HomeMy WebLinkAbout174 - 12/17/2002 - AUTHORIZING THE ISSUANCE OF DDA TAXABLE SUBORDINATE TAX INCREMENT REVENUE BONDS, IN THE AGGREGATE PR ORDINANCE NO. 174, 2002
AN ORDINANCE AUTHORIZING THE ISSUANCE OF CITY OF FORT
COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY
TAXABLE SUBORDINATE TAX INCREMENT REVENUE BONDS, SERIES
2002, DATED THEIR DELIVERY DATE, IN THE AGGREGATE PRINCIPAL
AMOUNT OF $1,065,000 FOR THE PURPOSE OF FINANCING CERTAIN
CAPITAL IMPROVEMENTS AND CAPITAL PROJECTS; AND PROVIDING
FOR THE PLEDGE OF CERTAIN INCREMENTAL AD VALOREM TAX
REVENUES TO PAY THE PRINCIPAL OF, INTEREST ON AND ANY
PREMIUM DUE IN CONNECTION WITH THE REDEMPTION OF THE
BONDS.
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS,
COLORADO, THAT:
Section 1. Definitions and Construction.
A. Definitions. In this Ordinance the following terms have the following
respective meanings unless the context hereof clearly requires otherwise:
(1) Additional Parity Bonds: any Parity Securities issued after the
issuance of the Bonds.
(2) Authority: the City of Fort Collins, Colorado, Downtown
Development Authority.
(3) Average Annual Debt Service Requirements: the aggregate of all
Debt Service Requirements (excluding any redemption premiums) due on the Bonds or
any other issue of Parity Securities for all Bond Years beginning with the Bond Year in
which Debt Service Requirements of the Bonds or such Parity Securities are first payable
and ending with the Bond Year in which the last of the Debt Service Requirements are
payable, divided by the number of such years.
(4) Bond 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.
(5) Bonds: the City of Fort Collins, Colorado, Downtown
Development Authority Taxable Subordinate Tax Increment Revenue Bonds,
Series 2002, dated their delivery date, in the aggregate principal amount of$1,065,000.
(6) Charter: the Home Rule Charter of the City, as amended.
(7) City: the City of Fort Collins, Colorado.
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(8) 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.
(9) Commercial Bank: a state or national bank or trust company
which is a member of the Federal Deposit Insurance Corporation and of the Federal
Reserve System, which has a combined capital and surplus of$3,000,000 or more, and
which is located within the United States of America.
(10) Cost of the Project: all or any part of the cost of acquiring,
constructing and installing the Project; all surveying, inspection, fiscal, and legal
expenses; all costs of issuing the Bonds; any discount on the sale of the Bonds; costs of
financial, professional, and other estimates and advice; reimbursements of amounts
advanced for any of the foregoing; repayment of any interim loans or interfund
borrowings; capitalized interest on the Bonds; contingencies; reserves for payment of the
principal of or interest on the Bonds; and all such other costs as may be necessary or
incidental to the acquisition, construction and installation of the Project or any part
thereof.
(11) Council: the governing body of the City.
(12) Debt Service Requirements: the principal of, interest on and any
premium due in connection with the redemption of the Bonds, any Additional Parity
Bonds, any Parity Securities or any other securities payable from the Tax Increment
Revenues.
(13) Development and Expense Fund: the special fund created in
Ordinance No. 142, 1985, of the City, designated therein as the "Development Account"
of the "City of Fort Collins, Colorado, Downtown Development Authority Tax Increment
Bonds, Bond Fund" and referred to in Section 5A hereof.
(14) District: the area referred to in the Plan of Development and
described in Ordinance No. 46, 1981, of the City, as amended by Ordinance No. 162,
1981, of the City and Ordinance No. 2, 1983, of the City.
(15) Downtown Development Authority Act: part 8 of article 25 of title
31, Colorado Revised Statutes, as amended.
(16) Event of Default: one of the events described in Section 10A
hereof.
(17) Federal Securities: bills, certificates of indebtedness, notes, bonds
or similar securities which are direct obligations of the United States of America or are
obligations the principal and interest of which are unconditionally guaranteed by the
United States of America.
(18) 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
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year or such other twelve-month period as may from time to time be designated by the
Council as the Fiscal Year of the City.
(19) Interest Payment Date: a date designated by ordinance for the
payment of interest on the Bonds or any other designated security.
(20) Investment Earnings: all income derived from the investment of
any proceeds of the Bonds deposited in the Development and Expense Fund or the
Subordinate Bonds Debt Service Account.
(21) Investment Letter: the investment letter to be executed by the
Purchaser and each subsequent Owner of the Bonds upon purchase thereof.
(22) Maturity Date: a date designated by ordinance for the payment of
principal of the Bonds or any other designated security.
(23) 1983 Tax Increment Revenue Bond Anticipation Notes: the City
of Fort Collins, Colorado, Downtown Development Authority Tax Increment Bond
Anticipation Notes, Series April 1, 1983, dated April 1, 1983, in the aggregate principal
amount of$3,100,000.
(24) 1984 Tax Increment Revenue Bonds: the City of Fort Collins,
Colorado, Downtown Development Authority Tax Increment Bonds, Series 1984A, dated
October 1, 1984, in the aggregate principal amount of$8,200,000.
(25) 1985 Tax Increment Revenue Refunding Bonds: the City of Fort
Collins, Colorado, Downtown Development Authority Tax Increment Refunding Bonds,
Series 1985A, dated November 1, 1985, in the original aggregate principal amount of
$8,885,000.
(26) 1988 Tax Increment Revenue Refunding and Improvement Bonds:
the City of Fort Collins, Colorado, Downtown Development Authority Tax Increment
Revenue Refunding and Improvement Bonds, Series 1988, dated May 15, 1988, in the
aggregate principal amount of$13,545,000.
(27) 1992 Tax Increment Revenue Refunding Bonds: the City of Fort
Collins, Colorado, Downtown Development Authority Tax Increment Revenue
Refunding Bonds, Series 1992, dated March 15, 1992, in the aggregate principal amount
of$11,380,000.
(28) 1998 Tax Increment Revenue Bonds: the City of Fort Collins,
Colorado, Downtown Development Authority Taxable Subordinate Tax Increment
Revenue Bonds, Series 1998, dated July 1, 1998, in the aggregate amount of$190,000.
(29) 1999 Tax Increment Revenue Bonds: the City of Fort Collins,
Colorado, Downtown Development Authority Taxable Subordinate Tax Increment
Revenue Bonds, Series 1999, dated November 1, 1999, in the aggregate principal amount
of$750,000.
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(30) Ordinance: this Ordinance No. 174, 2002, of the City.
(31) Outstanding or outstanding: as of any particular date, all Bonds,
Additional Parity Bonds, Parity Securities, Superior Bonds or any such other securities
payable in whole or in part from the Tax Increment Revenues that have been authorized,
executed and delivered, except the following:
(a) Any Bond, Additional Parity Bond, Parity Security,
Superior Bond or other security cancelled by the City, by the Paying Agent or
otherwise on behalf of the City on or before such date;
(b) Any Bond, Additional Parity Bond, Parity Security,
Superior Bond or other security held by or on behalf of the City;
(c) Any Bond, Additional Parity Bond, Parity Security,
Superior Bond 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, Superior
Bond or other security to the Maturity Date or specified Redemption Date thereof
shall have theretofore been deposited in escrow or in trust with a Trust Bank for
that purpose; and
(d) Any lost, destroyed, or wrongfully taken Bond, Additional
Parity Bond, Parity Security, Superior Bond 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.
(32) Owner: the holder of any bearer instrument or registered owner of
any registered instrument.
(33) Parity Securities: bonds, warrants, notes, securities, leases or other
contracts evidencing borrowings and payable from the Tax Increment Revenues equally
or on a parity with the Bonds.
(34) Pa 'yang Agent: the Financial Officer of the City, or his successors.
(35) Permitted Investments: all securities or deposits authorized by
ordinances of the City and, to the extent applicable, the laws of the State.
(36) Person: any individual, firm, partnership, corporation, company,
association, joint-stock association, or body politic or any trustee, receiver, assignee, or
other similar representative thereof.
(37) Plan of Development: the plan approved by Resolution 81-129 of
the City.
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(38) Pledged Revenues: the Tax Increment Revenues and the
Investment Earnings.
(39) Project: the capital improvements or capital projects described in
the Plan financed with the proceeds of the Bonds.
(40) Property Tax Base Dates: September 15, 1980, with respect to the
District described in Ordinance No. 46, 1981, of the City; September 15, 1981, with
respect to the area added to the District by Ordinance No. 162, 1981, of the City;
September 15, 1982, with respect to the area added to the District by Ordinance No. 2,
1983, of the City; and the applicable dates pursuant to the Downtown Development
Authority Act with respect to such areas as may hereafter be added to the District by
appropriate legislative action of the City.
(41) Purchaser: The Home State Bank.
(42) Redemption Date: the date fixed for the redemption prior to
maturity of any Bonds or other designated securities payable from the Tax Increment
Revenues in any notice of prior redemption given by or on behalf of the City.
(43) Re istrar: the Financial Officer of the City, or his successors.
(44) Security or securities: any bond issued by the City or any other
evidence of the advancement of money to the City.
(45) Special Record Date: the date fixed by the Paying Agent for the
determination of ownership of Bonds for the purpose of paying interest not paid when
due or interest accruing after maturity.
