HomeMy WebLinkAbout087 - 09/01/1992 - AUTHORIZING THE ISSUANCE OF HIGHWAY USERS TAX REVENUE BONDS (STREET MAINTENANCE BUILDING) ORDINANCE NO. 87 , 1992
AN ORDINANCE AUTHORIZING THE ISSUANCE OF CITY OF FORT
COLLINS, COLORADO, HIGHWAY USERS TAX REVENUE BONDS,
SERIES 1992, DATED AUGUST 15, 1992 , IN THE AGGREGATE
PRINCIPAL AMOUNT OF $4, 055, 000, FOR THE PURPOSE OF
ACQUIRING LAND AND CONSTRUCTING, INSTALLING AND
EQUIPPING A STREET MAINTENANCE, VEHICLE STORAGE AND
INCIDENTAL ADMINISTRATION BUILDING AND PLEDGING THE
REVENUE DISTRIBUTED TO THE CITY FROM THE STATE'S
HIGHWAY USERS TAX FUND TO PAY THE PRINCIPAL OF AND
INTEREST ON THE BONDS.
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS, COLORADO, AS FOLLOWS:
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) Act: part 2 of article 4 of title 43 ,
Colorado Revised Statutes, as amended.
(2) Additional Parity Bonds: any Parity
Securities issued after issuance of the Bonds.
(3) Average Annual Debt Service Requirements:
the aggregate of all Debt Service Requirements (excluding
any redemption premiums) due on the Bonds or any other issue
of Parity Securities for all Bond Years beginning with the
Bond Year in which Debt Service Requirements of the Bonds or
such Parity Securities are first payable and ending with the
Bond Year in which the last of the Debt Service Requirements
are payable divided by the number of such years.
(4) Beneficial Owners: those Persons having
beneficial ownership interests in Bonds registered in the
name of the Securities Depository or a nominee therefor.
(5) Bond Purchase Agreement: the Bond Purchase
Agreement, dated as of September 1, 1992 between the City
and the Purchaser.
(6) Bonds: the City of Fort Collins, Colorado,
Highway Users Tax Revenue Bonds, Series 1992 , dated
August 15, 1992 , in the aggregate principal amount of
$4 , 055, 000.
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(7) 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.
(8) Charter: the Home Rule Charter of the City,
as amended.
(9) City: the City of Fort Collins, Colorado.
(10) ode: the Code of the City, as amended.
(11) 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.
(12) Combined Maximum Annual Debt Service
Requirements: the Maximum Annual Debt Service Requirements
for all issues of Parity Securities for which the
computation is being made, treated as a single issue.
(13) Commercial Bank: a state or national bank or
trust company which is a member of the Federal Deposit
Insurance Corporation and of the Federal Reserve System,
which has a capital and surplus of $1, 000, 000 or more and
which is located within the United States of America.
(14) Construction Account: the special fund
created and referred to in Section 5A hereof.
(15) Cost of the Project: all or any part of the
cost of acquiring the Project; all surveying, inspection,
fiscal, and legal expenses; all costs of issuance of 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 borrowings;
capitalized interest on the Bonds; contingencies; reserves
for payment of the Debt Service Requirements on the Bonds;
and all such other costs as may be necessary or incidental
to the acquisition of the Project or any part thereof
(including, without limitation, reimbursement to the City of
costs and expenses of the Project advanced by the City from
other funds, and payment or reimbursement to the City of
costs and expenses incidental to the acquisition of the
Project and the issuance of the Bonds) .
(16) Council: the governing body of the City.
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(17) 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 and any other securities payable from the
Pledged Revenues.
(18) Event of Default: one of the events
described in Section 10A hereof.
(19) Federal Securities: bills, certificates of
indebtedness, notes, bonds or similar securities which are
direct obligations of, or the principal and interest of
which obligations are unconditionally guaranteed by, the
United States of America.
(20) Fiscal Year: the twelve (12) months
commencing on the first day of January of any calendar year
and ending on the last day of December of such calendar year
or such other twelve-month period as may from time to time
be designated by the Charter as the Fiscal Year of the City.
(21) Highway Users Tax Revenue Account: the
special fund created and referred to in Section 5B hereof.
(22) Highway Users Tax Revenues: the revenues
distributed to the City from the highway users tax fund of
the State created pursuant to the Act.
(23) Interest Payment Date: a date designated by
ordinance for the payment of interest on the Bonds or other
designated securities.
(24) Letter of Representations: the letter of
representations, dated as of August 15, 1992, from the City
to the Securities Depository.
(25) Maturity Date: a date designated by
ordinance for the payment of principal on the Bonds or any
other designated securities.
(26) Maximum Annual Debt Service Requirements:
the maximum Debt Service Requirements (excluding any
redemption premiums) due on the Bonds or any other issue of
Parity Securities in question in any Bond Year.
(27) Ordinance: this Ordinance No. 87, 1992 , of
the City.
(28) Outstanding or outstanding: as of any
particular date, all Bonds, Additional Parity Bonds, Parity
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Securities or any such other securities payable in whole or
in part from the Pledged Revenues having 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 the City's behalf, at
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 Redemption Date
thereof shall have theretofore been deposited in escrow
or in trust with a Trust Bank for that purpose; and
(d) Any lost, destroyed, or wrongfully taken
Bond, Additional Parity Bond, Parity Security or other
security of the City in lieu of or in substitution for
which another bond or other security shall have been
executed and delivered.
(29) Owner: when used in conjunction with any
Bond or any other designated security, the holder of any
bearer instrument or the registered owner of any registered
instrument.
(30) Parity Securities: bonds, warrants, other
securities, leases or other contracts evidencing borrowings
and payable from the Pledged Revenues equally or on a parity
with the Bonds.
(31) Participants: underwriters, securities
brokers or dealers, banks, trust companies, closing
corporations or other Persons for which or whom the
Securities Depository holds the Bonds.
(32) Paving Agent: the Financial Officer of the
City, or his successors.
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(33) Person: any individual, firm, partnership,
corporation, company, association, joint-stock association,
or body politic or any trustee, receiver, assignee, or other
similar representative thereof.
(34) Pledged Revenues: the Highway Users Tax
Revenues plus any income from the investment of Highway
Users Tax Revenues or proceeds of Bonds payable therefrom.
(35) Preliminary Official Statement: the
Preliminary Official Statement, dated August 19 , 1992 ,
relating to the Bonds.
(36) Principal and Interest Account: the special
fund created and referred to in Section 5C hereof.
(37) Project: the acquisition of land and
construction, installation and equipping of a street
maintenance, vehicle storage and incidental administration
building, together with all necessary incidental and
appurtenant properties, facilities, equipment and costs.
(38) Purchaser: Dain Bosworth Incorporated and
its associates, if any.
(39) Redemption Date: the date fixed for
redemption prior to maturity of any Bonds or other
designated securities payable from the Pledged Revenues in
any notice of prior redemption authorized by the City or
otherwise.
(40) Redemption Price: the principal amount of
any Bond or other designated security payable from the
Pledged Revenues plus accrued interest thereon to the
Redemption Date plus the applicable premium, if any, payable
upon redemption thereof prior to the Maturity Date of such
Bond or other security.
(41) Registrar: the Financial Officer of the
city, or his successors.
(42) Regular Record Date: the fifteenth day of
the calendar month next preceding an Interest Payment Date
for the Bonds.
(43) Reserve Account: the special fund created
and referred to in Section 5D hereof.
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(44) Securities Depository: The Depository Trust
Company, a limited purpose trust company organized under the
laws of New York.
(45) Security or securities: any bond issued by
the City or any other evidence of the advancement of money
to the City.
(46) Special Record Date: the date fixed by the
Paying Agent for the determination of ownership of Bonds or
the purpose of paying interest not paid when due or interest
accruing after maturity.
(47) State: the State of Colorado.
(48) Subordinate Bonds or Subordinate Securities:
bonds or securities payable from the Pledged Revenues having
a lien thereon subordinate or junior to the lien thereon of
the Bonds.
(49) Superior Bonds or Superior Securities: bonds
or securities payable from the Pledged Revenues having a
lien thereon superior or senior to the lien thereon of the
Bonds.
(50) Tax Code: the Internal Revenue Code of 1986,
as amended.
(51) Transfer Agent: the Financial Officer of the
City, or his successors.
(52) Trust Bank: a Commercial Bank which is
authorized to exercise and is exercising trust powers.
B. Construction. This Ordinance, except where the
context by clear implication herein otherwise requires, shall be
construed as follows:
(1) Words in the singular number include the
plural, and words in the plural include the singular.
(2) Words in the masculine gender include the
feminine and the neuter, and when the sense so indicates
words of the neuter gender refer to any gender.
(3) Articles, sections, subsections, paragraphs
and subparagraphs mentioned by number, letter, or otherwise,
correspond to the respective articles, sections,
subsections, paragraphs and subparagraphs of this Ordinance
so numbered or otherwise so designated.
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(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.
Section 2 . Recitals.
A. Authority. Pursuant to article XX, S6 of the
Colorado Constitution and Article V, Section 19.3 of the Charter,
the City is authorized by Council action and without an election
to issue the Bonds payable solely from the Pledged Revenues.
B. Necessity. The City has need for and desires to
acquire, construct, install and equip the Project. The Council
hereby determines that it is necessary and in the best interests
of the City and its inhabitants that the Bonds be now issued in
accordance with the provisions of this Ordinance in order to
provide funds to pay the Cost of the Project.
Section 3 . The Bonds.
A. Authorization. The Bonds are hereby authorized to
be issued for the aforesaid purpose.
