HomeMy WebLinkAbout090 - 09/07/2010 - AN ORDINANCE AUTHORIZING THE ISSUANCE OF CITY OF FORT COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHOR ORDINANCE NO. 090, 2010
AN ORDINANCE AUTHORIZING THE . ISSUANCE OF CITY OF FORT
COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY
TAXABLE TAX INCREMENT REVENUE BONDS, SERIES 2010A, DATED
THEIR DELIVERY DATE, IN AN AGGREGATE PRINCIPAL AMOUNT
NOT TO EXCEED $9,000,000, AND TAX-EXEMPT TAX INCREMENT
REVENUE BONDS, SERIES 2010B, DATED THEIR DELIVERY DATE, IN
AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $5,000,000,
FOR THE PURPOSE OF FINANCING CERTAIN CAPITAL
IMPROVEMENTS, CAPITAL PROJECTS AND DEVELOPMENT PROJECTS
WITHIN THE DOWNTOWN DEVELOPMENT AUTHORITY AREA;
PROVIDING FOR THE PLEDGE OF CERTAIN INCREMENTAL AD
VALOREM TAX REVENUES TO PAY THE PRINCIPAL OF AND
INTEREST ON THE BONDS; APPROVING DOCUMENTS IN
CONNECTION THEREWITH; AND RATIFYING ACTION PREVIOUSLY
TAKEN AND APPERTAINING THERETO.
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 any designated
Securities for all Bond Years beginning with the Bond Year in which Debt Service Requirements
of such Securities are first payable after the computation date 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 Purchase Agreement: the Bond Purchase Agreement to be
entered into between the City and the Purchaser.
(5) 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.
(6) Bonds: collectively, the 2010A DDA Taxable Bonds and the
2010B DDA Tax-Exempt Bonds.
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(7) Charter: the Home Rule Charter of the City, as amended.
(8) City: the City of Fort Collins, Colorado.
(9) Combined Average Annual Debt Service Requirements: the sum
of the Average Annual Debt Service Requirements for all issues of designated Securities for
which such computation is being made, treated as a single issue.
(10) Combined Maximum Annual Debt Service Requirements: the
Maximum Annual Debt Service Requirements for all designated Securities for which such
computation is being made, treated as a single issue.
(11) Commercial Bank: a state or national bank or trust company that
is a member of the Federal Deposit Insurance Corporation and of the Federal Reserve System,
which has a combined capital and surplus of$75,000,000 or more, and that is located within the
United States of America.
(12) Cost of the Project: all or any part of the cost of acquiring,
constructing and implementing 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; 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.
(13) Costs of Issuance: all financial, legal, and accounting fees, the fee
of the Purchaser (in the amount of one-half of one percent (0.50%) of the original aggregate
principal amount of the Bonds), and all costs of printing, mailing, publication and other similar
costs incurred in connection with the authorization, issuance and sale of the Bonds.
(14) Costs of Issuance Account: the special account created and
referred to in Section 5A hereof.
(15) Council: the governing body of the City.
(16) 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.
(17) 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.
(18) District: the area described in the Plan of Development and
approved by Ordinance No. 46, 1981, of the City, as amended by Ordinance No. 162, 1981, of
the City and Ordinance No. 2, 1983, of the City and as has heretofore been or as may hereafter
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be amended by valid legislative action of the City as may be determined in accordance with the
decisions of the appellate courts of the State.
(19) Downtown Development Authority Act: part 8 of article 25 of title
31, Colorado Revised Statutes, as amended.
(20) Event of Default: any one of the events described in Section 10A
hereof.
(21) Federal Securities: means only direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by, the United States (or
ownership interests in any of the foregoing) and which are not callable prior to their scheduled
maturities by the issuer thereof(or an ownership interest in any of the foregoing).
(22) Financial Officer: the Financial Officer of the City.
(23) Fiscal Year: the twelve (12) months commencing on the first day
of January of any calendar year and ending on the last day of December of such calendar year or
such other twelve-month period as may from time to time be designated by the Council as the
fiscal year of the City.
(24) Independent Accountant: any certified public accountant, or any
firm of such accountants, duly licensed to practice and practicing as such under the laws of the
State, appointed and paid by the Authority, who or which (a) is, in fact, independent and not
under the domination of the City, (b) does not have any substantial interest, direct or indirect, in
any of the affairs of the City and (c) is not connected with the City as a member, officer or
employee, but who or which may be regularly retained to make annual or similar audits of any
books or records of the City.
(25) Interest Payment Date: the interest payment dates on the Bonds.
(26). Investment Earnings: all income derived from the investment of
any proceeds of the Bonds deposited in the Development and Expense Fund and investment
earnings on funds on deposit in the Tax Increment Fund.
(27) Investment Letter: the investment letter to be executed by the
Purchaser and any transferee of the Purchaser, who or which purchases all or any portion of the
Bonds in a transaction exempt from the requirements of SEC Rule 15c2-12.
(28) Maturity Date: the date for the payment of principal of the Bonds.
(29) Maximum Annual Debt Service Requirements: the maximum
aggregate amount of Debt Service Requirements (excluding redemption premiums) due on the
Securities for which such computation is being made in any Bond Year beginning with the Bond
Year in which Debt Service Requirements of such Securities are first payable after the
computation date and ending with the Bond Year in which the last of the Debt Service
Requirements are payable.
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(30) Mayor: the Mayor of the City.
(31) 1982 Election: the special election held in the City on Tuesday,
June 1, 1982.
(32) Ordinance: this Ordinance of the City.
(33) Outstanding or outstanding: when used with reference to the
Bonds, Additional Parity Bonds, Parity Securities or any such Securities payable in whole or in
part from the Pledged Revenues that have been authorized, executed and delivered, except the
following, or portions thereof as of any particular date, means all of the Bonds or portions
thereof theretofore and thereupon being authenticated and delivered:
(a) Any Bond, Additional Parity Bond, Parity Security or other
such Security canceled by the City or by the Registrar or otherwise on the City's behalf at or
before such date;
(b) Any Bond, Additional Parity Bond, Parity Security or other
such Security which has been paid or deemed to have been paid pursuant to the provisions
hereof, and
(c) Any Bond, Additional Parity Bond, Parity Security or other
such Security in lieu of or in substitution for which another Security shall have been
authenticated and delivered by the City pursuant hereto.
(34) Owner: the holder of any bearer instrument or registered owner of
any registered instrument.
(35) Parity Securities: any 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.
(36) Paying_Agent: the Financial Officer of the City, or his successors,
acting as paying agent for the Bonds.
(37) Permitted Investments: all securities or deposits authorized by
ordinances of the City and, to the extent applicable, the laws of the State.
(38) Person: any individual, firm, partnership, corporation, company,
association, joint-stock association, or body politic or any trustee, receiver, assignee, or other
similar representative thereof.
(39) Plan of Development: the plan approved by Resolution 81-129 of
the City, as amended.
(40) Pledged Revenues: the Tax Increment Revenues, the Investment
Earnings and all funds deposited in the Tax Increment Principal and Interest Account and Tax
Increment Reserve Account.
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(41) Project: the improvements, projects or programs permitted by the
Plan of Development and the Downtown Development Authority Act.
(42) 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 other areas as
have heretofore been or as may hereafter be added to the District by valid legislative action of
the City as may be determined in accordance with the decisions of the appellate courts of the
State.
(43) Purchaser: the original purchaser of the Bonds as set forth in the
Sale Certificate. All provisions herein granting rights to the Purchaser shall be of full force and
effect only so long as the Purchaser is the sole owner of the Bonds.
(44) Rebate Fund: the special fund created and referred to in Section
5F hereof.
(45) 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.
(46) Registrar: the Financial Officer of the City, or his successors,
acting as registrar for the Bonds.
(47) Regular Record Date: the fifteenth day of the calendar month next
preceding an Interest Payment Date for the Bonds.
(48) Reserve Requirement: is an amount equal to the least of(i) 100%
of the Maximum Annual Debt Service Requirements of the Bonds and other Parity Securities to
which the Tax Increment Reserve Account is pledged, (ii) 125% of the Average Annual Debt
Service Requirements of the Bonds and other Parity Securities to which the Tax Increment
Reserve Account is pledged, or (iii) 10% of the original proceeds of the Bonds and other Parity
Securities to which the Tax Increment Reserve Account is pledged.
(49) Sale Certificate: a certificate or certificates, executed by the
Financial Officer or the Mayor, dated on or before the date of delivery of the Bonds, setting forth
the determinations that may be delegated to such officials pursuant to Section 11-57-205(1) of
the Supplemental Act.
(50) Security or securities: any bond issued by the City or any other
evidence of the advancement of money to the City.
(51) SIFMA Index: the Securities Industry and Financial Markets
Association Municipal Swap Index, produced by Municipal Market Data, or if such index is not
published, then such other index selected by the Financial Officer which reflects the yield of tax-
exempt seven-day variable rate demand bonds.
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(52) 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.
(53) State: the State.of Colorado.