(46) State: the State of Colorado.
(47) Subordinate Bonds Debt Service Account: the special fund created
in Ordinance No. 101, 1998, of the City designated therein as the "City of Fort Collins,
Colorado, Downtown Development Authority Subordinate Tax Increment Bonds Debt
Service Account" and referred to in Section 5F hereof.
(48) Superior Bonds or Superior Securities: the 1992 Tax Increment
Refunding Bonds, the 2001 Tax Increment Revenue Refunding Bonds and any other
bonds or securities payable from the Tax Increment Revenues having a lien thereon
superior or senior to the lien thereon of the Bonds.
(49) Tax Increment Fund: the special fund created in Ordinance No.
142, 1985, of the City designated therein as the "City of Fort Collins, Colorado,
Downtown Development Authority Tax Increment Bonds, Bond Fund" and referred to in
Section 5B hereof.
(50) Tax Increment Principal and Interest Account: the special fund
created in Ordinance No. 142, 1985, of the City, designated therein as the "Principal and
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Interest Account" of the "City of Fort Collins, Colorado, Downtown Development
Authority Tax Increment Bonds, Bond Fund" and referred to in Section 5C hereof.
(51) Tax Increment Reserve Account: the special fund created in
Ordinance No. 142, 1985, of the City, designated therein as the "City of Fort Collins,
Colorado, Tax Increment Bonds, Reserve Fund" and referred to in Section 5D hereof.
(52) Tax Increment Revenues: all revenues derived in each Fiscal Year
from the levy of ad valorem taxes at the rate fixed each year by or for each public body
having taxing power over all or any portion of the District upon that portion of the
valuation for assessment of all taxable property within the District and the boundaries of
such public body which is in excess of the valuation for assessment of all taxable
property within the District and the boundaries of such public body on the Property Tax
Base Dates, all in accordance with Section 31-25-807(3)(a)(II) of the Downtown
Development Authority Act, less any collection fees lawfully payable to the City or
Larimer County, Colorado, for services rendered in connection with the collection of
such ad valorem taxes; provided, that in the event of a general reassessment of taxable
property in the City, the valuation for assessment of taxable property within the District
on the Property Tax Base Dates will be proportionately adjusted as required by the
Downtown Development Authority Act or other applicable law.
(53) Transfer Agent: the Financial Officer of the City, or his
successors.
(54) Trust Bank: a Commercial Bank which has a combined capital
and surplus of$25,000,000 or more and which is authorized to exercise and is exercising
trust powers.
(55) 2000 Tax Increment Revenue Bonds: the City of Fort Collins,
Colorado, Downtown Development Authority Subordinate Tax Increment Revenue
Bonds, Series 2000A, dated March 1, 2000, in the aggregate principal amount of
$608,000.
(56) 2001 Tax Increment Revenue Refunding Bonds: the City of Fort
Collins, Colorado, Downtown Development Authority Tax Increment Revenue
Refunding Bonds, Series 2001, dated April 1, 2001, in the aggregate principal amount of
$3,640,000.
B. Construction. This Ordinance, except where the context by clear
implication herein otherwise requires, shall be construed as follows:
(1) Words in the singular number include the plural, and words in the
plural include the singular.
(2) Words in the masculine gender include the feminine and the
neuter, and when the sense so indicates words of the neuter gender refer to any gender.
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(3) Articles, sections, subsections, paragraphs and subparagraphs
mentioned by number, letter or otherwise correspond to the respective articles, sections,
subsections, paragraphs and subparagraphs of this Ordinance so numbered or otherwise
so designated.
(4) The titles and headlines applied to articles, sections and
subsections of this Ordinance are inserted only as a matter of convenience and ease in
reference and in no way define or limit the scope or intent of any provisions of this
Ordinance.
(5) Any inconsistency between the provisions of this Ordinance and
those of the Downtown Development Authority Act is intended by the Council. To the
extent of any such inconsistency the provisions of this Ordinance shall be deemed made
pursuant to the Charter and shall supersede to the extent permitted by law the conflicting
provisions of the Downtown Development Authority Act.
Section 2. Recitals.
A. Establishment of Authority and Approval of Plan of Development.
Pursuant to Ordinance No. 46, 1981, the City has heretofore established the Authority. Pursuant
to Resolution 8111129 the City has heretofore approved the Plan of Development. The Plan of
Development so approved contained a provision for division of taxes as authorized by the
Downtown Development Authority Act effective for twenty-five years beginning September 8,
1981.
B. Special Election and Canvass of Returns. At a special election held in the
City on Tuesday, June 1, 1982, in accordance with law and pursuant to due notice there was
submitted to the qualified electors of the District the following question:
Shall the City of Fort Collins issue bonds or otherwise provide for loans, advances
or indebtedness from time to time in an amount not to exceed $25,000,000 at a
maximum net effective interest rate not to exceed 18 per centum per annum, the
use of which shall be to finance capital improvements and capital projects within
the parameters of the Plan of Development of the Fort Collins Downtown
Development Authority, and irrevocably pledge the special fund into which all of
that portion of property taxes in excess of such taxes which are produced by the
levy at the rate fixed each year by or for any public body upon the valuation for
assessment of taxable property within the boundaries of the District last certified
prior to the effective date of approval by the Fort Collins City Council of the Plan
of Development of the Downtown Development Authority or, as to an area later
added to the boundaries of the District, the effective date of the modification of
the Plan of Development from which special fund shall be paid the principal of,
the interest on, and any premiums due in connection with the bonds of, loans or
advances to, or indebtedness incurred by, whether funded, refunded, assumed, or
otherwise, the City of Fort Collins for financing or refinancing, in whole or in
part, development projects within the boundaries of the Plan for Development
area.
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As evidenced by the canvass of the returns of said election and the Statement and Certificate of
Determination of Result thereof made by the Board of Elections of the City on June 4, 1982, a
majority of said electors voted affirmatively on said question.
C. Prior Bonds. Pursuant to the authority so conferred at said election the
City has heretofore issued and sold the 1983 Tax Increment Revenue Bond Anticipation Notes in
order to finance capital improvements and capital projects as provided in the Plan of
Development. Pursuant to the authority so conferred at said election the City has heretofore
issued and sold the 1984 Tax Increment Revenue Bonds in order to refund, pay and discharge the
1983 Tax Increment Revenue Bond Anticipation Notes and finance capital improvements and
capital projects as provided in the Plan of Development. Pursuant to the authority so conferred
at said election the City has heretofore issued and sold the 1985 Tax Increment Revenue
Refunding Bonds in order to refund, pay and discharge the 1984 Tax Increment Revenue Bonds.
Pursuant to the authority so conferred at said election the City has heretofore issued and sold the
1988 Tax Increment Revenue Refunding and Improvement Bonds in order to refund, pay and
discharge the 1985 Tax Increment Revenue Refunding Bonds and finance capital improvements
and capital projects as provided in the Plan of Development. Pursuant to the authority so
conferred at said election the City has heretofore issued and sold the 1992 Tax Increment
Revenue Refunding Bonds in order to refund, pay and discharge the 1988 Tax Increment
Revenue Refunding and Improvement Bonds. The City has heretofore issued and sold the 1998
Tax Increment Revenue Bonds in order to finance capital improvements and capital projects as
provided in the Plan of Development. The City has heretofore issued and sold the 1999 Tax
Increment Revenue Bonds in order to finance capital improvements and capital projects as
provided in the Plan of Development. Pursuant to the authority so conferred at said election the
City has heretofore issued and sold the 2000 Tax Increment Revenue Bonds in order to finance
capital improvements and capital projects as provided in the Plan of Development. Pursuant to
the authority so conferred at said election the City has heretofore issued and sold the 2001 Tax
Increment Revenue Refunding Bonds in order to refund, pay and discharge a portion of the 1992
Tax Increment Revenue Refunding Bonds.
D. Project. The City has need for and desires to acquire, construct, install and
finance the Project.
E. Authority. Pursuant to art. XX, §6 of the Colorado Constitution, Art. V,
Section 19.8 of the Charter and the Downtown Development Authority Act, the City is
authorized by Council action and without an election to issue the Bonds.
Section 3. The Bonds.
A. Authorization. The Bonds are hereby authorized to be issued for the
purpose of financing the Project.
B. Bond Details.
(1) Generally. The Bonds shall be issuable in fully registered form in
the denomination of$100,000 or any integral multiple of$5,000 in excess of thereof.
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The Bonds shall mature on December 31, 2002, and shall bear interest
from their delivery date to their Maturity Date, except if redeemed prior thereto, at the
rate of 3.75% per annum. Said interest shall be payable on their Maturity Date. 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 interest shall be payable to the Owner of each Bond upon presentation
and surrender thereof at maturity or upon prior redemption, by check or draft mailed to
such Owner at the address appearing on the registration books of the City maintained by
the Registrar or by wire transfer to such bank or other depository as the Owner shall
designate in writing to the Paying Agent. Any interest not paid when due and any
interest accruing after maturity shall be payable to the Owner of each Bond entitled to
receive such interest determined as of the close of business on the Special Record Date,
irrespective of any transfer of ownership of the Bond subsequent to the Special Record
Date and prior to the date fixed by the Paying Agent for the payment of such interest, by
check or draft or wire transfer directed to such Owner as aforesaid. Notice of the Special
Record Date and of the date fixed for the payment of such interest shall be given by
sending a copy thereof by certified or registered first-class, postage prepaid mail, at least
fifteen (15) days prior to the Special Record Date, to the Owner of each Bond upon
which interest will be paid determined as of the close of business on the day preceding
such mailing at the address appearing on the registration books of the City. 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.
