HomeMy WebLinkAboutbocc.ord.039.2006ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO, AUTHORIZING THE ISSUANCE BY
PITKIN COUNTY, COLORADO, OF THE PITKIN COUNTY,
COLORADO, GENERAL OBLIGATION OPEN SPACE ACQUISITION
AND REFUNDING BONDS, SERIES 2006, IN AN AGGREGATE
PRINCIPAL AMOUNT NOT TO EXCEED $9,935,000 FOR THE
PURPOSES OF PURCHASING, IMPROVING AND MAINTAINING
OPEN SPACE AND TRAILS AND REFUNDING IN ADVANCE OF
THEIR RESPECTIVE MATURITIES CERTAIN OF THE PITKIN
COUNTY, COLORADO, GENERAL OBLIGATION REFUNDING AND
OPEN SPACE ACQUISITION BONDS, SERIES 2000; PROVIDING FOR
THE LEVY OF AD VALOREM PROPERTY TAXES FOR THE
PAYMENT OF SUCH BONDS; PROVIDING THE FORM OF SUCH
BONDS AND OTHER DETAILS WITH RESPECT TO SUCH BONDS
AND THE PAYMENT THEREOF; APPROVING OTHER DOCUMENTS
RELATING TO SUCH BONDS; DECLARING AN EMERGENCY; AND
PROVIDING THE EFFECTIVE DATE OF THIS ORDINANCE.
ORDINANCE NO. ~-2006
RECITALS
1. Pitkin County, Colorado (the "County"), is a home rule county and political subdivision
of the State of Colorado (the "State"), duly organized and validly existing under the
Constitution and laws of the State, particularly Title 30, Article 35, Colorado Revised
Statutes, as amended, (as further defined herein, the "Home Rule County Act"), and the
Pitkin County Home Rule Charter, adopted March 21, 1978, as amended (the "Charter").
2. The County is authorized by the Home Rule County Act and Title 11, Article 57, Part 2,
Colorado Revised Statutes, as amended (the "Supplemental Public Securities Act") and
the Charter to issue general obligation bonds for any public purpose, subject to approval
by the majority of County voters voting at an election called for the purpose of
submitting the question of the issuance of such bonds pursuant to the Charter.
3. At an election called on November 6, 1990, the County submitted the following question
(the "1990 Ballot Question") to County voters for approval:
Shall the Board of County Commissioners of Pitkin County, Colorado, be
authorized to levy a property tax of up to 2.5 mills for the purpose of
funding the purchase, improvement and maintenance of open space and
trails, subject to the restrictions contained in Resolution No. 90-93; and
Shall the Board of County Commissioners of Pitkin County, Colorado, be
authorized to issue general obligation indebtedness up to a maximum
4827-5936-4865.1
amount of $12,000,000, for the purpose of funding the purchase,
improvement and maintenance of open space and trails, subject to the
restrictions contained in Resolution No. 90-93, with a net effective interest
rate not to exceed 12% per annum and a maximum term of 30 years, to be
issued in one or more series and payable from property tax without
limitation as to levy or amount; however, the actual levy required to
service such debt shall annually be deducted from the 2.5 mills authorized
above?
4. A majority of the registered electors of the County voting on the 1990 Ballot Question at
the November 6, 1990 election voted in favor of the 1990 Ballot Question.
