.
BD1612 69 03/17/88
(42 ) Registrar: First Interstate Bank of Denver,
N.A. , Denver, Colorado, or its successors.
(43) Regular Record Date: the fifteenth day of
the calendar month next preceding an Interest Payment Date
for the Bonds.
(44) Security or securities: any bond issued by
the City or any other evidence of the advancement of money
to the City.
(45) 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.
(46) Storm Drainage Fund: the special fund
created by Sec. 8-86 of the Code and referred to in
Section 5B hereof.
(47) 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, 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.
(48) State: the State of Colorado.
(49) 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.
(50) 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.
(51) Transfer Agent: First Interstate Bank of
Denver, N.A. , Denver, Colorado, or its successors.
(52 ) Trust Bank: a Commercial Bank which is
authorized to exercise and is exercising trust powers.
BD1612 70 03/17/88
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.
(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 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 20.3 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.
BD1612 71 03/17/88
B. Bond Details.
(1) Generally. The Bonds shall be issued in fully
registered form in denominations of $5, 000 or any integral
multiple thereof, provided that no Bond shall be issued in any
denomination larger than the aggregate principal amount maturing
on the maturity date of such Bond and that no Bond shall be made
payable on more than one maturity date.
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 April 15, 1988, or the Interest Payment Dates to
which interest has been paid next preceding their respective
dates, whichever is later, to their respective maturity dates,
except if redeemed prior thereto, at the following per annum
interest rates:
Principal Per Annum
Years Amounts Interest Rates
1991 $ 25, 000 5 . 50%
1992 25, 000 5. 75
1993 75, 000 6.00
1994 100,000 6.20
1995 160,000 6.40
1996 175,000 6. 60
1997 190,000 6.80
1998 205,000 7. 00
1999 215,000 7. 10
2000 235,000 7.25
2001 250,000 7.40
2002 270,000 7.50
2008 2, 530,000 7.80
Said interest shall be payable on December 1, 1988, and
semiannually thereafter on the first day of June and the first
day of December of each year. If upon presentation at maturity
the principal of any Bond is not paid as provided 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
BD1612 72 03/17/88
upon prior redemption. 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 mailed to such Owner at the address
appearing on the registration books of the City maintained by the
Registrar. 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 mailed as
aforesaid. Notice of the Special Record Date and of the date
fixed for the payment of such interest shall be given by sending
a copy thereof by certified or registered first-class, postage
prepaid mail, at least ten ( 10) days prior to the special record
date, to the Purchaser and 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. 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
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 Paying Agent or
Registrar is authorized or required by law to remain closed.
(2 ) Redemption. Bonds maturing in the years 1991
through 1996 shall not be subject to optional redemption prior to
their respective maturity dates. Bonds maturing in the year 1997
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,
1996, 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, 1996, through June 1, 1998 1%
December 1, 1998. and Thereafter None
BD1612 73 03/17/88
Bonds maturing in the year 2008 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
2003 $ 285,000
2004 310,000
2005 330,000
2006 360,000
2007 385,000
2008 860, 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.
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 first-class postage prepaid mail, at least thirty (30)
days prior to the Redemption Date, to the Purchaser and 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, 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 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 shall not affect the validity of the
redemption proceedings with respect to any other Bond. Any Bonds
BD1612 74 03/17/88
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.
(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 7.69842% per
annum.
(4) Execution and Authentication. The Bonds shall be
executed by and on behalf of the City with the facsimile
signature of the Mayor, shall bear a facsimile of the seal of the
City, shall be attested with the facsimile signature of the City
Clerk, shall be countersigned with the facsimile signature of the
Finance Director of the City, and shall be authenticated with the
manual signature of a duly authorized signatory of the Registrar.
Should any officer whose facsimile signature appears on the Bonds
cease to be such officer before delivery of the Bonds to the
Purchaser, such facsimile 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. The
certificate of authentication on any Bond shall be deemed to have
been duly executed by the Registrar if signed by an authorized
signatory thereof, but it shall not be necessary that the same
signatory sign the certificate of authentication on all of the
Bonds.
(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. Thereafter, 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
BD1612 75 03/17/88
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 at the expense of the
transferor or exchanger, and the Transfer Agent may also 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
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 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.
(6) Resignation of Agents. If the Paying Agent,
Registrar or Transfer Agent shall resign, or if the City shall
reasonably determine that the Paying Agent, Registrar or Transfer
Agent has become incapable of fulfilling its duties hereunder,
the City may, upon notice mailed to each Owner of Bonds at the
addresses last shown on the registration books of the City,
appoint a successor paying agent, registrar or transfer agent.