(54) Subordinate Bonds or Subordinate Securities: the outstanding
2004 Subordinate DDA Bonds, the 2007 Subordinate DDA Bonds, the 2008 Subordinate DDA
Bonds and any other bond, warrants, notes, securities, leases or other contracts evidencing
borrowings and payoffs from the Tax Increment Revenues having a lien thereon subordinate or
junior to the lien of the Bonds.
(55) 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 5E hereof.
(56) Superior Bonds or Superior Securities: any bond or security
payable from the Tax Increment Revenues having a lien thereon superior or senior to the lien
thereon of the Bonds.
(57) Supplemental Act: the Supplemental Public Securities Act,
constituting Title 11, Article 57, Part 2, C.R.S.
(58) Tax Certificate: the Federal Tax Exemption Certificate delivered
by the City at the time of the issuance and delivery of the 2010B DDA Tax-Exempt Bonds, as
the same may be amended or supplemented in accordance with its terms.
(59) 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.
(60) Tax Increment Principal and Interest Account: the special fund
created in Ordinance No. 142, 1985, of the City, designated therein as the "Principal and Interest
Account' of the "City of Fort Collins, Colorado, Downtown Development Authority Tax
Increment Bonds, Bond Fund" and referred to in Section 5C hereof.
(61) 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.
(62) 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 that
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) of the Downtown Development Authority Act, less any collection fees lawfully
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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.
(63) Transfer Agent: the Financial Officer of the City, or his
successors, acting as transfer agent for the Bonds.
(64) Trust Bank: a Commercial Bank which is authorized to exercise
and is exercising trust powers.
(65) 2004 Subordinate DDA Bonds: the City of Fort Collins, Colorado,
Downtown Development Authority Subordinate Tax increment Revenue Bonds, Series 2004A.
(66) 2007 Subordinate DDA Bonds: the City of Fort Collins, Colorado,
Downtown Development Authority Taxable Subordinate Tax Increment Revenue Bonds, Series
2007A.
(67) 2008 Subordinate DDA Bonds: the City of Fort Collins, Colorado,
Downtown Development Authority Taxable Subordinate Tax Increment Revenue Bonds, Series
2008A.
(68) 2006 Election: the election held in the City on Tuesday,
November 7, 2006.
(69) 2010A DDA Taxable Bonds: the City of Fort Collins, Colorado,
Downtown Development Authority Taxable Tax Increment Revenue Bonds, Series 2010A.
(70) 2010B DDA Tax-Exempt Bonds: the City of Fort Collins,
Colorado, Downtown Development Authority Tax-Exempt Tax Increment Revenue Bonds,
Series 2010B.
(71) 2010A DDA Taxable Bonds Project Account: the special fund
created and referred to in Section 5A hereof.
(72) 2010B DDA Tax-Exempt Bonds Project Account: the special fund
created and referred to in Section 5A hereof.
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.
Section 2. Recitals.
A. Establishment of Authority and Approval of Plan of Development.
Pursuant to Ordinance No. 46, 1981, the City has heretofore established the Authority. Pursuant
to Resolution 81-129 the City has heretofore approved the Plan of Development. The Plan of
Development so approved contained a provision for division of taxes as' authorized by the
Downtown Development Authority Act effective for thirty (30) years beginning September 8,
1981. Pursuant to Ordinance No. 101, 2008, the City approved a twenty (20) year extension of
such period under the authority of Senate Bill 08-170.
B. 1982 Election. At the 1982 Election, a majority of the qualified electors
of the District authorized the City to issue bonds or other indebtedness in an amount not to
exceed $25,000,000 to finance capital improvements and capital projects within the parameters
of the Plan of Development of the Authority pursuant to the following ballot 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
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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.
C. 2006 Election. At the 2006 Election, a majority of the qualified electors
of the District authorized the City to issue bonds, notes, contracts or other financial obligations in
an amount not to exceed $150,000,000 to finance the costs of development projects to be
undertaken by or on behalf of the Authority pursuant to the following ballot question:
SHALL CITY OF FORT COLLINS DEBT BE INCREASED BY
NO MORE THAN $150,000,000 WITH A REPAYMENT COST
OF $250,000,000 FOR THE PURPOSE OF FINANCING THE
COSTS OF DEVELOPMENT PROJECTS TO BE
UNDERTAKEN BY OR ON BEHALF OF THE FORT COLLINS
DOWNTOWN DEVELOPMENT AUTHORITY PURSUANT TO
THE APPLICABLE PROVISIONS OF COLORADO LAW AND
THE FORT COLLINS DOWNTOWN DEVELOPMENT
AUTHORITY PLAN OF DEVELOPMENT, AS SUCH PLAN
MAY BE AMENDED FROM TIME TO TIME; SUCH DEBT
AND THE INTEREST THEREON TO BE PAYABLE SOLELY
FROM AND SECURED BY A PLEDGE OF THE SPECIAL
FUND OF THE CITY WHICH SHALL CONTAIN AD
VALOREM PROPERTY TAX INCREMENT REVENUES
LEVIED AND COLLECTED WITHIN THE BOUNDARIES OF
THE AUTHORITY; AND SHALL SUCH DEBT BE
EVIDENCED BY BONDS, NOTES, CONTRACTS OR OTHER
FINANCIAL OBLIGATIONS TO BE SOLD OVER TIME IN
ONE SERIES OR MORE FOR A PRICE ABOVE OR BELOW
THE PRINCIPAL AMOUNT THEREOF, ON SUCH TERMS
AND CONDITIONS, AND WITH SUCH MATURITIES AS
MAY BE PERMITTED BY LAW AND AS THE CITY
COUNCIL MAY DETERMINE, INCLUDING PROVISIONS
FOR REDEMPTION OF THE DEBT PRIOR TO MATURITY
WITH OR WITHOUT PAYMENT OF THE PREMIUM OF NOT
MORE THAN 3% OF THE PRINCIPAL AMOUNT SO
REDEEMED AND SHALL THE PROCEEDS FROM SUCH
DEBT AND ANY INVESTMENT INCOME EARNED FROM
SUCH PROCEEDS BE COLLECTED AND SPENT AS A
VOTER-APPROVED REVENUE CHANGE UNDER SECTION
20 OF ARTICLE X OF THE COLORADO CONSTITUTION?
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D. Prior Bonds. The City has heretofore issued and sold the full $25 million
aggregate principal amount of bonds or other indebtedness authorized at the 1982 Election. The
City has heretofore issued and sold $11,576,000 aggregate principal amount of bonds or other
indebtedness pursuant to the authority conferred at the 2006 Election. Pursuant to Article X,
Section 20(4) of the State Constitution, bonds issued pursuant to the authority conferred at the
2006 Election may not be sold on terms which exceed their share of the maximum repayment
costs described in the 2006 ballot question or in the notice sent to voters. Pursuant to the ballot
issue notice provided to the electors in connection with the 2006 Election, the maximum annual
repayment cost of the indebtedness issued pursuant to the election question may not exceed
$17,000,000 and the total repayment cost of the debt issued pursuant to the election question
may not exceed $250,000,000.
E. Project. The City has need for and desires to acquire, construct, install and
finance the Project. The Council has determined, and does hereby determine, that it is necessary
and for the best interest of the City that the Bonds now be authorized to be issued and delivered,
and the City hereby determines to use the proceeds of the Bonds authorized by this Ordinance to
finance the Project and to pay the costs of issuance of the Bonds.
F. Authority. Pursuant to art. XX, §6 of the Colorado Constitution, Art. V,
Section 19.8 of the Charter, the Downtown Development Authority Act, and the Supplemental
Act, the City is authorized by Council action and pursuant to the 2006 Election to issue the
Bonds.
Section 3. The Bonds.
A. Authorization of Bonds; Supplemental Act.
(1) The Bonds are hereby authorized to be issued for the purpose of
financing the Project, funding the Reserve Requirement of the Bonds, and paying the costs of
issuance of the Bonds. The 2010A DDA Taxable Bonds, and the 2010B DDA Tax-Exempt
Bonds shall be issued in the respective aggregate principal amounts set forth in the Sale
Certificate.
(2) Section 11-57-204 of the Supplemental Act provides that a public
entity, including the City, may elect in an act of issuance to apply all or any of the provisions of
the Supplemental Act to such issuance. The Council hereby elects to apply all of the
Supplemental Act to the Bonds. The Bonds are issued under the authority of the Supplemental
Act and shall so recite. Pursuant to Section 11-57-210 C.R.S., such recital conclusively imparts
full compliance with all provisions of.said sections, and the bonds issued containing such recital
shall be incontestable for any cause whatsoever after their delivery for value.
B. Delegation. Pursuant to Section 11-57-205 of the Supplemental Act, the
Council hereby delegates to the Financial Officer or the Mayor the authority to execute the Bond
Purchase Agreement, and the Council hereby further delegates to the Financial Officer or the
Mayor the authority to independently make any determination delegable pursuant to Section 11-
57-205(1)(a-i) of the Supplemental Act, in relation to the Bonds, and to execute a Sale
Certificate setting forth such determinations, subject to the parameters and restrictions contained
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in Section 3C hereof. At the time the Financial Officer or the Mayor signs the Bond Purchase
Agreement, the Financial Officer or the Mayor shall also simultaneously execute the Sale
Certificate. The delegation set forth in this Section 3B shall be effective through and including
December 31, 2010.