(2) Redemption. The Bonds shall be subject to optional redemption,
in whole or in part, at any time prior to their Maturity Date at a price equal to the
principal amount of each Bond so redeemed plus accrued interest thereon to the
Redemption Date.
The Bonds 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.
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Unless waived by the Owners of any Bonds to be redeemed, notice of
redemption shall be given by the Paying Agent in the name of the City by sending a copy
thereof by certified or registered first-class postage prepaid mail, not less than three (3)
days prior to the Redemption Date, to the Owner of each of the Bonds being redeemed
determined as of the close of business on the day preceding the first mailing of such
notice at the address appearing on the registration books of the City. Such notice shall
specify the number or numbers of the Bonds to be redeemed, whether in whole or in part,
the principal amounts thereof and the date fixed for redemption and shall further state that
on the Redemption Date there will be due and payable upon each Bond or part thereof so
to be redeemed the principal amount or part thereof plus accrued interest thereon to the
redemption date plus any premium due and that from and after such date interest will
cease to accrue. Bonds called for optional redemption as provided herein shall be
redeemable only to the extent of moneys on deposit with the Paying Agent and legally
available for redemption of Bonds on the date of such notice. Failure to mail any notice
as aforesaid or any defect in any notice so mailed with respect to any Bond shall not
affect the validity of the redemption proceedings with respect to any other Bond. Any
Bonds redeemed prior to their Maturity Date by call for prior redemption or otherwise
shall not be reissued and shall be cancelled the same as Bonds paid at or after maturity.
(3) Interest Rates. The maximum net effective interest rate for the
Bonds is 18% per annum. The actual net effective interest rate for the Bonds is 3.75%
per annum.
(4) Execution and Authentication. The Bonds shall be executed by
and on behalf of the City with the facsimile or manual signature of the Mayor, shall bear
a facsimile or manual impression of the seal of the City, shall be attested with the
facsimile or manual signature of the City Clerk, shall be countersigned with the facsimile
or manual signature of the Financial Officer of the City, and shall be authenticated with
the manual signature of the Registrar. Should any officer whose facsimile or manual
signature appears on the Bonds cease to be such officer before delivery of the Bonds to
the Purchaser, such facsimile or manual signature shall nevertheless be valid and
sufficient for all purposes. No Bond shall be valid or become obligatory for any purpose
or be entitled to any security or benefit under this Ordinance unless and until the
certificate of authentication on such Bond shall have been duly executed by the Registrar,
and such executed certificate upon any such Bond shall be conclusive evidence that such
Bond has been authenticated and delivered under this Ordinance.
(5) Registration, Transfer and Exchange. Upon their execution and
authentication and prior to their delivery the Bonds shall be registered for the purpose of
payment of principal and interest by the Registrar. Thereafter, the Bonds shall be
transferable only upon the registration books of the City by the Transfer Agent at the
request of the Owner thereof or his, her or its duly authorized attorney-in-fact or legal
representative. The Registrar or Transfer Agent shall accept a Bond for registration or
transfer only if the Owner is to be an individual, a corporation, a partnership, or a trust.
A Bond may be transferred upon surrender thereof together with a written instrument of
transfer duly executed by the Owner or his, her or its duly authorized attorney-in-fact or
legal representative with guaranty of signature satisfactory to the Transfer Agent,
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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 Transfer Agent shall deliver to the new Owner a new Bond or
Bonds of the same aggregate principal amount, maturing in the same year, and bearing
interest at the same per annum interest rate as the Bond or Bonds surrendered. Such
Bond or Bonds shall be dated as of their date of authentication. New Bonds delivered
upon any transfer or exchange shall be valid obligations of the City, evidencing the same
obligation as the Bonds surrendered, shall be secured by this Ordinance, and shall be
entitled to all of the security and benefits hereof to the same extent as the Bonds
surrendered. The City may deem and treat the Person in whose name any Bond is last
registered upon the books of the City as the absolute owner thereof for the purpose of
receiving payment of the Debt Service Requirements of such Bond and for all other
purposes, and all such payments so made to such Person or upon his, her or its order shall
be valid and effective to satisfy and discharge the liability of the City upon such Bond to
the extent of the sum or sums so paid, and the City shall not be affected by any notice to
the contrary.
(6) Replacement of Bonds. If any Bond shall have been lost,
destroyed or wrongfully taken, the City shall provide for the replacement thereof in the
manner set forth and upon receipt of the evidence, indemnity bond and reimbursement for
expenses provided in Ordinance No. 80, 1984.
(7) Recitals in Bonds. Each Bond shall recite in substance that the
Bond is payable solely from the Pledged Revenues and the funds and accounts hereby
pledged and that the Bond is not a debt or an indebtedness or a multiple-fiscal year
financial obligation of the City and that the Bond is not a general obligation of the City
and that the full faith and credit of the City is not pledged to pay the Debt Service
Requirements of such Bond. Each Bond shall further recite that it is issued under the
authority of the Constitution of the State of Colorado, the Charter, the Downtown
Development Authority Act and this Ordinance.
(8) Form of Bonds. The Bonds shall be in substantially the following
form:
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[Form of Bond]
UNITED STATES OF AMERICA
STATE OF COLORADO COUNTY OF LARIMER
CITY OF FORT COLLINS
DOWNTOWN DEVELOPMENT AUTHORITY
TAXABLE SUBORDINATE TAX INCREMENT REVENUE BOND
SERIES 2002
No. R-1 $1,065,000
Interest Rate Maturity Date Original Date
3.75% December 31, 2002 December 30, 2002
REGISTERED OWNER: The Home State Bank
PRINCIPAL SUM: One Million Sixty-Five Thousand Dollars
The City of Fort Collins, in the County of Larimer and State of Colorado, for
value received, hereby promises to pay to the Registered Owner (specified above), or registered
assigns, solely from the special fund and account 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)
to the Maturity Date, except if redeemed prior thereto, at the per annum Interest Rate (specified
above), payable on the Maturity Date, in the manner provided herein. If upon presentation at
maturity payment of the Principal Sum of this Bond is not made as provided herein, interest
continues at the Interest Rate until the Principal Sum is paid in full.
The Bonds are subject to optional redemption prior to their maturity date, in
whole or in part, at any time prior to maturity at a price equal to the principal amount of each
Bond so redeemed plus accrued interest thereon to the redemption date.
Bonds that are redeemable prior to their maturity date may be redeemed in part if
issued in denominations that 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.
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Unless waived by the registered owners of the 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 three
(3) 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. Bonds called for
optional redemption as provided herein are redeemable only to the extent of moneys on deposit
with the paying agent and legally available for redemption of Bonds on the date of such notice.
Failure to mail any notice as aforesaid or any defect in any notice so mailed with respect to any
Bond does not affect the 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 his successors, as paying agent. The principal and 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. Any interest hereon not paid when due and any interest hereon accruing
after maturity is payable to the Registered Owner determined as of the close of business on the
special record date, which is to be fixed by the paying agent for such purpose, irrespective of any
transfer of ownership of this Bond subsequent to such special record date and prior to the date
fixed by the paying agent for the payment of such interest, by check or draft or wire transfer
directed to the Registered Owner as aforesaid. Notice of the special record date and of the date
fixed for the payment of such interest is to be given by sending a copy thereof by certified or
registered first-class postage prepaid mail, at least fifteen (15) days prior to the special record
date, to the registered owner of each Bond upon which interest will be paid determined as of the
close of business on the day preceding such mailing at the address appearing on the registration
books of the City. Any premium is payable to the Registered Owner upon presentation and
surrender of this Bond upon prior redemption, by check or draft or wire transfer directed to the
Registered Owner as aforesaid. If the date for making or giving any payment, determination or
notice described herein is a Saturday, Sunday, legal holiday or any other day on which the office
of the paying agent or registrar is authorized or required by law to remain closed, such payment,
determination or notice is to be made or given on the next succeeding day which is not a
Saturday, Sunday, legal holiday or other day on which the office of the paying agent or registrar
is authorized or required by law to remain closed.
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 is
pledged, pursuant to the Ordinance authorizing the issuance of this Bond, a special fund
designated as the Tax Increment Fund and a special account designated as the Subordinate Bonds
Debt Service Account, into which account the City has covenanted in the Ordinance to pay,
13
respectively, from the pledged revenues described in the Ordinance sums sufficient to pay when
due the principal of, interest on and any premium due in connection with redemption of this
Bond and any additional securities hereafter issued and payable from such pledged revenues on a
parity with the Bonds after provision for payment of all principal and interest due in the current
year on the City's Downtown Development Authority Tax Increment Revenue Refunding Bonds,
Series 1992, the City's Downtown Development Authority Tax Increment Revenue Refunding
Bonds, Series 2001, and any other securities payable from the pledged revenues superior or
senior to the Bonds.
It is hereby recited, certified and warranted that for the payment of the principal
of, interest on and any premium due in connection with the redemption of this Bond the City has
created and will maintain said special fund and account and will deposit therein the required
amounts out of the funds and revenues described in the Ordinance and out of said special fund
and account will pay the principal of, interest on and any premium due in connection with the
redemption of this Bond in the manner provided by the Ordinance.