5. At an election called on November 2, 1999, the County submitted the following question
(the "1999 Ballot Question" and, collectively with the 1990 Ballot Question, the "Ballot
Questions") to County voters for approval:
SHALL EXISTING PITKIN COUNTY TAXES OF $2.8 MILLION BE
INCREASED UP TO $5.6 MILLION ANNUALLY FOR THE
PURPOSE OF CONTINUING TO FUND THE PURCHASE,
IMPROVEMENT, AND MAINTENANCE OF OPEN SPACE AND
TRAILS BY THE EXTENSION OF THE EXISTING PROPERTY TAX
LEVY OF 2.5 MILLS AND THE IMPOSITION OF AN ADDITIONAL
PROPERTY TAX LEVY OF UP TO 1.25 MILLS FOR A TOTAL OF UP
TO 3.75 MILLS FOR TEN YEARS, COMMENCING WITH THE TAX
YEAR 2000 (COLLECTION TO BEGIN IN 2001) AND CONTINUING
THEREAFTER THROUGH THE TAX YEAR 2009 AT A LEVY OF UP
TO 3.75 MILLS BUT NO LESS THAN 2.5 MILLS; AND SHALL
PITKIN COUNTY BE ENTITLED TO COLLECT, RETAIN, AND
SPEND ON BEHALF OF THE OPEN SPACE AND TRAILS
PROGRAM THE FULL REVENUES FROM THE PROPERTY TAX
LEVY OF UP TO 3.75 MILLS REGARDLESS OF WHETHER THE
ANNUAL REVENUES FROM SUCH TAX INCREASE IN ANY YEAR
AFTER THE FIRST FULL YEAR IN WHICH IT IS 1N EFFECT
EXCEED THE ESTIMATED DOLLAR AMOUNT STATED ABOVE
AND REGARDLESS OF WHETHER ANY SUCH INCREASE
EXCEEDS THE REVENUE LIMITATIONS CONTAINED IN THE
COUNTY HOME RULE CHARTER, STATE LAW OR THE STATE
CONSTITUTION; AND
SHALL PITKIN COUNTY DEBT BE INCREASED $12 MILLION
WITH A MAXIMUM REPAYMENT COST OF UP TO $34 MILLION,
AND SHALL PITKIN COUNTY TAXES BE INCREASED UP TO
$1,300,000 ANNUALLY AND BE LEVIED 1N ANY YEAR WITHOUT
LIMITATION AS TO RATE OR AMOUNT TO REPAY SUCH DEBT,
4827-5936-4865.1 2,
WITH THE ACTUAL PROPERTY TAX LEVY REQUIRED TO
REPAY SUCH DEBT AND THE DEBT PREVIOUSLY APPROVED
BY THE ELECTORATE ON NOVEMBER 6, 1990, ANNUALLY
DEDUCTED TO REDUCE THE LEVY OF UP TO 3.75 MILLS
AUTHORIZED ABOVE; SUCH DEBT TO BE EVIDENCED BY THE
ISSUANCE OF GENERAL OBLIGATION BONDS OR NOTES IN
ONE OR MORE SERIES, WITH OR WITHOUT A PREMIUM FOR
REDEMPTION PRIOR TO MATURITY, WITH A NET EFFECTIVE
INTEREST RATE NOT TO EXCEED 8.5% AND A MAXIMUM TERM
OF 31 YEARS, AND UPON SUCH OTHER TERMS AS THE BOARD
OF COUNTY COMMISSIONERS OF PITKIN COUNTY MAY
DETERMINE; ALL FOR THE PURPOSE OF FUNDING THE
PURCHASE, IMPROVEMENT AND MAINTENANCE OF OPEN
SPACE AND TRAILS; AND
SHALL ARTICLE XIII OF THE PITKIN COUNTY HOME RULE
CHARTER BE AMENDED TO REAUTHORIZE AND AUGMENT
THE OPEN SPACE/TRAILS PROGRAM IN ACCORDANCE WITH
THE PROVISIONS OF RESOLUTION 99-150?
6. A majority of the registered electors of the County voting on the 1999 Ballot Question at
the November 2, 1999 election voted in favor of the 1999 Ballot Question.
7. On December 20, 2000, the County issued its Pitkin County, Colorado, General
Obligation Refunding and Open Space Acquisition Bonds, Series 2000 (the "Series 2000
Bonds"), in the aggregate principal amount of $10,000,000, pursuant to the County's
Ordinance No. 48-2000 (the "Series 2000 Ordinance"), adopted by the County on
December 6, 2000, and, with respect to the portion of the Series 2000 Bonds allocated to
the purchase, improvement and maintenance of open space and trails, pursuant to the
authorization of the Ballot Questions.
8. The Series 2000 Ordinance allocated: (a) an $8,795,000 principal amount portion of the
Series 2000 Bonds (the "Series 2000 Acquisition Bonds") to the purchase, improvement
and maintenance of open space and trails pursuant to the Ballot Questions; and (b) a
$1,205,000 principal amount portion of the Series 2000 Bonds to the refunding of certain
of the County's then-outstanding General Obligation Housing Bonds, Series 1992.