C. Authorization; Parameters. For the purpose of effecting the Project, the
City hereby authorizes the issuance of the Bonds. The Bonds shall be dated as of the date of
their delivery to the Purchaser and shall be in the form of fully registered Bonds. The Bonds
shall bear interest from their dated date to maturity or prior redemption and be sold to the
Purchaser, all as provided in the Sale Certificate; provided that:
(1) the aggregate principal amount of the 2010A DDA Taxable Bonds
shall not exceed $9,000,000.
(2) the aggregate principal amount of the 2010B DDA Tax-Exempt
Bonds shall not exceed $5,000,000.
(3) the initial per annum interest rate on the 2010A DDA Taxable
Bonds applicable from the date of issuance to December 1, 2015 shall not exceed 4.5% above the
United States 5-year Treasury Rate based on a 365/366-day year; and
(4) the initial per annum interest rate on the 2010B Tax-Exempt DDA
Bonds applicable from the date of issuance to December 1, 2015 shall not exceed 0.66 multiplied
by the following rate: 4.5% above the United States 5-year Treasury Rate based on a 365/366-
day year.
The rates described in Section 3C(3) and (4) above will be calculated on a date
prior to the issuance of the Bonds that is mutually agreeable to the City and the Purchaser.
D. 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 thereof. No Bond
shall be issued in any denomination larger than the aggregate principal amount maturing on the
Maturity Date of such Bond and bearing interest at the same interest rate, and no Bond shall be
made payable on more than one Maturity Date and no individual Bond shall be issued for more
than one Maturity Date and interest rate.
Pursuant to the recommendations of the Committee on Uniform Security
Identification Procedures, CUSIP numbers may be printed on the Bonds.
The Bonds shall mature and bear interest as set forth in the Sale
Certificate.
Interest on the Bonds shall be payable on June 1, 2011 and semiannually
thereafter on the first day of December and the first day of June of each year.
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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
final principal payment of and final installments of interest on the Bonds shall be payable to the
Owner of each Bond upon presentation and surrender thereof at maturity or upon prior
redemption, by check or draft mailed to such Owner at the address appearing on the registration
books of the City maintained by the Registrar or by wire transfer to such bank or other
depository as the Owner shall designate in writing to the Paying Agent. Except as hereinbefore
and hereinafter provided, all other payments of principal and interest on the Bonds shall be
payable to the Owner of each Bond determined as of the close of business on the Regular Record
Date, irrespective of any transfer of ownership of the Bond subsequent to the Regular Record
Date and prior to the Interest Payment Date, by check or draft or wire transfer directed to such
Owner as aforesaid. Any interest not paid when due and any interest accruing after maturity
shall be payable to the Owner of each Bond entitled to receive such interest determined as of the
close of business on the Special Record Date, irrespective of any transfer of ownership of the
Bond subsequent to the Special Record Date and prior to the date fixed by the Paying Agent for
the payment of such interest, by check or draft or wire transfer directed to such Owner as
aforesaid. Notice of the Special Record Date and of the date fixed for the payment of such
interest shall be given by sending a copy thereof by certified or 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 that 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.
The Paying Agent may make payments of interest on any Bond by such
alternative means as may be mutually agreed to between the Owner of such Bond and the Paying
Agent. All such payments shall be made in lawful money of the United States of America,
without deduction for services of the Registrar or Paying Agent.
(2) Redemption. The Bonds maturing on or prior to December 1,
2015 shall not be subject to optional redemption prior to their respective Maturity Dates. The
Bonds maturing on and after December 1, 2016, are subject to redemption prior to their
respective Maturity Dates at the option of the City, in whole or in part, in integral multiples of
$5,000 from such maturities as are selected by the City, and if less than all of the Bonds of a
maturity are to be redeemed, by lot whether at maturity on December 1, 2015, or any date
thereafter at the following redemption prices (expressed as a percentage of the Bonds to be
redeemed) plus accrued interest thereon to the Redemption Date:
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PUBFINM1213653.3
Dates (Inclusive) Redemption Price
12/1/2015 through 11/30/2016 102%
12/1/2016 through 11/30/2017 101%
12/1/2017 and thereafter. 100%
In the event that the Bonds are issued as one single term bond, with a
mandatory sinking fund redemption schedule, as set forth in the Sale Certificate, and so long as
the Purchaser is the sole, registered Owner of the Bonds, the Purchaser shall not be required to
surrender the Bond to the Paying Agent to receive payment in connection with a mandatory
sinking fund redemption. Except in the case of a transfer of the Bonds, the Purchaser shall be
required to surrender the Bond to the Paying Agent only on the final maturity date of the Bond.
On each mandatory sinking fund redemption date, the Bond shall be partially redeemed by
payment to the Purchaser of the amount set forth in the mandatory sinking fund schedule in the
Bond and the Sale Certificate, and such redemption shall be noted by the Purchaser on the
payment panel attached to the Bond. By acceptance of the Bond, the Purchaser shall be deemed
to have agreed to make a notation on the Bond on the prepayment panel attached thereto upon
the receipt of all mandatory sinking fund payments.
The Bonds may be redeemed in part if issued in denominations that are
integral multiples of $100,000, and any integral multiple of $5,000 in excess thereof. Such
Bonds shall be treated as representing a corresponding number of separate Bonds in the
denomination of$100,000 each. Any such Bond to be redeemed in part shall be surrendered for
partial redemption in the manner hereinafter provided for transfers of ownership. Upon payment
of the redemption price of any such Bond redeemed in part the Owner thereof shall receive a
new Bond or Bonds of authorized denominations in aggregate principal amount equal to the
unredeemed portion of the Bond surrendered.
Unless waived by the Owners of any Bonds to be redeemed, notice of
redemption shall be given by the Paying Agent in the name of the City by sending a copy thereof
by certified or registered first-class postage prepaid mail, not less than thirty (30) nor more than
sixty(60) days prior to the Redemption Date, to the Owner of each of the Bonds being redeemed
determined as of the close of business on the day preceding the first mailing of such notice at the
address appearing on the registration books of the City. Such notice shall specify the number or
numbers of the Bonds to be redeemed, whether in whole or in part, the principal amounts thereof
and the date fixed for redemption and shall further state that on the Redemption Date there will
be due and payable upon each Bond or part thereof so to be redeemed the principal amount or
part thereof plus accrued interest thereon to the redemption date 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
respective Maturity Dates by call for prior redemption or otherwise shall not be reissued and
shall be cancelled the same as Bonds paid at or after maturity.
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PUBFIN\1213653.3
Notwithstanding the provisions of this section, any notice of optional
redemption may contain a statement that the redemption is conditioned upon the receipt by the
Paying Agent of funds on or before the date fixed for redemption sufficient to pay the
redemption price of the Bonds so called for redemption, and that if such funds are not available,
such redemption shall be cancelled by written notice to the Owners of the Bonds called for
redemption in the same manner as the original redemption notice was mailed.
(3) Interest Rates. The Bonds shall initially bear interest at the rate or
rates set forth in the Sale Certificate from the date of issuance to December 1, 2015. From
December 2, 2015 (the "Conversion Date") to their respective Maturity Dates, (a) the interest
rate on the 2010A DDA Taxable Bonds shall be converted to a new interest rate calculated by
the Financial Officer no more than thirty (30) days and no less than fifteen (15) days prior to the
Conversion Date as the rate on such calculation date that is 4.5% above the United States 5-year
Treasury Rate based on a 365/366-day year, and (b) the interest rate on the 2010B DDA Tax-
Exempt Bonds shall be converted to a new interest rate calculated by the Financial Officer no
more than thirty (30) days and no less than fifteen (15) days prior to the Conversion Date as the
rate on such calculation date that is 0.66 multiplied by the following rate: 4.5% above the United
States 5-year Treasury Rate and based on a 365/366-day year. The City wilt notify Owners of
the Bonds by certified or registered first-class postage prepaid mail of the new interest rate on the
Bonds within ten (10) days of such calculations. The maximum net effective interest rate on the
Bonds shall not exceed 10.00% 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. Initially, each Bond shall be registered in the
name of the Purchaser. 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. A Bond may be transferred upon surrender
thereof together with a written instrument of transfer duly executed by the Owner or his, her or
its duly authorized attorney-in-fact or legal representative with guaranty of signature satisfactory
to the Transfer Agent, containing written instructions as to the details of the transfer, along with
the social security number or federal employer identification number of the transferee and, if the
transferee is a trust, the names and social security numbers of the settlors and the beneficiaries of
the trust. The Transfer Agent shall not be required to transfer ownership of any Bond during the
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PUBFIN\1213653.3
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 a special and limited obligation of the City payable solely from the Pledged Revenues
and the funds and accounts hereby pledged and that the Bond is not a debt or an indebtedness 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. Pursuant to § 11-57-
2101 C.R.S., the Bonds shall also contain a recital that they are issued pursuant to the
Supplemental Act, which recital shall conclusively impart full compliance with all of the
provisions of the Supplemental Act, and all Bonds issued containing such recital shall be
incontestable for any cause whatsoever after their delivery for value.
