HomeMy WebLinkAbout095 - 05/17/1988 - AUTHORIZING ISSUANCE OF DOWNTOWN DEVELOPMENT AUTHORITY TAX INCREMENT REVENUE REFUNDING AND IMPROVEME ORDINANCE NO. 95, 1987
AN ORDINANCE AUTHORIZING THE ISSUANCE OF CITY OF FORT
COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY TAX
INCREMENT REVENUE REFUNDING AND IMPROVEMENT BONDS,
SERIES 1988, DATED MAY 15, 1988, IN THE AGGREGATE
PRINCIPAL AMOUNT OF $13 , 545, 000, FOR THE PURPOSE OF
REFUNDING, PAYING, AND DISCHARGING CERTAIN VALID
OUTSTANDING DOWNTOWN DEVELOPMENT AUTHORITY TAX
INCREMENT REFUNDING BONDS OF THE CITY AND ACQUIRING,
CONSTRUCTING AND INSTALLING CERTAIN REAL PROPERTY AND
PUBLIC IMPROVEMENTS WITHIN AND FOR THE DOWNTOWN
BUSINESS DISTRICT OF THE CITY AND PROVIDING FOR THE
PLEDGE OF CERTAIN INCREMENTAL AD VALOREM TAX AND SALES
AND USE TAX REVENUES TO PAY THE PRINCIPAL OF, INTEREST
ON, AND ANY PREMIUM DUE IN CONNECTION WITH THE
REDEMPTION OF THE BONDS.
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS, COLORADO, THAT:
Section 1 . Definitions and Construction.
A. Definitions. In this Ordinance the following
terms have the following respective meanings unless the context
hereof clearly requires otherwise:
( 1) Additional Parity Bonds: any Parity
Securities issued after the issuance of the Bonds.
(2 ) Authority: the City of Fort Collins,
Colorado, Downtown Development Authority.
(3 ) Average Annual Debt Service Requirements:
the aggregate of all Debt Service Requirements (excluding
any redemption premiums) due on the Bonds or any other issue
of Parity Securities for all Bond Years beginning with the
Bond Year in which Debt Service Requirements of the Bonds or
such Parity Securities are first payable and ending with the
Bond Year in which the last of the Debt Service Requirements
are payable divided by the number of such years.
(4) Bond Insurance Policy: the municipal bond
guaranty insurance policy issued by the Bond Insurer
guaranteeing the payment of the principal of and interest on
the Bonds.
(5) Bond Insurer: Municipal Bond Investors
Assurance Corporation in its capacity as insurer of the
Bonds or any successor to its function as issuer of the Bond
Insurance Policy.
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(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) Bonds: the City of Fort Collins, Colorado,
Downtown Development Authority Tax Increment Revenue
Refunding and Improvement Bonds, Series 1988, dated May 15,
1986, in the aggregate principal amount of $13 , 545,000.
(8) Charter: the Home Rule Charter of the City,
as amended.
(9) City: the City of Fort Collins, Colorado.
( 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 a combined capital and surplus of $3, 000, 000 or
more, and which is located within the United States of
America.
( 12 ) Cost of the Project: all or any part of the
cost of acquiring, constructing and installing the Project;
all surveying, inspection, fiscal, and legal expenses; all
costs of issuing and insuring the Bonds; any discount on the
sale of the Bonds; costs of financial , professional, and
other estimates and advice ; repayment of any interim loans
or interfund borrowingsz capitalized interest on the Bonds;
contingencies; reserves for payment of the principal of or
interest on the Bonds; and all such other costs as may be
necessary or incidental to the acquisition, construction and
installation of the Project or any part thereof.
( 13 ) Council : the governing body of the City.
( 14) Debt Service Requirements: the principal of,
interest on, and any premium due in connection with the
redemption of the Bonds, any Additional Parity Bonds, any
Parity Securities or any other securities payable from the
Tax Increment Revenues.
( 15) Development and Expense Fund: the special
fund created in Ordinance No. 142 , 1985, of the City,
designated therein as the "Development Account" of the "City
of Fort Collins, Colorado, Downtown Development Authority
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Tax Increment Bonds, Bond Fund" and referred to in Section
5A hereof.
( 16) District: the area described in the Plan of
Development as approved by Ordinance No. 46, 1981, of the
City, as amended by Ordinance No. 162 , 1981 , of the City and
Ordinance No. 2 , 1983 , of the City and as may be further
amended from time to time in compliance with the Downtown
Development Authority Act.
( 17) Downtown Development Authority Act: part 8
of article 25 of title 31 , Colorado Revised Statutes, as
amended.
( 18) Escrow Agreement: the Escrow Agreement,
dated as of May 15 , 1988, between the City and the Escrow
Bank.
( 19 ) Escrow Bank: First Interstate Bank of Fort
Collins, N.A. , Fort Collins, Colorado, or its successors.
(20) Escrow Fund: the special fund created in
Section SA hereof.
(21) Event of Default: one of the events
described in Section 10A hereof.
(22 ) Excess Investment Earnings: the aggregate of
the amounts computed as of each anniversary of the date of
issuance of the Bonds for each year beginning on the date of
issuance of the Bonds or an anniversary thereof, consisting
of the excess of:
(a) the .amounts earned on investments (other
than in tax-exempt obligations) of gross proceeds of
the Bonds held in the Escrow Fund, the Development and
Expense Fund, the Tax Increment Fund, the Tax Increment
Principal and Interest Account (if a qualifying
election has been made or if the amounts earned exceed
$100,000) , the Tax Increment Reserve Account, the Sales
and Use Tax Fund, the Sales and Use Principal and
Interest Account ( i£ a qualifying election has been
made or if the amounts earned exceed $100, 000) and the
Sales and Use Tax Reserve Account (but not the Excess
Investment Earnings Fund) , including unrealized gains
or losses upon the retirement of the last Bond, over
(b) the amounts that would have been earned
on such investments at the yield on the Bonds
determined on a present value basis from the date of
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issuance of the Bonds without adjustment for costs of
issuance.
Notwithstanding the provisions of this Section 1A(22 ) , the
City shall construe the term Excess Investment Earnings in
conformity with all applicable federal statutes and
regulations as the same may be amended from time to time.
(23 ) Excess Investment Earnings Fund: the special
fund created in Section SM hereof.
(24) Federal Securities : bills, certificates of
indebtedness, notes, bonds or similar securities which are
direct obligations of the United States of America or are
obligations the principal and interest of which are
unconditionally guaranteed by the United States of America.
(25) Fiscal Year: the twelve ( 12 ) months
commencing on the first day of January of any calendar year
and ending on the last day of December of such calendar year
or such other twelve ( 12 ) month period as may from time to
time be designated by the Council as the Fiscal Year of the
City.
(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 security.
(28) Investment Earnings: all income derived from
the investment of the Tax Increment Revenues or any proceeds
of the Bonds deposited in the Development and Expense Fund,
the Tax Increment Principal and Interest Account or the Tax
Increment Reserve Account to the extent not subject to
federal arbitrage rebate requirements.
(29) Ordinance: this Ordinance No. 95, 1987, of
the City.
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(30) Ordinance No. 58, 1967 : Ordinance No. 58,
1967 , of the City which provides for the imposition of the
initial one percent ( 1%) Sales and Use Tax within the City.
(31) Ordinance No. 140, 1979: Ordinance No. 140,
1979 , of the City, which provides for the imposition of the
additional one percent ( 1%) Sales and Use Tax within the
City.
(32) Ordinance No. 149 , 1981 : Ordinance No. 149,
1981 , of the City, which provides for the imposition of the
additional twenty-five hundredths percent ( . 25%) Sales and
Use Tax within the City.
(33 ) Original Tax Increment Revenue Bond
Anticipation Notes: the City of Fort Collins, Colorado,
Downtown Development Authority Tax Increment Bond
Anticipation Notes, Series April 1, 1983 , dated April 1,
1983 , in the aggregate principal amount of $3 , 100, 000.
(34) Original Tax Increment Revenue Bonds: the
City of Fort Collins, Colorado, Downtown Development
Authority Tax Increment Bonds, Series 1984A, dated
October 1 , 1984, in the aggregate principal amount of
$8, 200, 000.
(35 ) Outstanding or outstanding: as of any
particular date, all Bonds, Additional Parity Bonds, Parity
Securities or any such other securities payable in whole or
in part from the Tax Increment 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 City, by
the Paying Agent or otherwise on behalf of the City on
or before such date;
(b) Any Bond, Additional Parity Bond, Parity
Security or other security held by or on behalf of the
City;
(c) Any Bond, Additional Parity Bond, Parity
Security or other security of the City for the payment
or the redemption of which moneys or Federal Securities
sufficient (including the known minimum yield available
for such purpose from Federal Securities in which such
amount wholly or in part may be initially invested) to
meet all of the Debt Service Requirements of such Bond,
Additional Parity Bond, Parity Security or other
security to the maturity date or specified Redemption
Date thereof shall have theretofore been deposited in
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escrow or in trust with a Trust Bank for that purpose;
and
(d) Any lost, destroyed, or wrongfully taken
Bond, Additional Parity Bond, Parity Security or other
security of the City in lieu of or in substitution for
which another bond or other security shall have been
executed and delivered.
(36) Owner: the holder of any bearer instrument
or registered owner of any registered instrument.
(37) Parity Securities : bonds, warrants, notes,
securities, leases or other contracts evidencing borrowings
and payable from the Tax Increment Revenues equally or on a
parity with the Bonds.
(38) Paying Agent: United Bank of Denver National
Association, Denver, Colorado, or its successors .
(39 ) Permitted Investments: except to the extent
limited by law, any of the obligations specified in the Bond
Insurer" s Commitment for Municipal Bond Guaranty Insurance,
dated and revised as of May 12 , 1988 .
(40) Person: any individual , firm, partnership,
corporation, company, association, joint-stock association,
or body politic or any trustee, receiver, assignee, or other
similar representative thereof.
(41) Plan of Development: the plan approved by
Ordinance No. 46, 1981 , of the City.
(42 ) Pledged Revenues: the Tax Increment
Revenues, the Investment Earnings and, unless released and
discharged as provided in this Ordinance, the Sales and Use
Tax Revenues.
(43 ) Prior Sales and Use Tax Revenue Bonds: the
City of Fort Collins, Colorado, Sales and Use Tax Revenue
Refunding and Improvement Bonds, Series 1986, dated
August 1, 1986, in the original aggregate principal amount
of $30, 060,000.
(44) Prior Tax Increment Revenue Bonds: the City
of Fort Collins, Colorado, Downtown Development Authority
Tax Increment Refunding Bonds, Series 1985A, dated
November 1, 1985, in the original aggregate principal amount
of $8, 885,000.
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(45) Project: the acquisition, construction and
installation of real property and public improvements within
and for the District, all in furtherance of and pursuant to
the Plan of Development.
(46) Property Tax Base Dates: September 15, 1980,
with respect to the District described in Ordinance No. 46,
1981 , of the City; September 15, 1981 , with respect to the
area added to the District by Ordinance No. 162 , 1981, of
the City; September 15, 1982 , with respect to the area added
to the District by Ordinance No. 2 , 1983 , of the City; and
the applicable dates pursuant to the Downtown Development
Authority Act with respect to such areas as may hereafter be
added to the District by appropriate legislative action of
the City.
(47) Purchaser: Boettcher & Company, Inc . , Denver,
Colorado, and its associates, if any.
(48) Redemption Date : the date fixed for the
redemption prior to maturity of any Bonds or other
designated securities payable from the Tax Increment
Revenues in any notice of prior redemption given by or on
behalf of the City.
(49) Refunding Act: part 1 of article 56 of title
11, Colorado Revised Statutes, as amended.
(50) Registrar: United Bank of Denver National
Association, Denver, Colorado, or its successors.
(51 ) Regular Record Date: the fifteenth day of
the calendar month next preceding an Interest Payment Date
for the Bonds.
(52 ) Sales and Use Tax Fund: the special fund
created in Ordinance No. 87 , 1981 , of the City, designated
therein as the "City of Fort Collins, Colorado, Sales and
Use Tax Fund" and referred to in Section 5F hereof.
(53 ) Sales and Use Tax Principal and Interest
Account: the special fund created in Ordinance No. 87,
1981, of the City, designated therein as the "City of Fort
Collins, Colorado, Sales and Use Tax Revenue Bonds,
Principal and Interest Account" and referred to in Section
SG hereof.
(54) Sales and Use Tax Reserve Account: the
special fund created in Ordinance No. 87, 1981, of the City,
designated therein as the "City of Fort Collins, Colorado,
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Sales and Use Tax Revenue Bonds, Reserve Account" and
referred to in Section SH hereof.
(55 ) Sales and Use Tax Revenues: all revenues
derived in each Fiscal Year from the imposition of the sales
and use tax established by Ordinance No. 58, 1967, Ordinance
No. 140, 1979, and Ordinance No. 149 , 1981, upon sales and
purchases of tangible personal property at retail and
storage, use, distribution and consumption of tangible
personal property purchased or acquired at retail, within
the City, in the percentages set forth in such ordinances,
less any collection expense allowance retained by the
retailer or vendor, plus all income or gain, if any, from
any investment of such revenues and of the proceeds of
Securities payable therefrom (except any income or gain from
investment of the proceeds of Securities deposited in an
escrow account for the payment of refunded Securities) to
the extent not subject to federal arbitrage rebate
requirements .
(56) Security or securities : any bond issued by
the City or any other evidence of the advancement of money
to the City.
(57 ) 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.
(58) State: the State of Colorado.
(59 ) Subordinate Bonds or Subordinate Securities:
bonds or securities payable from the Tax Increment Revenues
having a lien thereon subordinate or junior to the lien
thereon of the Bonds.
(60) Superior Bonds or Superior Securities: bonds
or securities payable from the Tax Increment Revenues having
a lien thereon superior or senior to the lien thereon of the
Bonds .
(61) Tax Increment Fund: the special fund created
in Ordinance No. 142 , 1985, of the City designated therein
as the "City of Fort Collins, Colorado, Downtown Development
Authority Tax Increment Bonds, Bond Fund" and referred to in
Section 5B hereof.
(62 ) Tax Increment Principal and Interest Account:
the special fund created in Ordinance No. 142 , 1985, of the
City, designated therein as the "Principal and Interest
Account" of the "City of Fort Collins, Colorado, Downtown
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Development Authority Tax Increment Bonds, Bond Fund" and
referred to in Section 5C hereof.