The Bonds are equitably and ratably secured by a lien on the pledged revenues,
and such Bonds constitute an irrevocable and second lien (but not necessarily an exclusive
second lien) upon the pledged revenues. Bonds and other types of securities, in addition to the
Bonds, subject to expressed conditions, may be issued and made payable from the pledged
revenues having a lien thereon on a parity with the lien of the Bonds or, subject to additional
expressed conditions, having a lien thereon superior and senior with the lien of the Bonds in
accordance with the provisions of the Ordinance. Except as otherwise expressly provided in this
Bond and the Ordinance, the pledged revenues are assigned, pledged and set aside to the
payment of the principal of and interest on the Bonds of this issue in anticipation of the
collection of the pledged revenues.
The City covenants and agrees with the Registered Owner that it will keep and
perform all of the covenants of this Bond and of the Ordinance.
This Bond is authorized and issued for the purpose of financing certain capital
improvements and capital projects pursuant to, by virtue of and in full conformity with the
Constitution of the State of Colorado, the City Charter, part 8 of article 25 of title 31, Colorado
Revised Statutes, as amended, and all other laws of the State of Colorado thereunto enabling, and
pursuant to the Ordinance duly adopted prior to the issuance of this Bond.
Reference is hereby made to the Ordinance, and to any and all modifications and
amendments thereof, for a description of the provisions, terms and conditions upon which the
Bonds are issued and secured, including, without limitation, the nature and extent of the security
for the Bonds, provisions with respect to the custody and application of the proceeds of the
Bonds, the collection and disposition of the revenues and moneys charged with and pledged to
the payment of the principal of, 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 fund and account referred to above and the nature and extent of the security and
pledge afforded thereby for the payment of the principal of, interest on and any premium due in
connection with the redemption of the Bonds, and the manner of enforcement of said pledge, as
14
well as the rights, duties, immunities and obligations of the City and the members of its Council
and also the rights and remedies of the registered owners of the Bonds.
To the extent and in the respects permitted by the Ordinance, the provisions of the
Ordinance, or any instrument amendatory thereof or supplemental thereto, may be modified or
amended by action of the City taken in the manner and subject to the conditions and exceptions
provided in the Ordinance. The pledge of revenues and other obligations of the City under the
Ordinance may be discharged at or prior to the maturity or prior redemption of the Bonds upon
the making of provision for the payment of the Bonds on the terms and conditions set forth in the
Ordinance.
It is hereby recited, certified and warranted that all the requirements of law have
been fully complied with by the proper officers of the City in the issuance of this Bond; that it is
issued pursuant to and in strict conformity with the Constitution and all other laws of the State of
Colorado, including the City Charter, and with the Ordinance; that this Bond does not contravene
any constitutional or statutory limitation of the State of Colorado or any limitation of the City
Charter; and that this Bond is issued under the authority of the Ordinance.
For the payment of the principal of, interest on and any premium due in
connection with the redemption of this Bond the City pledges the exercise of all its lawful
corporate powers.
This Bond is transferable only upon the registration books of the City by 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 Owner or
his, her or its duly authorized attorney-in-fact or legal representative with guaranty of signature
satisfactory to the transfer agent, containing written instructions as to the details of the transfer,
along with the social security number or federal employer identification number of the transferee
and, if the transferee is a trust, the names and social security numbers of the settlors and the
beneficiaries of the trust. The transfer agent is not required to transfer ownership of this Bond
during the fifteen (15) days prior to the first mailing of any notice of redemption or to transfer
ownership of any Bond selected for redemption on or after the date of such mailing. The
Registered Owner may also exchange this Bond for another Bond or Bonds of authorized
denominations. Transfers and exchanges are to be made without charge, except that the transfer
agent may require payment of a sum sufficient to defray any tax or other governmental charge
that may hereafter be imposed in connection with any transfer or exchange of Bonds. No
transfer of this Bond is to be effective until entered on the registration books of the City. In the
case of every transfer or exchange, the 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
15
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.
This Bond is a special and limited obligation of the City payable solely out of and
secured by an assignment and pledge(but not necessarily an exclusive assignment and pledge) of
certain tax increment revenues and certain income derived from the investment of such revenues
and of certain bond proceeds, all as more specifically provided in the Ordinance, and of certain
funds and accounts pledged in the Ordinance. This Bond does not constitute a debt or an
indebtedness or a multiple-fiscal year financial obligation of the City within the meaning of any
constitutional, charter or statutory provision or limitation of the State of Colorado or of the City.
This Bond is not a general obligation of the City, and the full faith and credit of the City is not
pledged for the payment of the principal of or interest on this Bond.
IN WITNESS WHEREOF, the City has caused this Bond to be executed in its
name and on its behalf with the facsimile or manual signature of the Mayor of the City, to be
sealed with a facsimile or manual impression of the seal of the City, to be attested with the
facsimile or manual signature of the City Clerk of the City, and to be countersigned with the
facsimile or manual signature of the Financial Officer of the City.
CITY OF FORT COLLINS, COLORADO
(CITY) By: (Facsimile or Manual Signature)
(SEAL) Mayor
ATTEST:
(Facsimile or Manual Signature)
ture)
City Clerk
Countersigned:
(Facsimile or Manual Signature)
Financial Officer
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CERTIFICATE OF AUTHENTICATION
This Bond is issued pursuant to the Ordinance herein described.
FINANCIAL OFFICER OF THE CITY
as registrar
(Manual Si ng ature)
Dated: December 30, 2002
17
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Bond, shall be construed as though they were written out in full according to applicable laws or
regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants in
common
UNIF TRANS MIN ACT - Custodian
(Cust) (Minor)
under Uniform Transfers to Minors Act
(State)
Additional abbreviations may also be used
though not on the above list.
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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:
(Eligible Guarantor Institution)
NOTICE: The signature to this assignment
must correspond with the name of the
Registered Owner as it appears upon the
face of this Bond in every particular without
alteration or enlargement or any change
whatever.
[End of Form of Bond]
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C. Bonds Equally Secured. The covenants and agreements herein set forth to
be performed on behalf of the City shall be for the equal benefit, protection and security of the
Owners of the Bonds, all of which, regardless of the time or times of their maturity, shall be of
equal rank without preference, priority or distinction of any of the Bonds over any other thereof,
except as otherwise expressly provided in or pursuant to this Ordinance.
D. Financial Obligations. All of the Bonds, as to all Debt Service
Requirements thereof, shall be payable solely out of the Pledged Revenues. The Owners of the
Bonds may not look to the general or any other fund of the City for the payment of the Debt
Service Requirements thereof, except the special fund and account pledged therefor, and the
Bonds shall constitute special and limited obligations of the City.
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. The contract for the purchase of the Bonds is hereby
awarded to the Purchaser at a price equal to the aggregate principal amount of the Bonds plus
accrued interest, if any, from their date of issue to the date of delivery thereof to the Purchaser
and upon the terms set forth in this Ordinance.
C. Approval of Investment Letter. The Council hereby approves the form of
the Investment Letter.
Section 5. Disposition of Bond Proceeds and Pledged Revenues; Funds and
Accounts Adopted or Created by Ordinance; Security For Bonds. The proceeds of the sale of the
Bonds and the Pledged Revenues received by the City shall be deposited by the City in the funds
described in this Section 5, to be accounted for in the manner and priority set forth in this
Section 5.
Neither the Purchaser nor any subsequent Owner of any Bond shall be responsible
for the application or disposal by the City or by any of its officers, agents and employees of the
moneys derived from the sale of the Bonds or of any other moneys designated in this Section 5.
The Pledged Revenues and all moneys and securities paid or to be paid to or held
or to be held in any fund or account hereunder (except the Tax Increment Principal and Interest
Account and the Tax Increment Reserve Account) are hereby assigned and pledged, subject to
the provisions hereof, to secure the payment of the Debt Service Requirements of the Bonds and
any Additional Parity Bonds. 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
20
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 the Development
and Expense Fund forthwith upon receipt thereof the net proceeds of the Bonds, to be used and
withdrawn only as provided in this Section 5A. The net proceeds of the Bonds deposited in the
Development and Expense Fund shall be used and paid out from time to time solely for the
purpose of paying the Cost of the Project. Any proceeds of the Bonds remaining in the
Development and Expense Fund after payment in full of the Cost of the Project may be
transferred to the Tax Increment Fund and used for the purposes thereof.
B. Disposition of Tax Increment Revenues. For so long as any of the Bonds
shall be Outstanding, as to any Debt Service Requirements, except as otherwise provided herein,
the Tax Increment Revenues, upon their receipt from time to time by the City, shall be set aside
and credited immediately to the Tax Increment Fund.
For so long as any of the Bonds shall be Outstanding as to any Debt Service
Requirements, the Tax Increment Fund shall be accumulated and administered, and the moneys
on deposit therein shall be applied, in the following order of priority:
(1) First, to the Tax Increment Principal and Interest Account to pay
any Debt Service Requirements of Superior Bonds or Superior Securities then
Outstanding in the manner set forth in Section 5C hereof;
(2) Second, to the Tax Increment Reserve Account, in the manner set
forth in Section 5D hereof; and
(3) Third, to the Subordinate Bonds Debt Service Account to pay the
Debt Service Requirements of the Bonds, any Additional Parity Bonds and any other
Parity Securities in accordance with Section 5F hereof.