B. Bond Details.
(1) Generally. The Bonds shall be issued in fully
registered form and shall initially be registered in the name of
the Securities Depository or a nominee therefor. Purchases by
Beneficial Owners shall be made in book-entry form in the
principal amount of $5, 000 or any integral multiple thereof. The
Beneficial Owners shall not receive certificates evidencing their
interests in the Bonds. No Bond shall be issued in any
denomination larger than the aggregate principal amount maturing
on the Maturity Date of such Bond and that no Bond shall be made
payable on more than one Maturity Date.
Pursuant to the recommendations of the Committee on
Uniform Security Identification Procedures, CUSIP numbers may be
printed on the Bonds.
The Bonds shall mature on December 1 in the following
years in the following aggregate principal amounts and shall bear
interest from August 15, 1992 , 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
Year Amounts Interest Rates
1993 $120, 000 3 .250%
1994 125, 000 3 .900
1995 130, 000 4 . 350
1996 135,000 4. 650
1997 145, 000 4 .900
1998 150,000 5. 100
1999 155, 000 5.250
2000 165, 000 5.450
2001 175, 000 5.500
2002 185,000 5. 600
2003 195, 000 5.700
2004 205, 000 5. 900
2007 690, 000 6. 100
2012 1, 480, 000 6. 375
Said interest shall be payable on December 1, 1992 , and
semiannually thereafter on the first day of June and the first
day of December of each year. If upon presentation at maturity
the principal of any Bond is not paid as provided herein,
interest shall continue thereon at the same interest rate until
the principal is paid in full.
The Debt Service Requirements of the Bonds shall be
payable in lawful money of the United States of America, to the
Owners of the Bonds by the Paying Agent. The principal and the
final installment of interest shall be payable to the Owner of
each Bond upon presentation and surrender thereof at maturity or
upon prior redemption by check or draft mailed to the Owner at
the address appearing on the registration books of the City
maintained by the Registrar or by wire transfer to such bank or
other depository as the Owner shall designate in writing to the
Paying Agent. Except as hereinbefore and hereinafter provided,
the interest shall be payable to the Owner of each Bond
determined as of the close of business on the Regular Record
Date, irrespective of any transfer of ownership of the Bond
subsequent to the Regular Record Date and prior to the Interest
Payment Date, by check or draft or wire transfer directed to such
Owner as aforesaid. Any interest not paid when due and any
interest accruing after maturity shall be payable to the Owner of
each Bond entitled to receive such interest determined as of the
close of business on the Special Record Date, irrespective of any
transfer of ownership of the Bond subsequent to the Special
Record Date and prior to the date fixed by the Paying Agent for
the payment of such interest, by check or draft or wire transfer
directed to such Owner as aforesaid. Notice of the Special
Record Date and of the date fixed for the payment of such
interest shall be given by sending a copy thereof by certified or
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registered first-class, postage prepaid mail, at least fifteen
(15) days prior to the Special Record Date, to the Owner of each
Bond upon which interest will be paid determined as of the close
of business on the day preceding such mailing at the address
appearing on the registration books of the City. Any premium
shall be payable to the Owner of each Bond redeemed upon
presentation and surrender thereof upon prior redemption by check
or draft or wire transfer directed to such Owner as aforesaid.
If the date for making or giving any payment, determination or
notice described herein is a Saturday, Sunday, legal holiday or
any other day on which the office of the Paying Agent or
Registrar is authorized or required by law to remain closed, such
payment, determination or notice shall be made or given on the
next succeeding day which is not a Saturday, Sunday, legal
holiday or other day on which the office of the Paying Agent or
Registrar is authorized or required by law to remain closed.
So long as the Owner of any Bond is the Securities
Depository or a nominee therefor, the Securities Depository shall
disburse any payments received, through its Participants or
otherwise, to the Beneficial Owners.
Neither the City nor the Paying Agent shall have any
responsibility or obligation for the payment to any Participant,
any Beneficial Owner or any other Person (except an Owner of
Bonds) of the Debt Service Requirements of the Bonds.
Notwithstanding any other provision of this Ordinance
to the contrary, so long as any Bond is registered in the name of
Cede & Co. , as nominee for the Securities Depository, all
payments with respect to Debt Service Requirements of such Bond
shall be made in the manner provided in the Letter of
Representations.
(2) Redemption. Bonds maturing in the years 1993
through 2002 shall not be subject to optional redemption prior to
their respective Maturity Dates. Bonds maturing in the year 2003
and thereafter shall be subject to optional redemption prior to
their respective Maturity Dates, in whole or in part in inverse
order of maturity and by lot within a maturity, on December 1,
2002, 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.
Bonds maturing in the year 2007 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
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redeemed on December 1 in the following years in the following
aggregate principal amounts:
Years Principal Amounts
2005 $215, 000
2006 230, 000
2007 245, 000
Bonds maturing in the year 2012 shall also be subject
to mandatory sinking fund redemption prior to their Maturity
Date, by lot, on the dates specified below at a price equal to
the principal amount of each Bond so redeemed plus accrued
interest thereon to the Redemption Date. Such Bonds shall be
redeemed on December 1 in the following years in the following
aggregate principal amounts:
Years Principal Amounts
2008 $260, 000
2009 275, 000
2010 295, 000
2011 315, 000
2012 335, 000
Bonds which are redeemable prior to their respective
Maturity Dates may be redeemed in part if issued in denominations
which are integral multiples of $5, 000. Such Bonds shall be
treated as representing a corresponding number of separate Bonds
in the denomination of $5,000 each. Any such Bond to be redeemed
in part shall be surrendered for partial redemption in the manner
hereinafter provided for transfers of ownership. Upon payment of
the Redemption Price of any such Bond redeemed in part, the Owner
thereof shall receive a new Bond or Bonds of authorized
denominations in aggregate principal amount equal to the
unredeemed portion of the Bond surrendered.
Unless waived by the Owners of any Bonds to be
redeemed, notice of redemption of any Bonds 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 not less
than thirty (30) nor more than sixty (60) days prior to the
Redemption Date, to the Owner of each of the Bonds being redeemed
determined as of the close of business on the day preceding the
first mailing of such notice at the address appearing on the
registration books of the City. Such notice shall specify the
number or numbers of the Bonds to be redeemed, whether in whole
or in part, the principal amounts thereof, and the date fixed for
redemption and shall further state that on the Redemption Date
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there will be due and payable upon each Bond or part thereof so
to be redeemed the Redemption Price and that from and after such
date interest will cease to accrue. In addition, the Paying
Agent is hereby authorized to give such other or further notice
as may be required by law and to comply with any operational
procedures and requirements of the Securities Depository relating
to redemption of Bonds and notice thereof. Failure to mail any
notice as aforesaid or any defect in any notice so mailed with
respect to any Bond shall not affect the validity of the
redemption proceedings with respect to any other Bond. Any Bonds
redeemed prior to their respective Maturity Dates by call for
prior redemption or otherwise shall not be reissued and shall be
cancelled the same as Bonds paid at or after maturity.
Notwithstanding any other provision of this Ordinance
to the contrary, so long as any Bond is registered in the name of
Cede & Co. , as nominee for the Securities Depository, all notices
with respect to the Bonds shall be given in the manner provided
in the Letter of Representations.
(3) Interest Rates. The maximum net effective
interest rate authorized for the Bonds is 15% per annum, and the
actual net effective interest rate for the Bonds is 6. 160% per
annum.
(4) Execution and Authentication. The Bonds shall be
executed by and on behalf of the City with the facsimile or
manual signature of the Mayor, shall bear a facsimile or manual
impression of the seal of the City, shall be attested with the
facsimile or manual signature of the City Clerk, shall be
countersigned with the facsimile or manual signature of the
Financial Officer of the City, and shall be authenticated with
the manual signature of the Registrar. Should any officer whose
facsimile or manual signature appears on the Bonds cease to be
such officer before delivery of the Bonds to the Purchaser, such
facsimile or manual signature shall nevertheless be valid and
sufficient for all purposes. No Bond shall be valid or become
obligatory for any purpose or be entitled to an 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.
(5) Registration Transfer and Exchange. Upon their
execution and authentication and prior to their delivery the
Bonds shall be registered for the purpose of payment of principal
and interest with the Registrar. Initially, each Bond shall be
registered in the name of the Securities Depository or a nominee
therefor. Except as hereinafter provided, all of the Bonds shall
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continue to be registered in the name of the Securities
Depository or a nominee therefor. To the extent that typewritten
Bonds, rather than printed Bonds, are to be delivered, such
modifications to the form of Bond as may be necessary or
desirable in such case are hereby authorized and approved. There
shall be no substantive change to the terms and conditions set
forth in the form of Bond, except as otherwise authorized by this
Ordinance or any amendment thereto.
Neither the City nor the Registrar shall have any
responsibility or obligation with respect to the accuracy of the
records of the Securities Depository or a nominee therefor or any
Participant regarding any ownership interest in the Bonds or the
delivery to any Participant, Beneficial Owner, or any other
Person (except an Owner of Bonds) of any notice with respect to
the Bonds.