(63 ) Tax Increment Reserve Account: the special
fund created in Ordinance No. 142 , 1985, of the City,
designated therein as the "City of Fort Collins, Colorado,
Tax Increment Bonds, Reserve Fund" and referred to in
Section 5D hereof.
(64) Tax Increment Revenues_: all revenues derived
in each Fiscal Year from the levy of ad valorem taxes at the
rate fixed each year by or for each public body having
taxing power over all or any portion of the District upon
that portion of the valuation for assessment of all taxable
property within the District and the boundaries of such
public body which is in excess of the valuation for
assessment of all taxable property within the District and
the boundaries of such public body on the Property Tax Base
Dates, all in accordance with Section 31-25-807(3 ) (a) ( II ) of
the Downtown Development Authority Act, less any collection
fees lawfully payable to the City or Larimer County,
Colorado, for services rendered in connection with the
collection of such ad valorem taxes; provided, that in the
event of a general reassessment of taxable property in the
City, the valuation for assessment of taxable property
within the District on the Property Tax Base Dates will be
proportionately adjusted as required by the Downtown
Development Authority Act or other applicable law.
(65) Transfer Agent: United Bank of Denver
National Association, Denver, Colorado, or its successors.
( 66) Trust Bank: a Commercial Bank which has a
combined capital and surplus. of $25 ,000, 000 or more and
which is authorized to exercise and is exercising trust
powers.
B. Construction. This Ordinance, except where the
context by clear implication herein otherwise requires, shall be
construed as follows:
( 1) Words in the singular number include the
plural, and words in the plural include the singular.
(2 ) Words in the masculine gender include the
feminine and the neuter, and when the sense so indicates
words of the neuter gender refer to any gender.
(3) Articles, sections, subsections, paragraphs
and subparagraphs mentioned by number, letter or otherwise
correspond to the respective articles, sections,
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subsections, paragraphs and subparagraphs of this Ordinance
so numbered or otherwise so designated.
(4) The titles and headlines applied to articles,
sections and subsections of this Ordinance are inserted only
as a matter of convenience and ease in reference and in no
way define or limit the scope or intent of any provisions of
this Ordinance.
(5) Any inconsistency between the provisions of
this Ordinance and those of the Downtown Development
Authority Act or the Refunding Act is intended by the
Council . To the extent of any such inconsistency the
provisions of this Ordinance shall be deemed made pursuant
to the Charter and shall supersede to the extent permitted
by law the conflicting provisions of the Downtown
Development Authority Act or the Refunding Act.
Section 2 . Recitals.
A. Establishment of Authority and Approval of Plan of
Development. Pursuant to Ordinance No . 46, 1981, the City has
heretofore established the Authority. Pursuant to Resolution
81-129 the City has heretofore approved the Plan of Development.
The Plan of Development so approved contained a provision for
division of taxes as authorized by the Downtown Development
Authority Act effective for twenty-five years beginning
September 8, 1981 .
B. Special Election and Canvass of Returns. At a
special election held in the City on Tuesday, June 1, 1982 , in
accordance with law and pursuant to due notice there was
submitted to the qualified electors of the District the following
question:
Shall the City of Fort Collins issue bonds or
otherwise provide for loans, advances or
indebtedness from time to time in an amount not to
exceed $25, 000, 000 at a maximum net effective
interest rate not to exceed 18 per centum per
annum, the use of which shall be to finance
capital improvements and capital projects within
the parameters of the Plan of Development of the
Fort Collins Downtown Development Authority, and
irrevocably pledge the special fund into which all
of that portion of property taxes in excess of
such taxes which are produced by the levy at the
rate fixed each year by or for any public body
upon the valuation for assessment of taxable
property within the boundaries of the District
last certified prior to the effective date of
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approval by the Fort Collins City Council of the
Plan of Development of the Downtown Development
Authority or, as to an area later added to the
boundaries of the District, the effective date of
the modification of the Plan of Development from
which special fund shall be paid the principal of,
the interest on, and any premiums due in
connection with the bonds of, loans or advances
to, or indebtedness incurred by, whether funded,
refunded, assumed, or otherwise, the City of Fort
Collins for financing or refinancing, in whole or
in part, development projects within the
boundaries of the Plan for Development area.
As evidenced by the canvass of the returns of said election and
the Statement and Certificate of Determination of Result thereof
made by the Board of Elections of the City on June 4, 1982 , a
majority of said electors voted affirmatively on said question.
C. Original Tax Increment Revenue Bond Anticipation
Notes and Bonds. Pursuant to the authority so conferred at said
election the City has heretofore issued and sold the Original Tax
Increment Revenue Bond Anticipation Notes in order to finance
capital improvements and capital projects as provided in the Plan
of Development. Pursuant to the authority so conferred at said
election the City has heretofore issued and sold the Original Tax
Increment Revenue Bonds in order to refund, pay and discharge the
Original Tax Increment Revenue Bond Anticipation Notes and
finance capital improvements and capital projects as provided in
the Plan of Development.
D. Prior Tax Increment Revenue Bonds. The City has
heretofore issued and sold the Prior Tax Increment Revenue Bonds
in order to refund, pay and discharge the Original Tax Increment
Revenue Bonds . There is Outstanding of the Prior Tax Increment
Revenue Bonds the entire principal amount thereof, consisting of
bonds maturing on December 1 in the following years in the
following aggregate principal amounts and bearing interest at the
following per annum interest rates :
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Principal Per Annum
Years Amounts Interest Rates
1991 $115, 000 7 . 20%
1992 375, 000 7 . 40
1993 395, 000 7 . 60
1994 435, 000 7 . 80
1995 465, 000 8 . 00
1996 495, 000 8 . 20
1997 530, 000 8. 40
1998 565, 000 8. 55
1999 610, 000 8. 70
2000 655, 000 8. 85
2001 720, 000 9 . 00
2002 780, 000 9 . 10
2003 840, 000 9 . 15
2004 1, 905, 000 9. 20
The Prior Tax Increment Revenue Bonds maturing in the year 1991
are not subject to optional redemption prior to their respective
maturity dates. The Prior Tax Increment Revenue Bonds maturing
in the year 1992 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 , 1991, and on any Interest Payment Date
thereafter at a price equal to the principal amount of each Prior
Tax Increment Revenue Bond so redeemed plus accrued interest
thereon to the Redemption Date plus a premium expressed as a
percentage of the principal amount of each Prior Tax Increment
Revenue Bond so redeemed, depending on the Redemption Date, as
follows:
Redemption Date Premium
December 1, 1991, and June 1,� 1992 2 . 0%
December 1, 1992 , and June 1, 1993 1 . 5%
December 1, 1993 , and June 1, 1994 1 . 0%
December 1, 1994, and June 1, 1995 0. 5%
December 1, 1995, and Thereafter None
The City wishes to refund, pay and discharge the Prior
Tax Increment Revenue Bonds in order to reduce the net effective
interest rate; reduce the principal and interest payable in any
particular year or years, or effect other economies; modify or
eliminate restrictive contractual limitations; postpone
maturities to a later date; or any combination of the foregoing.
E. Project. The City desires to acquire, construct
and install the Project.
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F. Authority. Pursuant to art. XX, sec . 6 of the
Colorado Constitution, Art. V, Sections 20. 3 , 20. 4 and 20. 8 of
the Charter, the Downtown Development Authority Act and the
Refunding Act, the City is authorized by Council action and
without an election to issue the Bonds for the purpose of
refunding, paying and discharging the Prior Tax Increment Revenue
Bonds and acquiring, constructing and installing the Project.
Section 3 . The Bonds.
A. Authorization. The Bonds are hereby authorized to
be issued for the aforesaid purposes .
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 the following dates in
the following aggregate principal amounts and shall bear
interest from May 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: ,
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Principal Per Annum
Dates Amounts Interest Rates
June 1 , 1989 $ 45, 000 5 . 00%
December 1, 1989 55, 000 5 . 25
June 1, 1990 80, 000 5 . 50
December 1 , 1990 80, 000 5 . 75
June 1, 1991 115 , 000 6. 00
December 1, 1991 125 , 000 6. 00
June 1, 1992 160, 000 6. 20
December 1, 1992 165, 000 6.20
June 1, 1993 180, 000 6. 40
December 1, 1993 185, 000 6. 40
June 1 , 1994 210, 000 6. 60
December 1, 1994 215 , 000 6. 60
June 1 , 1995 235 , 000 6. 75
December 1, 1995 245 , 000 6. 75
June 1, 1996 265, 000 6 . 90
December 1, 1996 275, 000 6 . 90
June 1, 1997 300, 000 7 .00
December 1, 1997 310, 000 7 . 00
June 1 , 1998 335 , 000 7 . 15
December 1 , 1998 345 , 000 7 . 15
June 1 , 1999 370, 000 7 . 30
December 1, 1999 335, 000 7. 30
June 1, 2000 415, 000 7 . 45
December 1, 2000 430, 000 7 . 45
June 1, 2001 460, 000 7 . 60
December 1, 2001 475 , 000 7 . 60
December 1 , 2004 3 , 455 , 000 7 . 80
June 1 , 2006 3 , 630, 000 7 . 90
Said interest shall be payable on December 1, 1988, and
semiannually thereafter .on the lst day of June and the 1st
day of December of each year. If upon presentation at
maturity the principal of any Bond is not paid as provided
herein, interest shall continue thereon at the same interest
rate until the principal is paid in full .
The Bonds issued for the purpose of refunding,
paying and discharging the Prior Tax Increment Revenue Bonds
shall mature on the following dates in the following
aggregate principal amounts:
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Principal
Dates Amounts
June 1, 1989 $ 30, 000
December 1, 1989 40, 000
June 1, 1990 60, 000
December 1 , 1990 60, 000
June 1, 1991 85 , 000
December 1 , 1991 90, 000
June 1, 1992 115, 000
December 1 , 1992 120, 000
June 1, 1993 130, 000
December 1, 1993 135, 000
June 1, 1994 150, 000
December 1, 1994 155, 000
June 1 , 1995 170, 000
December 1 , 1995 180, 000
June 1 , 1996 190, 000
December 1, 1996 200, 000
June 1, 1997 215, 000
December 1, 1997 225, 000
June 1, 1998 240, 000
December 1, 1998 250, 000
June 1, 1999 265, 000
December 1, 1999 280, 000
June 1, 2000 300, 000
December 1, 2000 310, 000
June 1, 2001 330, 000
December 1, 2001 345, 000
December 1 , 2004 2 , 485, 000
June 1 , 2006 2 , 620, 000
The Bonds issued for the purpose of acquiring,
constructing and installing the Project shall mature on the
following dates in the following aggregate principal
amounts:
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Principal
Dates Amounts
June 1, 1989 $ 15, 000
December 1, 1989 15,000
June 1, 1990 20,000
December 1, 1990 20, 000
June 1, 1991 30, 000
December 1, 1991 35,000
June 1 , 1992 45 , 000
December 1, 1992 45 , 000
June 1 , 1993 50, 000
December 1, 1993 50, 000
June 1, 1994 60, 000
December 1, 1994 60, 000
June 1, 1995 65, 000
December 1, 1995 65, 000
June 1, 1996 75, 000
December 1, 1996 75, 000
June 1, 1997 85, 000
December 1, 1997 85, 000
June 1 , 1998 95 ,000
December 1 , 1998 95 , 000
June 1, 1999 105 , 000
December 1, 1999 105 , 000
June 1, 2000 115, 000
December 1, 2000 120, 000
June 1, 2001 130, 000
December 1, 2001 130, 000
December 1, 2004 970, 000
June 1, 2006 1, 010, 000
The Debt Service Requirements of the Bonds shall
be payable in lawful money of the United States of America
to the Owners of the Bonds by the Paying Agent. The
principal and the final installment of interest shall be
payable to the Owner of each Bond upon presentation and
surrender thereof at maturity or upon prior redemption.
Except as hereinbefore and hereinafter provided, the
interest shall be payable to the Owner of each Bond
determined as of the close of business on the Regular Record
Date irrespective of any transfer of ownership of the Bond
subsequent to the Regular Record Date and prior to the
Interest Payment Date, by check or draft 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
BD2663 90 05/17/88
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 1988
through 1991 shall not be subject to optional redemption
prior to their respective maturity dates . Bonds maturing in
the year 1992 and thereafter shall be subject to optional
redemption prior to their respective maturity dates, in
whole or in part in such order as may be determined by the
City, on December 1 , 1991, 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, 1991, and June 1 , 1992 2 . 0%
December 1, 1992 , and June 1 , 1993 1 . 5
December 1, 1993 , and June 1, 1994 1 .0
December 1, 1994, and June 1, 1995 0. 5
December 1 , 1995, and Thereafter None
Bonds maturing in the year 2004 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 the following dates in the
following aggregate principal amounts:
BD2663 91 05/17/88
Dates Principal Amounts
June 1, 2002 $ 510, 000
December 1 , 2002 530, 000
June 1 , 2003 565, 000
December 1 , 2003 585, 000
June 1, 2004 620,000
December 1 , 2004 645, 000
Bonds maturing in the year 2006 shall also be
subject to mandatory sinking fund redemption prior to their
maturity date, by lot, on the dates specified below at a
price equal to the principal amount of each Bond so redeemed
plus accrued interest thereon to the Redemption Date. Such
Bonds shall be redeemed on the following dates in the
following aggregate principal amounts:
Dates Principal Amounts
June 1, 2005 $ 685, 000
December 1, 2005 710, 000
June 1, 2006 2 , 235, 000
Bonds maturing in the year 2006 shall also be
subject to extraordinary redemption prior to their
respective maturity dates if the City determines that there
is no longer a need for all or a portion of the Project and
if the City has sufficient funds available to effect such
redemption, in whole or in part in such order as may be
determined by the City, on December 1, 1992 , at a price
equal to the principal amount of each Bond so redeemed plus
accrued interest thereon to the Redemption Date.
I£ at any time the City exercises its option to
redeem less than all of the Bonds then Outstanding, it shall
identify the Bonds to be redeemed as either Bonds issued for
the purpose of refunding, paying or discharging the Prior
Tax Increment Revenue Bonds or as Bonds issued for the
purpose of acquiring, constructing and installing the
Project.
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
BD2663 92 05/17/88
for transfers of ownership. Upon payment of the redemption
price of any such Bond redeemed in part the registered 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. Bonds
called for optional redemption as provided herein shall be
redeemable only to the extent of moneys on deposit with the
Paying Agent and legally available for redemption of Bonds
on the date of such notice. Failure to mail any notice as
aforesaid or any defect in any notice so mailed with respect
to any Bond shall not affect the validity of the redemption
proceedings with respect to any other Bond. Any Bonds
redeemed prior to their respective maturity dates by call
for prior redemption or otherwise shall not be reissued and
shall be cancelled the s`ame' as Bonds paid at or after
maturity.