Every such successor paying agent, registrar or transfer agent
shall be a Commercial Bank. It shall not be required that the
same institution serve as paying agent, registrar, and transfer
agent hereunder, but the City shall have the right to have the
same institution serve as paying agent, registrar and transfer
agent hereunder.
(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.
BD1612 76 03/17/88
(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.
(8) Form of Bonds. The Bonds shall be in
substantially the following form:
BD1612 77 03/17/88
[ 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 1988
No. R- $
Interest Maturity Original
Rate Date Date CUSIP
December 1, April 15, 1988
REGISTERED OWNER:
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 December and the first day of June of each year,
commencing on December 1, 1988, 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 .
BD1612 78 03/17/88
Bonds of this issue maturing in the years 1991 through
1996 are not subject to optional redemption prior to their
respective maturity dates. Bonds of this issue maturing in the
year 1997 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, 1996, 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, 1996, through June 1, 1998 1%
December 1, 1998, and Thereafter None
Bonds of this issue maturing in the year 2008 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
2003 $ 285,000
2004 310, 000
2005 330, 000
2006 360, 000
2007 385,000
2008 860,000
Bonds of this issue 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.
Notice of redemption of any Bonds of this issue 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, at least thirty (30) days prior to the
redemption date, to Kirchner Moore & Company, Denver, Colorado,
and to the registered owner of each of the Bonds being redeemed
BD1612 79 03/17/88
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, 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.
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 signature of the Mayor of the City, to be
sealed with the facsimile seal of the City, to be signed and
attested with the facsimile signature of the City Clerk of the
BD1612 80 03/17/88
City, and to be countersigned with the facsimile signature of the
Finance Director of the City.
CITY OF FORT COLLINS, COLORADO
(FACSIMILE) By: (Facsimile Signature)
( SEAL ) Mayor
ATTEST:
(Facsimile Signature)
City Clerk Countersigned:
(Facsimile Signature)
Finance Director
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.
FIRST INTERSTATE BANK OF DENVER, N.A.
as registrar
By: (Manual Signature)
Authorized Signatory
DATED:
BD1612 81 03/17/88
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 GIFT MIN ACT - Custodian
(Cust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used
though not on the above list.
BD1612 82 03/17/88
(Text of Reverse)
The principal of, interest on and any premium due in
connection with the redemption of this Bond are payable to the
Registered Owner by First Interstate Bank of Denver, N.A. ,
Denver, Colorado, or its successors, 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. 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
mailed to the Registered Owner at the address appearing on the
registration books of the City maintained by First Interstate
Bank of Denver, N.A. , Denver, Colorado, or its successors, as
registrar. 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 mailed 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 ten ( 10) days prior to
the special record date, to Kirchner Moore & Company, Denver,
Colorado, and 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. 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 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 paying agent or registrar is
authorized or required by law to remain closed.
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 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
BD1612 83 03/17/88
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
conclusively imparts full compliance with all of the provisions
of the above-cited statute, and said statute provides that this
BD1612 84 03/17/88
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 First Interstate Bank of Denver, N.A. ,
Denver, Colorado, or its successors, 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
duly executed by the Registered Owner or his, her or its duly
BD1612 85 03/17/88
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 at the
expense of the transferor or exchanger, and the transfer agent
may also 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 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 upon
his 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.
BD1612 86 03/17/88
(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)
the attached Bond and does hereby irrevocably constitute and
appoint or its
successors, to transfer said 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 the attached
Bond in every particular
without alteration or
enlargement or any change
whatever.
Transfer Fee Required
[End of Form of Bond]
BD1612 87 03/17/88
C. Bonds Equally Secured. The covenants and
agreements herein set forth to be performed on behalf of the City
shall be for the equal benefit, protection and security of the
Owners of any and all of the Bonds, all of which, regardless of
the time or times of their maturity, shall be of equal rank
without preference, priority or distinction of any of the Bonds
over any other thereof, except as otherwise expressly provided in
or pursuant to this Ordinance.
D. 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. The Purchaser has submitted
a proposal for the purchase of the Bonds at a price equal to
$4,371,468. 75 plus accrued interest thereon from the date thereof
to the delivery date thereof, and the Finance Director of the
City has recommended that said proposal be accepted by the
Council .
B. Award of Contract. The contract for the purchase
of the Bonds is hereby awarded to the Purchaser at the price
specified in the Purchaser' s proposal and upon the terms set
forth in this Ordinance. The City Manager and the Finance
Director of the City are hereby authorized to execute the
contract of purchase on behalf of the City.
Section S. 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.
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
BD1612 88 03/17/88
employees of the moneys derived from the sale of the Bonds or of
any other moneys designated in this Section S.