The Bonds shall be transferable only upon the
registration books of the City by the Transfer Agent at the
request of the Owner thereof or his, her or its duly authorized
attorney-in-fact or legal representative. The Registrar or
Transfer Agent shall accept a Bond for registration or transfer
only if the Owner is to be an individual, a corporation, a
partnership, or a trust. A Bond may be transferred upon
surrender thereof together with a written instrument of transfer
duly executed by the Owner or his, her or its duly authorized
attorney-in-fact or legal representative with guaranty of
signature satisfactory to the Transfer Agent, containing written
instructions as to the details of the transfer, along with the
social security number or federal employer identification number
of the transferee and, if the transferee is a trust, the names
and social security numbers of the settlors and the beneficiaries
of the trust. The Transfer Agent shall not be required to
transfer ownership of any Bond during the fifteen (15) days prior
to the first mailing of any notice of redemption or to transfer
ownership of any Bond selected for redemption on or after the
date of such mailing. The Owner of any Bond or Bonds may also
exchange such Bond or Bonds for another Bond or Bonds of
authorized denominations. Transfers and exchanges shall be made
without charge, except that the Transfer Agent may require
payment of a sum sufficient to defray any tax or other
governmental charge that may hereafter be imposed in connection
with any transfer or exchange of Bonds. No transfer of any Bond
shall be effective until entered on the registration books of the
City. In the case of every transfer or exchange, the Registrar
shall authenticate and the Transfer Agent shall deliver to the
new Owner a new Bond or Bond of the same aggregate principal
amount, maturing in the same year, and bearing interest at the
same per annum interest rate as the Bond or Bonds surrendered.
Such Bond or Bonds shall be dated as to their date of
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authentication. New Bonds delivered upon any transfer or
exchange shall be valid obligations of the City, evidencing the
same obligation as the Bonds surrendered, shall be secured by
this ordinance, and shall be entitled to all of the security and
benefits hereof to the same extent as the Bonds surrendered. The
City may deem and treat the Person in whose name any Bond is last
registered upon the books of the City as the absolute owner
thereof for the purpose of receiving payment of the Debt Service
Requirements of such Bond and for all other purposes, and all
such payments so made to such Person or upon his, her or its
order shall be valid and effective to satisfy and discharge the
liability of the City upon such Bond to the extent of the sum or
sums so paid, and the City shall not be affected by any notice to
the contrary.
Neither the City nor the Transfer Agent shall have any
responsibility or obligation with respect to the accuracy of the
records of the Securities Depository or a nominee therefor or any
Participant regarding any ownership interest in the Bonds or
transfers thereof.
(6) Resignation or Removal of Securities Depository.
The City may remove the Securities Depository and the Securities
Depository may resign by giving sixty (60) days, written notice
to the other of such removal or resignation. Additionally, the
Securities Depository shall be removed sixty (60) days after
receipt by the City of written notice from the Securities
Depository to the effect that the Securities Depository has
received written notice from Participants having interests, as
shown in the records of the Securities Depository, in an
aggregate principal amount of not less than fifty percent (50%)
of the aggregate principal amount of the then outstanding Bonds
to the effect that the Securities Depository is unable or
unwilling to discharge its responsibilities or a continuation of
the requirement that all of the outstanding Bonds be registered
in the name of the Securities Depository or a nominee therefor is
not in the best interests of the Beneficial Owners. Upon the
removal or resignation of the Securities Depository, the
Securities Depository shall take such action as may be necessary
to assure the orderly transfer of the computerized book-entry
system with respect to the Bonds to a successor securities
depository or, if no successor securities depository is appointed
as herein provided, the transfer of the Bonds in certificate form
to the Beneficial Owners or their designees. Upon the giving of
notice by the City of the removal of the Securities Depository,
the giving of notice by the Securities Depository of its
resignation or the receipt by the City of notice with respect to
the written notice of Participants referred to herein, the City
may, within sixty (60) days after the giving of such notice,
appoint a successor securities depository upon such terms and
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conditions as the City shall impose. Any such successor
securities depository shall at all times be a registered clearing
agency under the Securities and Exchange Act of 1934, as amended,
or other applicable statute or regulation, and in good standing
thereunder. If the City fails to appoint a successor securities
depository within such time period, the Bonds shall no longer be
restricted to being registered in the name of the Securities
Depository or a nominee therefor, but may be registered in
whatever name or names registered owners transferring or
exchanging Bonds shall designate.
(7) Replacement of Bonds. If any Bond shall have been
lost, destroyed or wrongfully taken, the City shall provide for
the replacement thereof in the manner set forth and upon receipt
of the evidence, indemnity bond and reimbursement for expenses
provided in Section 8-41 of the Code.
(8) Recitals in Bonds. Each Bond shall recite in
substance that it is payable solely from the Pledged Revenues and
that it is not payable in whole or in part from ad valorem taxes
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 Constitution of the State, the Charter and this Ordinance.
(9) Form of Bonds. The Bonds shall be in
substantially the following form:
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(Form of Bond)
(Text of Face)
UNITED STATES OF AMERICA
STATE OF COLORADO COUNTY OF LARIMER
CITY OF FORT COLLINS
HIGHWAY USERS TAX REVENUE BOND
SERIES 1992
No. R- $
Interest Maturity Original
Rate Date Date CUSIP
December 1, August 15, 1992
REGISTERED OWNER: Cede & Co.
PRINCIPAL SUM:
The City of Fort Collins, in the County of Larimer and
State of Colorado, for value received, hereby promises to pay to
the Registered Owner (specified above) , or registered assigns,
solely from the special funds provided therefor, as hereinafter
set forth, the Principal Sum (specified above) , in lawful money
of the United States of America, on the Maturity Date (specified
above) , with interest thereon from the Original Date (specified
above) , or the interest payment date to which interest has been
paid next preceding the date hereof, whichever is later, to the
Maturity Date, except if redeemed prior thereto, at the per annum
Interest Rate (specified above) , payable semiannually on the
first day of June and the first day of December of each year,
commencing on December 1, 1992 , or the first such date after the
date hereof whichever is later, in the manner provided herein.
If upon presentation at maturity payment of the Principal Sum of
this Bond is not made as provided herein, interest is to continue
at the Interest Rate until the Principal Sum is paid in full.
BD24474 .A(PF) 71 08/20/92
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS BOND SET FORTH ON THE REVERSE HEREOF.
This Bond is a special and limited obligation of the
City payable solely out of and secured by an irrevocable
assignment and pledge (but not necessarily an exclusive
assignment and pledge) of the revenues distributed to the City
from the highway users tax fund of the State of Colorado created
pursuant to part 2 of article 4 of title 43 , Colorado Revised
Statutes, as amended, plus any income from the investment thereof
or of bond proceeds. This Bond does not constitute a debt or an
indebtedness of the City within the meaning of any
constitutional, charter or statutory provision or limitation of
the State of Colorado or of the City. This Bond is not payable
in whole or in part from ad valorem taxes of the City, and the
full faith and credit of the City is not pledged for the payment
of the principal of or interest on this Bond.
IN WITNESS WHEREOF, the City has caused this Bond to be
executed in its name and on its behalf with the facsimile or
manual signature of the Mayor of the City, to be sealed with a
facsimile or manual impression of the seal of the City, to be
attested with the facsimile or manual signature of the City Clerk
of the City and to be countersigned with the facsimile or manual
signature of the Financial Officer of the City.
CITY OF FORT COLLINS, COLORADO
(CITY) By: (Facsimile or Manual Signature)
(SEAL) Mayor
ATTEST:
(Facsimile or Manual Signature)
City Clerk
Countersigned:
(Facsimile or Manual Signature)
Financial Officer
BD24474 .A(PF) 72 08/20/92
CERTIFICATE OF AUTHENTICATION
This Bond is issued pursuant to the Ordinance therein described.
Printed on the reverse hereof is the complete text of the opinion
of bond counsel, Ballard Spahr Andrews & Ingersoll, Denver,
Colorado, a signed copy of which, dated the date of the first
delivery of the Bonds therein described, is on file with the
undersigned.
FINANCIAL OFFICER OF THE CITY OF FORT COLLINS, COLORADO
as registrar
By: (Manual Signature)
Authorized Signatory
Dated:
BD24474 .A(PF) 73 08/20/92
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of this Bond, shall be construed as
though they were written out in full according to applicable laws
or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants in
common
UNIF TRANS MIN ACT - Custodian
(Cust) (Mln r)
under Uniform Transfers to Minors Act
(State)
Additional abbreviations may also be used
though not on the above list.
BD24474 .A(PF) 74 08/20/92
(Text of Reverse)
Bonds maturing in the years 1993 through 2002 are not
subject to optional redemption prior to their respective maturity
dates. Bonds maturing in the year 2003 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, 2002 , 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.
Bonds maturing in the year 2007 are also subject to
mandatory sinking fund redemption prior to their maturity date,
by lot, on the dates specified below at a price equal to the
principal amount of each Bond so redeemed plus accrued interest
thereon to the redemption date. Such Bonds are to be redeemed on
December 1 in the following years in the following aggregate
principal amounts:
Years Principal Amounts
2005 $215, 000
2006 230, 000
2007 245, 000
Bonds maturing in the year 2012 are also subject to
mandatory sinking fund redemption prior to their maturity date,
by lot, on the dates specified below at a price equal to the
principal amount of each Bond so redeemed plus accrued interest
thereon to the redemption date. Such Bonds are to be redeemed
on December 1 in the following years in the following aggregate
principal amounts:
Years Principal Amounts
2008 $260, 000
2009 275, 000
2010 295, 000
2011 315, 000
2012 335, 000
Bonds which are redeemable prior to their respective
maturity dates may be redeemed in part if issued in denominations
which are integral multiples of $5, 000. 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.
BD24474 .A(PF) 75 08/31/92
unless waived by the registered owners of any Bonds to
be redeemed, notice of redemption of any Bonds is to be given by
the paying agent in the name of the City by sending a copy of
such notice by certified or registered first-class postage
prepaid mail not less than thirty (30) nor more than sixty (60)
days prior to the redemption date, to the registered owner of
each of the Bonds being redeemed determined as of the close of
business on the day preceding the first mailing of such notice at
the address appearing on the registration books of the City.