C. Tax Increment Principal and Interest Account Payments. The City shall
deposit in the Tax Increment Principal and Interest Account from the Tax Increment Revenues
on or before the last day of each month, the following amounts:
(1) Interest Pa,, intents. One-sixth (1/6) of the aggregate amount of the
next installment of interest due on the next Interest Payment Date in the current Bond
Year plus any other amounts due for interest on Superior Bonds or Superior Securities
then Outstanding.
(2) Principal Payments. One-sixth (1/6) of the aggregate amount of
the next installment of principal due on the next principal payment date in the current
Bond Year plus any other amounts due for principal of Superior Bonds or Superior
Securities then Outstanding.
The Tax Increment Principal and Interest Account shall be maintained as a
sinking fund for the mandatory redemption of the 1992 Tax Increment Refunding Bonds
21
maturing on December 1, 2006. Any mandatory sinking fund redemption shall be treated as an
installment of principal for purposes of this Section 5C.
Nothing herein shall be construed so as to prevent the City from creating separate
subaccounts within the Tax Increment Principal and Interest Account for separate series of
Superior Bonds or Superior Securities and accounting separately for any deposits made thereto
on account of such Superior Bonds or Superior Securities or from creating separate principal and
interest accounts for such Superior Bonds or Superior Securities, if such action is deemed by the
City to be necessary or desirable in order to comply with any statute or regulation governing the
exclusion from gross income under federal income tax laws of interest on any such Superior
Bonds or Superior Securities, provided that any such separate subaccounts shall have claims to
the Tax Increment Revenues equal to and on a parity with those of the other such subaccounts
and any such separate principal and interest account shall have a claim to the Tax Increment
Revenues equal to and on a parity with that of the Tax Increment Principal and Interest Account.
D. Tax Increment Reserve Account Payments. The City shall retain in the
Tax Increment Reserve Account a sum equal to the Average Annual Debt Service Requirements
of the 1992 Tax Increment Revenue Refunding Bonds and the 2001 Tax Increment Revenue
Refunding Bonds or, if the maximum amount permitted by applicable federal tax law is either
greater or lesser, said amount. Subject to the payments required by Section 5C hereof, except as
provided in Section 5E hereof, from and to the extent of any moneys remaining in the Tax
Increment Fund, there shall be credited as hereinafter provided and from time to time thereafter
to the Tax Increment Reserve Account moneys sufficient to accumulate in and maintain the Tax
Increment Reserve Account at an amount at least equal to the Combined Average Annual Debt
Service Requirements of all Outstanding Superior Bonds or Superior Securities for which the
Tax Increment Reserve Account is maintained. Said amount shall be maintained as a continuing
reserve solely for the payment of the Debt Service Requirements of all Superior Bonds or
Superior Securities for which the Tax Increment Reserve Account is maintained, except as
otherwise provided herein. No payment need be made into the Tax Increment Reserve Account
so long as the moneys therein shall equal not less than said amount. In the event that the amount
of the Tax Increment Reserve Account falls below the minimum amount required to be
maintained therein, the City shall credit to the Tax Increment Reserve Account that sum of
money needed to accumulate or reaccumulate the amount therein so that at all times the amount
of the Tax Increment Reserve Account equals said minimum amount. The moneys in the Tax
Increment Reserve Account shall be set aside, accumulated, and, if necessary, reaccumulated as
provided herein, from time to time, and maintained as a continuing reserve to be used, except as
hereinafter provided in Section 5E and Section 9 hereof, only to prevent deficiencies in the Tax
Increment Principal and Interest Account resulting from failure to deposit therein sufficient
Pledged Revenues to pay the Debt Service Requirements of all Superior Bonds or Superior
Securities for which the Tax Increment Reserve Account is maintained as the same become due.
If at any time the City shall for any reason fail to pay into the Tax Increment
Principal and Interest Account the full amount above stipulated for payment of Debt Service
Requirements on all Superior Bonds or Superior Securities, then an amount shall be paid into the
Tax Increment Principal and Interest Account at such time from the Tax Increment Reserve
Account equal to the difference between that paid from the Tax Increment Revenues and the full
amount so stipulated. The money so used shall be replaced to the Tax Increment Reserve
22
Account from the first moneys credited to the Tax Increment Fund thereafter received and not
required to be otherwise applied by Section 5C hereof.
If a separate reserve fund or account is maintained for separate series of Superior
Bonds or Superior Securities, then the moneys replaced in the Tax Increment Reserve Account
and such separate reserve fund or account shall be replaced on a pro rata basis, as moneys
become available therefor.
If at any time the City shall for any reason fail to pay into the Tax Increment
Reserve Account the full amount stipulated herein from the moneys credited to the Tax
Increment Fund, the difference between the amount paid and the amount stipulated shall in a like
manner be paid therein from the first Pledged Revenues credited to the Tax Increment Fund
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 first be approved in
writing by the Persons specified in the ordinances authorizing the issuance of Superior Bonds or
Superior Securities and shall not cause the then-current ratings of the Superior Bonds or Superior
Securities to be adversely affected.
E. Termination of Tax Increment Deposits. No payment need be made into
the Tax Increment Principal and Interest Account or the Tax Increment Reserve Account if the
amount in the Tax Increment Principal and Interest Account and the amount in the Tax
Increment Reserve Account total a sum at least equal to the entire remaining Debt Service
Requirements of the Outstanding Superior Bonds or Superior Securities to their respective
Maturity Dates or to any Redemption Date or Redemption Dates on which the City shall have
exercised or shall have obligated itself to exercise its option to redeem, prior to their respective
Maturity Dates, any Superior Bonds or Superior Securities then Outstanding and thereafter
maturing (provided that, solely for the purpose of this Section 5E, there shall be deemed to be a
credit to the Tax Increment Reserve Account moneys, Federal Securities and bank deposits, or
any combination thereof, accounted for in any other fund or account of the City and restricted
solely for the purpose of paying the Debt Service Requirements of the Superior Bonds or
Superior Securities), in which case moneys in the Tax Increment Principal and Interest Account
and the Tax Increment Reserve Account in an amount, except for any known interest or other
gain to accrue from any investment or deposit of moneys pursuant to Section 6B hereof from the
time of any such investment or deposit to the time or respective times the proceeds of any such
investment or deposit shall be needed for such payment, at least equal to such Debt Service
Requirements, shall be used together with any such gain from such investments and deposits
solely to pay such Debt Service Requirements as the same become due; and any moneys in
excess thereof in the Tax Increment Principal and Interest Account and the Tax Increment
Reserve Account and any other moneys derived from the Tax Increment Revenues may be used
in any lawful manner determined by the City and the Authority, including payment of the Debt
Service Requirements of the Bonds, any Additional Parity Bonds or other Parity Securities.
23
F. Subordinate Bonds Debt Service Account Payments. The City shall
deposit in the Subordinate Bonds Debt Service Account, forthwith upon receipt of the proceeds
of the Bonds, accrued interest, if any, from their date of issue to their date of delivery to the
Purchaser to apply to the payment of interest first due on the Bonds. After there have been
deposited in the Tax Increment 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 Superior
Bonds or Superior Securities then Outstanding and after the accumulations to and replenishments
of the Tax Increment Reserve Account to be made in the current Bond Year have been made, any
moneys remaining in the Tax Increment Fund in any Bond Year may be used by the City for the
payment of Debt Service Requirements of the Bonds, any Additional Parity Bonds or any other
Parity Securities; but the lien of such securities on the Tax Increment Revenues and the pledge
thereof for the payment of such securities shall be subordinate and junior to the lien and pledge
for the payment of all Superior Bonds or Superior Securities as herein provided.
G. Budget and Appropriation of Sums. The sums required to make the
payments specified in this Section 5 shall be appropriated for said purposes, and the amounts so
required in each year shall be included in the budget and the annual appropriation ordinance or
measures to be adopted or passed by the Council 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.
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 kept separate and apart from all other accounts or funds of
the City as trust accounts solely for the purposes herein designated therefor. For purposes of
investment of moneys, nothing, except as specifically provided herein, prevents the commingling
of moneys accounted for in any two or more such funds or accounts pertaining to the Pledged
Revenues or to such fund and account and any other funds or accounts of the City adopted or
created under this Ordinance. Such funds or accounts shall be continuously secured to the fullest
extent required and permitted by the laws of the State for the securing of public funds and shall
be irrevocable and not withdrawable by anyone for any purpose other than the respective
designated purposes of such funds and accounts. Each periodic payment shall be credited to the
proper fund or account not later than the date therefor herein designated, except that when any
such date shall be a Saturday, a Sunday or a legal holiday, then such payment shall be made on
or before the next preceding business day.
B. Investment of Funds and Accounts. Any moneys in Development and
Expense Fund and the Subordinate Bonds Debt Service Account may be deposited, invested, or
reinvested only in Permitted Investments. Securities or obligations purchased as such an
investment shall either be subject to redemption at any time at face value by the Owner thereof at
the option of such Owner or shall mature at such time or times as shall most nearly coincide with
the expected need for moneys from the fund or account in question. Securities or obligations so
purchased as an investment of moneys in any such fund or account shall be deemed at all times
24
to be a part of the applicable fund or account; provided that the interest accruing on such
investments and any profit realized therefrom shall be credited to the Tax Increment Fund and
any loss resulting from such investments shall be charged to the particular fund or account in
question. 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.
C. No Liability for Losses Incurred in Performing Terms of Ordinance.
Neither the City nor any officer of the City shall be liable or responsible for any loss resulting
from any investment or reinvestment made in accordance with this Ordinance.