(8) Form of Bonds. The Bonds shall be in substantially the following
form, with such omissions, insertions, endorsements and variations as may be required by the
circumstances, be required or permitted by this Ordinance, or necessary or appropriate to
conform to the rules and requirements of any governmental authority or any usage or
requirement of law with respect thereto:
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PUBFM1213653.3
r
[Form of Bond]
(Text of Face)
UNITED STATES OF AMERICA
STATE OF COLORADO COUNTY OF LARIMER
CITY OF FORT COLLINS, COLORADO
DOWNTOWN DEVELOPMENT AUTHORITY
[TAXABLE] [TAX-EXEMPT] TAX INCREMENT REVENUE BOND
SERIES [2010A] [2010B]
No. R- $
Interest Rate Maturity Original Date CUSIP
%* December 1, 72010
REGISTERED OWNER:
PRINCIPAL SUM: 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 first day of June and the first day of December of each year, commencing
June 1, 2011, or the first such date after the date hereof, whichever is later, in the manner
provided herein.
This Bond is one of an authorized series of Bonds issued pursuant to an
Ordinance of the City adopted on second reading on September 7, 2010 (the "Ordinance") and a
Sale Certificate (the "Sale Certificate") executed by the City's Financial Officer or the Mayor
prior to the delivery of the Bonds. This Bond bears interest, matures, is payable, is subject to
* Interest Rate applicable from the date of issuance until the earlier of the Maturity Date or December 1,
2015. From December 2, 2015 (the "Conversion Date") until a Maturity Date, this Interest Rate shall be
converted to a new Interest Rate calculated no more than thirty(30) days and no less than fifteen(15)days
prior to the Conversion Date as the rate on such calculation date that is [0.66 multiplied by the following
rate J 4.5%above the United States 5-year Treasury Rate and based on a 365/366-day year.
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PUBFIN\1213653.3
redemption and is transferable as provided in the Ordinance and the Sale Certificate. To the
extent not defined herein, terms used herein are used as defined in the Ordinance.
Bonds maturing on or prior to December 1, 2015 are not subject to optional
redemption prior to their respective Maturity Dates. Bonds maturing on and after December 1,
2016, are subject to redemption prior to their respective Maturity Dates at the option of the City,
in whole or in part, in integral multiples of$5,000 from such maturities as are selected by the
City, and if less than all of the Bonds of a maturity are to be redeemed, by lot whether at maturity
on December 1, 2015, or any date thereafter at the following redemption prices (expressed as a
percentage of the Bonds to be redeemed) plus accrued interest thereon to the Redemption Date:
Dates (Inclusive) Redemption Price
12/1/2015 through 11/30/2016 102%
12/1/2016 through 11/30/2017 101%
12/1/2017 and thereafter 100%
[Add any additional redemption terms set forth in Sale Certificate.]
The Bonds may be redeemed in part if issued in denominations that are integral
multiples of$100,000, and any integral multiple of$5,000 in excess thereof. Such Bonds shall
be treated as representing a corresponding number of separate Bonds in the denomination of
$100,000 each. Any such Bond to be redeemed in part shall be surrendered for partial
redemption in the manner hereinafter provided for transfers of ownership. Upon payment of the
redemption price of any such Bond redeemed in part the Owner thereof shall receive a new Bond
or Bonds of authorized denominations in aggregate principal amount equal to the unredeemed
portion of the Bond surrendered.
Unless waived by the Owners of any Bonds to be redeemed, notice of redemption
shall be given by the Paying Agent in the name of the City by sending a copy thereof by certified
or registered first-class postage prepaid mail, not less than thirty (30) nor more than sixty (60)
days prior to the Redemption Date, to the Owner of each of the Bonds being redeemed
determined as of the close of business on the day preceding the first mailing of such notice at the
address appearing on the registration books of the City. Bonds called for optional redemption as
provided herein shall be redeemable only to the extent of moneys on deposit with the Paying
Agent and legally available for redemption of Bonds on the date of such notice. Failure to mail
any notice as aforesaid or any defect in any notice so mailed with respect to any Bond shall not
affect the validity of the redemption proceedings with respect to any other Bond. Any Bonds
redeemed prior to their respective Maturity Dates by call for prior redemption or otherwise shall
not be reissued and shall be cancelled the same as Bonds paid at or after maturity.
The principal of and interest on 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,
17
PUBFIN\1213653.3
or his successors, as registrar, or by wire transfer to such bank or other depository as the
Registered Owner shall designate in writing to the paying agent. Except as herembefore and
hereinafter provided, the interest is payable to the Registered Owner determined as of the close
of business on the regular record date, which is the fifteenth day of the calendar month next
preceding the interest payment date, irrespective of any transfer of ownership hereof subsequent
to the regular record date and prior to such interest payment date, by check or draft or wire
transfer directed to the Registered Owner as aforesaid. Any interest hereon not paid when due
and any interest hereon accruing after maturity is payable to the Registered Owner determined as
of the close of business on the special record date, which is to be fixed by the paying agent for
such purpose, irrespective of any transfer of ownership of this Bond subsequent to such special
record date and prior to the date fixed by the 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. 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 that 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 and interest on this Bond is to be made solely from,
and as security for such payment there is pledged, pursuant to the Ordinance, special funds
designated as the Tax Increment Principal and Interest Account and the Tax Increment Reserve
Account and the pledged revenues described in the Ordinance in sums sufficient to pay when due
the principal of and interest on this Bond and any additional securities heretofore issued and
hereafter issued and payable from such pledged revenues on a parity with the Bonds.
Interest on this Bond is [not] excluded from gross income or alternative minimum
taxable income under federal income tax laws in effect on the date of delivery of this Bond. [For
the purpose of Section 265(b)(3)(B) of the Code, the City hereby designates this Bond as a
qualified tax-exempt obligation.]
It is hereby recited, certified and warranted that for the payment of the principal
of and interest on 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 and interest on 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 lien (but not necessarily an exclusive lien) upon the
pledged revenues. At the time of issuance of the Bonds, no bonds are outstanding that have a
lien on the pledged revenues on a parity with the lien of the Bonds. Additional bonds and other
types of securities, subject to certain conditions, may be issued and made payable from the
pledged revenues having a lien thereon on a parity with the lien of the Bonds in accordance with
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PUBFIN\1213653.3
the provisions of the Ordinance. No bonds or other types of securities having a lien on the
pledged revenues superior and senior to the lien of the Bonds may be issued. Except as
otherwise expressly provided in this Bond and the Ordinance, the pledged revenues are 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
improvements and 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 an election held November 7, 2006, and the Ordinance duly adopted prior to the issuance of
this Bond. The Bonds are also issued pursuant to Title 11, Article 57, Part 2, C.R.S. (the
"Supplemental Act'). Pursuant to Section 11-57-210 of the Supplemental Act, this recital shall
be conclusive evidence of the validity and the regularity of the issuance of the Bonds after their
delivery for value.
Reference is hereby made to the Ordinance and the Sale Certificate, 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, the bonds that are currently outstanding and that
have a subordinate lien on the pledged revenues, 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 and interest on, 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 and interest on the Bonds, and the manner of enforcement of said
pledge, as well as the rights, duties, immunities and obligations of the City and the members of
its Council and also the rights and remedies of the registered owners of the Bonds.
To the extent and in the respects permitted by the Ordinance, the provisions of the
Ordinance, or any instrument amendatory thereof or supplemental thereto, may be modified or
amended by action of the City taken in the manner and subject to the conditions and exceptions
provided in the Ordinance. The pledge of revenues and other obligations of the City under the
Ordinance may be discharged at or prior to the maturity or prior redemption of the Bonds upon
the making of provision for the payment of the Bonds on the terms and conditions set forth in the
Ordinance.
It is hereby recited, certified and warranted that all the requirements of law have
been fully complied with by the proper officers of the City in the issuance of this Bond; that it is
issued pursuant to and in strict conformity with the Constitution and all other laws of the State of
Colorado, including the City Charter, and with the Ordinance; that this Bond does not contravene
any constitutional or statutory limitation of the State of Colorado or any limitation.of the City
Charter; and that this Bond is issued under the authority of the Ordinance.
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PUBFIN\1213653.3
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 and interest on
this Bond and for all other purposes, and all such payments so made to such person or entity or
upon his, her or its order will be valid and effective to satisfy and discharge the liability of the
City upon this Bond to the extent of the sum or sums so paid, and the City will not be affected by
any notice to the contrary.
This Bond is a special and limited obligation of the City payable solely out of and
secured by a pledge (but not necessarily an exclusive 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 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.
20
PUBFIN\1213653.3
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, and to be attested with the
facsimile or manual signature of the City Clerk of the City.
CITY OF FORT COLLINS, COLORADO
(CITY) By: (Facsimile or Manual Signature)
(SEAL) Mayor
ATTEST:
(Facsimile or Manual Signature)
City Clerk
i
21 _
PUBFM1213653.3
CERTIFICATE OF AUTHENTICATION
This Bond is issued pursuant to the Ordinance herein described.