Such notice is to specify the number or numbers of the Bonds to
be redeemed, whether in whole or in part, the principal amounts
thereof, and the date fixed for redemption and is further to
state that on the redemption date there will be due and payable
upon each Bond or part thereof so to be redeemed the principal
amount or part thereof plus accrued interest thereon to the
redemption date plus any premium due and that from and after such
date interest will cease to accrue. In addition, the paying
agent is authorized to give such other or further notice as may
be required by law and to comply with any operational procedures
and requirements of The Depository Trust Company relating to
redemption of Bonds and notice thereof. Failure to mail any
notice as aforesaid or any defect in any notice so mailed with
respect to any Bond does not affect the validity of the
redemption proceedings with respect to any other Bond.
The principal of, interest on and any premium due in
connection with the redemption of this Bond are payable to the
Registered Owner by the Financial Officer of the City, or
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 by check or draft mailed to the Registered Owner at
the address appearing on the registration books of the City
maintained by the Financial Officer of the City, or his
successors, as registrar, or by wire transfer to such bank or
other depository as the Registered Owner shall designate in
writing to the paying agent. Except as hereinbefore and
hereinafter provided, the interest is payable to the Registered
Owner determined as of the close of business on the regular
record date, which is the fifteenth day of the calendar month
next preceding the interest payment date, irrespective of any
transfer of ownership hereof subsequent to the regular record
date and prior to such interest payment date, by check or draft
or wire transfer directed to the Registered Owner as aforesaid.
Any interest hereon not paid when due and any interest hereon
accruing after maturity is payable to the Registered Owner
determined as of the close of business on the special record
date, which is to be fixed by the paying agent for such purpose,
irrespective of any transfer of ownership of this Bond subsequent
to such special record date and prior to the date fixed by the
BD24474 .A(PF) 76 08/31/92
paying agent for the payment of such interest, by check or draft
or wire transfer directed to the Registered Owner as aforesaid.
Notice of the special record date and of the date fixed for the
payment of such interest is to be given by sending a copy thereof
by certified or registered first-class postage prepaid mail, at
least fifteen (15) days prior to the special record date, to the
registered owner of each Bond upon which interest will be paid
determined as of the close of business on the day preceding such
mailing at the address appearing on the registration books of the
City. Any premium is payable to the Registered Owner upon
presentation and surrender of this Bond upon prior redemption by
check or draft or wire transfer directed to the Registered Owner
as aforesaid. If the date for making or giving any payment,
determination or notice described herein is a Saturday, Sunday,
legal holiday or any other day on which the office of the paying
agent or registrar is authorized or required by law to remain
closed, such payment, determination or notice is to be made or
given on the next succeeding day which is not a Saturday, Sunday,
legal holiday or other day on which the office of the paying
agent or registrar is authorized or required by law to remain
closed.
So long as the Registered Owner is the securities
depository or a nominee therefor, the securities depository is to
disburse any payments received, through its participants or
otherwise, to the beneficial owner or owners hereof.
Neither the City nor the paying agent has any
responsibility or obligation for the payment to any participant,
any beneficial owner hereof or any other person or entity (except
the Registered Owner) of the principal of, interest on or any
premium due in connection with the redemption of this Bond.
Neither the City nor the registrar has any
responsibility or obligation with respect to the accuracy of the
records of the securities depository or a nominee therefor or any
participant with respect to any ownership interest in the Bonds
or the delivery to any participant, beneficial owner or any other
person or entity (except the Registered Owner) of any notice with
respect to the Bonds.
Payment of the principal of, interest on and any
premium due in connection with the redemption of this Bond is to
be made solely from, and as security for such payment there are
irrevocably (but not necessarily exclusively) assigned and
pledged, pursuant to the Ordinance authorizing the issuance of
the Bonds, two special funds identified as the "City of Fort
Collins, Colorado, Highway Users Tax Revenue Bonds, Principal and
Interest Account" and the "City of Fort Collins, Colorado,
Highway Users Tax Revenue Bonds Reserve Account, " into which
BD24474 .A(PF) 77 08/31/92
funds the City has covenanted in the Ordinance to pay,
respectively, from the revenues distributed to the City from the
highway users tax fund of the State of Colorado created pursuant
to part 2 of article 4 of title 43 , Colorado Revised Statutes, as
amended, plus certain investment income sums sufficient to pay
when due the principal of, interest on and any premium due in
connection with the redemption of the Bonds of this issue and any
parity securities issued and payable from such revenues and to
accumulate and maintain a specified reserve for such purposes.
In addition, the City may at its option augment such funds with
any other money 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 this Bond the City has created and will maintain
said special funds and will deposit the aforesaid sums therein
out of the revenues and investment income specified in the
Ordinance and out of said special funds, as an irrevocable charge
thereon, will pay this Bond and the interest thereon in the
manner provided by the Ordinance.
The Bonds are equitably and ratably secured by a lien
on the aforesaid revenues, and such Bonds constitute an
irrevocable and first lien (but not necessarily an exclusive
first lien) thereon. 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 aforesaid
revenues and investment income 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 aforesaid revenues
and investment income are assigned, pledged and set aside to the
payment of the Bonds of this issue in anticipation of the
collection of the aforesaid revenues.
The City covenants and agrees with the Registered Owner
that it will keep and will perform all of the covenants of this
Bond and of the Ordinance.
This Bond is authorized and issued for the purpose of
acquiring land and constructing, installing and equipping a
street maintenance, vehicle storage and incidental administration
building together with all necessary incidental and appurtenant
properties, facilities, equipment and costs, pursuant to, by
virtue of, and in full conformity with the Constitution of the
State of Colorado, the Home Rule Charter of the City, and all
other laws of the State of Colorado thereunto enabling, and
BD24474 .A(PF) 78 08/31/92
pursuant to the Ordinance duly adopted prior to the issuance of
this Bond.
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 and accounts
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 and
the rights, duties, immunities and obligations of the City and
the members of its Council and also the rights and remedies of
the Registered Owner hereof.
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 investment income 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 Home Rule Charter of the City, 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 Home Rule Charter of the City; and that this
Bond is issued under the authority of the Ordinance.
This Bond is transferable only upon the registration
books of the City by the Financial Officer of the City, or his
successors, as transfer agent, at the request of the Registered
Owner or his, her or its duly authorized attorney-in-fact or
legal representative, upon surrender hereof together with a
written instrument of transfer duly executed by the Registered
BD24474 .A(PF) 79 08/31/92
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 beneficiaries of the trust. The transfer
agent is not required to transfer ownership of this Bond during
the fifteen (15) days prior to the first mailing of any notice of
redemption or to transfer ownership of any Bond selected for
redemption on or after the date of such mailing. The Registered
Owner may also exchange this Bond for another Bond or Bonds of
authorized denominations. Transfers and exchanges are to be made
without charge, except that the transfer agent may require
payment of a sum sufficient to defray any tax or other
governmental charge that may hereafter be imposed in connection
with any transfer or exchange of Bonds. No transfer of this Bond
is to be effective until entered on the registration books of the
City. In the case of every transfer or exchange, the registrar
is to authenticate and the transfer agent is to deliver to the
new registered owner a new Bond or Bonds of the same aggregate
principal amount, maturing in the same year, and bearing interest
at the same per annum interest rate as the Bond or Bonds
surrendered. Such Bond or Bonds are to be dated as of their date
of authentication. The City may deem and treat the person or
entity in whose name this Bond is last registered upon the books
of the City as the absolute owner hereof for the purpose of
receiving payment of the principal of, 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.
Neither the City nor the transfer agent has any
responsibility or obligation with respect to the accuracy of the
records of the securities depository or its participants
regarding any ownership interest in the Bonds or transfers
thereof.
The City may remove the securities depository and the
securities depository may resign by giving sixty (60) days'
written notice to the other of such removal or resignation.
Additionally, the securities depository is to be removed sixty
(60) days after receipt by the City of written notice from the
securities depository to the effect that the securities
depository has received written notice from participants having
interests, as shown in the records of the securities depository,
in an aggregate principal amount of not less that fifty percent
BD24474 .A(PF) 80 08/31/92
(50%) of the aggregate principal amount of the then outstanding
Bonds to the effect that the securities depository is unable or
unwilling to discharge its responsibilities or a continuation of
the requirement that all of the outstanding Bonds be registered
in the name of the securities depository or a nominee therefor is
not in the best interests of the beneficial owners. Upon the
removal or resignation of the securities depository, the
securities depository is to take such action as may be necessary
to assure the orderly transfer of the computerized book-entry
system with respect to the Bonds to a successor securities
depository or, if no successor securities depository is appointed
as herein provided, the transfer of the Bonds in certificate form
to the beneficial owners or their designees. Upon the giving of
notice by the City of the removal of the securities depository,
the giving of notice by the securities depository of its
resignation or the receipt by the City of notice with respect to
the written notice by participants referred to herein, the City
may, within sixty (60) days after the giving of such notice,
appoint a successor securities depository upon such terms and
conditions as the City shall impose. Any such successor
securities depository must at all times be a registered clearing
agency under the Securities and Exchange Act of 1934 , as amended,
or other applicable statute or regulation and in good standing
thereunder. If the City fails to appoint a successor securities
depository within such time period, the Bonds are no longer to be
restricted to being registered in the name of the securities
depository or a nominee therefor, but may be registered in
whatever name or names registered owners transferring or
exchanging Bonds shall designate.