(3 ) Interest Rates . The maximum net effective
interest rate for the Bonds is 18% per annum. The actual
net effective interest rate for the Bonds is 7 . 712059% per
annum.
(4) Execution. 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
BD2663 93 05/17/88
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 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 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
Transfer Agent shall deliver to the new Owner a new Bond or
Bonds of the same aggregate principal amount, maturing in
BD2663 94 05/17/88
the same year, and bearing interest at the same per annum
interest rate as the Bond or Bonds surrendered. Such Bond
or Bonds shall be dated as of their date of authentication.
New Bonds delivered upon any transfer or exchange shall be
valid obligations of the City, evidencing the same
obligation as the Bonds surrendered, shall be secured by
this Ordinance, and shall be entitled to all of the security
and benefits hereof to the same extent as the Bonds
surrendered. The City may deem and treat the person in
whose name any Bond is last registered upon the books of the
City as the absolute Owner thereof for the purpose of
receiving payment of the principal of, interest on, and any
premium due in connection with the redemption of such Bond
and for all other purposes, and all such payments so made to
such Person or upon his, her or its order shall be valid and
effective to satisfy and discharge the liability of the City
upon such Bond to the extent of the sum or sums so paid, and
the City shall not be affected by any notice to the
contrary. Upon the occurrence of an Event of Default which
would require payment by the Bond Insurer under the Bond
Insurance Policy, the Bond Insurer and its designated agents
shall be afforded access to the registration books of the
City.
( 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. 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 Ordinance No. 80,
1984.
(8) Recitals in Bonds . Each Bond shall recite in
substance that the Bond is payable solely from the Pledged
Revenues and the funds and accounts hereby pledged and that
the Bond is not a general obligation of the City and that
the full faith and credit of the City is not pledged to pay
the principal of or interest on such Bond. Each Bond shall
further recite that it is issued under the authority of the
BD2663 95 05/17/88
Colorado Constitution, the Charter, the Downtown Development
Authority Act, the Refunding Act and this Ordinance . The
Refunding Act provides that such recital conclusively
imparts full compliance with all of the provisions and
limitations thereof and that the Bonds containing such
recital are incontestable for any cause whatsoever after
their delivery for value.
(9 ) Form of Bonds. The Bonds shall be in
substantially the following form:
BD2663 96 05/17/88
[ Form of Bond]
(Text of Face)
UNITED STATES OF AMERICA
STATE OF COLORADO COUNTY OF LARIMER
CITY OF FORT COLLINS
DOWNTOWN DEVELOPMENT AUTHORITY TAX INCREMENT REVENUE
REFUNDING AND IMPROVEMENT BOND
SERIES 1988
No. R- $
Interest Maturity Original
Rate Date Date CUSIP
1, May 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 1st
day of June and the 1st day of December 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 of
this Bond is not made as provided herein, interest continues at
the Interest Rate until the Principal Sum is paid in full .
BD2663 97 05/17/88
Bonds of this issue maturing in the years 1988 through
1991 are not subject to optional redemption prior to their
respective maturity dates. Bonds of this issue maturing in the
year 1992 and thereafter are subject to optional redemption prior
to their respective maturity dates, in whole or in part in such
order as may be determined by the City, on December 1 , 1991, 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, 1991 , and June 1, 1992 2 . 0%
December 1, 1992 , and June 1 , 1993 1 . 5
December 1, 1993 , and June 1, 1994 1 . 0
December 1, 1994, and June 1, 1995 0 . 5
December 1 , 1995 , and Thereafter None
Bonds of this issue maturing in the year 2004 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 the following dates in the following aggregate
principal amounts :
Dates Principal Amounts
June 1, 2002 $ 510, 000
December 1, 2002 530, 000
June 1 , 2003 565, 000
December 1 , 2003 585, 000
June 1 , 2004 620, 000
December 1, 2004 645,000
Bonds of this issue maturing in the year 2006 are also
subject to mandatory sinking fund redemption prior to their
maturity date, by lot, on the dates specified below at a price
equal to the principal amount of each Bond so redeemed plus
accrued interest thereon to the redemption date. Such Bonds are
to be redeemed on the following dates in the following aggregate
principal amounts:
BD2663 98 05/17/88
Dates Principal Amounts
June 1 , 2005 $ 685 , 000
December 1, 2005 710, 000
June 1, 2006 2 , 235, 000
Bonds of this issue maturing in the year 2006 are also
subject to extraordinary redemption prior to their respective
maturity dates if the City determines that there is no longer a
need to acquire, construct and install all or a portion of the
real property and public improvements and if the City has
sufficient funds available to effect such redemption, in whole or
in part in such order as may be determined by the City, on
December 1 , 1992 , at a price equal to the principal amount of
each Bond so redeemed plus accrued interest thereon to the
redemption date .
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 Boettcher & Company, Inc . , Denver, Colorado,
and to the registered owner of each of the Bonds being redeemed
determined as of the close of business on the day preceding the
first mailing of such notice 'at the address appearing on the
registration books of the City. Such notice is to specify the
number or numbers of the Bonds to be redeemed, whether in whole
or in part, 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. Bonds called for
optional redemption as provided herein are redeemable only to the
extent of moneys on deposit with the paying agent and legally
available for redemption of Bonds on the date of such notice.
Failure to mail any notice as aforesaid or any defect in any
notice so mailed with respect to any Bond does not affect the
BD2663 99 05/17/88
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 assignment and
pledge (but not necessarily an exclusive assignment and pledge)
of certain tax increment revenues, certain income derived from
the investment of such revenues and of certain bond proceeds and,
unless released and discharged as provided in the Ordinance,
certain sales and use tax revenues of the City, all as more
specifically provided in the Ordinance . This Bond does not
constitute a debt or an indebtedness of the City within the
meaning of any constitutional, statutory or charter provision or
limitation of the State of Colorado or of the City. This Bond is
not a general obligation of the City, and the full faith and
credit of the City is not pledged for the payment of the
principal of or interest on this Bond.
IN WITNESS WHEREOF, the City 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 a facsimile of the seal of the City, to be attested
with the facsimile signature of the City Clerk of the 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
therein described. Printed on the reverse side hereof is the
complete text of the opinion of bond counsel , Ballard, Spahr,
Andrews & Ingersoll , Denver, Colorado, a signed copy of which,
BD2663 100 05/17/88
dated the date of the first delivery of the Bonds therein
described, is on file with the undersigned.
UNITED BANK OF DENVER NATIONAL ASSOCIATION
as registrar
By: (Manual Signature)
Authorized Signatory
DATED:
BD2663 101 05/17/88
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.
BD2663 102 05/17/88
(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 United Bank of Denver National Association,
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 United Bank of
Denver National Association, 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 Boettcher & Company, Inc. , 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
pledged, pursuant to the Ordinance authorizing the issuance of
this Bond, special funds designated as the Tax Increment Fund
and, unless released and discharged as provided in the Ordinance,
the Sales and Use Tax Fund, each including a Principal and
BD2663 103 05/17/88
Interest Account and a Reserve Account, into which accounts the
City has covenanted in the Ordinance to pay, respectively, from
the pledged revenues described in the Ordinance sums sufficient
to pay when due the principal of, interest on, and any premium
due in connection with redemption of this Bond and any additional
parity securities hereafter issued and payable from such revenues
and to accumulate and maintain a specified reserves 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 accounts and
will deposit therein the required amounts out of the revenues
described in the Ordinance and out of said special funds will pay
the principal of, 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 pledged revenues, and such Bonds
constitute an irrevocable and first lien (but not necessarily an
exclusive first lien) upon the pledged tax increment revenues and
investment earnings and a second or first lien (but not
necessarily an exclusive second or first lien) , the priority of
which depends on certain coverage factors and which is also
subject to release and discharge, upon the the pledged sales and
use tax 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 pledged
revenues having . a lien thereon subordinate and junior to the lien
of the Bonds of this issue or, subject to additional expressed
conditions, having a lien thereon on a parity with the lien of
such Bonds in accordance with the provisions of the Ordinance.
Except as otherwise expressly provided in this Bond and the
Ordinance, the pledged revenues are assigned, pledged and set
aside to the payment of the principal of and interest on the
Bonds of this issue in anticipation of the collection of the
pledged revenues.
The City covenants and agrees with the Registered Owner
that it will keep and perform all of the covenants of this Bond
and of the Ordinance .
This Bond is one of a series authorized and issued for
the purpose of refunding, paying and discharging certain valid
outstanding tax increment revenue refunding bonds, and acquiring,
constructing and installing certain real property and public
BD2663 104 05/17/88
improvements within and for the downtown business district of the
City pursuant to, by virtue of and in full conformity with the
Constitution of the State of Colorado, the City Charter, part 8
of article 25 of title 31, and part 1 of article 56 of title 11,
Colorado Revised Statutes, as amended, and all other laws of the
State of Colorado thereunto enabling, and pursuant to the
Ordinance duly adopted prior to the issuance of this Bond. The
foregoing recital conclusively imparts full compliance with all
of the provisions and limitations of the last-cited statute, and
said statute provides that this Bond is incontestable for any
cause whatsoever after its delivery for value.
Reference is hereby made to the Ordinance, and to any
and all modifications and amendments thereof, for a description
of the provisions, terms and conditions upon which the Bonds 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 with the Ordinance; that this
Bond does not contravene any constitutional or statutory
limitation of the State of Colorado or any limitation of the City
BD2663 105 05/17/88
Charter; and that this Bond is issued under the authority of the
Ordinance.
For the payment of the principal of, interest on, and
any premium due in connection with the redemption of this Bond
the City pledges the exercise of all its lawful corporate powers.
This Bond is transferable only upon the registration
books of the City by United Bank of Denver National Association,
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
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 transfer agent is to deliver- .to the new registered owner a
new Bond or Bonds of the same aggregate principal amount,
maturing in the same year, and bearing interest at the same per
annum interest rate as the Bond or Bonds surrendered. Such Bond
or Bonds are to be dated as of their date of authentication. The
City may deem and treat the person 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, her or its order
will be valid and effective to satisfy and discharge the
liability of the City upon this Bond to the extent of the sum or
sums so paid, and the City will not be affected by any notice to
the contrary.
BD2663 106 05/17/88
STATEMENT OF INSURANCE
The Municipal Bond Investors Assurance Corporation (the
"Insurer" ) has issued a policy containing the following
provisions, such policy being on file at United Bank of Denver
National Association, Denver, Colorado.
The Insurer, in consideration of the payment of the
premium and subject to the terms of this policy, hereby
unconditionally and irrevocably guarantees to any owner, as
hereinafter defined, of the following described obligations, the
full and complete payment required to be made by or on behalf of
the Issuer to United Bank of Denver National Association, Denver,
Colorado, or its successor (the "Paying Agent" ) of an amount
equal to (i ) the principal of (either at the stated maturity or
by any advancement of maturity pursuant to a mandatory sinking
fund payment) and interest on, the Obligations ( as that term is
defined below) as such payments shall become due but shall not be
so paid (except that in the event of any acceleration of the due
date of such principal by reason of mandatory or optional
redemption or acceleration resulting from default or otherwise,
other than any advancement of maturity pursuant to a mandatory
sinking fund payment, the payments guaranteed hereby shall be
made in such amounts and at such times as such payments of
principal would have been due had there not been any such
acceleration) ; and ( ii ) the reimbursement of any such payment
which is subsequently recovered from any owner pursuant to a
final judgment by a court of competent jurisdiction that such
payment constitutes an avoidable preference to such owner within
the meaning of any applicable bankruptcy law. The amounts
referred to in clauses ( i ) and ( ii ) of the preceding sentence
shall be referred to herein collectively as the "Insured
Amounts. " "Obligations" shall mean:
City of Fort Collins, Colorado
Downtown Development Authority
Tax Increment Revenue Refunding and Improvement Bonds
Series 1988
Upon receipt of telephonic or telegraphic notice, such
notice subsequently confirmed in writing by registered or
certified mail, or upon receipt of written notice by registered
or certified mail, by the Insurer from the Paying Agent or any
owner of an Obligation the payment of an Insured Amount for which
is then due, that such required payment has not been made, the
Insurer on the due date of such payment or within one business
day after receipt of notice of such nonpayment, whichever is
later, will make a deposit of funds, in an account with Citibank,
N.A. , in New York, New York, or its successor, sufficient for the
payment of any such Insured Amounts which are then due. Upon
BD2663 107 05/17/88
presentment and surrender of such Obligations or presentment of
such other proof of ownership of the Obligations, together with
any appropriate instruments of assignment to evidence the
assignment of the Insured Amounts due on the Obligations as are
paid by the Insurer, and appropriate instruments to effect the
appointment of the Insurer as agent for such owners of the
Obligations in any legal proceeding related to payment of Insured
Amounts on the Obligations, such instruments being in a form
satisfactory to Citibank, N.A. , Citibank, N.A. shall disburse to
such owners or the Paying Agent payment of the Insured Amounts
due on such Obligations, less any amount held by the Paying Agent
for the payment of such Insured Amounts and legally available
therefor. This policy does not insure against loss of any
prepayment premium which may at any time be payable with respect
to any Obligation.
As used herein, the term "owner" shall mean the
registered owner of any Obligation as indicated in the books
maintained by the Paying Agent, the Issuer, or any designee of.
the Issuer for such purpose. The term owner shall not include
the Issuer or any party whose agreement with the Issuer
constitutes the underlying security for the Obligations.
Any service of process on the Insurer may be made to
the Insurer at its offices located at 445 Hamilton Avenue, White
Plains, New York 10601 .
This policy is non-cancellable for any reason. The
premium on this policy is not refundable for any reason including
the payment prior to maturity of the Obligations.
MUNICIPAL BOND INVESTORS
ASSURANCE CORPORATION
BD2663 108 05/17/88
(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 the 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]
BD2663 109 05/17/88
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 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 Pledged Revenues. The Owners of the Bonds may not look to
the general or any other fund of the City for the payment of the
Debt Service Requirements thereof, except the special funds
pledged therefor, and the Bonds shall constitute special and
limited obligations of the City. The Bonds are not general
obligations of the City, and the full faith and credit of the
City is not pledged for payment of the Bonds .