FINANCIAL OFFICER OF THE CITY
as registrar
(Manual Signature)
Dated:
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Bond, shall be construed as though they were written out in full according to applicable laws or
regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants in
common
UNIF TRANS MIN ACT - Custodian
(Gust) (Minor)
under Uniform Transfers to Minors Act
(State)
Additional abbreviations may also be used
though not on the above list.
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PUBFIN\1213653.3
[(Form of Payment Panel)]
The following installments of principal (or portions thereof) of this Bond have
been prepaid in accordance with the terms of the Ordinance authorizing the issuance of this
Bond.
Date of Principal Signature of
Payment Paid Registered Owner
n
[End of Form of Payment Panel]
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PUBFIN\1213653.3
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 by a member of the Medallion Signature Program:
(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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PUBFIN\1213653.3
E. Bonds Equally Secured. The covenants and agreements herein set forth to
be performed by the City shall be for the equal benefit, protection and security of the Owners of
the Bonds, any Additional Parity Bonds and any other Parity Securities then Outstanding, all of
which, regardless of the time or times of their maturity, shall be of equal rank without
preference, priority or distinction of any of the Bonds, any Additional Parity Bonds and any
other Parity Securities then Outstanding, over any other thereof, except as otherwise expressly
provided in or pursuant to this Ordinance.
F. Financial Obligations. All of the Bonds, as to all Debt Service
Requirements thereof, shall be payable solely out of the Pledged Revenues and the funds and
accounts pledged hereunder. 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. Award of Bonds. In accordance with the provisions of the Supplemental
Act and Section 3C hereof, and subject to the limitations set forth in Section 3C hereof, the
Financial Officer or the Mayor shall each have the independent authority to sign the Bond
Purchase Agreement. Such delegation shall be effective through and including December 31,
2010.
B. Delivery. After the Bonds have been duly executed, authenticated and
registered as provided herein, the Financial Officer shall cause the Bonds to be delivered to the
Purchaser upon receipt of the agreed purchase price.
C. Approval of Bond Purchase Agreement and Investment Letter. The
Council hereby approves the forms of the Bond Purchase Agreement and Investment Letter that
are on file in the office of the City Clerk, with such changes therein, if any, not inconsistent
herewith as may be approved by the Financial Officer of the City.
Section 5. Disposition of Bond Proceeds and Pledged Revenues; Funds and
Accounts Adopted or Created by Ordinance; Security For Bonds.
The proceeds of the sale of the Bonds and the Pledged Revenues received by the
City shall be deposited by the City in the funds described in this Section 5, to be accounted for in
the manner and priority set forth in this Section 5.
Neither the Purchaser nor any subsequent Owner of any Bond shall be responsible
for the application or disposal by the City or by any of its officers, agents and employees of the
moneys derived from the sale of the Bonds or of any other moneys designated in this Section 5.
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 Rebate Fund and the Subordinate
Bonds Debt Service Account) are hereby pledged to secure the payment of the Debt Service
Requirements of the Bonds, which pledge is subject to the provisions herein relating to the
Rebate Fund and to the application of the Pledged Revenues for the payment of Debt Service
26
PUBFIN\1213653.3
Requirements of Parity Securities. This pledge shall be valid and binding from and after the date
of the first delivery of the Bonds, and the moneys, as received by the City and hereby pledged,
shall immediately be subject to the lien of this pledge without any physical delivery thereof, any
filing, or further act. The creation, perfection, enforcement, and priority of the pledge of
revenues to secure or pay the Bonds as provided herein shall be governed by § 11-57-208 of the
Supplemental Act and this Ordinance. The lien of such pledge on the revenues pledged for
payment of the Bonds and the obligation to perform the contractual provisions made herein shall
have priority over any or all other obligations and liabilities of the City (except as herein
otherwise expressly provided), and the lien of this pledge shall be valid and binding as against all
parties having claims of any kind in tort, contract or otherwise against the City (except as herein
otherwise expressly provided), irrespective of whether such parties have notice thereof.
A. Disposition of Bond Proceeds. Upon the issuance of the Bonds, there
shall be deposited (a) in the Costs of Issuance Account hereby created within the Development
and Expense Fund from the proceeds of the Bonds an amount equal to the Costs of Issuance of
the Bonds, (b) in the Tax Increment Reserve Account created within the Tax Increment Fund an
amount set forth in the Sale Certificate representing the Reserve Requirement and (c) in the
Development and Expense Fund the amounts designated in the Sale Certificate to be deposited in
the 2010A DDA Taxable Bonds Project Account and 2010B DDA Tax-Exempt Project Account
hereby created within the Development and Expense Fund to be used and paid from time to time
solely for the purpose of paying the Costs of the Project for the respective series of Bonds. If
any amounts remain on deposit in the Costs of Issuance Account after payment of all the Costs
of Issuance of the Bonds or any proceeds of the Bonds remain in the Development or Expense
Fund after payment in full of the Cost of the Project, such amounts shall be transferred to the Tax
Increment Fund to be used in accordance with Section 5B hereof. Nothing herein shall preclude
payment of Costs of Issuance from the Tax Increment Fund, if necessary.
B. Disposition of Pledged Revenues. For so long as any of the Bonds shall
be Outstanding, as to any Debt Service Requirements, except as otherwise provided herein, the
Pledged 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, the Tax Increment Principal and Interest Account to pay any
Debt Service Requirements of Bonds, any Parity Securities and any Additional Parity Bonds 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,
(3) Third, to the Subordinate Bonds Debt Service Account to pay the
Debt Service Requirements of the Subordinate Bonds in accordance with Section 5E hereof, and
(4) Fourth, to be used in the manner set forth in Section 5G hereof.
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C. Tax Increment Principal and Interest Account Payments. The City shall
deposit in the Tax Increment Principal and Interest Account from the Pledged Revenues an
amount sufficient to pay all the Debt Service Requirements due or to become due during the
current Bond Year on all Bonds, Parity Securities and any Additional Parity Bonds.
D. Tax Increment Reserve Account Payments. After the payments required
by Section 5C have been made, the City shall deposit in the Tax Increment Reserve Account the
amounts, if any, required to maintain the Reserve Requirement and such other amounts, if any,
required by the ordinances authorizing Parity Securities or any Additional Parity Bonds. The
Tax Increment Reserve Account shall be funded at the times and in the manner specified in this
Ordinance and any such other ordinances and funds on deposit therein shall be utilized as set
forth in this Ordinance and in any such other ordinances.
Amounts on deposit in the Tax Increment Reserve Account shall be maintained as
a continuing reserve for the payment of the Debt Service Requirements of the Bonds and any
Parity Securities to which the Tax Increment Reserve Account is pledged.
Except as hereinafter provided, 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, then
there shall be paid into the Tax Increment Principal and Interest Account at such time from the
Tax Increment Reserve Account an amount equal to the difference between that paid from the
Pledged Revenues and the full amount so stipulated. The money so used shall be replaced to the
Tax Increment Reserve Account from the first Pledged Revenues thereafter received and not
required to be otherwise applied by Section 5C hereof.
Nothing in this Ordinance shall be construed as limiting the right of the City, with
the written consent of the Purchaser, to substitute for any cash deposit required to be maintained
hereunder a bond reserve insurance policy, letter of credit, surety bond, 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. Any such
credit instrument shall be deposited with the Paying Agent, which shall ascertain the necessity
for a claim against or draw upon the credit instrument and provide notice to the issuer of such
credit instrument in accordance with its terms not later than three (3) days (or such longer period
as may be necessary, depending on the permitted time period for honoring claims or draws
thereunder) prior to each Interest Payment Date. If a letter of credit is substituted for the cash
deposit required to be maintained hereunder, the Paying Agent shall draw upon such letter of
credit not later than two (2) weeks prior to its expiration or termination unless an alternate credit
instrument conforming with the provisions hereof has been substituted therefor or the amount
otherwise required to be maintained hereunder is on deposit in the Tax Increment Reserve
Account.
E. Subordinate Bonds Debt Service Account Payments. After the payments
required by Section 5C and 5D have been made, any moneys remaining in the Tax Increment
Fund in any Bond Year shall be used by the City for the payment of Debt Service Requirements
of the Subordinate Bonds; 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 Outstanding Bonds as herein provided.
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F. Rebate Fund. The Financial Officer shall transfer into and pay from the
Rebate Fund hereby created the amount of required arbitrage rebate, if any, due to the federal
government under Sections 103 and 148(f)(2) of the Tax Code and the regulations thereunder.
The Financial Officer shall determine such amounts in the manner required by said sections and
related regulations. Transfer of the required arbitrage rebate amounts shall be made from the
Tax Increment Principal and Interest Account and the Tax Increment Reserve Account, provided,
however, that required arbitrage rebate payments shall be made to the federal government from
legally available funds regardless of whether there are any remaining proceeds or other funds
attributable to the Bonds that are available for the purpose.