BD24474 .A(PF) 81 08/31/92
(Assignment)
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee)
this Bond and does hereby irrevocably constitute and appoint
, or its
successors, to transfer this Bond on the books kept for
registration thereof.
Dated:
Signature guaranteed:
(Bank, Trust Company or Firm)
NOTICE: The signature to this
assignment must correspond with
the name of the Registered Owner
as it appears upon the face of
this Bond in every particular
without alternation or
enlargement or any change
whatever.
[End of Form of Bond]
BD24474 .A(PF) 82 08/20/92
C. Bonds Equally Secured. The covenants and
agreements herein set forth to be performed on behalf of the City
shall be for the equal benefit, protection and security of the
Owners of any and all of the Bonds, all of which, regardless of
the time or times of their maturity, shall be of equal rank
without preference, priority or distinction of any of the Bonds
over any other thereof, except as otherwise expressly provided in
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 Owner or Owners of any of the Bonds
may not look to any general or other fund of the City for the
payment of the Debt Service Requirements thereof, except the
special funds pledged therefor, and the Bonds shall not be
considered or held to be general obligations of the City but
shall constitute special and limited obligations of the City.
The Bonds are not payable in whole or in part from ad valorem
taxes of the City, and the full faith and credit of the City is
not pledged for payment of the Bonds.
Section 4. Sale of Bonds.
A. Purchaser's Proposal. A proposal for the purchase
of the Bonds upon terms favorable to the City has been received
from the Purchaser, and the Financial Officer of the City has
recommended that said proposal be accepted by the Council.
B. Award of Contract; Execution of Bond Purchase
Agreement. The contract for the purchase of the Bonds is hereby
awarded to the Purchaser at the price specified in the Bond
Purchase Agreement and upon the terms set forth in this
Ordinance. The City Manager is hereby authorized to execute the
Bond Purchase Agreement on behalf of the City.
C. Approval of Preliminary Official Statement. The
Council hereby approves the Preliminary Official Statement and
ratifies the use and distribution thereof by the Purchaser in
marketing the Bonds.
Section 5. Disposition of Bond Proceeds and Pledged
Revenues; Funds and Accounts Created by Ordinance; Security For
Bonds. The proceeds of the Bonds and the Pledged Revenues
received by the City shall be deposited by the City in the funds
and accounts described in this Section 5, to be accounted for in
the manner and priority set forth in this Section 5.
Neither the Purchaser nor any subsequent Owner of any
Bonds shall in any manner be responsible for the application or
disposal by the City or any of its officers, agents and employees
BD24474 .A(PF) 83 08/27/92
of the moneys derived from the sale of the Bonds or of any other
moneys designated in this Section 5.
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 are hereby assigned and pledged to secure the payment
of the Debt Service Requirements of the Bonds and any other
Parity Securities 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. The City shall
deposit in a separate special fund hereby created and designated
as the "City of Fort Collins, Colorado, Highway Users Tax Revenue
Bonds, Construction Account, " forthwith upon receipt thereof, the
proceeds of the Bonds (excluding any accrued interest) to be used
and withdrawn only as provided in this Section 5A. The proceeds
of the Bonds deposited in the Construction Account shall be used
and paid out from time to time solely for the purpose of paying
the Cost of the Project. Any surplus proceeds of the Bonds
remaining in the Construction Account after payment in full of
the Cost of the Project may be transferred to the Principal and
Interest Account and used for the purposes thereof, may be used
to the extent feasible to call and redeem Bonds in advance of
maturity or may be used to pay the costs of other public
improvements payable from the Highway Users Tax Revenues.
B. Disposition of Pledged Revenues. For so long as
any of the Bonds shall be Outstanding, as to any Debt Service
Requirements, except as otherwise provided herein, the entire
Pledged Revenues, upon receipt thereof from time to time by the
City, shall be set aside and credited immediately to a separate
special fund hereby created and designated as the "City of Fort
Collins, Colorado, Highway Users Tax Revenue Account. " For so
long as any of the Bonds shall be Outstanding, as to any Debt
Service Requirements, the Pledged Revenues in the Highway Users
Tax Revenue Account shall be accumulated and administered, and
BD24474 .A(PF) 84 08/26/92
the moneys on deposit therein shall be applied, in the following
order of priority:
(1) First, to the 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 Reserve Account, in the manner
set forth in Section 5D hereof;
(3) Third, to the payment of Debt Service
Requirements of Subordinate Bonds or other Subordinate
Securities in accordance with Section 5F hereof; and
(4) Fourth, to be used in accordance with
Section 5G hereof.
C. Principal and Interest Account Payments. The City
shall deposit in a separate special fund hereby created and
designated as the "City of Fort Collins, Colorado, Highway Users
Tax Revenue Bonds, 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 Principal and Interest
Account on or before the last day of each month beginning August,
1992 , and ending November, 1992, the amount of interest accruing
on the Bonds during said month (with a credit for the amount of
any accrued interest deposited in the Principal and Interest
Account and not theretofore credited) and on or before the last
day of each month beginning December, 1992 , the following
amounts:
(1) Interest Payments. One-sixth (1/6) of the
aggregate amount of the interest due on the Bonds 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 Bond and any other Parity Securities then
Outstanding.
(2) Principal Payments. One-twelfth (1/12) of
the aggregate amount of the principal due on the Bonds on
the next Maturity 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.
BD24474 .A(PF) 85 08/27/92
The moneys credited to the Principal and Interest
Account shall be used to pay the Debt Service Requirements of the
Bonds, any Additional Parity Bonds and any other Parity
Securities then Outstanding, as such Debt Service Requirements
become due, except as otherwise provided in this Ordinance.
Nothing herein shall be construed so as to prevent the
City from creating separate subaccounts within the 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 tax treatment of interest on any such
Additional Parity Bonds, provided that any such separate
subaccounts shall have claims to the Pledged Revenues equal to
and on a parity with those of the other such accounts or
subaccounts and any such separate principal and interest account
or subaccount shall have a claim to the Pledged Revenues equal to
and on a parity with that of the Principal and Interest Account.
D. Reserve Account Payments. The City shall deposit
in a separate special fund hereby created and designated as the
"City of Fort Collins, Colorado, Highway Users Tax Revenue Bonds,
Reserve Account, " forthwith upon receipt thereof, proceeds of
the Bonds in the approximate amount of $356,520 • Subject to the
payments required by Section 5C hereof, except as provided in
Section 5E hereof, from and to the extent of any Pledged Revenues
remaining in the Highway Users Tax Revenue Account, there shall
be credited as hereinafter provided and from time to time
thereafter to the Reserve Account Pledged Revenues sufficient to
accumulate in and maintain the Reserve Account at an amount equal
to ten percent (10%) of the proceeds (but not more than one
hundred twenty-five percent (125%) of the Combined Average Annual
Debt Service Requirements or one hundred percent (100%) of the
Combined Maximum Annual Debt Service Requirements) of all
Outstanding Bonds, Additional Parity Bonds and other Parity
Securities for which the Reserve Account is maintained. Said
amount shall be maintained as a continuing reserve for the
payment of the Debt Service Requirements of the Bonds, any
Additional Parity Bonds and any other Parity Securities for which
the Reserve Account is maintained. The amount, if any, by which
ten percent (10%) of the proceeds of the Bonds exceeds the sum
held in the Reserve Account on the date of issuance of the Bonds
shall be accumulated by depositing such difference to the Reserve
Account in five approximately equal annual installments payable
no later than December 1, 1992 , and on the same date in each of
the years 1993 through 1996, inclusive. No payment need be made
into the Reserve Account so long as the moneys therein shall
BD24474 .A(PF) 86 08/31/92
equal not less than said amount. In the event that the amount of
the Reserve Account falls below the minimum amount required to be
maintained therein, then the City shall credit to the Reserve
Account from the Pledged Revenues that sum of money needed to
accumulate or reaccumulate the amount therein so that at all
times the amount of the Reserve Account equals said minimum
amount. The moneys in the Reserve Account shall be set aside,
accumulated, and, if necessary, reaccumulated as provided herein,
from time to time, and maintained as a continuing reserve to be
used, except as hereinafter provided in Section 5E and Section 9
hereof, only to prevent deficiencies in the Principal and
Interest Account resulting from failure to deposit therein
sufficient sums to pay the Debt Service Requirements on the
Bonds, any Additional Party Bonds and any other Parity Securities
for which the Reserve Account is maintained as the same become
due.
If at any time the City shall for any reason fail to
pay into the Principal and Interest Account the full amount above
stipulated, then an amount shall be paid into the Principal and
Interest Account at such time from the Reserve Account equal to
the difference between that paid from the Pledged Revenues in the
Highway Users Tax Revenue Account and the full amount so
stipulated. The money so used shall be replaced to the Reserve
Account from the first Pledged Revenues credited to the Highway
Users Tax Revenue Account thereafter received and not required to
be otherwise applied by Section 5 hereof. If Additional Parity
Bonds are Outstanding and a separate reserve fund or account is
maintained therefor, then the moneys replaced in the Reserve
Account and such separate reserve fund or account shall be
replaced on a pro rata basis, as Pledged Revenues becomes
available therefor.
If at any time the City shall for any reason fail to
pay into the Reserve Account the full amount stipulated herein
from the Pledged Revenues credited to the Highway Users Tax
Revenue Account, the difference between the amount paid and the
amount so stipulated shall in a like manner be paid therein from
the first Pledged Revenues credited to the Highway Users Tax
Revenue Account thereafter received and not required to be
applied otherwise by Section 5C hereof.