Section 4. Sale of Bonds.
A. Purchaser' s Proposal . The Purchaser has submitted
a proposal for the purchase of the Bonds, together with the
disclosures and information required by the Refunding Act, at a
price equal to $13 , 385, 846. 25 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 and directed to
execute the contract of purchase on behalf of the City.
Section 5 . Disposition of Bond Proceeds and Pledged
Revenues; Funds and Accounts Adopted or Created by Ordinance•
Security For Bonds . The proceeds of the sale of the Bonds and
the Pledged Revenues received by the City shall be deposited by
the City in the funds described in this Section 5, to be
accounted for in the manner and priority set forth in this
Section 5 .
Neither the Purchaser nor any subsequent Owner of any
Bond shall be responsible for the application or disposal by the
City or by any of its officers, agents and employees of the
moneys derived from the sale of the Bonds or of any other moneys
designated in this Section 5.
BD2663 110 05/17/88
The Pledged Revenues and all moneys and securities paid
or to be paid to or held or to be held in any fund or account
hereunder (except the Escrow Fund) are hereby assigned and
pledged to secure the payment of the Debt Service Requirements of
the Bonds and any Additional Parity Bonds and to the payment of
the Cost of the Project. This assignment and pledge shall be
valid and binding from and after the date of the first delivery
of the Bonds, and the moneys, as received by the City and hereby
assigned and pledged, shall immediately be subject to the lien of
this assignment and pledge without any physical delivery thereof,
any filing, or further act. The lien of this assignment and
pledge and the obligation to perform the contractual provisions
hereby made shall have priority over any or all other obligations
and liabilities of the City (except as herein otherwise expressly
provided) , and the lien of this assignment and pledge shall be
valid and binding as against all parties having claims of any
kind in tort, contract or otherwise against the City (except as
herein otherwise expressly provided) , irrespective of whether
such parties have notice thereof.
A. Disposition of Bond Proceeds ; Notice of Refunding
and Redemption of Prior Tax Increment Revenue Bonds. The City
shall deposit in a separate special fund and trust account hereby
created and designated as the "City of Fort Collins, Colorado,
Downtown Development Authority Tax Increment Refunding and
Improvement Bonds, Series 1988, Escrow Fund, " forthwith upon
receipt of the proceeds of the Bonds, proceeds of the Bonds in
the approximate amount of $8, 468, 859 . 29 and other funds of the
City held in the reserve fund for the Prior Tax Increment Revenue
Bonds in the approximate amount of $999 , 712 . 43 to be used only as
provided in this Section 5A. The City shall apply said sums to
the purchase of the Federal Securities in which the moneys in the
Escrow Fund are to be invested and the funding of any required
cash balance as provided in the Escrow Agreement and in
accordance with the proposal `submitted by the Purchaser. The
Escrow Fund shall be maintained in an amount at the time of the
deposit therein, and at all times subsequently, at least
sufficient, together with the known minimum yield to be derived
from the investment of the deposit therein or any part thereof in
such Federal Securities, to pay the principal of, interest on,
and any premium due in connection with the redemption of the
Prior Tax Increment Revenue Bonds as the same become due . Moneys
shall be withdrawn by the Escrow Bank from the Escrow Fund in
sufficient amounts and at times to permit the payment of the
principal of, interest on, and any premium due in connection with
the redemption of the Prior Bonds at each payment date. Any
moneys remaining in the Escrow Fund after provision has been made
for the payment of the Prior Tax Increment Revenue Bonds may be
applied to any lawful purpose of the Authority. I£ for any
reason the amount in the Escrow Fund shall at any time be
insufficient for the purposes hereinbefore set forth, the City
BD2663 ill 05/17/88
shall forthwith from the first Pledged Revenues available
therefor deposit therein such additional moneys as shall be
necessary to permit the payment in full of the principal of,
interest on, and any premium due in connection with the
redemption of the Prior Tax Increment Revenue Bonds as herein
provided.
The City hereby exercises its option to redeem the
Prior Tax Increment Revenue Bonds maturing in the year 1993 and
thereafter, prior to their respective maturity dates, on June 1 ,
1993 , at a price equal to the principal amount of each Prior Tax
Increment Revenue Bond so redeemed plus accrued interest thereon
to the Redemption Date plus a premium equal to 1 . 5% of the
principal amount of each Prior Tax Increment Revenue Bond so
redeemed.
The Paying Agent is hereby appointed paying agent for
the Prior Tax Increment Revenue Bonds and as such is hereby
authorized and directed on behalf of the City to give forthwith
and again not later than May 1, 1993 , notice of refunding and
redemption of the Prior Tax Increment Revenue Bonds. The notice
of refunding and redemption of the Prior Tax Increment Revenue
Bonds shall be given by sending a copy of such notice by
certified or registered first-class postage prepaid mail to the
Owners of the Prior Tax Increment Revenue Bonds at the addresses
appearing on the registration books of the City and to Boettcher
& Company, Inc . , 828 17th Street, Denver, Colorado 80202 . The
notice of refunding and redemption of the Prior Tax Increment
Revenue Bonds shall be in substantially the following form:
BD2663 112 05/17/88
[ Form of Notice ]
NOTICE OF REFUNDING AND REDEMPTION
OF
CITY OF FORT COLLINS, COLORADO
DOWNTOWN DEVELOPMENT AUTHORITY TAX INCREMENT REFUNDING BONDS
SERIES 1985A
DATED NOVEMBER 1, 1985 - $8, 885 , 000
NOTICE IS HEREBY GIVEN to the registered owners of all
outstanding City of Fort Collins, Colorado, Downtown Development
Authority Tax Increment Refunding Bonds, Series 1985A, dated
November 1, 1985, in the original aggregate principal amount of
$8, 885, 000 (the Prior Tax Increment Revenue Bonds) , that the City
of Fort Collins, Colorado (the City) , has issued Downtown
Development Authority Tax Increment Revenue Refunding and
Improvement Bonds, Series 1988, dated May 15, 1988, in the
aggregate principal amount of $13 , 545 , 000, and deposited a
portion of the proceeds thereof and other funds of the City in
escrow with First Interstate Bank of Fort Collins, N.A. , Fort
Collins, Colorado, which proceeds and other funds have been
invested in bills, certificates of indebtedness, notes, bonds or
similar securities which are direct obligations of the United
States of America or are obligations the principal and interest
of which are unconditionally guaranteed by the United States of
America for the payment of the principal of, interest on, and any
premium due in connection with the redemption of the Prior Tax
Increment Revenue Bonds as the same become due at maturity or
upon prior redemption.
According to a report pertaining to such escrow
prepared by a firm of certifi-ed public accountants licensed to
practice in Colorado, the escrow, including the known minimum
yield from such investments, is fully sufficient at the time of
the deposit and at all times subsequently to pay the principal
of, interest on, and any premium due in connection with the
redemption of the Prior Tax Increment Revenue Bonds as such
payments become due at maturity or upon prior redemption.
NOTICE IS FURTHER HEREBY GIVEN that the City has
exercised its option to redeem the Prior Tax Increment Revenue
Bonds numbered , maturing in the year 1993 and thereafter,
prior to their respective maturity dates, on June 1, 1993, at a
price equal to the principal amount of each Prior Tax Increment
Revenue Bond so redeemed plus accrued interest thereon to the
redemption date plus a premium equal to 1 . 5% of the principal
amount of each Prior Tax Increment Revenue Bond so redeemed.
BD2663 113 05/17/88
On the redemption date there will become due and
payable at the principal corporate trust offices of United Bank
of Denver National Association, Denver, Colorado, the principal
amount of each Prior Tax Increment Revenue Bond so redeemed plus
accrued interest thereon to the redemption date plus a premium
equal to 1 . 5% of the principal amount of each Prior Tax Increment
Revenue Bond so redeemed and from and after the redemption date
interest will cease to accrue. Each Prior Tax Increment Revenue
Bond will be redeemed on or after the redemption date upon
presentation and surrender thereof.
GIVEN BY ORDER OF THE CITY COUNCIL this day of
19
UNITED BANK OF DENVER NATIONAL
ASSOCIATION
as paying agent
Authorized Officer
[End of Form of Notice]
BD2663 114 05/17/88
The City shall also deposit in the Development and
Expense Fund forthwith upon receipt thereof proceeds of the Bonds
in the approximate amount of $3 , 498, 186 . 96 to be used and
withdrawn only as provided in this Section 5A. The proceeds of
the Bonds deposited in the Development and Expense Fund shall be
used and paid out from time to time solely for the purpose of
paying the Cost of the Project. Except for Bond proceeds to be
applied for payment of costs of issuing and insuring the Bonds or
the Cost of the Project relating to the Opera House project, no
Bond proceeds exceeding the sum of $300, 000 shall be withdrawn
from the Development and Expense Fund for payment or
reimbursement of the Cost of the Project relating to any other
privately-owned project unless such privately-owned project has
been completed and the valuation for assessment thereof has been
certified by the Larimer County Assessor in such an amount as
will assure, assuming continued imposition of mill levies then in
effect, that Tax Increment Revenues to be derived from such
project will be not less than 130% of the Average Annual Debt .
Service Requirements on Bonds of an aggregate principal amount
equal to the Bond proceeds so withdrawn. Any surplus proceeds of
the Bonds remaining in the Development and Expense Fund after
payment in full of the Cost of the Project or so much thereof as
may be eligible for payment or reimbursement may be transferred
to the Tax Increment Principal and Interest Account and used for
the purposes thereof, including, to the extent feasible to redeem
Bonds in advance of maturity.
B. Disposition of Tax Increment Revenues. For so
long as any of the Bonds shall be Outstanding, as to any Debt
Service Requirements, except as otherwise provided herein, the
Tax Increment Revenues, upon their receipt from time to time by
the City, shall be set aside and credited immediately to the Tax
Increment Fund. In addition, the City may at its option credit
to the Tax Increment Fund other moneys of the City, legally
available for expenditure for the purposes of the Tax Increment
Fund as provided herein.
For so long as any of the Bonds shall be Outstanding as
to any Debt Service Requirements, the Tax Increment Fund shall be
accumulated and administered, and the moneys on deposit therein
shall be applied, in the following order of priority:
( 1) First, to the Tax Increment Principal and
Interest Account to pay any Debt Service Requirements of the
Bonds, any Additional Parity Bonds and any other Parity
Securities then Outstanding in the manner set forth in
Section 5C hereof;
(2 ) Second, to the Tax Increment Reserve Account,
in the manner set forth in Section 5D hereof;
BD2663 115 05/17/88
(3 ) Third, to the payment of Debt Service
Requirements of Subordinate Bonds or other Subordinate
Securities in accordance with Section 5J hereof; and
(4) Fourth, to the Sales and Use Tax Fund in
reimbursement for any moneys withdrawn from the Sales and
Use Tax Principal and Interest Account to pay any Debt
Service Requirements of the Bonds or any Subordinate
Securities.
C. Tax Increment Principal and Interest Account
Payments . The City shall deposit in the Tax Increment Principal
and Interest Account forthwith upon receipt of the proceeds of
the Bonds, interest accrued thereon from their date of issue to
the date of delivery thereof to the Purchaser, to apply to the
payment of interest first due on the Bonds .
The City shall deposit in the Tax Increment Principal
and Interest Account from the Tax Increment Revenues on or before
the last day of each month beginning in June, 1988, the following
amounts:
( 1) Interest Payments. One-sixth ( 1/6) of the
aggregate amount of the next installment of interest due on
the next Interest Payment Date in the then-current Bond Year
plus any other amounts due for interest on the Bonds, any
Additional Parity Bonds and any other Parity Securities then
Outstanding. There shall be credited against the obligation
of the City to make such payments the amount of any accrued
interest deposited in the Tax Increment Principal and
Interest Account and not theretofore credited.
(2) Principal Payments . One-sixth ( 1/6) of the
aggregate amount of the next installment of principal due on
the next principal payment date in the then-current Bond
Year plus any other amounts due for principal of the Bonds,
any Additional Parity Bonds and any other Parity Securities
then Outstanding.
Such interest and principal shall be promptly paid when
due .
The moneys credited to the Tax Increment Principal and
Interest Account shall be transferred to the Sales and Use Tax
Principal and Interest Account on each June 1 and December 1 and
shall then be used to pay the Debt Service Requirements of the
Bonds then Outstanding, as such Debt Service Requirements become
due.
The Tax Increment Principal and Interest Account shall
be maintained as a sinking fund for the mandatory redemption of
BD2663 116 05/17/88
Bonds maturing in the years 2004 and 2006 . Any mandatory sinking
fund redemption shall be treated as an installment of principal
for purposes of this Section 5C.
Nothing herein shall be construed so as to prevent the
City from creating separate subaccounts within the Tax Increment
Principal and Interest Account for the Bonds and any Additional
Parity Bonds and accounting separately for any deposits made
thereto on account of the Bonds and any Additional Parity Bonds
or from creating separate principal and interest accounts for
Additional Parity Bonds, if such action is deemed by the City to
be necessary or desirable in order to comply with any statute or
regulation governing the exemption from federal income taxes of
interest on any such Additional Parity Bonds, provided that any
such separate subaccounts shall have claims to the Tax Increment
Revenues equal to and on a parity with those of the other such
subaccounts and any such separate principal and interest account
shall have a claim to the Tax Increment Revenues equal to and .on
a parity with that of the Tax Increment Principal and Interest'
Account.
D. Tax Increment Reserve Account Payments. The City
shall deposit in the Tax Increment Reserve Account from Bond
proceeds and other funds of the City held in the reserve fund for
the Prior Tax Increment Revenue Bonds a sum equal to the Average
Annual Debt Service Requirements of the Bonds or, if the maximum
amount permitted by applicable federal tax law is either greater
or lesser, said amount. Subject to the payments required by
Section 5C hereof, except as provided in Section 5E hereof, from
and to the extent of any moneys remaining in the Tax Increment
Fund, or, if necessary, subject to the payments required by
Section 5G and 5H hereof, except as provided in Section 5I
hereof, from and to the extent of any moneys remaining in the
Sales and Use Tax Fund, unless quch moneys have been released and
discharged as provided in this Ordinance, there shall be credited
as hereinafter provided and from time to time thereafter to the
Tax Increment Reserve Account moneys sufficient to accumulate in
and maintain the Tax Increment' Reserve Account at an amount at
least equal to the Combined Average Annual Debt Service
Requirements of all Outstanding Bonds, Additional Parity Bonds
and other Parity Securities for which the Tax Increment Reserve
Account is maintained. Said amount shall be maintained as a
continuing reserve solely for the payment of the Debt Service
Requirements of the Bonds, any Additional Parity Bonds and any
other Parity Securities for which the Tax Increment Reserve
Account is maintained, except as otherwise provided herein. No
payment need be made into the Tax Increment Reserve Account so
long as the moneys therein shall equal not less than said amount.