D. Character of Funds. The moneys in any fund or account herein authorized
shall consist of lawful money of the United States of America or Permitted Investments or both
such money and Permitted Investments. Moneys deposited in a demand or time deposit account
in a Commercial Bank, appropriately secured according to the laws of the State, shall be deemed
lawful money of the United States of America.
E. Accelerated Payments Optional. Nothing contained herein prevents the
accumulation in any fund or account herein designated of any monetary requirements at a faster
rate than the rate or minimum rate, as the case may be, provided therefor, but no payment shall
be so accelerated if such acceleration shall cause a default in the payment of any obligation of
the City pertaining to the Pledged Revenues.
Section 7. Priorities; Liens; Issuance of Additional Bonds.
A. Lien on Pledged Revenues. Except as expressly provided in this
Ordinance with respect to the issuance of Superior Bonds or Superior Securities and Additional
Parity Bonds or Parity Securities, the Tax Increment Revenues and the Investment Earnings shall
be and hereby are irrevocably assigned, pledged and set aside to pay the Debt Service
Requirements of the Bonds. The Bonds constitute an irrevocable and second lien (but not
necessarily an exclusive second lien) upon the Tax Increment Revenues and the Investment
Earnings. The Bonds, any Additional Parity Bonds and any other Parity Securities authorized to
be issued and from time to time Outstanding are equitably and ratably secured by a lien on the
Tax Increment Revenues and the Investment Earnings and shall not be entitled to any priority
one over the other in the application thereof regardless of the time or times of the issuance of the
Bonds, any Additional Parity Bonds and any other Parity Securities, it being the intention of the
Council that there shall be no priority among the Bonds, any Additional Parity Bonds and any
other Parity Securities, regardless of the fact that they may be actually issued and delivered at
different times.
B. Issuance Of Additional Parity Bonds. Nothing herein, subject to the
limitations stated in Section 7D hereof, prevents the issuance by the City of Additional Parity
Bonds payable from the Tax Increment Revenues and the Investment Earnings and constituting a
lien thereon on a parity with the lien thereon of the Bonds.
25
C. Additional Superior Securities Permitted. Subject to the limitations stated
in Section 7D hereof and in the ordinances authorizing the issuance of Superior Bonds or
Superior Securities, the City may issue additional Superior Bonds or additional Superior
Securities for any lawful purpose payable from the Tax Increment Revenues and the Investment
Earnings and having a lien thereon superior and senior to the lien thereon of the Bonds.
D. Supplemental Ordinances. Additional Parity Bonds or Superior Bonds or
Superior Securities shall be issued only after authorization thereof by ordinance, supplemental
ordinance or other instrument of the Council, in substantially the same form as this Ordinance,
stating the purpose or purposes of the issuance of such additional securities, directing the
application of the proceeds thereof to such purpose or purposes, directing the execution thereof,
and fixing and determining the date, series designation, principal amount, maturity or maturities,
maximum rate or rates of interest, and prior redemption privileges of the City with respect
thereto, and providing for payments to and from the applicable funds and accounts in accordance
with this Ordinance. All additional securities shall bear such date, shall be payable as to
principal on June 1 or December 1 or both and as to interest on June 1 and December 1 and shall
be subject to redemption prior to maturity on such terms and conditions, as may be provided, and
shall bear interest at such rate or rates as may be fixed by ordinance, instrument or other
document of the Council.
Section 8. Covenants.
The City hereby particularly covenants and agrees with the Owners of the Bonds
from time to time, and makes provisions which shall be a part of its contract with such Owners,
which covenants and provisions shall be kept by the City continuously until all of the Bonds
have been fully paid and discharged:
A. Continuance and Collection of Tax Increment Revenues.
(1) The Plan of Development, as approved and amended as described
in this Ordinance, is now in full force and effect. The City will not revoke its approval or
amend the Plan of Development in any manner which would diminish the Tax Increment
Revenues.
(2) The City shall continue to collect the Tax Increment Revenues in
accordance with the Downtown Development Authority Act.
(3) The City shall maintain the Tax Increment Fund as a fund of the
City separate and distinct from all other funds of the City and shall place the Tax
Increment Revenues therein. The Tax Increment Fund shall be subject to appropriation
only as authorized by the Downtown Development Authority Act and this Ordinance.
(4) All of the Tax Increment Revenues shall be subject to the payment
of the Debt Service Requirements of all securities payable therefrom, including reserves
therefor, as provided herein or in any instrument supplemental or amendatory hereto.
B. Defense of Legality of Pledged Revenues. There is not pending or
threatened any suit, action or proceeding against or affecting the City before or by any court,
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arbitrator, administrative agency or other governmental authority which affects the validity or
legality of this Ordinance, any ordinance affecting the Tax Increment Revenues or any of the
City's obligations under such ordinances.
The City shall, to the extent permitted by law, defend the validity and legality of
all ordinances affecting the Tax Increment Revenues and all amendments thereto against all
claims, suits and proceedings which would diminish or impair the Pledged Revenues.
Except as permitted in this Ordinance, the City has not assigned or pledged the
Pledged Revenues in any manner which would diminish the security for payment of the Bonds.
C. Performance of Duties. The City, acting and through its officers, or
otherwise, shall faithfully and punctually perform, or cause to be performed, all duties with
respect to the Pledged Revenues required by the Constitution and laws of the State, the Charter
and the various ordinances, resolutions and contracts of the City, including, without limitation,
the proper segregation of the proceeds of the Bonds and the Pledged Revenues and their
application from time to time to the respective funds provided therefor.
D. Contractual Obligations. The City will perform all contractual obligations
undertaken by it under the contract with the Purchaser and any other agreements relating to the
Bonds and the Pledged Revenues.
E. Further Assurances. At any and all times the City shall, so far as it may be
authorized by law,pass, make, do, execute, acknowledge, deliver, and file or record all and every
such further instruments, acts, deeds, conveyances, assignments, transfers, other documents, and
assurances as may be necessary or desirable for the better assuring, conveying, granting,
assigning and confirming all and singular the rights, the Pledged Revenues and other funds and
accounts hereby pledged or assigned, or intended so to be, or which the City may hereafter
become bound to pledge or to assign, or as may be reasonable and required to carry out the
purposes of this Ordinance. The City, acting by and through its officers, or otherwise, shall at all
times, to the extent permitted by law, defend, preserve and protect the pledge of the Pledged
Revenues and other funds and accounts pledged hereunder and all the rights of every Owner of
any of the Bonds against all claims and demands of all Persons whomsoever.
F. Conditions Precedent. Upon the date of issuance of any of the Bonds, all
conditions, acts and things required by the Constitution or laws of the United States of America,
the Constitution or laws of the State, the Charter, or this Ordinance, to exist, to have happened,
and to have been performed precedent to or in the issuance of the Bonds shall exist, have
happened and have been performed, and the Bonds do not contravene any debt or other
limitation prescribed by the Constitution or laws of the United States of America, the
Constitution or laws of the State or the Charter.
G. Records. The City will keep proper books of record and account, separate
and apart from all other records and accounts, showing complete and correct entries of all
transactions relating to the funds and accounts described herein.
H. Protection of Security. The City, its officers, agents and employees, shall
not take any action in such manner or to such extent as might prejudice the security for the
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payment of the Debt Service Requirements of the Bonds and any other securities payable from
the Pledged Revenues according to the terms thereof. No contract shall be entered into nor any
other action taken by which the rights of any Owner of any Bond or other security payable from
Pledged Revenues might be materially impaired or diminished.
I. Accumulation of Interest Claims. In order to prevent any accumulation of
claims for interest after maturity, the City shall not directly or indirectly extend or assent to the
extension of the time for the payment of any claim for interest on any of the Bonds or any other
securities payable from the Pledged Revenues; and the City shall not directly or indirectly be a
party to or approve any arrangements for any such extension or for the purpose of keeping alive
any of such other claims for interest. If the time for the payment of any such installment of
interest is extended in contravention of the foregoing provisions, such installment or installments
of interest after such extension or arrangement shall not be entitled in case of default hereunder
to the benefit or the security of this Ordinance, except upon the prior payment in full of the
principal of all of the Bonds and any such securities the payment of which has not been
extended.
J. Prompt Payment of Bonds. The City shall promptly pay the Debt Service
Requirements of every Bond on the dates and in the manner specified herein and in the Bonds
according to the true intent and meaning hereof.
K. Use of Funds and Accounts. The funds and accounts described in the
Ordinance shall be used solely and only, and the moneys credited to such accounts are hereby
pledged, solely for the purposes specified herein.
L. Additional Securities. The City shall not hereafter issue any bonds or
securities payable from the Pledged Revenues without compliance with the requirements with
respect to the issuance of such bonds or securities set forth herein to the extent applicable.
M. Other Liens. There are no liens or encumbrances of any nature
whatsoever on or against any of the Tax Increment Revenues except as provided herein.
N. Surety Bonds. Each official or other person having custody of any
Pledged Revenues, or responsible for their handling, shall be fully bonded at all times, which
bond shall be conditioned upon the proper application of said moneys.
Section 9. Defeasance.