Nothing in this Ordinance shall be construed as
limiting the right of the City to substitute for the cash deposit
required to be maintained hereunder a letter of credit, surety
bond, insurance policy, agreement guaranteeing payment or other
undertaking by a financial institution to ensure that cash in the
amount otherwise required to be maintained hereunder will be
available to the City as needed, provided that any such
substitution shall be submitted to Moody's Investors Service,
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Inc. and shall not cause the then-current rating of the Bonds to
be adversely affected.
E. Termination of Deposits. No payment need be made
into the Principal and Interest Account or the Reserve Account if
the amount in the Principal and Interest Account and the amount
in the Reserve Account equal a sum at least equal to the entire
amount of the Outstanding Bonds and any Outstanding Additional
Parity Bonds or other Parity Securities, as to all Debt Service
Requirements, to their respective Maturity Dates or to any
Redemption Date or Redemption Dates on which the City shall have
exercised or shall have obligated itself to exercise its option
to redeem prior to their respective Maturity Dates, any Bonds,
any Additional Parity Bonds and any other Parity Securities then
Outstanding, and thereafter maturing, both accrued and not
accrued, provided that, solely for the purpose of this
Section 5E, there shall be deemed to be a credit to the Reserve
Account of moneys, Federal Securities and bank deposits, or any
combination thereof, accounted for in any other account or
accounts of the City and restricted solely for the purpose of
paying the Debt Service Requirements of Bonds, Additional Parity
Bonds or other Parity Securities) , in which case moneys in the
Principal and Interest Account and the 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 Principal and Interest Account and the
Reserve Account and any other moneys derived from the Pledged
Revenues may be used in any lawful manner determined by the City.
F. Payment of Additional Subordinate Securities.
After there has been deposited to the Principal and Interest
Account an amount sufficient to pay all installments of principal
and interest then due on all Bonds, Additional Parity Bonds and
any other Parity Securities then Outstanding and after the
accumulations to and replenishments of the Reserve Account
required by Section 5D hereof have been made, any Pledged
Revenues remaining in the Highway Users Tax Revenue Account may
be used by the City for the payment or accumulation of Debt
Service Requirements of Subordinate Securities payable from the
Pledged Revenues and authorized to be issued in accordance with
the Charter, this Ordinance and any other provisions herein
supplemental thereto, including reasonable reserves for such
Subordinate Securities; but the lien of such Subordinate
Securities on the Pledged Revenues and the pledge thereof for the
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payment of such Subordinate Securities shall subordinate to the
lien and pledge of the Bonds, any Additional Parity Bonds and any
other Parity Securities as herein provided.
G. Use of Remaining Revenues. After there has been
deposited to the 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 any other Parity Securities then Outstanding and
after the accumulations to and replenishments of the Reserve
Account required by Section 5D hereof have been made and after
payment or provision for payment of Subordinate Securities has
been made in accordance with any ordinance authorizing the
issuance thereof, any remaining Pledged Revenues may be used for
any lawful purpose of the Highway Users Tax Revenue Account.
H. Budget and Appropriation of Sums. The sums
required to pay the Costs of the Project and 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
prohibit the Council from appropriating other funds of the City
legally available for this purpose to the Principal and Interest
Account or the Reserve Account for the purpose of providing for
the Debt Service Requirements of the Bonds.
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 or invested in accordance with
the Charter or City ordinances and kept separate and apart from
all other funds and accounts of the City as trust accounts solely
for the purposes herein designated therefor. For purposes of
investment of moneys, nothing herein prevents the commingling of
moneys accounted for in any two or more such funds or accounts
pertaining to the Pledged Revenues or to such fund or 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
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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 succeeding business day.
B. Investment of Funds and Accounts. Any moneys in
any fund or account described in this Ordinance may be deposited,
invested, or reinvested in any manner permitted by law.
Securities or obligations purchased as such an investment shall
either be subject to redemption at any time at face value by the
Owner thereof at the option of such Owner, or shall mature at
such time or times as shall most nearly coincide with the
expected need for moneys from the fund or account in question.
Securities or obligations so purchased as an investment of moneys
in any such fund or account shall be deemed at all times to be a
part of the applicable fund or account; provided that (except
with respect to the Reserve Account) the interest accruing on
such investments and any profit realized therefrom shall be
credited to the Highway Users Tax Revenue Account, 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 Reserve Account shall be
credited to the Reserve Account, provided that, so long as the
amount in the Reserve Account equals at least the minimum amount
specified in Section 5D hereof, such interest and profit may be
transferred to the Principal and Interest Account and distributed
in the same manner as other moneys in the Principal and Interest
Account. Any loss resulting from such investments in the Reserve
Account shall be charged to the Reserve Account. The City shall
present for redemption or sale on the prevailing market any
securities or obligations so purchased as an investment of moneys
in a given fund or account whenever it shall be necessary to do
so in order to provide moneys to meet any required payment or
transfer from such fund or account. The City shall have no
obligation to make any investment or reinvestment hereunder,
unless any moneys on hand and accounted for in any one account
exceeds $5, 000 and at least $5, 000 therein will not be needed or
a period of not less than sixty (60) days. In such event the
City shall invest or reinvest not less than substantially all of
the amount which will not be needed during such sixty-day period,
except for any moneys on deposit in an interest bearing account
in a Commercial Bank, without regard to whether such moneys are
evidenced by a certificate of deposit or otherwise, pursuant to
this Section 6B and Section 6D hereof; but the City is not
required to invest, or so to invest in such a manner, any moneys
accounted for hereunder if any such investment would contravene
the covenant concerning arbitrage in Section 80 hereof.
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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 investments permitted by Section 6B
hereof or both such money and such investments. Moneys deposited
in a demand or time deposit account in or evidenced by a
certificate of deposit of a Commercial Bank pursuant to Sections
6A and 6B hereof, appropriately secured according to the laws of
the State, shall be deemed lawful money of the United States of
America.
E. Accelerated Payments Optional. Nothing contained
herein prevents the accumulation in any fund or account herein
designated of any monetary requirements at a faster rate than the
rate or minimum rate, as the case may be, provided therefor, but
no payment shall be so accelerated if such acceleration shall
cause a default in the payment of any obligation of the City
pertaining to the Pledged Revenues. Nothing herein contained
requires in connection with the Pledged Revenues received in any
Fiscal Year the accumulation in any fund or account for the
payment of Debt Service Requirements due in connection with any
bonds or other securities payable from the Pledged Revenues and
heretofore, herein or hereafter authorized, in excess of any
reserves required to be accumulated and maintained therefor, and
of any existing deficiencies, and payable from such fund or
account, as the case may be, except as may be otherwise provided
herein.
Section 7 . Priorities • Liens; Issuance of Additional
Bonds and Additional Securities.
A. First 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 Pledged Revenues 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 Pledged Revenues. 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 Pledged Revenues and shall not
be entitled to any priority one over the other in the application
of the Pledged Revenues regardless of the time or times of the
issuance of the Bonds, any Additional Parity Bonds and any other
BD24474 .A(PF) 91 08/26/92
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.
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 Pledged Revenues and constituting a lien on the
Pledged Revenues on a parity with, but not prior or superior to,
the lien thereon of the Bonds; but before any such Additional
Parity Bonds are authorized or actually issued the City shall
satisfy the following conditions:
(1) Absence of Default. At the time of the
adoption of the supplemental ordinance or other instrument
authorizing the issuance of the Additional Parity Bonds as
provided in Section 7F hereof, the City shall not be in
default in making any payments required by Section 5 hereof.
(2) Pledged Revenues Test. Except as hereinafter
provided in the case of Additional Parity Bonds issued for
the purpose of refunding less than all of the Bonds and
other Parity Securities then Outstanding, the Pledged
Revenues for the last complete Fiscal Year prior to the
issuance of the proposed Additional Parity Bonds, as
certified by the Financial Officer of the City, must have
been equal to at least two hundred percent (200%) of the
Combined Average Annual Debt Service Requirements of the
Bonds then Outstanding, any Additional Parity Bonds then
Outstanding, and the Additional Parity Bonds proposed to be
issued. In the case of Additional Parity Bonds issued for
the purpose of refunding less than all of the Bonds and
other Parity Securities then Outstanding, compliance with
this Section 7B(2) shall not be required so long as the Debt
Service Requirements payable on all Bonds and other Parity
Securities Outstanding after the issuance of such Additional
Parity Bonds on each Interest Payment Date do not exceed the
Debt Service Requirements payable on all Bonds and other
Parity Securities Outstanding prior to the issuance of such
Additional Parity Bonds on such Interest Payment Dates.
(3) Adequate Reserves. The proceedings under
which any such Additional Parity Bonds are issued must
provide for the deposit of moneys to the Reserve Account on
substantially the same terms as provided in Section 5D
hereof and contain a covenant by the City to maintain the
Reserve Account in an amount at least equal to the amount
required by Section 5D hereof. Alternatively, if such
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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 Reserve Account) established and maintained for 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
at least 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 Reserve Account.
C. Certification of Pledged Revenues. In the case of
the computation of the Pledged Revenues test provided in
Section 7B(2) hereof, the specified and required written
certifications by the Financial Officer of the City that such
annual revenues are sufficient to pay such amounts as provided in
Section 7B(2) hereof shall be conclusively presumed to be
accurate in determining the right of the City to authorize,
issue, sell and deliver Additional Party Bonds.
D. Subordinate Securities Permitted. Nothing herein,
subject to the limitations stated in Section 7F hereof, prevents
the City from issuing Subordinate Bonds or Subordinate Securities
for any lawful purpose.