In the event that the amount of the Tax Increment Reserve Account
falls below the minimum amount required to be maintained therein,
the City shall credit to the Tax Increment Reserve Account that
BD2663 117 05/17/88
sum of money needed to accumulate or reaccumulate the amount
therein so that at all times the amount of the Tax Increment
Reserve Account equals said minimum amount. The moneys in the
Tax Increment Reserve Account shall be set aside, accumulated,
and, if necessary, reaccumulated as provided herein, from time to
time, and maintained as a continuing reserve to be used, except
as hereinafter provided in Section 5E and Section 9 hereof, as
follows: So long as the ratio of Pledged Revenues to Debt
Service Requirements of all Securities of the City secured in
whole or in part thereby equals or exceeds 5 to 1, the moneys on
deposit in the Tax Increment Reserve Account shall be used only
to prevent deficiencies in the Tax Increment Principal and
Interest Account resulting from failure to deposit therein
sufficient sums to pay the Debt Service Requirements of the
Bonds, any Additional Parity Bonds and any other Parity
Securities for which the Tax Increment Reserve Account is
maintained as the same become due. At such time as the ratio of
Pledged Revenues to Debt Service Requirements of all Securities
of the City secured in whole or in part thereby is less than 5 to
1, the moneys on deposit in the Tax Increment Reserve Account
shall be used only to prevent deficiencies in the Tax Increment
Principal and Interest Account or the Sales and Use Tax Principal
and Interest Account resulting from the failure to deposit
therein sufficient sums to pay the Debt Service Requirements of
the Bonds, any Additional Parity Bonds and any other Parity
Securities for which the Tax Increment Reserve Account is
maintained as the same become due or of the Prior Sales and Use
Tax Revenue Bonds and any other Securities of the City secured by
the Sales and Use Tax Revenues on a parity therewith for which
the Sales and Use Tax Reserve Account is maintained as the same
become due. The pledge of and lien upon the moneys deposited in
the Tax Increment Reserve Account to prevent deficiencies in the
Sales and Use Tax Principal and Interest Account shall be forever
released and discharged at such time as the requirements of
Section 7B(2 ) hereof (assuming rio Additional Parity Bonds) have
been met, using as a determination date the date of the proposed
release and discharge and assuming that no Debt Service
Requirements are payable in the year 2006, and the Tax Increment
Reserve Account is fully funded.
If at any time the City shall for any reason fail to
pay into the Tax Increment Principal and Interest Account the
full amount above stipulated for payment of Debt Service
Requirements on the Bonds, then an amount shall be paid into the
Tax Increment Principal and Interest Account at such time from
the Tax Increment Reserve Account equal to the difference between
that paid from the Tax Increment Revenues and the full amount so
stipulated. The money so used shall be replaced to the Tax
Increment Reserve Account from the first moneys credited to the
Tax Increment Fund thereafter received and not required to be
otherwise applied by Section 5C hereof or, if necessary, from the
first moneys credited to the Sales and Use Tax Fund thereafter
BD2663 118 05/17/88
received and not required to be otherwise applied by Sections 5G
and 5H hereof, unless such moneys have been released and
discharged as provided in this Ordinance .
I£ Additional Parity Bonds or other Parity Securities
are Outstanding and a separate reserve fund or account is
maintained therefor, then the moneys replaced in the Tax
Increment Reserve Account and such separate reserve fund or
account shall be replaced on a pro rata basis, as moneys become
available therefor.
If at any time the City shall for any reason fail to
pay into the Tax Increment Reserve Account the full amount
stipulated herein from the moneys credited to the Tax Increment
Fund, the difference between the amount paid and the amount
stipulated shall in a like manner be paid therein from the first
moneys credited to the Tax Increment Fund thereafter received and
not required to be applied otherwise by Section 5C hereof or, .if
necessary, from the first moneys credited to the Sales and Use
Tax Fund thereafter received and not required to be otherwise
applied by Sections 5G and 5H hereof, unless such moneys have
been released and discharged as provided in this Ordinance.
Nothing in this Ordinance shall be construed as
limiting the right of the City to substitute for the cash deposit
required to be maintained hereunder a letter of credit, surety
bond, insurance policy, agreement guaranteeing payment, or other
undertaking by a financial institution to ensure that cash in the
amount otherwise required to be maintained hereunder will be
available to the City as needed, provided that any such
substitution shall first be approved in writing by the Bond
Insurer and shall be submitted to Moody" s Investors Service,
Inc . and Standard & Poor" s Corporation and shall not cause the
then-current ratings of the Bonds to be adversely effected.
E. Termination of Tax Increment Deposits . No payment
need be made into the Tax Increment Principal and Interest
Account or the Tax Increment Reserve Account if the amount in the
Tax Increment Principal and Interest Account and the amount in
the Tax Increment Reserve Account total a sum at least equal to
the entire remaining Debt Service Requirements of the Outstanding
Bonds and any Outstanding Additional Parity Bonds or other Parity
Securities to their respective maturity dates or to any
Redemption Date or Redemption Dates on which the City shall have
exercised or shall have obligated itself to exercise its option
to redeem, prior to their respective maturity dates, any Bonds,
any Additional Parity Bonds or any other Parity Securities then
Outstanding and thereafter maturing (provided that, solely for
the purpose of this Section SE, there shall be deemed to be a
credit to the Tax Increment Reserve Account moneys, Federal
Securities and bank deposits, or any combination thereof,
BD2663 119 05/17/88
accounted for in any other fund or account of the City and
restricted solely for the purpose of paying the Debt Service
Requirements of the Bonds, any Additional Parity Bonds or any
other Parity Securities) , in which case moneys in the Tax
Increment Principal and Interest Account and the Tax Increment
Reserve Account in an amount, except for any known interest or
other gain to accrue from any investment or deposit of moneys
pursuant to Section 6B hereof from the time of any such
investment or deposit to the time or respective times the
proceeds of any such investment or deposit shall be needed for
such payment, at least equal to such Debt Service Requirements,
shall be used together with any such gain from such investments
and deposits solely to pay such Debt Service Requirements as the
same become due; and any moneys in excess thereof in the Tax
Increment Principal and Interest Account and the Tax Increment
Reserve Account and any other moneys derived from the Tax
Increment Revenues may be used in any lawful manner determined by
the City and the Authority.
F. Disposition of Sales and Use Tax Revenues . For so
long as any of the Bonds shall be Outstanding, as to any Debt
Service Requirements, except as otherwise provided herein, the
Sales and Use Tax revenues, upon their receipt from time to time
by the City, shall be set aside and credited immediately to the
Sales and Use Tax Fund. In addition, the City may at its option
credit to the Sales and Use Tax Fund other moneys of the City
legally available for expenditure for the purposes of the Sales
and Use Tax Fund as provided herein.
For so long as any of the Bonds shall be Outstanding,
as to any Debt Service Requirements, except as otherwise provided
herein, the Sales and Use Tax Fund shall be accumulated and
administered, and the moneys on deposit therein shall be applied,
in the following order of priority:
( 1) First, to the Sales and Use Tax Principal and
Interest Account to pay any Debt Service Requirements of the
Prior Sales and Use Tax Revenue Bonds, any other Securities
of the City secured by the Sales and Use Tax Revenues on a
parity therewith in the manner set forth in Section 5G
hereof;
(2 ) Second, to the Sales and Use Tax Reserve
Account in the manner set forth in Section 5H hereof;
(3 ) Third, to the payment of Debt Service
Requirements of other Securities of the City secured by the
Sales and Use Tax Revenues on a subordinate basis in
accordance with Section SJ hereof; and
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(4) Fourth, to be used in accordance with
Section SK hereof.
G. Sales and Use Tax Principal and Interest Account
Payments. The City shall deposit in the Sales and Use Tax
Principal and Interest Account from the Sales and Use Tax
Revenues on or before the last day of each month beginning in
June, 1988, the following amounts:
( 1) Interest Payments. One-sixth ( 1/6) of the
aggregate amount of the next installment of interest due on
the next Interest Payment Date in the then-current Bond Year
plus any other amounts due for interest on the Prior Sales
and Use Tax Revenue Bonds, any other Securities of the City
secured by the Sales and Use Tax Revenues on a parity
therewith and, to the extent necessary, the Bonds.
(2 ) Principal Payments. One-sixth ( 1/6) of the
aggregate amount of the next installment of principal due on
the next principal payment date in the then-current Bond
Year plus any other amounts due for principal of the Prior
Sales and Use Tax Revenue Bonds, any other Securities of the
City secured by the Sales and Use Tax Revenues on a parity
therewith and, to the extent necessary, the Bonds.
Such interest and principal shall be promptly paid when
due.
The moneys credited to the Sales and Use Tax Principal
and Interest Account shall be used to pay the Debt Service
Requirements of the Prior Sales and Use Tax Revenue Bonds, any
other Securities of the City secured by the Sales and Use Tax
Revenues on a parity therewith and, to the extent necessary, the
Bonds, as such Debt Service Requirements become due . The pledge
of and lien upon Sales and Use Tax Revenues deposited in the
Sales and Use Tax Principal and Interest Account for the payment
of the Bonds and any other Parity Securities then Outstanding
shall be forever released and discharged at such time as the
requirements of Section 7B(2 ) hereof (assuming no Additional
Parity Bonds) have been met, using as a determination date the
date of the proposed release and discharge and assuming that no
Debt Service Requirements are payable in the year 2006, and the
Tax Increment Reserve Account is fully funded.
The Sales and Use Tax Principal and Interest Account
shall be maintained as a sinking fund for the mandatory
redemption of Bonds maturing in the years 2004 and 2006. Any
mandatory sinking fund redemption shall be treated as an
installment of principal for purposes of this Section 5G.
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H. Sales and Use Tax Reserve Account Payments. The
City shall maintain in the Sales and Use Tax Reserve Account a
sum at least equal to the Average Annual Debt Service
Requirements of the Prior Sales and Use Tax Revenue Bonds and any
other Securities of the City secured by the Sales and Use Tax
Revenues on a parity therewith. Subject to the payments required
by Section 5C hereof, except as provided in Section 5I hereof,
from and to the extent of any moneys remaining in the Sales and
Use Tax Fund, there shall be credited as hereinafter provided and
from time to time thereafter to the Sales and Use Tax Reserve
Account moneys sufficient to accumulate in and maintain the Sales
and Use Tax Reserve Account at an amount at least equal to the
Combined Average Annual Debt Service Requirements of all
Outstanding Prior Sales and Use Tax Revenue Bonds and any other
Securities of the City secured by the Sales and Use Tax Revenues
on a parity therewith for which the Sales and Use Tax Reserve
Account is maintained. Said amount shall be maintained solely as
a continuing reserve for the payment of the Debt Service
Requirements of the Prior Sales and Use Tax Revenue Bonds and any
other Securities of the City secured by the Sales and Use Tax
Revenues on a parity therewith for which the Sales and Use Tax
Reserve Account is maintained, except as otherwise provided
herein. No payment need be made into the Sales and Use Tax
Reserve Account so long as the moneys therein shall equal not
less than said amount. In the event that the amount of the Sales
and Use Tax Reserve Account falls below the minimum amount
required to be maintained therein, the City shall credit to the
Sales and Use Tax Reserve Account that sum of money needed to
accumulate or reaccumulate the amount therein so that at all
times the amount of the Sales and Use Tax Reserve Account equals
said minimum amount. The moneys in the Sales and Use Tax Reserve
Account shall be set aside, accumulated, and, if necessary,
reaccumulated as provided herein, from time to time, and
maintained as a continuing reserve to be used, except as
hereinafter provided in Section 5I and Section 9 hereof, as
follows: So long as the ratio of Pledged Revenues to Debt
Service Requirements of all Securities of the City secured in
whole or in part thereby equals or exceeds 5 to 1 , the moneys on
deposit in the Sales and Use Tax Reserve Account shall be used
only to prevent deficiencies in the Sales and Use Tax Principal
and Interest Account resulting from failure to deposit therein
sufficient sums to pay the Debt Service Requirements of the Prior
Sales and Use Tax Revenue Bonds and any other Securities of the
City secured by the Sales and Use Tax Revenues on a parity
therewith for which the Sales and Use Tax Reserve Account is
maintained as the same become due. At such time as the ratio of
Pledged Revenues to Debt Service Requirements of all Securities
of the City secured in whole or in part thereby is less than 5 to
1, the moneys on deposit in the Sales and Use Tax Reserve Account
shall be used only to prevent deficiencies in the Tax Increment
Principal and Interest Account or the Sales and Use Tax Principal
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and Interest Account resulting from the failure to deposit
therein sufficient sums to pay the Debt Service Requirements of
the Bonds as the same become due or of the Prior Sales and Use
Tax Revenue Bonds and any other Securities of the City secured by
the Sales and Use Tax Revenues on a parity therewith for which
the Sales and Use Tax Reserve Account is maintained as the same
become due. In such case moneys on deposit in the Tax Increment
Reserve Account shall be treated as a credit against the amount
otherwise required to be accumulated and maintained in the Sales
and Use Tax Reserve Account. The pledge of and lien upon the
Sales and Use Tax Revenues deposited in the Sales and Use Tax
Reserve Account for the payment of the Bonds and any other Parity
Securities then Outstanding shall be forever released and
discharged at such time as the requirements of Section 7B(2 )
hereof ( assuming no Additional Parity Bonds) have been met, using
as a determination date the date of the proposed release and
discharge and assuming that no Debt Service Requirements are
payable in the year 2006, and the Tax Increment Reserve Account
is fully funded.
If at any time the City shall for any reason fail to
pay into the Sales and Use Tax Principal and Interest Account the
full amount above stipulated, then an amount shall be paid into
the Sales and Use Tax Principal and Interest Account at such time
from the Sales and Use Tax Reserve Account equal to the
difference between that paid from the Sales and Use Tax Revenues
and the full amount so stipulated. The money so used shall be
replaced to the Sales and Use Tax Reserve Account from the first
moneys credited to the Sales and Use Tax Fund thereafter received
and not required to be otherwise applied by Section 5G hereof.