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 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 SE 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 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 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
BD1612 89 03/17/88
the first Net Pledged Revenues thereafter received and not needed
to meet the requirements provided in Sections 5D and SE 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 SE 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 SH 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.
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
BD1612 90 03/17/88
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 April, 1988, and ending November, 1988, 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 December, 1988, 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 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 year 2008. Any mandatory
sinking fund redemption 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
BD1612 91 03/17/88
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 $445, 500. Subject to the payments
required by Sections SC 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 said amount. 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 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 SE 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 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 51) 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
BD1612 92 03/17/88
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 maturities 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 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
BD1612 93 03/17/88
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 SG 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
provided to make the payments specified in this Section 5 are
hereby appropriated for said purposes, and said amounts for each
year shall be included in the annual budget and the appropriation
ordinance or measures to be adopted or passed by the Council in
each year respectively while any of the Bonds, either as to
principal or interest, are Outstanding and unpaid. No provisions
of any constitution charter, statute, ordinance, resolution, or
other order or measure enacted after the issuance of the Bonds
shall in any manner be construed as limiting or impairing the
obligation of the City to keep and perform the covenants
contained in this Ordinance so long as any of the Bonds remain
Outstanding and unpaid. 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.
BD1612 94 03/17/88
J. Excess Investment Earnings Account. The Finance
Director 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 Finance Director 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 Finance Director free and clear of any lien created by this
Ordinance, and the Finance Director shall pay over to the federal
government from time to time as the Finance Director shall
determine provided that the Finance Director 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 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.
BD1612 95 03/17/88
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 concerning arbitrage in
Section 8U 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 investments permitted by Section 6B
hereof or both such money and such investments. Moneys deposited
in a demand or 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.
BD1612 96 03/17/88
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: Equality 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 hereafter authorized to be 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
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
BD1612 97 03/17/88
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
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.
BD1612 98 03/17/88
(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 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
BD1612 99 03/17/88
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 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
BD1612 100 03/17/88
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.
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
BD1612 101 03/17/88
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 Bond Issue 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 contract
with the Purchaser as described in Section 4B hereof 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 other obligations of the City, shall not contravene any debt
or other limitation prescribed by the Constitution or laws of the
BD1612 102 03/17/88
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 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
BD1612 103 03/17/88
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.
Q. Additional Securities. The City shall not
hereafter issue any bonds or securities relating to the Storm
BD1612 104 03/17/88
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, which bond shall be
conditioned upon the proper application of said moneys. The cost
of each such bond 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 Internal Revenue Code of 1986, as
amended, and the regulations thereunder and shall comply with all
requirements of the Code and said regulations throughout the term
of the Bonds.
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; provided, however, that the City may sell, exchange or
lease at any time and from time to time any property or
facilities constituting part of the Storm Drainage Facilities and
not needed in the construction, reconstruction or operation
BD1612 105 03/17/88
thereof; but any proceeds of any such sale or exchange received
and not used to replace such property so sold or exchanged shall
be deposited in the Storm Drainage Fund, and any proceeds of any
such lease received shall be deposited by the City as revenues of
the Storm Drainage Facilities.
W. Loss from Condemnation. If any part of the Storm
Drainage Facilities is taken by the exercise of a power of
eminent domain, the amount of any award received by the City as a
result of such taking shall be expended upon the Improvement of
the Storm Drainage Facilities or shall be applied to the
redemption of the Outstanding Bonds, any Outstanding Additional
Parity Bonds and any other Outstanding Parity Securities in
accordance with the provisions hereof and of any other instrument
pertaining to the issuance of any such Parity Securities at
maturity or prior thereto if the authorizing ordinances authorize
the prior redemption of such securities, or shall be deposited in
the Storm Drainage Fund and held as a reserve for expenditure
subsequently upon such capital improvements, or any combination
thereof, as the Council may determine.
X. Inspection of Records. Any Owner of any of the
Bonds or any other securities payable from the Net Pledged
Revenues, any duly authorized agent or agents of such Owner, or
the Purchaser shall have the right at all reasonable times to
inspect all records, accounts and data relating thereto,
concerning the Storm Drainage Facilities, or the Income to make
copies of such records, accounts and data at the Owner' s or
Purchaser' s expense, and to inspect the Storm Drainage Facilities
and properties comprising the Storm Drainage Facilities.
Y. Audits Required. The City, annually following the
close of each Fiscal Year, shall order an audit for the Fiscal
Year of the books and accounts pertaining to the Storm Drainage
Facilities to be made forthwith by an Independent Accountant, and
order an audit report showing the receipts and disbursements for
each fund or account pertaining to the Storm Drainage Facilities
or the Income. All expenses incurred in the making of the audits
and reports required by this subsection may be regarded and paid
as an Operation and Maintenance Expense.