E. Superior Securities Prohibited. Nothing herein
permits the City to issue Superior Bonds or Superior Securities.
F. Supplemental Ordinances. Additional bonds or
other additional securities payable from any Pledged Revenues
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 Date or Maturity Dates, maximum rate or rates of
interest, and any prior redemption privileges of the City and
providing for payments to and from the Highway Users Tax Revenue
Account in accordance with this Ordinance. All additional
securities shall bear such date, shall be payable as to principal
on December 1 and as to interest on June 1 and December 1 an
shall be subject to redemption prior to maturity on such terms
and conditions as may be provided, and shall bear interest at
BD24474 .A(PF) 93 08/26/92
such rate or rates as may be fixed, by ordinance, instrument or
other document of the Council.
Section 8. Covenants. The City hereby particularly
covenants and agrees with the Owners of the Bonds from time to
time, and makes provisions which shall be a part of its contract
with such Owners, which covenants and provisions shall be kept by
the City continuously until all of the Bonds and the interest
thereon have been fully paid and discharged:
A. Collection of Highway Users Tax Revenues.
(1) The City shall (a) supply the State treasurer
with all required information regarding the number of
vehicles registered in the City on or before the dates
required by the Act, (b) spend all Bond proceeds and Pledged
Revenues for purposes authorized under the Act and (3)
comply with all other statutory requirements of the Act
necessary to avoid any forfeiture of the Highway Users Tax
Revenues or violation of the Act.
(2) The City shall maintain the Highway Users Tax
Revenue Account separate and distinct from all other funds
and accounts of the City and shall place the Pledged
Revenues therein. The Highway Users Tax Revenue Account
shall be subject to appropriation only as authorized by the
Charter and this Ordinance.
(3) All of the Pledged Revenues resulting from
the collection of the Highway Users Tax Revenues shall be
subject to the payment of the Debt Service Requirements of
all securities payable from the Pledged Revenues, including
reserves therefor as provided herein or in any instrument
supplemental or amendatory hereto.
B. Defense 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, the collection of the Highway
Users Tax Revenues, or any of the City's obligations under this
Ordinance.
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
BD24474 .A(PF) 94 08/27/92
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,
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 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 exist, have happened
and have been performed, and the Bonds, together with all other
obligations of the City, shall not contravene any debt or other
limitation prescribed by the Constitution or laws of the 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 referred to
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
BD24474 .A(PF) 95 08/26/92
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
prejudicially and 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 Pledged
Revenues, and the City shall not directly or indirectly be a
party to or approve any arrangements for any such extension or
the purpose of keeping alive any of such other claims for
interest. If the time for the payment of any such installment of
interest is extended in contravention of the foregoing
provisions, such installment or installments of interest after
such extension or arrangement shall not be entitled in case of
default hereunder to the benefit or the security of this
Ordinance, except upon the prior payment in full of the principal
of and interest on all of the Bonds and any such securities the
payment of which have 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 Principal and Interest Account and Reserve
Account. The Principal and Interest Account and the Reserve
Account shall be used solely and only, and the moneys credited to
such accounts are hereby pledged, for the purpose of paying the
Debt Service Requirements of the Bonds, any Additional Parity
Bonds or any other Parity Securities at maturity or upon prior
redemption, subject to the provisions concerning surplus moneys
in Section 5E and subject to Section 9 hereof.
L. Additional Contracts or Securities. The City
shall not hereafter enter into any contracts or issue any bonds
or securities payable from Pledged Revenues other than the Bonds
without compliance with the requirements with respect to the
issuance of Additional Parity Bonds or additional Parity
Securities set forth herein to the extent applicable.
M. Other Liens. There presently are no liens or
encumbrances of any nature whatsoever on or against the Pledged
Revenues.
N. Surety Bonds. Each official or other person
having custody of any Pledged Revenues, or responsible for their
BD24474 .A(PF) 96 08/26/92
handling, shall be fully bonded at all times, which bond shall be
conditioned upon the proper application of said moneys.
O. Tax Matters. The City shall make no investment or
other use of 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 of issue of the Bonds, would have
caused the Bonds to be "arbitrage bonds" within the meaning of
Sections 103 and 148 of the Tax Code and the regulations
thereunder.
Section 9. Defeasance. When all Debt Service
Requirements of the Bonds have been duly paid, the pledge and
lien and all obligations hereunder shall thereby be discharged,
and the Bonds shall no longer be deemed to be Outstanding within
the meaning of this Ordinance. There shall be deemed to be such
due payment when the City has placed in escrow or in trust with
a Trust Bank located within or without the State, moneys or
Federal Securities in an amount sufficient (including the known
minimum yield available for such purpose from Federal Securities
in which such amount wholly or in part may be initially invested)
to meet all Debt Service Requirements of the Bonds as the same
become due to their final Maturity Date or any Redemption Date as
of which the City shall have exercised or shall have obligated
its itself to exercise its prior redemption option. The Federal
Securities shall become due prior to the respective times at
which the proceeds thereof shall be needed, in accordance with a
schedule established and agreed upon between the City and such
bank at the time of the creation of the escrow or trust, or the
Federal Securities shall be subject to redemption at the option
of the Owner thereof to assure such availability as so needed to
meet such schedule.
Section 10. Default Provisions and Remedies of Bond
Owners.
A. Events of Default. Each of the following events
is hereby declared to be and to constitute an Event of Default:
(1) Nonpayment of Principal or Premium. Payment
of the principal of any of the Bonds or any premium due in
connection with the redemption thereof, or both, is not made
when the same becomes due and payable, either at maturity or
upon prior redemption, or otherwise;
(2) Nonpayment of Interest. Payment of any
interest on any of the Bonds is not made when the same
becomes due and payable;
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(3) Incapacity to Perform. The City for any
reason is, or is rendered, incapable of fulfilling its
obligations hereunder;
(4) Nonperformance of Duties. The City shall
have failed to carry out and to perform (or in good faith to
begin the performance of) all acts and things lawfully
required to be carried out to be performed by it under an
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
the Owners of twenty-five percent (25%) in 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 money
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 if such default continues
for sixty (60) days after written notice, specifying such
default and requiring the same to be remedied, is given to
the City by the Owners of twenty-five percent (25%) in
principal amount of the Bonds then Outstanding.
B. Remedies for Defaults. Upon the happening and
continuance of any of the Events of Default, as provided in
Section 10A hereof, then and in every case the Owner or Owner of
not less than twenty-five percent (25%) in principal amount of the
Bonds then Outstanding, including, without limitation, a trustee
or trustees therefor, may proceed against the City and its
agents, officers and employees to protect and to enforce the
rights of any Owner of Bonds under this Ordinance by mandatory
injunction or by other suit, action, or special proceedings in
equity or at law, in any court of competent jurisdiction, either
for the appointment of a receiver or an operating trustee or for
the specific performance of any covenant or agreement contained
herein or for any proper legal or equitable remedy as such Owner
or Owners may deem most effectual to protect and to enforce the
rights aforesaid, or thereby to enjoin any act or thing which may
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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 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.
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 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 other statutes, except as provided in Sections 12A
and 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 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, will do and perform all proper acts on behalf
of and for the Owners of the Outstanding Bonds to protect and to
preserve the security created for the payment of their Bonds 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 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
hereof for all Parity Securities, including the Bonds, on an
equitable and prorated basis, and used for the purposes therein
BD24474 .A(PF) 99 08/27/92
provided. If the City fails or refuses to proceed as in this
Section 10D provided, the Owner or Owners of not less than 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 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 to affect materially and
prejudicially the Owners of the Outstanding Bonds and any
Outstanding Parity Securities.
E. Evidence of Security Owners. Any request, consent
or other instrument which this Ordinance may require or may
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 the officer
purports to act, that the individual signing such request or
other instrument acknowledged to him the execution, duly sworn to
before such notary public or other officer; the authority of the
individual or individuals executing any such instrument on behalf
of a corporate Owner of any securities may be established without
further proof if such instrument is signed by an individual
purporting to be the president or vice-president of such
corporation with the corporate seal affixed and attested by an
individual purporting to be its secretary or an assistant
secretary; and the authority of any Person or Persons executing
any such instrument in any fiduciary or representative capacity
may be established without further proof if such instrument is
signed by a Person or Persons purporting to act in such fiduciary
or representative capacity; and
BD24474 .A(PF) 100 08/26/92
(2) Proof of Ownership. The amount of Bonds
owned by any Person executing any instrument as an Owner of
Bonds, and the numbers, date and other identification
thereof, together with the date of his ownership of the
Bonds, shall be determined from the registration books of
the City. The amount of other securities, if applicable,
owned by any Person executing any instrument as an owner of
such securities, and the numbers, date and other
identification thereof, together with the date of his
ownership, if in bearer form, may be proved by a certificate
which need not be acknowledged or verified, in form
satisfactory to the City Clerk, executed by a member of
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 the officer
purports to act, showing at the date therein mentioned that
such Person exhibited to such member, officer, notary public
or other officer so authorized to take acknowledgments of
deeds or had on deposit with such depository the securities
described in such certificate or if in registered form shall
be determined from the related registration books; but the
City Clerk may nevertheless in his or her discretion require
further or other proof in cases where he or she deems the
same advisable.
F. Warranty Upon Issuance of Bonds. Any of the Bonds
as herein provided, when duly executed and registered for the
purposes provided for in this Ordinance, shall constitute a
warranty by and on behalf of the City for the benefit of each and
every future Owner of any of the Bonds that the Bonds have been
issued for a valuable consideration in full conformity with law.