If other Securities of the City secured by the Sales
and Use Tax Revenues on a parity with the Prior Sales and Use Tax
Revenue Bonds are Outstanding and a separate reserve fund or
account is maintained therefor, ' then the moneys replaced in the
Sales and Use Tax Reserve Account and such separate reserve fund
or account shall be replaced on a pro rata basis, as moneys
become available therefor.
If at any time the City shall for any reason fail to
pay into the Sales and Use Tax Reserve Account the full amount
stipulated herein from the moneys credited to the Sales and Use
Tax Fund, the difference between the amount paid and the amount
stipulated shall in a like manner be paid therein from the first
moneys credited to the Sales and Use Tax Fund thereafter received
and not required to be applied otherwise by Section 5G hereof.
I . Termination of Sales and Use Tax Deposits. No
payment need be made into the Sales and Use Tax Principal and
Interest Account or the Sales and Use Tax Reserve Account if the
amount in the Sales and Use Tax Principal and Interest Account
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and the amount in the Sales and Use Tax Reserve Account total a
sum at least equal to the entire remaining Debt Service
Requirements of all Prior Sales and Use Tax Revenue Bonds and any
other Securities of the City secured by the Sales and Use Tax
Revenues on a parity therewith to their respective maturity dates
or to any Redemption Date or Redemption Dates on which the City
shall have exercised or shall have obligated itself to exercise
its option to redeem, prior to their respective maturity dates,
any Prior Sales and Use Tax Revenue Bonds or any other Securities
of the City secured by the Sales and Use Tax Revenues on a parity
therewith then Outstanding and thereafter maturing (provided
that, solely for the purpose of this Section 5I , there shall be
deemed to be a credit to the Sales and Use Tax Reserve Account
moneys, Federal Securities and bank deposits, or any combination
thereof, accounted for in any other fund or account of the City
and restricted solely for the purpose of paying the Debt Service
Requirements of the Prior Sales and Use Tax Revenue Bonds or any
other Securities of the City secured by the Sales and Use Tax
Revenues on a parity therewith, in which case the moneys in the
Sales and Use Tax Principal and Interest Account and the Sales
and Use Tax Reserve Account in an amount, except for any known
interest or other gain to accrue from any investment or deposit
of moneys pursuant to Section 6B hereof from the time of any such
investment or deposit to the time or respective times the
proceeds of any such investment or deposit shall be needed for
such payment, at least equal to such Debt Service Requirements,
shall be used together with any such gain from such investments
and deposits solely to pay such Debt Service Requirements as the
same become due; and any moneys in excess thereof in the Sales
and Use Tax Principal and Interest Account and the Sales and Use
Tax Reserve Account and any other moneys derived from the Sales
and Use Tax Revenues may be used in any lawful manner determined
by the City.
J. Payment of Subordinate Securities. ` After there
have been deposited in the Tax Increment Principal and Interest
Account or the Sales and Use Tax Principal and Interest Account
an amount sufficient to pay all the Debt Service Requirements due
or to become due during the current Bond Year on all Bonds,
Additional Parity Bonds and other Parity Securities and all Prior
Sales and Use Tax Revenue Bonds and any other Securities of the
City secured by the Sales and Use Tax Revenues on a parity
therewith then Outstanding and after the accumulations to and
replenishments of the Tax Increment Reserve Account or the Sales
and Use Tax Reserve Account to be made in the current Bond Year
have been made, any moneys remaining in the Tax Increment Fund or
the Sales and Use Tax Fund in any Bond Year may be used by the
City for the payment of Debt Service Requirements of Subordinate
Securities payable from the Tax Increment Revenues or subordinate
securities payable from the Sales and Use Tax Revenues and
authorized to be issued in accordance with this Ordinance,
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including reasonable reserves for such securities ; but the lien
of such securities on the Tax Increment Revenues or the Sales and
Use Tax Revenues and the pledge thereof for the payment of such
securities shall be subordinate to the lien and pledge for the
payment of all Bonds, any Additional Parity Bonds and any other
Parity Securities or all Prior Sales and Use Tax Revenue Bonds
and any other Securities of the City secured by the Sales and Use
Tax Revenues on a parity therewith as herein provided.
K. Use of Remaining Sales and Use Tax Revenues.
After the payments hereinabove required to be made by Section 5F
through Section 5H and Section 5J hereof are made, at the end of
any month, or whenever in any month there shall have been
credited to the Sales and Use Tax Principal and Interest Account
and to the Sales and Use Tax Reserve Account for the payment of
all Securities of the City payable from the Sales and Use Tax
Revenues all amounts required to be deposited in those funds at
that time, as herein provided, any remaining Sales and Use Tax
Revenues shall be transferred to such fund of the City as the
City shall determine.
L. Budget and Appropriation of Sums. The sums
provided to make the payments specified in this Section 5 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 while any of the Bonds, as to either principal or
interest, are Outstanding and unpaid. No provisions of any
constitution, charter, statute, ordinance, resolution, or other
order or measure enacted after the issuance of the Bonds shall in
any manner be construed as limiting or impairing the obligation
of the City to keep and perform the covenants contained in this
Ordinance so long as any of the Bonds remain Outstanding and
unpaid. Nothing herein shall ppohibit the Council from
appropriating other funds of the City legally available for this
purpose to the Tax Increment Principal and Interest Account or
the Sales and Use Tax Principal and Interest Account for the
purpose of providing for the Debt Service Requirements of the
Bonds.
M. Excess Investment Earnings Fund. Within thirty
(30) days after each anniversary of the date of issuance of the
Bonds and not later than sixty (60) days after the redemption of
the last Bond, the City shall compute the Excess Investment
Earnings for the year just completed and shall transfer from the
Tax Increment Principal and Interest Account to the Excess
Investment Earnings Fund an amount equal to the amount so
computed. If the amount so computed is a negative number, said
amount may be withdrawn from the Excess Investment Earnings Fund.
All amounts in the Excess Investment Earnings Fund, including
income earned from the investment of such amounts, shall be held
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by the City free and clear of the liens described in this
Ordinance. The City shall pay over to United States of America,
not later than thirty (30) days after the fifth anniversary of
the date of issuance of the Bonds, an amount equal to ninety
percent (90%) of the net aggregate amount transferred to or
earned in the Excess Investment Earnings Fund during such period
and not theretofore paid to the United States of America and, not
later than sixty (60) days after the redemption of the last Bond,
one hundred percent ( 100%) of the aggregate amount in the Excess
Investment Earnings Fund. Notwithstanding the provisions of this
Section 5M, the City shall at all times maintain and administer
the Excess Investment Earnings Fund in conformity with all
applicable federal statutes and regulations as the same may be
amended from time to time.
Section 6 . General Administration of Funds and
Accounts.
A. Places and Times of Deposits. Each of the special
funds or accounts referred to in Section 5 hereof shall be
maintained in a Commercial Bank and kept separate and apart from
all other accounts or funds of the City as trust accounts solely
for the purposes herein designated therefor. For purposes of
investment of moneys, nothing, except as specifically provided
herein, prevents the commingling of moneys accounted for in any
two or more such funds or accounts pertaining to the Pledged
Revenues or to such fund and account and any other funds or
accounts of the City adopted or created under this Ordinance.
Such funds or accounts shall be continuously secured to the
fullest extent required and permitted by the laws of the State
for the securing of public funds and shall be irrevocable and not
withdrawable by anyone for any purpose other than the respective
designated purposes of such funds and accounts. Each periodic
payment shall be credited to the proper fund or account not later
than the date therefor herein designated, except that when any
such date shall be a Saturday, a Sunday or a legal holiday, then
such payment shall be made on or before the next preceding
business day.
B. Investment of Funds and Accounts. Any moneys in
any fund or account described in this Ordinance with the
exception of the Escrow Fund may be deposited, invested, or
reinvested only in Permitted Investments . Securities or
obligations purchased as such an investment shall either be
subject to redemption at any time at face value by the Owner
thereof at the option of such Owner or shall mature at such time
or times as shall most nearly coincide with the expected need for
moneys from the fund or account in question. Securities or
obligations so purchased as an investment of moneys in any such
fund or account shall be deemed at all times to be a part of the
applicable fund or account; provided that, with the exception of
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the Escrow Fund, the Tax Increment Reserve Account, the Sales and
Use Tax Reserve Account and the Excess Investment Earnings Fund,
the interest accruing on such investments and any profit realized
therefrom shall be credited to the Tax Increment Fund or the
Sales and Use Tax Fund, as the case may be, and any loss
resulting from such investments shall be charged to the
particular fund or account in question. Interest and profit
realized from investments in the Tax Increment Reserve Account or
the Sales and Use Tax Reserve Account shall be credited thereto,
provided that, so long as the amount therein equals at least the
minimum amount specified in Section 5D and Section SH hereof,
such interest and profit may be transferred to the Tax Increment
Principal and Interest Account or the Sales and Use Tax Principal
and Interest Account, as the case may be, and distributed in the
same manner as other moneys therein. Any loss resulting from
such investments in the Tax Increment Reserve Account or the
Sales and Use Tax Reserve Account shall be charged thereto.
Investments in the Tax Increment Reserve Account and the Sales
and Use Tax Reserve Account shall be valued by the City or its
agent as frequently as deemed necessary by the Bond Insurer, but
not less often than quarterly, at the lesser of cost or market
value thereof. If on any valuation date the market value of
investments in the Tax Increment Reserve Account or the Sales and
Use Tax Reserve Account is less than the amount required by
Section 5D and Section 5H hereof to be maintained therein due to
market fluctuations, the deficiency shall be remedied no later
than the next quarterly valuation date. The City shall present
for redemption or sale on the prevailing market any securities or
obligations so purchased as an investment of moneys in a given
fund or account whenever it shall be necessary to do so in order
to provide moneys to meet any required payment or transfer from
such fund or account. The City shall not invest any moneys
accounted for hereunder if any such investment would contravene
the covenant concerning arbitrage in Section 80 hereof.
C. No Liability for Losses Incurred in Performing
Terms of Ordinance. Neither the City nor any officer of the City
shall be liable or responsible' for any loss resulting from any
investment or reinvestment made in accordance with this
Ordinance.
D. Character of Funds. The moneys in any fund or
account herein authorized shall consist of lawful money of the
United States of America or Permitted Investments or both such
money and Permitted Investments . Moneys deposited in a demand or
time deposit account in a Commercial Bank, appropriately secured
according to the laws of the State, shall be deemed lawful money
of the United States of America.
E. Accelerated Payments Optional . Nothing contained
herein prevents the accumulation in any fund or account herein
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designated of any monetary requirements at a faster rate than the
rate or minimum rate, as the case may be, provided therefor, but
no payment shall be so accelerated if such acceleration shall
cause a default in the payment of any obligation of the City
pertaining to the Pledged Revenues.
Section 7 . Priorities; Liens; Issuance of Additional
Bonds.
A. Lien on Pledged Revenues . Except as expressly
provided in this Ordinance with respect to the issuance of
Additional Parity Bonds, Parity Securities or Subordinate
Securities, the Tax Increment Revenues and the Investment
Earnings shall be and hereby are irrevocably assigned, pledged
and set aside to pay the Debt Service Requirements of the Bonds.
The Bonds constitute an irrevocable and first lien (but not
necessarily an exclusive first lien) upon the Tax Increment
Revenues and the Investment Earnings. The Bonds, any Additional
Parity Bonds and any other Parity Securities authorized to be
issued and from time to time Outstanding are equitably and
ratably secured by a lien on the Tax Increment Revenues and the
Investment Earnings and shall not be entitled to any priority one
over the other in the application thereof regardless of the time
or times of the issuance of the Bonds, any Additional Parity
Bonds and any other Parity Securities, it being the intention of
the Council that there shall be no priority among the Bonds, any
Additional Parity Bonds and any other Parity Securities,
regardless of the fact that they may be actually issued and
delivered at different times.
Except as expressly provided in this Ordinance or in
Ordinance No. 101 , 1986, of the City with respect to the issuance
of the Prior Sales and Use Tax Revenue Bonds and any other
Securities of the City secured by the Sales and Use Tax Revenues,
the Sales and Use Tax Revenues &re assigned, pledged and set
aside, subject to release and discharge as provided in
Section 5D, Section 5G and Section 5H hereof, to pay the Debt
Service Requirements of the Bonds. The Bonds constitute a second
or first lien (but not necessarily an exclusive second or first
lien) , the priority of which depends on certain coverage factors
described herein and which is also subject to release and
discharge, upon the Sales and Use Tax Revenues.
B. Issuance Of Additional Parity Bonds. Nothing
herein, subject to the limitations stated in Section 7F hereof,
prevents the issuance by the City of Additional Parity Bonds
payable from the Tax Increment Revenues and the Investment
Earnings and constituting a lien thereon on a parity with, but
not prior or superior to, the lien thereon of the Bonds; but
before any such Additional Parity Bonds are authorized or
actually issued the following provisions must first be satisfied:
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( 1) Absence of Default. At the time of the
issuance of any Additional Bonds, the City shall not be in
default in making any payments required by the Bonds, this
Ordinance or ordinances authorizing Additional Parity Bonds .
Such absence of default shall be certified in writing by the
Director of Finance of the City.
(2) Historic Tax Increment Revenues Test. As
certified by the Director of Finance of the City or by an
Independent Accountant, either (i ) the Tax Increment
Revenues derived in each of the last two complete Fiscal
Years immediately preceding the date of the issuance of such
Additional Parity Bonds, or (ii ) the Tax Increment Revenues
derived in each of the last two twelve consecutive and
complete calendar month periods, one of which shall end not
later than the third calendar month prior to the month of
issuance of Additional Parity Bonds and the other of which
shall end not earlier than the end of the last preceding ,
Fiscal Year, shall have been sufficient to pay in each
period an amount at least equal to 140% of the Average
Annual Debt Service Requirements of all Bonds or other
Parity Securities then Outstanding and the Additional Parity
Bonds proposed to be issued.
(3 ) Adequate Reserves. The proceedings under
which any such Additional Parity Bonds are issued must
provide for the deposit of moneys to the Tax Increment
Reserve Account on substantially the same terms as provided
in Section 5D hereof and contain a covenant by the City to
maintain the Tax Increment Reserve Account in an amount
equal to the amount required by Section 5D hereof.
Alternatively, if such action is deemed by the City to be
necessary or desirable in order to comply with any statute
or regulation governing the 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
fund or account (other than the Tax Increment Reserve
Account) established and maintained for any such Additional
Parity Bonds on substantially the same terms as provided in
Section 5D hereof and contain a covenant by the City to
maintain such reserve fund or account in an amount equal to
the amount required by Section 5D hereof, except as may be
necessary to comply with such statute or regulation. Any
such reserve fund or account shall have a claim to the
Pledged Revenues equal to and on a parity with the Tax
Increment Reserve Account.