Z. Insurance and Reconstruction. Except to the
extent that the City elects to insure itself, the City shall at
all times maintain with responsible insurers all such insurance
reasonably required and obtainable within limits and at costs
deemed reasonable by the City as is customarily maintained with
respect 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
BD1612 106 03/17/88
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 SH hereof.
AA. Completion of Proiect; Estimated Life of Proiect.
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 at their
maturity date or upon any Redemption Date as of which the City
shall have exercised or shall have obligated itself to exercise
its option to call Bonds for prior redemption. 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 so needed to
meet such schedule. Nothing herein shall be construed to
BD1612 107 03/17/88
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 receivers for the Storm Drainage Facilities or for the
BD1612 108 03/17/88
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 consent to any such appointment is hereby
expressly granted by the City.
BD1612 109 03/17/88
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 lOD 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.
E. Evidence of Security Owners. Any request, consent
or other instrument which this Ordinance may require or may
BD1612 110 03/17/88
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 notary
public or other officer authorized to take acknowledgments
of deeds to be recorded in the state in which he purports to
BD1612 ill 03/17/88
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;
(4) To add to the covenants and agreements of the
City or the limitations and restrictions on the City set
forth herein;
BD1612 112 03/17/88
(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
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
BD1612 113 03/17/88
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.
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
BD1612 114 03/17/88
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 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 l0E hereof.
Section 12 . Miscellaneous.
A. Character of Agreement. None of the covenants,
agreements, representations, or warranties contained herein or in
the Bonds shall ever impose or shall be construed as imposing any
liability, obligation, or charge against the City (except for the
special funds pledged therefor) or against the general credit of
the City payable out of general funds or out of any funds derived
from general property taxes.
BD1612 115 03/17/88
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 beat
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 pending delivery of printed
Bonds, the preparation of one or more temporary typewritten
Bonds in an aggregate principal amount equal to that of the
Bonds, otherwise in substantially the same form and bearing
the same terms, to be delivered to the Purchaser and
thereafter to be exchanged by the Purchaser for printed
Bonds when the same are received by the City;
(2) Execution. Registration and Delivery of
Bonds, The execution and registration of the Bonds and the
delivery of the Bonds to the Purchaser pursuant to the
provisions of this Ordinance;
BD1612 116 03/17/88
(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 Certificates. The execution of 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 exemption of interest on the Bonds
from federal and State income taxation;
(e) The delivery of the Bonds and the
receipt of the Bond purchase price; and
(f) The accuracy and adequacy of information
provided in the official statement prepared for
prospective buyers of the Bonds.
E. Successors. Whenever herein the City is named or
is referred to, such provision shall be deemed to include any
successors of the City, whether so expressed or not. All of the
covenants, stipulations, obligations and agreements by or on
behalf of and other provisions for the benefit of the City
contained herein shall bind and inure to the benefit of any
officer, board, district, commission, authority, agency,
instrumentality or other Person or Persons to whom or to which
there shall be transferred by or in accordance with law any
right, power or duty of the City or of its respective successors,
if any, the possession of which is necessary or appropriate in
order to comply with any such covenants, stipulations,
obligations, agreements or other provisions hereof.
F. Rights and Immunities. Except as herein otherwise
expressly provided, nothing herein expressed or implied is
intended or shall be construed to confer upon or to give to any
Person, other than the City, and the Owners from time to time of
the Bonds, any right, remedy or claim under or by reason hereof
BD1612 117 03/17/88
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 Signatures. Pursuant to the Uniform
Facsimile Signature of Public Officials Act, part 1 of article 55
of title 11, Colorado Revised Statutes, as amended, the Mayor,
the City Clerk and the Finance Director shall forthwith, and in
any event prior to the time the Bonds are delivered to the
Purchaser, file with the Colorado Secretary of State their manual
signatures certified by them under oath.
I . Ordinance Irrepealable. This Ordinance is, and
shall constitute, a legislative measure of the City and after any
of the Bonds are issued, this Ordinance shall constitute an
irrevocable contract between the City and the Owner or Owners of
the Bonds; 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, cancelled and
discharged, as herein provided.
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
any reason be held to be invalid or unenforceable, the invalidity
BD1612 118 03/17/88
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 Sth
day of April, 1988.
CITY OF FORT COLLINS, COLORADO
By:
(CITY) Mayor
(SEAL)
ATTEST`:
City Cl
BD1612 119 03/17/88