When all Debt Service Requirements of the Bonds have been duly paid, the
pledge and lien and all obligations hereunder shall thereby be discharged and the Bonds shall no
longer be deemed to be Outstanding within the meaning of this Ordinance. There shall be
deemed to be such due payment when the City has placed in escrow or in trust with a Trust Bank
located within or without the State, moneys or Federal Securities in an amount sufficient
(including the known minimum yield available for such purpose from Federal Securities in
which such amount wholly or in part may be initially invested) to meet all Debt Service
Requirements of the Bonds, as the same become due to their respective Maturity Dates or to any
Redemption Date as of which the City shall have exercised or shall have obligated itself to
exercise its option to redeem Bonds prior to their respective Maturity Dates. The Federal
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Securities shall be non-callable and shall become due prior to the respective times at which the
proceeds thereof shall be needed, in accordance with a schedule established and agreed upon
between the City and such Trust Bank at the time of the creation of the escrow or trust, or the
Federal Securities shall be subject to redemption at the option of the Owner thereof to assure
such availability as so needed to meet such schedule. Nothing herein shall be construed to
prohibit a partial defeasance of the Outstanding Bonds in accordance with the provisions of this
Section 9.
Section 10. Default Provisions and Remedies of Bond Owners.
A. Events of Default. Each of the following events is hereby declared to be
an Event of Default by the City:
(1) Payment of Principal or Premium. Payment of the principal of any
of the Bonds or any premium due in connection with the redemption thereof is not made
when the same becomes due and payable, either at maturity or upon prior redemption, or
otherwise;
(2) Nonpayment of Interest. Payment of any installment of interest on
any of the Bonds is not made when the same becomes due and payable;
(3) Incapacity to Perform. The City for any reason becomes incapable
of fulfilling its obligations hereunder;
(4) Nonperformance of Duties. The City shall have failed to carry out
and to perform (or in good faith to begin the performance of) all acts and things lawfully
required to be carried out to be performed by it under any contract relating to the Bonds
or the Pledged 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 ten percent (10%) in aggregate principal amount of
the Bonds then Outstanding;
(5) Appointment of Receiver. An order or decree is entered by a court
of competent jurisdiction, with the consent or acquiescence of the City, appointing a
receiver or receivers for the Pledged Revenues and any other moneys subject to the lien
to secure the payment of the Bonds, or if any order or decree, having been entered
without the consent or acquiescence of the City, is not vacated or discharged or stayed on
appeal within sixty(60) days after entry;
(6) Default of Any Provision. The City makes any default in the due
and punctual performance of any other of the representations, covenants, conditions,
agreements and other provisions contained in the Bonds or in this Ordinance on its part to
be performed, and such default continues for sixty (60) days after written notice,
specifying such default and requiring the same to be remedied, is given to the City by the
Owners of ten percent (10%) in aggregate principal amount of the Bonds then
Outstanding.
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B. Remedies for Defaults. Upon the happening and continuance of any Event
of Default, the Owner or Owners of not less than ten percent (10%) in aggregate principal
amount of the Bonds then Outstanding, including, without limitation, a trustee or trustees
therefor, may proceed against the City and its agents, officers and employees to protect and to
enforce the rights of any Owner of Bonds under this Ordinance by mandatory injunction or by
other suit, action, or special proceedings in equity or at law, in any court of competent
jurisdiction, either for the appointment of a receiver or an operating trustee or for the specific
performance of any covenant or agreement contained herein or for any proper legal or equitable
remedy as such Owner or Owners may deem most effectual to protect and to enforce the
aforesaid rights, or thereby to enjoin any act or thing which may be unlawful or in violation of
any right of any Owner of any Bond, or to require the City to act as if it were the trustee of an
expressed trust, or any combination of such remedies, or as otherwise may be authorized by any
statute or other provision of law. All such proceedings at law or in equity shall be instituted, had
and maintained for the equal benefit of all Owners of the Bonds and any Parity Securities then
Outstanding. Any receiver or operating trustee appointed in any proceedings to protect the rights
of such Owners hereunder, the consent to any such appointment being hereby expressly granted
by the City, may collect, receive and apply all Pledged Revenues arising after the appointment of
such receiver or operating trustee in the same manner as the City itself might do.
Notwithstanding the foregoing or any other applicable provisions of law, no Event of Default
shall result in acceleration of any obligation of the City represented by the Bonds.
C. Rights and Privileges Cumulative. The failure of any Owner of any
Outstanding Bond to proceed in any manner herein provided shall not relieve the City, or any of
its officers, agents or employees of any liability for failure to perform or carry out any duty,
obligation or other commitment. Each right or privilege of any such Owner or any trustee
thereof is in addition and is cumulative to any other right or privilege, and the exercise of any
right or privilege by or on behalf of any Owner shall not be deemed a waiver of any other right
or privilege thereof. Each Owner of any Bond shall be entitled to all of the privileges, rights, and
remedies provided or permitted in this Ordinance and as otherwise provided or permitted by law
or in equity or by statute, except as provided in Section 12A and Section 12B hereof, and subject
to the applicable provisions concerning the Pledged Revenues and the proceeds of the Bonds.
Nothing herein affects or impairs the right of any Owner of any Bond to enforce the payment of
the Debt Service Requirements due in connection with his, her or its Bond or the obligation of
the City to pay the Debt Service Requirements of each Bond to the Owner thereof at the time and
the place expressed in such Bond.
D. Duties Upon Defaults. Upon the happening of any of the Events of
Default as provided in Section 10A hereof, the City, in addition, shall do and perform all proper
acts on behalf of and for the Owners of the Outstanding Bonds to protect and to preserve the
security created for the payment of their Bonds and to insure the payment of the Debt Service
Requirements of the Bonds promptly as the same become due. During any period of default, so
long as any of the Bonds, as to any Debt Service Requirements, are Outstanding, except to the
extent it may be unlawful to do so, all Pledged Revenues shall be paid into the Tax Increment
Principal and Interest Account, or, in the event of securities hereafter or heretofore issued and
Outstanding during such period of time senior to or on a parity with the Bonds, shall be applied
as provided in Section 5C and Section 5F hereof on an equitable and prorated basis, and used for
the purposes therein provided. If the City fails or refuses to proceed as in this Section lOD
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provided, the Owner or Owners of not less than ten percent (10%) in principal amount of the
Bonds then Outstanding, after demand in writing, may proceed to protect and to enforce the
rights of the Owners of the Bonds as hereinabove provided; and to that end any such Owners of
Outstanding Bonds shall be subrogated to all rights of the City under any agreement or contract
involving the Pledged Revenues entered into prior to the effective date of this Ordinance or
thereafter while any of the Bonds are Outstanding. Nothing herein requires the City to proceed
as provided herein if it determines in good faith and without any abuse of its discretion that such
action is likely materially and prejudicially to affect the Owners of the Outstanding Bonds and
any Outstanding Parity Securities.
E. Evidence of Security Owners. Any request, consent or other instrument
which this Ordinance may require or may permit to be signed and to be executed by the Owner
of any Bonds or other securities may be in one instrument or more than one instrument of similar
tenor and shall be signed or may be executed by each Owner in person or by his, her or its
attorney appointed in writing. Proof of the execution of any such instrument or of any
instrument appointing any such attorney, or the ownership by any Person of the securities, shall
be sufficient for any purpose of this Ordinance (except as otherwise herein expressly provided) if
made in the following manner:
(1) Proof of Execution. The fact and the date of the execution by any
Owner of any Bonds or other securities or his, her or its attorney of such instrument may
be proved by the certificate, which need not be acknowledged or verified, of any officer
of a bank or trust company satisfactory to the City Clerk or of any notary public or other
officer authorized to take acknowledgments of deeds to be recorded in the state in which
he or she purports to act that the individual signing such request or other instrument
acknowledged to him or her the execution, duly sworn to before such notary public or
other officer; the authority of the individual or individuals executing any such instrument
on behalf of a corporate Owner of any securities may be established without further proof
if such instrument is signed by an individual purporting to be the president or vice-
president of such corporation with the corporate seal affixed and attested by an individual
purporting to be its secretary or an assistant secretary; and the authority of any Person or
Persons executing any such instrument in any fiduciary or representative capacity may be
established without further proof if such instrument is signed by a Person or Persons
purporting to act in such fiduciary or representative capacity; and
(2) Proof of Owners. The amount of Bonds owned by any Person
executing any instrument as an Owner of Bonds, and the numbers, dates and other
identification thereof, together with the dates of his ownership of the Bonds, shall be
determined from the registration books of the City. The amount of other securities, if
applicable, owned by any Person executing any instrument as an Owner of such
securities, and the numbers, dates and other identification thereof, together with the dates
of his ownership, if in bearer form, may be proved by a certificate which need not be
acknowledged or verified, in form satisfactory to the City Clerk, executed by a member
of a financial firm or by an officer of a bank or trust company, insurance company or
financial corporation or other depository satisfactory to the City Clerk, or by any notary
public or other officer authorized to take acknowledgments of deeds to be recorded in the
state in which he or she purports to act, showing at the date therein mentioned that such
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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 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 officers, directors, successors, assigns, employees and agents.
Section 11. Amendment of Ordinance.
A. Amendment of Ordinance Not Requiring Consent of Bond Owners. The
City may, without the consent of, or notice to, the Owners of the Bonds, adopt such ordinances
supplemental hereto (which amendments shall thereafter form a part hereof) for any one or more
or all of the following purposes:
(1) To cure or correct any formal defect, ambiguity or inconsistent
provision contained in this Ordinance;
(2) To appoint successors to the Paying Agent, Registrar or Transfer
Agent;
(3) To designate a trustee for the Owners of the Bonds, to transfer
custody and control of the Pledged Revenues to such trustee, and to provide for the rights
and obligations of such trustee;
(4) To add to the covenants and agreements of the City or the
limitations and restrictions on the City set forth herein;
(5) To pledge additional revenues, properties or collateral to the
payment of the Bonds;
(6) To cause this Ordinance to comply with the Trust Indenture Act of
1939, as amended from time to time; or
(7) To effect any such other changes hereto which do not in the
opinion of nationally recognized bond counsel materially adversely affect the interests of
the Owners of the Bonds.