C. Subordinate Securities Permitted. Nothing herein,
subject to the limitations stated in Section 7F hereof, prevents
the City from issuing Subordinate Bonds or Subordinate Securities
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for any lawful purpose payable from the Tax Increment Revenues
and the Investment Earnings and having a lien thereon
subordinate, inferior and junior to the lien thereon of the
Bonds .
D. Superior Securities Prohibited. The City shall
not issue any Superior Bonds or Superior Securities .
E. Refunding Bonds. Refunding Bonds may be issued
pursuant to law then in force, provided if less than all of the
Bonds outstanding are to be refunded prior to issuance thereof,
the City must comply with the provisions pertaining to Additional
Bonds provided in Section 7B hereof.
F. Supplemental Ordinances. Additional Parity Bonds
or Subordinate Securities shall be issued only after
authorization thereof by ordinance, supplemental ordinance or
other instrument of the Council, in substantially the same form
as this Ordinance, stating the purpose or purposes of the
issuance of such additional securities, directing the application
of the proceeds thereof to such purpose or purposes, directing
the execution thereof, and fixing and determining the date,
series designation, principal amount, maturity or maturities,
maximum rate or rates of interest, and prior redemption
privileges of the City with respect thereto, and providing for
payments to and from the applicable funds and accounts in
accordance with this Ordinance. All additional securities shall
bear such date, shall be payable as to principal on June 1 or
December 1 or both and as to interest on June 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 Tax Increment Revenues and the Investment Earnings, the
interest on which is payable more frequently than semiannually.
Section S . 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. Continuance and Collection of Tax Increment
Revenues.
( 1) The Plan of Development, as approved and amended
as described in this Ordinance, is now in full force and effect.
The City will not revoke its approval or amend the Plan of
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Development in any manner which would diminish the Tax Increment
Revenues.
(2 ) The City shall continue to collect the Tax
Increment Revenues in accordance with the Downtown Development
Authority Act.
(3 ) The City shall maintain the Tax Increment Fund as
a fund of the City separate and distinct from all other funds of
the City and shall place the Tax Increment Revenues therein. The
Tax Increment Fund shall be subject to appropriation only as
authorized by the Downtown Development Authority Act and this
Ordinance.
(4) All of the Tax Increment Revenues shall be subject
to the payment of the Debt Service Requirements of all securities
payable therefrom, including reserves therefor, as provided
herein or in any instrument supplemental or amendatory hereto,
B. Continuance and Collection of Sales and Use Tax
Revenues.
(1) Ordinance No. 58, 1967, Ordinance No. 140,
1979, and Ordinance No. 149, 1981 , as originally adopted,
have not been repealed or amended, except by Ordinance No.
4, 1968, Ordinance No. 6, 1968, Ordinance No. 23 , 1974,
Ordinance No. 137, 1977 , Ordinance No. 87 , 1981 , and
Ordinance No. 113 , 1984, and are now in full force and
effect. The City will not repeal or amend said ordinances
in any manner which would diminish the Sales and Use Tax
Revenues.
(2 ) So long as the pledge of and lien upon the
Sales and Use Tax Revenues and the Sales and Use Tax Fund is
in force pursuant to Section 7A hereof, to the extent not
otherwise prohibited by law, the City shall continue to
levy, impose, administer, enforce and collect the sales and
use tax on sales and purchases of tangible personal property
at retail and storage, use, distribution and consumption of
tangible personal property purchased or acquired at retail ,
within the City, in accordance with Ordinance No. 58, 1967 ,
Ordinance No. 140, 1979, and Ordinance No. 149, 1981,
without reduction in the percentage rate of the sales and
use tax as set forth therein.
(3 ) So long as the pledge of and lien upon the
Sales and Use Tax Revenues and the Sales and Use Tax Fund is
in force pursuant to Section 7A hereof, to the extent not
otherwise prohibited by law, the City shall maintain the
Sales and Use Tax Fund as a fund of the City separate and
distinct from all other funds of the City and shall place
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the Sales and Use Tax Revenues therein. The Sales and Use
Tax Fund shall be subject to appropriation only as
authorized by this Ordinance .
(4) All of the Sales and Use Tax Revenues shall
be subject to the payment of the Debt Service Requirements
of all securities payable therefrom, including reserves
therefor, as provided herein or in any instrument
supplemental or amendatory hereto .
B. Defense of Legality of Pledged Revenues. There is
not pending or threatened any suit, action or proceeding against
or affecting the City before or by any court, arbitrator,
administrative agency or other governmental authority which
affects the validity or legality of this Ordinance, any ordinance
affecting the Tax Increment Revenues, Ordinance No. 58, 1967,
Ordinance No. 140, 1979, Ordinance No . 149, 1981, or any of the
City" s obligations under such ordinances.
The City shall, to the extent permitted by law, defend
the validity and legality of all ordinances affecting the Tax
Increment Revenues, Ordinance No. 58, 1967, Ordinance No. 140,
1979, Ordinance No. 149, 1981, and all amendments thereto against
all claims, suits and proceedings which would diminish or impair
the Pledged Revenues . Furthermore, the City shall amend from
time to time the provisions of Ordinance No. 58, 1967, Ordinance
No. 140, 1979, and Ordinance No. 149 , 1981, as necessary to
prevent impairment of the Sales and Use Tax Revenues as required
to meet the Debt Service Requirements of the Bonds when due .
Except as permitted in this Ordinance, the City has not
assigned or pledged the Pledged Revenues in any manner which
would diminish the security for payment of the Bonds.
C. Performance of Duties. The City, acting and
through its officers, or otherwise, shall faithfully and
punctually perform, or cause to be performed, all duties with
respect to the Pledged Revenues required by the Constitution and
laws of the State, the Charter and the various ordinances,
resolutions and contracts of the City, including, without
limitation, the proper segregation of the proceeds of the Bonds
and the Pledged Revenues and their application from time to time
to the respective funds provided therefor.
D. Contractual Obligations . The City will perform
all contractual obligations undertaken by it under the contract
with the Purchaser and any other agreements relating to the Bonds
and the Pledged Revenues.
E. Further Assurances. At any and all times the City
shall, so far as it may be authorized by law, pass, make, do,
BD2663 132 05/17/88
execute, acknowledge, deliver, and file or record all and every
such further instruments, acts, deeds, conveyances, assignments,
transfers, other documents, and assurances as may be necessary or
desirable for the better assuring, conveying, granting, assigning
and confirming all and singular the rights, the Pledged Revenues
and other funds and accounts hereby pledged or assigned, or
intended so to be, or which the City may hereafter become bound
to pledge or to assign, or as may be reasonable and required to
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 Pledged Revenues and other funds and accounts
pledged hereunder and all the rights of every Owner of any of the
Bonds against all claims and demands of all Persons whomsoever.
F. Conditions Precedent. Upon the date of issuance
of any of the Bonds, all conditions, acts and things required by
the Constitution or laws of the United States of America, the
Constitution or laws of the State, the Charter, or this
Ordinance, to exist, to have happened, and to have been performed
precedent to or in the issuance of the Bonds shall exist, have
happened and have been performed, and the Bonds do not contravene
any debt or other limitation prescribed by the Constitution or
laws of the United States of America, the Constitution or laws of
the State or the Charter.
G. Records. 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 and accounts described herein.
H. Protection of Security. The City, its officers,
agents and employees, shall not take any action in such manner or
to such extent as might prejudice the security for the payment of
the Debt Service Requirements of the Bonds and any other
securities payable from the Pledged Revenues according to the
terms thereof. No contract shall be entered into nor any other
action taken by which the rights of any Owner of any Bond or
other security payable from Pledged Revenues might be materially
impaired or diminished.
I . Accumulation of Interest Claims . In order to
prevent any accumulation of claims for interest after maturity,
the City shall not directly or indirectly extend or assent to the
extension of the time for the payment of any claim for interest
on any of the Bonds or any other securities payable from the
Pledged Revenues ; and the City shall not directly or indirectly
be a party to or approve any arrangements for any such extension
or for the purpose of keeping alive any of such other claims for
interest. If the time for the payment of any such installment of
interest is extended in contravention of the foregoing
BD2663 133 05/17/88
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.
J. Prompt Payment of Bonds . The City shall promptly
pay the Debt Service Requirements of every Bond on the dates and
in the manner specified herein and in the Bonds according to the
true intent and meaning hereof.
K. Use of Funds and Accounts. The funds and accounts
described in the Ordinance shall be used solely and only, and the
moneys credited to such accounts are hereby pledged, solely for
the purposes specified herein.
L. Additional Securities . The City shall not
hereafter issue any bonds or securities payable from the Pledged
Revenues without compliance with the requirements with respect to
the issuance of such bonds or securities set forth herein to the
extent applicable .
M. Other Liens . There are no liens or encumbrances
of any nature whatsoever on or against any of the Tax Increment
Revenues except as provided herein.
N. Surety Bonds. Each official or other person
having custody of any Pledged Revenues, or responsible for their
handling, shall be fully bonded at all times, which bond shall be
conditioned upon the proper application of said moneys .
0. Arbitrage . The City shall make no investment or
other use of the proceeds of the Bonds at any time during the
term thereof 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
Section 103 of the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder and shall comply with all
the requirements of said Section and regulations throughout the
term of the Bonds.
Section 9. De£easance .
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
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sufficient ( including the known minimum yield available for such
purpose from Federal Securities in which such amount wholly or in
part may be initially invested) to meet all Debt Service
Requirements of the Bonds, as the same become due to their
respective maturity dates or to any Redemption Date as of which
the City shall have exercised or shall have obligated itself to
exercise its option to redeem Bonds prior to their respective
maturity dates. The Federal Securities shall be non-callable and
shall become due prior to the respective times at which the
proceeds thereof shall be needed, in accordance with a schedule
established and agreed upon between the City and such Trust Bank
at the time of the creation of the escrow or trust, or the
Federal Securities shall be subject to redemption at the option
of the Owner thereof to assure such availability as so needed to
meet such schedule . Any Debt Service Requirements of the Bonds
paid by Bond Insurer shall not be deemed paid pursuant to this
Ordinance until paid by the City in accordance herewith.
Nothing herein shall be construed to prohibit a partial
defeasance of the Outstanding Bonds in accordance with the
provisions of this Section 9 .
Section 10. Default Provisions and Remedies of Bond
Owners.
A. Events of Default. Each of the following events
is hereby declared to be an Event of Default by the City:
( 1) Nonpayment of Principal or Premium. Payment
of the principal of any of the Bonds or any premium due in
connection with the redemption thereof is not made when the
same becomes due and payable, either at maturity or upon
prior redemption, or otherwise;
r
(2) Nonpayment of Interest. Payment of any
installment of interest on any of the Bonds is not made when
the same becomes due and payable;
(3 ) Incapacity to Perform. The City for any
reason becomes incapable of fulfilling its obligations
hereunder;
(4) Nonperformance of Duties. The City shall
have failed to carry out and to perform (or in good faith to
begin the performance o£) all acts and things lawfully
required to be carried out to be performed by it under any
contract relating to the Bonds or the Pledged Revenues, or
to all or any combination thereof, or otherwise including,
without limitation, this Ordinance, and such failure shall
continue for sixty (60) days after receipt of notice from
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the Owners of ten percent ( 10%) in aggregate principal
amount of the Bonds then Outstanding;
(5) Appointment of Receiver. An order or decree
is entered by a court of competent jurisdiction, with the
consent or acquiescence of the City, appointing a receiver
or receivers for the Pledged Revenues and any other moneys
subject to the lien to secure the payment of the Bonds, or
if any order or decree, having been entered without the
consent or acquiescence of the City, is not vacated or
discharged or stayed on appeal within sixty ( 60) days after
entry;
(6) Default of Any Provision. The City makes any
default in the due and punctual performance of any other of
the representations, covenants, conditions, agreements and
other provisions contained in the Bonds or in this Ordinance
on its part to be performed, and such default continues for
sixty (60) days after written notice, specifying such
default and requiring the same to be remedied, is given to
the City by the Owners of ten percent ( 10%) in aggregate
principal amount of the Bonds then Outstanding.
B. Remedies for Defaults . Upon the happening and
continuance of any Event of Default, provided that the Bond
Insurer has made all payments of principal and interest on the
Bonds as required by the Bond Insurance Policy, the Bond Insurer,
acting alone, shall have the right to direct all remedies against
the City with respect to the Bonds, and no such remedies shall be
exercised without the consent of the Bond Insurer. Subject to
the foregoing, the Owner or Owners of not less than ten percent
( 10%) in aggregate principal amount of the Bonds then
Outstanding, including, without limitation, a trustee or trustees
therefor, may proceed against tie City and its agents, officers
and employees to protect and to-enforce the rights of any Owner
of Bonds under this Ordinance by mandatory injunction or by other
suit, action, or special proceedings in equity or at law, in any
court of competent jurisdiction, either for the appointment of a
receiver or an operating trustee or for the specific performance
of any covenant or agreement contained herein or for any proper
legal or equitable remedy as such Owner or Owners may deem most
effectual to protect and to enforce the aforesaid rights, or
thereby to enjoin any act or thing which may be unlawful or in
violation of any right of any Owner of any Bond, or to require
the City to act as if it were the trustee of an expressed trust,
or any combination of such remedies, or as otherwise may be
authorized by any statute or other provision of law. All such
proceedings at law or in equity shall be instituted, had and
maintained for the equal benefit of all Owners of the Bonds and
any Parity Securities then Outstanding. Any receiver or
operating trustee appointed in any proceedings to protect the
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rights of such Owners hereunder, the consent to any such
appointment being hereby expressly granted by the City, may
collect, receive and apply all Pledged Revenues arising after the
appointment of such receiver or operating trustee in the same
manner as the City itself might do. Notwithstanding the
foregoing or any other applicable provisions of law, no Event of
Default shall result in acceleration of any obligation of the
City represented by the Bonds.
C. 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 or
carry out any duty, obligation or other commitment. Each right
or privilege of any such Owner or any trustee thereof is in
addition and is cumulative to any other right or privilege, and
the exercise of any right or privilege by or on behalf of any
Owner shall not be deemed a waiver of any other right or
privilege thereof. Each Owner of any Bond shall be entitled to
all of the privileges, rights, and remedies provided or permitted
in this Ordinance and as otherwise provided or permitted by law
or in equity or by statute, except as provided in Section 12A and
Section 12B hereof, and subject to the applicable provisions
concerning the Pledged Revenues and the proceeds of the Bonds.