9. The County desires to refund, in advance of their respective maturities, a portion of the
Series 2000 Acquisition Bonds (as further defined herein, the "Refunded Bonds").
10. Pursuant to the provisions of Title 11, Article 56, Colorado Revised Statutes, as amended
(the "Refunding Act"), the County is authorized to issue general obligation refunding
bonds for the purpose of refunding, paying and discharging the Refunded Bonds and for
one or more other purposes, including but not limited to reducing the net effective
interest rate of the obligations represented by the Refunded Bonds, reducing the total
4827-5936-4865.1 3
principal and interest payable on such obligations, reducing the principal and interest
payable on such obligations in one or more particular year or years and effecting other
economies for the County, subject to the terms, conditions and limitations in the
Refunding Act.
11. The Board of County Commissioners of the County (the "Board") has determined that by
refunding the Refunded Bonds, the Board can, in accordance with the Refunding Act,
among other things, reduce the net effective interest rate of the obligations represented by
the Refunded Bonds and effect other economics.
12. The Board has determined that it is in the best interests of the County and its residents to
issue the Pitkin County, Colorado, General Obligation Open Space Acquisition and
Refunding Bonds, Series 2006 (the "Bonds") in an aggregate principal amount not to
exceed $9,935,000 for the purposes of: purchasing, improving and maintaining open
space and trails (as further defined herein, the "Acquisition Project"); refunding the
Refunded Bonds to effect the economies described in the preceding recital pursuant to the
Refunding Act (as further defined herein, the "Refunding Project"); and paying the costs
of issuance of the Bonds.
13. No member of the Board has a potential conflict of interest in connection with the
authorization, issuance, sale or use of proceeds of the Bonds.
14. This Ordinance is being adopted to authorize the issuance, sale and delivery of the Bonds,
to provide for the payment of the Bonds and to provide the details of the Bonds.
15. The Board has determined that, due to the circumstances set forth in this Ordinance, an
emergency exists requiring that this Ordinance be adopted as an emergency ordinance
pursuant to Section 2.8.2 of the Charter.
NOW, THEREFORE, BE IT ORDAINED, by the Board of County Commissioners of
Pitkin County, Colorado that:
Section 1. Definitions. The following terms shall have the following meanings for
purposes of this Ordinance:
"Acquisition Project" means any purpose for which proceeds of the Bonds may be
expended under the Home Rule County Act, the Charter and the Ballot Questions, including, but
not limited to, the purchase, improvement and maintenance of open space and trails and the
payment of an allocable portion of the costs of issuance of the Bonds.
"Acts" means, collectively, the Home Rule County Act, the Refunding Act and the
Supplemental Public Securities Act.
"Ballot Questions" means, collectively, the 1990 Ballot Question and the 1999 Ballot
Question.
4827-5936-4865.1 4
"Board" means the Board of County Commissioners of the County, and any successor
body.
"Bond Counsel" means (i) as of the date of issuance of the Bonds, Kutak Rock LLP, and
(ii) as of any other date, Kutak Rock LLP or such other attorneys selected by the County with
nationally recognized expertise in the issuance of municipal bonds.
"Bond Insurance Policy" means, if any of the Bonds are issued as Insured Bonds, the
municipal bond insurance policy issued by the Bond Insurer insuring the payment when due of
the principal of and interest on the Bonds as provided therein. If none of the Bonds are issued as
Insured Bonds, this definition shall not be applicable.
"Bond Insurer" means, if any of the Bonds are issued as Insured Bonds, the bond insurer
selected by the Sale Delegate in the Sale Certificate pursuant to the Section hereof entitled
"Delegation and Parameters," or any successor thereto. If none of the Bonds are issued as
Insured Bonds, this definition shall not be applicable.
"Bond Obligation" means, as of any date, the principal amount of Bonds then
Outstanding.
"Bond Purchase Agreement" means the Bond Purchase Agreement pursuant to which the
Underwriter will agree to purchase the Bonds at the price and on the terms set forth therein.