All amounts in the Rebate Fund, including income earned from investment
thereof, shall be held by the Financial Officer free and clear of any lien created by this
Ordinance, and the Financial Officer shall pay over to the federal government from time to time
as the Financial Officer shall determine provided that the Financial Officer shall so pay over to
the federal government not less frequently than once each five (5) years after the date of issuance
of the Bonds, an amount equal to ninety percent (90%) of the required arbitrage rebate amount
earned during such period (and not theretofore paid to the federal government) and not later than
sixty(60) days after the redemption of the last Bond, one hundred percent (100%) of the required
arbitrage rebate amount.
G. Use of Remaining Revenues. After the payments required to be made by
Sections 5C through 5F hereof have been made or provided for in any Bond Year and provided
the City shall not be in default on making any payments required by Section 5 hereof, any
remaining Pledged Revenues may be used for any one or any combination of purposes allowed
by State law, including the Downtown Development Authority Act, as the City may from time to
time determine.
H. Termination of Deposits. No payment need be made into the Tax
Increment Principal and Interest Account or the Tax Increment Reserve Account if the amount of
cash and Permitted Investments in the Tax Increment Principal and Interest Account and the Tax
Increment Reserve Account is at least equal to the entire amount of the Outstanding Bonds and
any Outstanding Additional Panty Bonds and Parity Securities, as to all Debt Service
Requirements, to their respective Maturity Dates or to any Redemption Dates on which the City
shall have exercised or shall have obligated itself to exercise its option to redeem, prior to their
respective Maturity Dates, any Bonds, any Additional Parity Bonds and any other Parity
Securities then Outstanding and thereafter maturing (provided that, solely for the purpose of this
Section 5H, there shall be deemed to be a credit to the Tax Increment Principal and Interest
Account, any cash or Permitted Investments accounted for in any other fund or account of the
City and restricted solely for the purpose of paying the Debt Service Requirements of the Bonds,
any Additional Parity Bonds or any other Parity Securities), in which case cash or Permitted
Investments in the Tax Increment Principal and Interest Account in an amount, except for any
known interest or other gain to accrue from any investment or deposit of moneys 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.
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I. Budget and Appropriation of. Sums. The sums required to make the
payments specified in this Section 5 are hereby appropriated for the purposes, and the amounts
so required to make the payments specified in this Section in each year shall be included in the
budget and the 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
created or 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 the Development and
Expense Fund, the Tax Increment Fund and the Subordinate Bonds Debt Service Account may
be deposited, invested, or reinvested in Permitted Investments. Securities or obligations
purchased as such an investment shall either be subject to redemption at any time at face value
by the Owner thereof at the option of such Owner or shall mature at such time or times as shall
most nearly coincide with the expected need for moneys from the fund or account in question.
Securities or obligations so purchased as an investment of moneys in any such fund or account
shall be deemed at all times to be a part of the applicable fund or account; provided that 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. Interest and profit realized from investments in the Tax
Increment Reserve Account shall be credited to the Tax Increment Reserve Account, provided
that, so long as the amount in the Tax Increment Reserve Account equals the Reserve
Requirement, such interest and profit may be transferred to the Tax Increment Principal and
Interest Account and distributed in the same manner as other moneys in the Tax Increment
Principal and Interest Account. Any loss resulting from investments in the Tax Increment
Reserve Account shall be charged to the Tax Increment Reserve Account. Permitted
Investments shall be valued by the Financial Officer at the lower of the cost or the market price,
exclusive of accrued interest. With respect to all funds and accounts (except defeasance escrows
and except as otherwise provided in the Tax Certificate with respect to the Rebate Fund),
valuation shall occur quarterly. If on any valuation date the market value of investments in the
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Tax Increment Reserve Account is less than the Reserve Requirement due to market fluctuations,
the deficiency shall be remedied no later than the next quarterly valuation date. The City shall
present for redemption or sale on the prevailing market any securities or obligations so purchased
as an investment of moneys in a given fund or account whenever it shall be necessary to do so in
order to provide moneys to meet any required payment or transfer from such fund or account.
The City shall not invest any moneys accounted for hereunder if any such investment would
contravene the covenant contained in Section 8N hereof.
C. No Liability for Losses Incurred in Performing Terms of Ordinance.
Neither the City nor any officer of the City shall be liable or responsible for any loss resulting
from any investment or reinvestment made in accordance with this Ordinance.
D. Character of Funds. The moneys in any fund or account herein authorized
shall consist of lawful money of the United States of America or Permitted Investments or both
such money and Permitted Investments. Moneys deposited in a demand or time deposit account
in a Commercial Bank, appropriately secured according to the laws of the State, shall be deemed
lawful money of the United States of America.
E. Accelerated Payments Optional. Nothing contained herein prevents the
accumulation in any fund or account herein 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 Securities.
A. Lien on Pledged Revenues. Except as expressly provided in this
Ordinance with respect to the issuance of Additional Parity Bonds, other Parity Securities and
Subordinate Bonds, the Pledged Revenues shall be and hereby are irrevocably pledged and set
aside to pay the Debt Service Requirements of the Bonds. The Bonds constitute an irrevocable
lien (but not necessarily an exclusive lien) upon the Pledged Revenues. The Bonds, any Parity
Securities and any Additional Parity Bonds authorized to be issued and from time to time
Outstanding are equitably and ratably secured by a lien on the Pledged Revenues and shall not be
entitled to any priority one over the other in the application thereof regardless of the time or
times of the issuance of the Bonds, any Parity Securities and any Additional Parity Bonds, it
being the intention of the Council that there shall be no priority among the Bonds, any Parity
Securities and any Additional Parity Bonds, regardless of the fact that they may. be actually
issued and delivered at different times.
B. Issuance of Additional Parity Bonds. Nothing herein prevents the
issuance by the City of Additional Parity Bonds payable from the Pledged Revenues and
constituting a lien on the Pledged Revenues on a parity with, but not prior or superior to, the lien
thereon of the Bonds; but before any such Additional Parity Bonds are authorized or actually
issued the following conditions shall be satisfied:
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(1) Absence of Payment Default. At the time of the issuance of the
Additional Parity Bonds, the City shall not be in default in making any payments required by
Section 5 hereof.
(2) Historic Revenues Tests. Except as hereinafter provided in the
case of Additional Parity Bonds issued for the purpose of refunding less than all of the Bonds
and other Parity Securities then Outstanding, the Pledged Revenues for the last complete Fiscal
Year or twelve full consecutive calendar months prior to the issuance of the proposed Additional
Parity Bonds, as certified by an Independent Accountant or the Financial Officer, must have been
equal to at least one hundred thirty-five percent (135%) of the Combined Maximum Annual Debt
Service Requirements of the Bonds then Outstanding, any Additional Parity Bonds then
Outstanding, and the Additional Parity Bonds proposed to be issued'plus one hundred percent
(100%) of all policy costs attributable to any bond insurance policy and bond reserve insurance
policy and other similar amounts then due and owing. For purposes of this Section 7B(2), when
computing the Maximum Annual Debt Service Requirements for the Bonds, it shall be assumed
that any such Bonds Outstanding at the time of the computation will bear interest during any
period at the highest of(a) the actual rate on the date of calculation, (b) if the Bonds have been
Outstanding for at least twelve (12) months, the average rate of the Bonds over the twelve (12)
months immediately preceding the date of calculation, and (c) (i) if interest on the Outstanding
2010A DDA Taxable Bonds, a rate calculated within sixty (60) days prior to the proposed
issuance of Additional Parity Bonds at 4.5% above the United States 5-year Treasury Rate based
on a 365/366-day year or (ii) if interest on the Outstanding 2010B DDA Tax-Exempt Bonds, a
rate calculated within sixty (60) days prior to the proposed issuance of Additional Parity Bonds
at 0.66 multiplied by the following rate: 4.5% above the United States Treasury Rate based on a
365/366-day year. For purposes of this Section 7B(2), when computing the Maximum Annual
Debt Service Requirements for any other issue of securities bearing interest at a variable,
adjustable, convertible or other similar rate that is not fixed for the entire term thereof, it shall be
assumed that any such Securities Outstanding at the time of the computation will bear interest
during any period at the highest of (a) the actual rate on the date of calculation, or if the
Securities are not yet outstanding, the initial rate (if established and binding), (b) if the Securities
have been outstanding for at least twelve (12) months, the average rate over the twelve (12)
months immediately preceding the date of calculation, and (c) (i) if interest on the Securities is
excludable from gross income under the applicable provisions of the Tax Code, the average of
the SIFMA Index during the preceding twelve (12) months plus one hundred (100) basis points,
or (ii) if interest is not so excludable, the interest rate on direct Federal Securities with
comparable maturities plus fifty (50) basis points. It shall further be assumed that any such
Securities which may be tendered prior to maturity for purchase at the option of the Owner
thereof will mature on their stated Maturity Dates or mandatory Redemption Dates. The City
shall be permitted to treat any fixed rate payable on an interest rate exchange agreement or
"swap" contract as the interest rate on any such issue of Securities if the counterparty to such
agreement or contract has unconditionally agreed to pay all interest due on such Securities. In
the case of Additional Parity Bonds issued for the purpose of refunding less than all of the Bonds
and other Parity Securities then Outstanding, compliance with this Section 7B(2) shall not be
required so long as the Debt Service Requirements payable on the Bonds and all other Parity
Securities Outstanding after the issuance of such Additional Parity Bonds during each Bond Year
does not exceed the Debt Service Requirements payable on the Bonds and all other Parity
Securities Outstanding prior to the issuance of such Additional Parity Bonds in each Bond Year.