G. Immunities of Purchaser. The Purchaser and any
associate thereof are under no obligation to any Owner of the
Bonds for any action that they may not take or in respect of
anything that they may or may not do by reason of any information
contained in any reports or other documents received by them
under the provisions of this Ordinance. The immunities and
exemption from liability of the Purchaser and any associate
thereof hereunder extend to their partners, directors, officers,
successors, assigns, employees and agents.
Section 11. Amendment of Ordinance.
A. Amendment of Ordinance Not Requiring Consent of
Bond Owners. The City may, without the consent of, or notice to,
the owners of the Bonds, adopt such ordinances supplemental
BD24474 .A(PF) 101 08/26/92
hereto, which amendments shall thereafter form a part hereof, for
any one or more or all of the following purposes:
(1) To cure or correct any formal defect,
ambiguity or inconsistent provision contained in this
Ordinance;
(2) To appoint successors to the Paying Agent,
Registrar, Transfer Agent or Securities Depository;
(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 of
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. Exclusive of the amendatory ordinances covered by
Section 11A hereof, this Ordinance may be amended or modified by
ordinances or other instruments duly adopted by the Council,
without receipt by it or 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, including any
Outstanding refunding securities as may be issued for the purpose
of refunding any of the Bonds, 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 interest thereon; or
(2) Reducing Return. A reduction in the
principal amount of any Bond, the rate of interest thereon
BD24474.A(PF) 102 08/26/92
or any premium due in connection with the redemption
thereof, without the consent of the Owner of the Bond; or
(3) Creating 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,
or otherwise changing the consent of the Owners of Bonds,
which may be required herein for any amendment hereto; or
(5) Establishing Priorities Between Bonds. The
establishment of priorities as between Bonds issued and
Outstanding under the provisions of this Ordinance; or
(6) Making Modifications. The making of
modifications otherwise materially and prejudicially
affecting the rights or privileges of the Owners of less
than all of the Bonds then Outstanding.
Whenever the Council proposes to amend or modify this
Ordinance under the provisions of this Section 11B it shall give
notice of the proposed amendment by mailing such notice to all
registered Owners of Bonds whose names appear on the registration
books of the City. Such notice shall briefly set forth the
nature of the proposed amendment and shall state that a copy of
the proposed amendatory ordinance or other instrument is on file
in the office of the City Clerk for public inspection.
C. Time for and Consent to Amendment. Whenever at
any time within one (1) year from the date of the completion of
the notice required to be given by Section 11B hereof there shall
be filed in the office of the City Clerk an instrument or
instruments executed by the Owners of at least sixty-six percent
(66%) in aggregate principal amount of the Bonds then
Outstanding, which instrument or instruments shall refer to the
proposed amendatory ordinance or other instrument described in
such notice and shall specifically consent to and approve the
adoption of such ordinance or other instrument, thereupon, but
not otherwise, the Council may adopt such amendatory ordinance or
instrument and such ordinance or instrument shall become
effective. If the Owners of at least sixty-six percent (66%) in
aggregate principal amount of the Bonds then Outstanding, at the
time of the adoption of such amendatory ordinance or instrument,
or the predecessors in title of such Owners, shall have consented
to and approved the adoption thereof as herein provided, no Owner
of any Bond whether or not such Owner shall have consented to or
shall have revoked any consent as herein provided shall have any
BD24474 .A(PF) 103 08/26/92
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 an
with the consent of the Owners of all the then Outstanding Bonds,
such consent to be given in the manner provided in Section 11C
hereof; and no notice to Owners of Bonds shall be required as
provided in Section 11B hereof, nor shall the time of consent be
limited except as may be provided in such consent.
E. Exclusion of Bonds. At the time of any consent or
of other action taken hereunder the City shall furnish to the
City Clerk a certificate, upon which the City Clerk may rely,
describing all Bonds to be excluded for the purpose of consent or
of other action or any calculation of Outstanding Bonds provided
for hereunder, and, with respect to such excluded Bonds, the City
shall not be entitled or required with respect to such Bonds to
give or obtain any consent or to take any other action provided
for hereunder.
F. Notation on Bonds. Any of the Bonds delivered
after the effective date of any action taken as provided in
Section 11B, or Bonds Outstanding at the effective date of such
action, may bear a notation thereon by endorsement or otherwise
in form approved by the Council as to such action; and if any
such Bonds so delivered after such date does not bear such
notation, then upon demand of the Owner of any Bond Outstanding
at such effective date and upon presentation of his Bond for such
BD24474 .A(PF) 104 08/26/92
purpose at the principal office of the City, suitable notation
shall be made on such Bond by the City Clerk as to any such
action. If the Council so determines, new Bonds so modified as
in the opinion of the Council to conform to such action shall be
prepared, executed and delivered; and upon demand of the Owner of
any Bond then Outstanding, shall be exchanged without cost to
such Owner for Bonds then Outstanding upon surrender of such
Outstanding Bonds.
G. Proof of Instruments and Bonds. The fact and date
of execution of any instrument under the provisions of this
Section 11, the amount and number of the Bonds owned by any
Person executing such instrument, and the date of his registering
the same may be proved as provided by Section 10E hereof.
Section 12 . Miscellaneous.
A. Character of Agreement. None of the covenants,
agreements, representations, or warranties contained herein or in
the Bonds shall ever impose or shall be construed as imposing any
liability, obligation, or charge against the City (except for the
special funds pledged therefor) or against the general credit of
the City payable out of general funds or out of any funds derived
from general property taxes.
B. No Pledge of Property. The payment of the Bond 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, shall be liable to be forfeited or taken in
payment of the Bonds.
C. Statute of Limitations. No action or suit base
upon any Bond or other obligation of the City shall be commenced
after it is barred by any statute of limitations pertaining
thereto. Any trust or fiduciary relationship between the City
and the Owner of any Bond or the obligee regarding any such
obligation shall be conclusively presumed to have been repudiated
on the Maturity Date or other due date thereof unless the Bond is
presented for payment or demand for payment of such other
obligation is otherwise made before the expiration of the
applicable limitation period. Any moneys from whatever source
derived remaining in any fund or account reserved, pledged or
otherwise held for the payment of any such obligation, action or
suit, the collection of which has been barred, shall revert to
the Highway Users Tax Revenue Account, unless the Council shall
otherwise provide by ordinance. Nothing herein prevents the
payment of any such Bond or other obligation after an action or
suit for its collection has been barred if the Council deems it
BD24474 .A(PF) 105 08/26/92
in the best interests of the City or the public so to do an
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, the preparation of
typewritten Bonds as provided herein;
(2) Execution Authentication Registration and
Delivery. The execution, authentication and registration
of the Bonds and the delivery of the Bonds to the Purchaser
pursuant to the provisions of this Ordinance;
(3) Information. The assembly and dissemination
of financial and other information concerning the City and
the Bonds;
(4) Official Statement. The preparation of a
final official statement in substantially the same form as
the Preliminary Official Statement for the use of
prospective buyers of the Bonds, including, without
limitation, the Purchaser and its associates, if any; and
(5) closing Documents and Certificates. The
execution of the Letter of Representations and such
certificates as may be reasonably required by the Purchaser,
relating, inter alia, to:
(a) The signing of the Bonds;
(b) The tenure and identity of the officials
of the City;
(c) If in accordance with fact, the absence
of litigation, pending or threatened, affecting the
validity of the Bonds;
(d) The tax treatment of interest on the
Bonds under federal and State income tax laws;
(e) The delivery of the Bonds and the
receipt of the Bond purchase price and of the Bonds;
BD24474.A(PF) 106 08/31/92
(f) The information contained in the
official statement.
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 an
Person, other than the City, and the Owners from time to time of
the Bonds, any right, remedy or claim under or by reason hereof
or any covenant, condition or stipulation hereof. All the
covenants, stipulations, promises and agreements herein contained
by and on behalf of the City shall be for the sole and exclusive
benefit of the City and any Owner of any of the Bonds.
No recourse shall be had for the payment of the Debt
Service Requirements of the Bonds or for any claim based thereon
or otherwise upon this Ordinance authorizing their issuance of
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. Facsimile Signatures. Pursuant to the Uniform
Facsimile Signature of Public Officials Act, part 1 of article 55
of title 11, Colorado Revised Statutes, as amended, the Mayor,
the City Clerk and the Financial Officer 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.
H. 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
BD24474 .A(PF) 107 08/26/92
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 or
discharged, as herein provided.
I. 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 shall be, and the same hereby is,
ratified, approved and confirmed.
J. Repealer. All ordinances, resolutions, bylaws,
orders, and other instruments, or parts thereof, inconsistent
herewith are hereby repealed to the extent only of such
inconsistency. This repealer shall not be construed to revive
any ordinance, resolution, bylaw, order, or other instrument, or
part thereof, heretofore repealed.
K. Severability. If any section, subsection,
paragraph, clause or other provision of this Ordinance shall or
any reason be held to be invalid or unenforceable, the invalidity
or unenforceability thereof shall not affect any of the remaining
sections, subsections, paragraphs, clauses or provisions of this
Ordinance.
READ, AMENDED, FINALLY PASSED AS AMENDED ON SECOND
READING, AND ORDERED PUBLISHED BY NUMBER AND TITLE ONLY this 1st
day of September, 1992 .
CITY O FORT COLLINS, COLORADO
/i
By: dTzjvl '_�L
--Mayor
(CITY)
(SEAL)
ATTEST:
City Clerk
BD24474 .A(PF) 108 08/26/92