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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
of any additional consideration but with the written consent of the Owners of sixty-six percent
(66%) in aggregate principal amount of the Bonds Outstanding at the time of the adoption of
such amendatory ordinance, provided that no such amendatory ordinance shall permit without
the written consent of one hundred percent (100%) in aggregate principal amount of the Bonds
Outstanding:
(1) Changing Pa, n�. A change in the maturity or in the terms of
redemption of the principal of any Outstanding Bond or any installment of interest
thereon; or
(2) Reducing Return. A reduction in the principal amount of any
Bond, the rate of interest thereon or any premium payable in connection with the
redemption thereof,without the consent of the Owner of the Bond; or
(3) Prior Lien. The creation of a lien upon or a pledge of revenues
ranking prior to the lien or to the pledge created by this Ordinance; or
(4) Modifying Amendment Terms. A reduction of the principal
amount or percentages of Bonds, or any modification otherwise affecting the description
of Bonds, otherwise changing the consent of the Owners of Bonds, which may be
required herein for any amendment hereto; or
(5) Priorities Among Bonds or Parity Securities. The establishment of
priorities as among Bonds issued and Outstanding under the provisions of this Ordinance
or as among Bonds and other Securities on a parity therewith; or
(6) Partial Modification. Any modifications otherwise materially and
prejudicially affecting the rights or privileges of the Owners of less than all of the Bonds
then Outstanding.
Whenever the Council proposes to amend or modify this Ordinance under the
provisions of this Section 11B it shall give notice of the proposed amendment by mailing such
notice to all Owners of Bonds at the addresses appearing on the registration books of the City.
Such notice shall briefly set forth the nature of the proposed amendment and shall state that a
copy of the proposed amendatory ordinance or other instrument is on file in the office of the City
Clerk for public inspection.
C. Time for and Consent to Amendment. Whenever at any time within one
(1) year from the date of the completion of the notice required to be given by Section 11 B 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
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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, no Owner of any Bond, whether or not such Owner
shall have consented to or shall have revoked any consent as herein provided, shall have any
right or interest to object to the adoption of such amendatory ordinance or other instrument or to
object to any of the terms or provisions therein contained or to the operation thereof or to enjoin
or restrain the City from taking any action pursuant to the provisions thereof. Any consent given
by the Owner of a Bond pursuant to the provisions thereof shall be irrevocable for a period of six
(6) months from the date of the completion of the notice above provided for and shall be
conclusive and binding upon all future Owners of the same Bond during such period. Such
consent may be revoked at any time after six (6) months from the completion of such notice, by
the Owner who gave such consent or by a successor in title, by filing notice of such revocation
with the City Clerk, but such revocation shall not be effective if the Owners of sixty-six percent
(66%) in aggregate principal amount of the Bonds Outstanding as herein provided, prior to the
attempted revocation, shall have consented to and approved the amendatory instrument referred
to in such revocation.
D. Unanimous Consent. Notwithstanding anything in the foregoing
provisions contained, the terms and the provisions of this Ordinance, or of any ordinance or
instrument amendatory thereof, and the rights and the obligations of the City and of the Owners
of the Bonds may be modified or amended in any respect (except as would adversely affect the
rights of the Owners of any Parity Securities or Superior Bonds or Superior Securities) upon the
adoption by the City and upon the filing with the City Clerk of an instrument to that effect and
with the consent of the Owners of all the Outstanding Bonds, such consent to be given in the
manner provided in Section 11 C hereof; and no notice to Owners of Bonds shall be required as
provided in Section 11 B hereof, nor shall the time of consent be limited except as may be
provided in such consent.
E. Exclusion of Bonds. At the time of any consent or of other action taken
hereunder the Registrar shall furnish to the City Clerk a certificate, upon which the City Clerk
may rely, describing all Bonds to be excluded for the purpose of consent or of other action or of
any calculation of Outstanding Bonds provided for hereunder, and, with respect to such excluded
Bonds, the City shall not be entitled or required with respect to such Bonds to give or obtain any
consent or to take any other action provided for hereunder.
F. Notation on Bonds. Any of the Bonds delivered after the effective date of
any action taken as provided in Section I I hereof, or Bonds Outstanding at the effective date of
such action, may bear a notation thereon by endorsement or otherwise in form approved by the
Council as to such action; and if any such Bonds so delivered after such date does not bear such
notation, then upon demand of the Owner of any Bond Outstanding at such effective date and
upon presentation of his Bond for such purpose at the principal office of the City, suitable
notation shall be made on such Bond by the City Clerk as to any such action. If the Council so
determines, new Bonds so modified as in the opinion of the Council to conform to such action
shall be prepared, executed and delivered; and upon demand of the Owner of any Bond then
Outstanding, shall be exchanged without cost to such Owner for Bonds then Outstanding upon
surrender of such Outstanding Bonds.
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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.
B. No Pledge of Property. The payment of the Bonds is not secured by an
encumbrance, mortgage or other pledge of property of the City except for the Pledged Revenues.
No property of the City, subject to such exception with respect to the Pledged Revenues, pledged
for the payment of the Bonds, shall be liable to be forfeited or taken in payment of the Bonds.
C. Statute of Limitations. No action or suit based upon any Bond or other
obligation of the City shall be commenced after it is barred by any statute of limitations
pertaining thereto. Any trust or fiduciary relationship between the City and the Owner of any
Bond or the obligee regarding any such obligation shall be conclusively presumed to have been
repudiated on the Maturity Date or other due date thereof unless the Bond is presented for
payment or demand for payment of such other obligation is otherwise made before the expiration
of the applicable limitation period. Any moneys from whatever source derived remaining in any
fund or account reserved, pledged or otherwise held for the payment of any such obligation,
action or suit, the collection of which has been barred, shall revert to such fund as the Council
shall provide by ordinance. Nothing herein prevents the payment of any such Bond or other
obligation after an action or suit for its collection has been barred if the Council deems it in the
best interests of the City or the public so to do and orders such payment to be made.
D. Delegated Duties. The officers of the City are hereby authorized and
directed to enter into such agreements and take all action necessary or appropriate to effectuate
the provisions of this Ordinance and to comply with the requirements of law, including, without
limitation:
(1) Printing. The printing of the Bonds or, if necessary or desirable,
the preparation of typewritten Bonds as provided herein; and
(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.
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
35
duty of the City or of its respective successors, if any, the possession of which is necessary or
appropriate in order to comply with any such covenants, stipulations, obligations, agreements or
other provisions hereof.
F. Rights and Immunities. Except as herein otherwise expressly provided,
nothing herein expressed or implied is intended or shall be construed to confer upon or to give to
any Person, other than the City and the Owners from time to time of the Bonds, any right,
remedy or claim under or by reason hereof or any covenant, condition or stipulation hereof. All
the covenants, stimulations, promises and agreements herein contained by and on behalf of the
City shall be for the sole and exclusive benefit of the City and any Owner of any of the Bonds.
No recourse shall be had for the payment of the Debt Service Requirements of the
Bonds or for any claim based thereon or otherwise upon this Ordinance authorizing their
issuance or any other ordinance or instrument pertaining thereto, against any individual member
of the Council, or any officer or other agent of the City, past, present or future, either directly or
indirectly through the City, or otherwise, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any penalty or otherwise, all such liability, if any, being by the
acceptance of the Bonds and as a part of the consideration of their issuance specially waived and
released.
G. Ordinance Irrepealable. This Ordinance is, and shall constitute, a
legislative measure of the City and after any of the Bonds are issued, this Ordinance shall
constitute an irrevocable contract between the City and the Owner or Owners of the Bonds; and
this Ordinance, subject to the provisions of Section 9 and Section 11 hereof, if any Bonds are in
fact issued, shall be and shall remain irrepealable until the Bonds, as to all Debt Service
Requirements, shall be fully paid, cancelled and discharged, as herein provided.
H. Ratification. All action not inconsistent with the provisions of this
Ordinance heretofore taken by the City or its officers, and otherwise by the City directed toward
the sale and delivery of the Bonds for that purpose, be, and the same hereby is, ratified, approved
and confirmed.
I. 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.
J. Severability. If any section, subsection, paragraph, clause or other
provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the
invalidity or unenforceability thereof shall not affect any of the remaining sections, subsections,
paragraphs, clauses or provisions of this Ordinance.
36
INTRODUCED, READ, APPROVED ON FIRST READING, AND ORDERED
PUBLISHED ONCE BY NUMBER AND TITLE ONLY this 19th day of November, 2002.
CITY OF FORT COLLINS, COLORADO
By: f `
Mayor
(CITY)
(SEAL)
ATTEST:
City Clerk
READ, AMENDED, FINALLY PASSED AS AMENDED ON SECOND
READING AND ORDERED PUBLISHED ONCE BY NUMBER AND TITLE ONLY this 17th
day of December, 2002.
CITY OF FORT COLLIN�, COLORADO
By: . f,
Mayor
(CITY) _._.
(SEAL)
ATTEST:
City Clerk
37