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(3) Adequate Reserves. If the Tax Increment Reserve Account is to be
pledged to the payment of the Debt Service Requirements of such Additional Parity Bonds, the
Tax Increment Reserve Account shall be fully funded in accordance with Section 5D hereof, and
the proceedings under which any such Additional Parity Bonds are issued must provide for the
deposit of moneys to the Tax Increment Reserve Account on substantially the same terms as
provided in Section 5D hereof and contain a covenant by the City to maintain the Tax Increment
Reserve Account in an amount equal to the Reserve Requirement. The proceedings under which
any such Additional Parity Bonds are issued may also provide for the deposit of moneys to a
debt service reserve fund (other than Tax Increment Reserve Account) established and
maintained for such Additional Parity Bonds. Any such debt service reserve fund shall have a
claim to the Pledged Revenues equal to and on a parity with that of the Tax Increment Reserve
Account.
C. Certification of Revenues. Where certifications of revenues are required
by this Ordinance, the specified and required written certifications of an Independent Accountant
or the Financial Officer that revenues are sufficient to pay the required amounts shall be
conclusively presumed to be accurate in determining the right of the City to authorize issue, sell
and deliver Additional Parity Bonds; provided that the Purchaser shall be given the written
proposed certification prior to issuance of Additional Parity Bonds and shall have ten (10) days
to establish any clear error in the underlying calculations.
D. Issuance of Superior Bonds or Superior Securities Prohibited. The City is
prohibited from issuing Superior Bonds or Superior Securities payable from Pledged Revenues
having a lien thereon superior or senior to the lien thereon of the Bonds.
E. Issuance of Subordinate Securities Permitted. The City may issue
Subordinate Bonds or Subordinate Securities payable from the Pledged Revenues having a lien
thereon subordinate or junior to the lien thereon of the Bonds.
F. Action by Council. Additional Panty Bonds, Subordinate Bonds and
Subordinate Securities shall be issued only after authorization thereof by ordinance,
supplemental ordinance or other instrument 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 that 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 or unilaterally agree to reduce the size of the District in any manner
that would materially diminish the Tax Increment Revenues without the Purchaser's written
consent. Materiality for purposes of the preceding sentence only is any change that would
cumulatively, together with other unilateral reductions made since the issuance of the Bonds
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decreases the aggregate assessed valuation within the District by 1% or more. The City
covenants to provide notice to the Purchaser of any proposed reduction in size of the District at
least thirty (30) days prior to the effective date of such reduction with a calculation reflecting
whether such reduction would be material.
(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 any 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 in writing any suit, action or proceeding against or affecting the City before or by any
court, arbitrator, administrative agency or other governmental authority that 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 that would diminish or impair the Pledged Revenues.
Except as permitted in this Ordinance, the City has not pledged the Pledged
Revenues in any manner that 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 intended so to be, or that the City may hereafter become bound to
pledge, or as may be reasonable and required to carry out the purposes of this Ordinance. The
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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, the Supplemental Act 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 cause the Authority to 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. Within 30
days of the end of each calendar quarter and within 60 days of the end of each calendar year, the
City will cause the Authority to account to the Purchaser at the expense of the Authority for all
revenues, expenditures and balances in the funds and accounts referred to in Section 5 hereof for
such prior periods. The City shall also provide to the Purchaser a copy of the City's audited
Comprehensive Annual Financial Report within 30 days of such document being finalized. If
the City is unable to comply with this Section 8G within such periods, such periods shall be
extended so long as compliance is begun within such periods and diligently pursued. The City
shall also cause representatives of the Authority to meet with representatives of the Purchaser to
discuss financial matters affecting the Authority and Pledged Revenues upon the reasonable
request of the Purchaser.
H. Protection of Security. The City, its officers, agents and employees, shall
not take any action in such manner or to such extent as might prejudice the security for the
payment of the Debt Service Requirements of the Bonds and any other securities payable from
the Pledged Revenues according to the terms thereof. No contract shall be entered into nor any
other action taken by which the rights of any Owner of any Bond or other security payable from
Pledged Revenues might be materially impaired or diminished.
I. 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.
J. 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 funds and accounts are
hereby pledged, solely for the purposes specified herein.
K. 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.
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L. 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.
M. 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.
N. Tax Covenant. The City covenant for the benefit of the registered owners
of the 2010B DDA Tax-Exempt Bonds that they will not take any action or omit to take any
action with respect to the 2010B DDA Tax-Exempt Bonds, the proceeds thereof, any other funds
of the City or any facilities financed or refinanced with the proceeds of the 2010B DDA Tax-
Exempt Bonds if such action or omission (i) would cause the interest on the 2010 DDA Tax
Exempt Bonds to lose its exclusion from gross income for federal income tax purposes under
Section 103 of the Tax Code, (ii) would cause interest on the 2010B DDA Tax-Exempt Bonds to
lose its exclusion from alternative minimum taxable income as defined in Section 55(b)(2) of the
Tax Code, or (iii) would cause interest on the 2010B DDA Tax-Exempt Bonds to lose its
exclusion from Colorado taxable income or Colorado alternative minimum taxable income under
present Colorado law.
The foregoing covenant shall remain in full force and effect notwithstanding the
payment in full or defeasance of the 2010B DDA Tax-Exempt Bonds until the date on which all
obligations of the City in fulfilling the above covenant under the Tax Code and Colorado law
have been met. Notwithstanding any provision of this Section, if the City shall obtain an opinion
of nationally recognized bond counsel that any specified action required under this Section is no
longer required or that some further or different action is required to maintain the tax-exempt
status of interest on the 2010B DDA Tax-Exempt Bonds, the City, as the case may be, may
conclusively rely on such opinion in complying with the requirements of this Section, and the
covenants hereunder shall be deemed to be modified to that extent.
For the purpose of Section 265(b)(3)(B) of the Code, the City hereby designates
the 2010B DDA Tax-Exempt Bonds as qualified tax-exempt obligations.
O. Notice of Default. To the extent the City becomes aware of a default
under this Ordinance or the Bonds, it shall provide prompt written notice thereof to the
Purchaser.
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
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exercise its option to redeem Bonds prior to their respective Maturity Dates. The Federal
Securities shall be non-callable and shall become due prior to the respective times at which the
proceeds thereof shall be needed, in accordance with a schedule established and agreed upon
between the City and such Trust Bank at the time of the creation of the escrow or trust, or the
Federal Securities shall be subject to redemption at the option of the Owner thereof to assure
such availability as so needed to meet such schedule. In the case of the 2010A DDA Taxable
Bonds, the City is obligated to contribute additional securities or monies to the escrow or trust if
necessary to provide sufficient amounts to satisfy the payment obligations on the 2010A DDA
Taxable Bonds. Nothing herein shall be construed to prohibit a partial defeasance of the
Outstanding Bonds in accordance with the provisions of this Section 9.
Section 10. Default Provisions and Remedies of Bond Owners.
A. Events of Default. Each of the following events is hereby declared to be
an Event of Default by the City:
(1) Nonpayment of Principal. Payment of the principal of any of the
Bonds 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 that 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, 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 or subordinate to or on a parity with the Bonds,
shall be applied as provided in Section 5C and Section 5E 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 IOD provided, the Owner or Owners of not less than ten percent (10%) in principal
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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
that 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 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
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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.
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 that do not in the opinion
of nationally recognized bond counsel materially adversely affect the interests of the Owners of
the Bonds.
Whenever the Council amends or modifies this Ordinance under the provisions of
this Section IIA, the City shall give written notice to the Purchaser of such amendment or
modification within thirty (30) days thereof.
B. Amendment of Ordinance Requiring Consent of Bond Owners. Exclusive
of the amendatory ordinances covered by Section I IA 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
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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 Pavment. 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, that 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 I I 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 and shall be provided to the Purchaser at least forty-five (45) days
prior to the proposed effective date of the amendment or modification.
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 I I hereof
there shall be filed in the office of the City Clerk an instrument or instruments executed by the
Owners of at least sixty-six percent (66%) in aggregate principal amount of the Bonds then
Outstanding, which instrument or instruments shall refer to the proposed amendatory ordinance
or other instrument described in such notice and shall specifically consent to and approve the
adoption of such ordinance or other instrument, thereupon, but not otherwise, the Council may
adopt such amendatory ordinance or instrument and such ordinance or instrument shall become
effective. If the Owners of at least sixty-six percent (66%) in aggregate principal amount of the
Bonds then Outstanding, at the time of the adoption of such amendatory ordinance or instrument,
or the predecessors in title of such Owners, 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
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object to any of the terms or provisions therein contained or to the operation thereof or to enjoin
or restrain the City from taking any action pursuant to the provisions thereof. Any consent given
by the Owner of a Bond pursuant to the provisions thereof shall be irrevocable for a period of six
(6) months from the date of the completion of the notice above provided for and shall be
conclusive and binding upon all future Owners of the same Bond during such period. Such
consent may be revoked at any time after six (6) months from the completion of such notice, by
the Owner who gave such consent or by a successor in title, by filing notice of such revocation
with the City Clerk, but such revocation shall not be effective if the Owners of sixty-six percent
(66%) in aggregate principal amount of the Bonds Outstanding as herein provided, prior to the
attempted revocation, shall have consented to and approved the amendatory instrument referred
to in such revocation.