Nothing herein affects or impairs the right of any Owner of any
Bond to enforce the payment of the Debt Service Requirements due
in connection with his, her or its Bond or the obligation of the
City to pay the Debt Service Requirements of each Bond to the
Owner thereof at the time and the place expressed in such Bond.
D. Duties Upon Defaults. Upon the happening of any
of the Events of Default as provided in Section 10A hereof, the
City, in addition, shall do and perform all proper acts on behalf
of and for the Owners of the Outstanding Bonds to protect and to
preserve the security created for the payment of their Bonds and
to insure the payment of the Debt Service Requirements of the
Bonds promptly as the same become due . During any period of
default, so long as any of the' Bonds, as to any Debt Service
Requirements, are Outstanding, except to the extent it may be
unlawful to do so, all Pledged Revenues shall be paid into the
Sales and Use Tax Principal and Interest Account, or, in the
event of securities hereafter or heretofore issued and
Outstanding during such period of time on a parity with the
Bonds, shall be applied as provided in Section 5C and Section 5G
hereof on an equitable and prorated basis, and used for the
purposes therein provided. If the City fails or refuses to
proceed as in this Section lOD provided, the Owner or Owners of
not less than ten percent ( 10%) in 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
BD2663 1137 05/17/88
Outstanding Bonds shall be subrogated to all rights of the City
under any agreement or contract involving the Pledged Revenues
entered into prior to the effective date of this Ordinance or
thereafter while any of the Bonds are Outstanding. Nothing
herein requires the City to proceed as provided herein if it
determines in good faith and without any abuse of its discretion
that such action is likely materially and prejudicially to affect
the Owners of the Outstanding Bonds and any Outstanding Parity
Securities.
E. Evidence of Security Owners . Any request, consent
or other instrument which this Ordinance may require or may
permit to be signed and to be executed by the Owner of any 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 or she purports to act that the
individual signing such request or other instrument
acknowledged to him or her the execution, duly sworn to
before such notary public or other officer; the authority of
the individual> or individulls 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, dates and other identification
thereof, together with the dates of his ownership of the
Bonds, shall be determined from the registration books of
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the City. The amount of other securities, if applicable,
owned by any Person executing any instrument as an Owner of
such securities, and the numbers, dates and other
identification thereof, together with the dates of his
ownership, if in bearer form, may be proved by a certificate
which need not be acknowledged or verified, in form
satisfactory to the City Clerk, executed by a member of a
financial firm or by an officer of a bank or trust company,
insurance company or financial corporation or other
depository satisfactory to the City Clerk, or by any notary
public or other officer authorized to take acknowledgments
of deeds to be recorded in the state in which he purports to
act, showing at the date therein mentioned that such Person
exhibited to such member, officer, notary public or other
officer so authorized to take acknowledgments of deeds or
had on deposit with such depository the securities described
in such certificate or if in registered form shall be
determined from the related registration books; but the City
Clerk may nevertheless in his or her discretion require
further or other proof in cases where he or she deems the
same advisable.
F. Warranty Upon Issuance of Bonds. Any of the Bonds
as herein provided, when duly executed and registered for the
purposes provided for in this Ordinance, shall constitute a
warranty by and on behalf of the City for the benefit of each and
every future Owner of any of the Bonds that the Bonds have been
issued for a valuable consideration in full conformity with law.
G. Bond Insurer as Bond Owner. So long as the Bond
Insurer is not then in default under the Bond Insurance Policy,
the Bond Insurer shall be deemed to be the Owner of all Bonds
insured by it for purposes of exercising remedies, waiving
defaults, or granting consents pursuant to this Section 10.
H. Immunities of Purchaser. The Purchaser and any
associate thereof are under no obligation to any Owner of the
Bonds for any action that they may not take or in respect of
anything that they may or may not do by reason of any information
contained in any reports or other documents received by them
under the provisions of this Ordinance. The immunities and
exemption from liability of the Purchaser and any associate
thereof hereunder extend to their officers, directors,
successors, assigns, employees and agents .
Section 11 . Amendment of Ordinance.
A. Amendment of Ordinance Not Requiring Consent of
Bond Owners .and Bond Insurer. The City may, without the consent
of, or notice to, the Owners of the Bonds or the Bond Insurer,
adopt such ordinances supplemental hereto (which amendments shall
BD2663 139 05/17/88
thereafter form a part hereof) for any one or more or all of the
following purposes:
( 1 ) To cure or correct any formal defect,
ambiguity or inconsistent provision contained in this
Ordinance;
(2 ) To appoint successors to the Paying Agent,
Registrar, Transfer Agent or Escrow Bank;
(3 ) To designate a trustee for the Owners of the
Bonds, to transfer custody and control of the Pledged
Revenues to such trustee, and to provide for the rights and
obligations of such trustee;
(4) To add to the covenants and agreements of the
City or the limitations and restrictions on the City set
forth herein;
(5 ) To pledge additional revenues, properties or
collateral to the payment of the Bonds;
( 6) To cause this Ordinance to comply with the
Trust Indenture Act of 1939, as amended from time to time;
or
(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 and Bond Insurer. Exclusive of the amendatory ordinances
covered by Section 11A hereof, Phis Ordinance maybe amended or
modified by ordinances or other- instruments duly adopted by the
Council, without receipt by it of any additional consideration
but with the written consent of the Owners of sixty-six percent
(66%) in aggregate principal amount of the Bonds Outstanding at
the time of the adoption of such amendatory ordinance and of the
Bond Insurer, provided that no such amendatory ordinance shall
permit:
( 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, the rate of interest thereon,
or any premium payable in connection with the redemption
thereof, without the consent of the Owner of the Bond; or
BD2663 140 05/17/88
(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 Among Bonds or Parity
Securities . The establishment of priorities as among Bonds
issued and Outstanding under the provisions of this
Ordinance or as among Bonds and other Securities on a parity
therewith; or
(6) Partial Modification. Any modifications
otherwise materially and prejudicially affecting the rights
or privileges of the Owners of less than all of the Bonds
then Outstanding.
Whenever the Council proposes to amend or modify this
Ordinance under the provisions of this Section 11B it shall give
notice of the proposed amendment by mailing such notice to the
Purchaser, or to any successor thereof known to the City Clerk
and to all registered Owners of Bonds at the addresses appearing
on the registration books of the City, and to the Bond Insurer.
Such notice shall briefly set forth the nature of the proposed
amendment and shall state that a copy of the proposed amendatory
ordinance or other instrument is on file in the office of the
City Clerk for public inspection.
C. Time for and Consent to Amendment. Whenever at
any time within one ( 1 ) year from the date of the completion of
the notice required to be given by Section 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
and the Bond Insurer, which instrument or instruments shall refer
to the proposed amendatory ordinance or other instrument
described in such notice and shall specifically consent to and
approve the adoption of such ordinance or other instrument,
thereupon, but not otherwise, the Council may adopt such
amendatory ordinance or instrument and such ordinance or
instrument shall become effective. If the Owners of at least
sixty-six percent (66%) in aggregate principal amount of the
Bonds then Outstanding, at the time of the adoption of such
amendatory ordinance or instrument, or the predecessors in title
of such Owners, and the Bond Insurer shall have consented to and
approved the adoption thereof as herein provided, no Owner of any
BD2663 141 05/17/88
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
(except as would adversely affect the rights of the Owners of any
Parity Securities) upon the adoption by the City and upon the
filing with the City Clerk of an instrument to that effect and
with the consent of the Owners of all the then Outstanding Bonds
and the Bond Insurer, such consent to be given in the manner
provided in Section 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 Registrar shall furnish to
the City Clerk a certificate, upon which the City Clerk may rely,
describing all Bonds to be excluded for the purpose of consent or
of other action or of any calculation of Outstanding Bonds
provided for hereunder, and, with respect to such excluded Bonds,
the City shall not be entitled or required with respect to such
Bonds to give or obtain any consent or to take any other action
provided for hereunder.
F. Notation on Bonds. Any of the Bonds delivered
after the effective date of any action taken as provided in
Section 11B hereof, or Bonds Outstanding at the effective date of
such action, may bear a notation thereon by endorsement or
otherwise in form approved by the Council as to such action; and
if any such Bonds so delivered after such date does not bear such
BD2663 142 05/17/88
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. Neither shall the covenants,
agreements, representations, or warranties contained herein or in
the Bonds impose or be construed as imposing any liability,
obligation, or charge against the Bond Insurer.
B. No Pledge of Property. The payment of the Bonds
is not secured by an encumbrance, mortgage or other pledge of
property of the City except for the Pledged Revenues. No property
of the City, subject to such exception with respect to the
Pledged Revenues, pledged for the payment of the Bonds, shall be
liable to be forfeited or taken in payment of the Bonds .
C. Statute of Limitations. No action or suit based
upon any Bond or other obligation of the City shall be commenced
after it is barred by any statute of limitations pertaining
thereto. Any trust or fiduciary relationship between the City
and the Owner of any Bond or the obligee regarding any such
obligation shall be conclusively presumed to have been repudiated
on the maturity date or other due date thereof unless the Bond is
presented for payment or demand for payment of such other
obligation is otherwise made before the expiration of the
applicable limitation period. Any moneys from whatever source
derived remaining in any fund or account reserved, pledged or
otherwise held for the payment of any such obligation, action or
suit, the collection of which has been barred, shall revert to
such fund as the Council shall provide by ordinance. Nothing
BD2663 143 05/17/88
herein prevents the payment of any such Bond or other obligation
after an action or suit for its collection has been barred if the
Council deems it in the best interests of the City or the public
so to do and orders such payment to be made.
D. Delegated Duties. The officers of the City are
hereby authorized and directed to enter into such agreements and
take all action necessary or appropriate to effectuate the
provisions of this Ordinance and to comply with the requirements
of law, including, without limitation:
( 1) Printing. The printing of the Bonds,
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. The
execution and registration of the Bonds and the delivery of
the Bonds to the Purchaser pursuant to the provisions of
this Ordinance;
(3 ) Information. The assembly and dissemination
of financial and other information concerning the City and
the Bonds;
(4) Official Statement. The preparation of a
final official: statement 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 the
Escrow Agreement and such certificates as may be reasonably
required by the Purchaser, relating, inter alia, to:
(a) The signing of the Bonds;
(b) The tenure and identity of the officials
of the City;
(c) If in accordance with fact, the absence
of litigation, pending or threatened, affecting the
validity of the Bonds;
BD2663 144 05/17/88
(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;
( f) The accuracy and adequacy of information
provided in the preliminary official statement and
official statement prepared for prospective buyers of
the Bonds.
E. Successors. Whenever herein the City is named or
is referred to, such provision shall be deemed to include any
successors of the City, whether so expressed or not. All of the
covenants, stipulations, obligations and agreements by or on
behalf of and other provisions for the benefit of the City
contained herein shall bind and inure to the benefit of any
officer, board, district, commission, authority, agency,
instrumentality or other Person or Persons to whom or to which
there shall be transferred by or in accordance with law any
right, power or duty of the City or of its respective successors,
if any, the possession of which is necessary or appropriate in
order to comply with any such covenants, stipulations,
obligations, agreements or other provisions hereof.
F. Rights and Immunities . Except as herein otherwise
expressly provided, nothing herein expressed or implied is
intended or shall be construed to confer upon or to give to any
Person, other than the City, the Bond Insurer, and the Owners
from time to time of the Bonds, any right, remedy or claim under
or by reason hereof or any covenant, condition or stipulation
hereof. All the covenants, stipulations, promises and agreements
herein contained by and on behalf of the City shall be for the
sole and exclusive benefit of the City, the Bond Insurer and any
Owner of any of the Bonds.
No recourse shall be. had for the payment of the Debt
Service Requirements of the Bonds or for any claim based thereon
or otherwise upon this Ordinance authorizing their issuance or
any other ordinance or instrument pertaining thereto, against any
individual member of the Council, or any officer or other agent
of the City, past, present or future, either directly or
indirectly through the City, or otherwise, whether by virtue of
any constitution, statute or rule of law or by the enforcement of
any penalty or otherwise, all such liability, if any, being by
the acceptance of the Bonds and as a part of the consideration of
their issuance specially waived and released.
G: Notices, Etc. Any notices, authorizations,
requests or demands required or permitted to be given to the Bond
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Insurer hereunder shall be in writing and sent by certified or
registered first-class postage prepaid mail addressed as follows:
Municipal Bond Investors Assurance Corporation
445 Hamilton Avenue
White Plains, New York 10601
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 of the City shall
forthwith, and in any event prior to the time the Bonds are
delivered to the Purchaser, file with the Colorado Secretary of
State their manual signatures certified by them under oath.
I . Ordinance Irrepealable . This Ordinance is, and
shall constitute, a legislative measure of the City and after any
of the Bonds are issued, this Ordinance shall constitute an
irrevocable contract between the City and the Owner or Owners of
the Bonds ; 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. Statutory Limitations Met. The Council hereby
determines that the provisions and limitations of the Refunding
Act and any other applicable law imposed on the issuance of the
Bonds have been met.
K. Ratification. All action not inconsistent with
the provisions of this Ordinance heretofore taken by the City or
its officers, and otherwise by the City directed toward the sale
and delivery of the Bonds for that purpose, be, and the same
hereby is, ratified, approved and confirmed.
L. Repealer. All ordinances, resolutions, bylaws,
orders, and other instruments, ' or parts thereof, inconsistent
herewith are hereby repealed to the extent only of such
inconsistency. This repealer shall not be construed to revive
any ordinance, resolution, bylaw, order, or other instrument, or
part thereof, heretofore repealed.
M. Severability. If any section, subsection,
paragraph, clause or other provision of this Ordinance shall for
any reason be held to be invalid or unenforceable, the invalidity
or unenforceability thereof shall not affect any of the remaining
sections, subsections, paragraphs, clauses or provisions of this
Ordinance. .
BD2663 146 05/17/88
READ, AMENDED, FINALLY PASSED AS AMENDED ON SECOND
READING, AND ORDERED PUBLISHED ONCE BY NUMBER AND TITLE ONLY this
17th day of May, 1988.
CITY OF FORT COLLINS, COLORADO
By: _X':5
Mayor
(CITY )
(SEAL)
ATTEST:
City Clerk
BD2663 147 05/17/88