D. Unanimous Consent. Notwithstanding anything in the foregoing
provisions contained, the terms and the provisions of this Ordinance, or of any ordinance or
instrument amendatory thereof, and the rights and the obligations of the City and of the Owners
of the Bonds may be modified or amended in any respect (except as would adversely affect the
rights of the Owners of any Parity Securities) upon the adoption by the City and upon the filing
with the City Clerk of an instrument to that effect and with the consent of the Owners of all the
Outstanding Bonds, such consent to be given in the manner provided in Section I IC hereof, and
no notice to Owners of Bonds shall be required as provided in Section I I 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.
G. Proof of Instruments and Bonds. The fact and date of execution of any
instrument under the provisions of this Section 11, the amount and number of the Bonds owned
by any Person executing such instrument, and the date of his registering the same may be proved
as provided by Section l0E hereof.
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Section 12. Miscellaneous.
A. The Bonds shall be sold to the Purchaser upon the terms, conditions, and
provisions set forth in the Sale Certificate. The Financial Officer shall have the independent
authority pursuant to the Supplemental Act to accept the proposal of the Purchaser to purchase
the Bonds, to execute the Bond Purchase Agreement in accordance with such proposal, and to
execute the Sale Certificate in connection therewith, subject to the parameters and restrictions
contained in this Ordinance.
B. The Financial Officer and all other appropriate officers or employees of
the City are authorized and directed to take.all action necessary or appropriate to effectuate the
provisions of this Ordinance, including without limiting the generality of the foregoing,
executing, attesting, authenticating and delivering for and on behalf of the City any and all
necessary documents, instruments or certificates and performing all other acts that they deem
necessary or appropriate.
C. It shall be the duty of the proper officers of the City to hereafter take all
action necessary for the City to comply with the provisions of this Ordinance, as hereafter
amended and supplemented from time to time.
D. Charter. Pursuant to Article XX of the State Constitution and the Charter,
all State statutes that might otherwise apply in connection with the provisions of this Ordinance,
including but not limited to the issuance of the Bonds and the use of the Pledged Revenues and
the moneys on deposit in funds and accounts referred to herein, are hereby superseded to the
extent of any inconsistencies between the provisions of this Ordinance and such statutes. Any
such inconsistency is intended by the.Council and shall be deemed made pursuant to the Charter.
E. Tax Advice. Any express or implicit tax advice provided in this
Ordinance cannot be used by any taxpayer to avoid penalties that may be imposed on any
taxpayer by the Internal Revenue Service.
F. 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.
G. 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.
H. 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
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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.
I. 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.
(3) Closing Documents. The execution of such certificates as may be
reasonably required by the Purchaser, relating, inter alia, to:
(a) The signing of the Bonds;
(b) The signing of the Bond Purchase Agreement;
(c) The tenure and identity of the officials of the City;
(d) If in accordance with fact, the absence of pending litigation
affecting the validity of the Bonds;
(e) That portion of the Bonds that are authorized pursuant to
the authority conferred at the 2006 Election; and
(f) The delivery of the Bonds and the receipt of the Bond
purchase price.
J. Successors. Whenever herein the City is named or is referred to, such
provision shall be deemed to include any successors of the City, whether so expressed or not.
All of the covenants, stipulations, obligations and agreements by or on behalf of and other
provisions for the benefit of the City contained herein shall bind and inure to the benefit of any
officer, board, district, commission, authority, agency, instrumentality or other Person or Persons
to whom or to which there shall be transferred by or in accordance with law any right, power or
duty of the City or of its respective successors, if any, the possession of which is necessary or
appropriate in order to comply with any such covenants, stipulations, obligations, agreements or
other provisions hereof.
K. 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
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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.
Notwithstanding the foregoing or any other provisions of this Ordinance, any
provisions in this Ordinance granting rights, remedies or claims to the Purchaser or any
covenants, promises or agreements contained herein for the benefit of the Purchaser shall be
effective only so long as the Purchaser is the sole owner 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.
� L. Facsimile Signature . Pursuant to the Uniform Facsimile Signature of
Public Officials Act, part 1 of article 55 of title 11, Colorado Revised Statutes, as amended, the
Mayor, the City Clerk and the Financial Officer of the City shall forthwith, and in any event
prior to the time the Bonds are delivered to the Purchaser, file with the Colorado Secretary of
State their manual signatures certified by them under oath.
M. 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, satisfied or discharged, as herein provided.
N. Ratification., All actions not inconsistent with the provisions of this
Ordinance heretofore taken by the City or its officers, and otherwise by the City directed toward
the pledging of the Tax Increment Revenues, the construction, acquisition or installation of the
Project, the issuance and delivery of the Bonds and sale thereof to the Purchaser are hereby
ratified, approved and confirmed.
O. 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.
P. 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.
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Q. Limitation of Actions. Pursuant to § 11-57-212 of the Supplemental Act,
no legal or equitable action brought with respect to any legislative acts or proceedings of the City
in connection with the authorization or issuance of the Bonds, including but not limited to the
adoption of this Ordinance, shall be commenced more than thirty days after the authorization of
the Bonds.
R. Governing Law. This Ordinance shall be governed by and construed in
accordance with the laws of the State of Colorado.
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Introduced, considered favorably on first reading, and ordered published this 17th day of
August, A.D. 2010, and to be presented for final passage on the 7th day of September, A.D.
2010.
Mayor
ATTEST:
City Clerk
Passed and adopted on final reading on the 7th day of S mber, A.D. 2010.
v
May r
ATTEST:
City Clerk
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PUBFIN\1213653 2
STATE OF COLORADO )
COUNTY OF LARIMER ) ss.
CITY OF FORT COLLINS )
I, Wanda M. Krajicek, City Clerk of the City of Fort Collins, Colorado (the
"City"), do hereby certify the following:
1. The attached copy of Ordinance No. 090, 2010 (the "Ordinance") is a true,
correct and complete copy thereof.
2. The Ordinance was introduced, read, and approved on first reading by the
City Council(the "Council") at a regular meeting of the Council held at Council Chambers, City
Hall, 300 West LaPorte Avenue, Fort Collins, Colorado, the regular meeting place thereof, on
Tuesday, the 17th day of August, 2010, by the members of the Council as follows:
Name "Yes" "No" Absent
Doug Hutchinson, Mayor
Kelly Ohlson, Mayor Pro
Tern
Aislinn Kottwitz
Ben Manvel
Lisa Poppaw
David Roy
Wade Troxell
3. The Ordinance was duly published in full at least seven days before its
final passage on the City's official internet web site. In addition, the Ordinance was duly
published by number and title only, together with a statement that the text thereof was available
for public inspection and acquisition in the office of the City Clerk of the City and on the City's
intemet web site, in The Coloradoan, a newspaper of general circulation published in the City in
its issue of August _; 2010 as evidenced by the certificates of the publisher attached hereto as
Exhibit A. Both publications contained a notice giving the date when the Ordinance would be
presented for final passage.
4. The Ordinance was amended, read and finally passed on second reading
by the Council at a meeting thereof held concurrently with a regular meeting of the Council held
at Council Chambers, City Hall, 300 West LaPorte Avenue, Fort Collins, Colorado, the regular
meeting place thereof, on Tuesday, the 7th day of September 2010, by the members of the
Council as follows:
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PUBFIN\1213653.3
Name "Yes" "No" Absent
Doug Hutchinson, Mayor
Kelly Ohlson, Mayor Pro
Tern
Aislinn Kottwitz
Ben Manvel
Lisa Poppaw
David Roy
Wade Troxell
5. Following its final passage, the Ordinance was duly published in full on
the City's official internet web site within seven days following its final passage. In addition, a
notice of the final passage of the Ordinance was duly published in The Coloradoan, a newspaper
of general circulation published in the City, in its issue of 2010, as evidenced by
the certificate of the publisher attached hereto as Exhibit B.
6. A true copy of the Ordinance has been authenticated by the signatures of
the Mayor of the City and myself as City Clerk thereof, sealed with the seal of the City, and
numbered and recorded in a book marked "Ordinance Record" kept for that purpose in my
office.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the City
of Fort Collins, Colorado, this day of 2010.
City Clerk
(CITY SEAL) City of Fort Collins, Colorado
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PUBFIN\1213653.3
Exhibit A
(Attach certificate of publication of Ordinance after first reading)
A-1
PUBFIN\1213653.3
Exhibit B
(Attach certificate of publication of Ordinance after final passage)
B-1
PUBFIN\1213653.3