"Bonds" means the Pitkin County, Colorado General Obligation Open Space Acquisition
and Refunding Bonds, Series 2006, authorized in the Section hereof entitled "Authorization and
Purpose of Bonds."
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in the State are authorized or obligated by law or executive order to be
closed for business.
"Charter" means the Pitkin County Home Rule Charter, adopted March 21, 1978, as
amended.
"Chief Financial Officer" means the Chief Financial Officer and ex-officio Treasurer of
the County.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder and applicable to the Bonds or the use of proceeds thereof,
unless the context clearly requires otherwise.
"Commitment" means, if any of the Bonds are issued as Insured Bonds, the offer of the
Bond Insurer to issue the Bond Insurance Policy. If none of the Bonds are issued as insured
Bonds, this definition shall not be applicable.
4827-5936-4865.1 5 /
"County" means Pitkin County, Colorado and any successor thereto.
"Dated Date" means the original dated date for the Bonds established in the Sale
Certificate.
"Defeasance Securities" means bills, certificates of indebtedness, notes, bonds or similar
securities which are direct non-callable obligations of the United States of America or which are
fully and unconditionally guaranteed as to the timely payment of principal and interest by the
United States of America, to the extent such investments are Permitted Investments.
"DTC" means The Depository Trust Company, New York, New York, and its successors
in interest and assigns.
"Escrow Account" means the account of that name established pursuant to the Escrow
Agreement.
"Escrow Agent" means American National Bank, in Denver, Colorado, and its successors
and assigns approved by the County.
"Escrow Agreement" means the Escrow Agreement regarding the Refunded Bonds,
between the County and the Escrow Agent.
"Event of Default" means any one or more of the events set forth in the Section hereof
entitled "Events of Default."
"Financial Advisor" means Capmark Securities Inc. and its successors and assigns.
"Home Rule County Act" means Title 30, Article 35, Colorado Revised Statutes, as
amended, other than Part 7 thereof (such Part 7 consists of provisions authorizing the issuance of
refunding bonds by a home rule county; the portion of the Bonds allocated to the Refunding
Project is being issued pursuant to the separate, alternative authority of the Refunding Act), and
any successor thereto.
"Insured Bonds" means those Bonds, if any, insured by the Bond Insurance Policy.
"Interest Payment Date" means each June 1 and December 1, commencing June 1, 2007.
"1990 Ballot Question" means the ballot question approved by County voters on
November 6, 1990, quoted and defined as such in the preambles hereto.
"1999 Ballot Question" means the ballot question approved by County voters on
November 2, 1999, quoted and defined as such in the preambles hereto.
"Official Statement" means the final Official Statement relating to the Bonds.
4827-5936-4865.1 6 /
"Open Space Fund" means the County's Open Space/Trails Fund created and maintained
by the County pursuant to Section 13.1.1 of the Charter.
"Ordinance" means this Ordinance, including any amendment or supplement hereto.
"Outstanding" means, as of any date, all Bonds, except the following:
(a) any Bond cancelled by the County or the Paying Agent, or otherwise on
the County's behalf, at or before such date;
(b) any Bond held by or on behalf of the County;
(c) any Bond for the payment or the redemption of which moneys or
Defeasance Securities sufficient to meet all of the payment requirements of the principal
of, premium, if any, and interest on such Bond to the date of maturity or prior redemption
thereof, shall have theretofore been deposited in trust for such purpose in accordance with
the Section hereof entitled "Defeasance"; and
(d) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in
substitution for which another bond or other security shall have been executed and
delivered.
"Owner" means the Person or Persons in whose name or names a Bond is registered on
the registration books maintained by the Paying Agent pursuant hereto.
"Paying Agent" means American National Bank, in Denver, Colorado, or any successor
thereto or assignee thereof approved by the County.
"Permitted Investments" means any investment in which funds of the County may be
invested under the laws of the State at the time of such investment.
"Person" means a corporation, firm, other body corporate, partnership, association or
individual and also includes an executor, administrator, trustee, receiver or other representative
appointed according to law.
Bonds.
"Preliminary Official Statement" means the Preliminary Official Statement relating to the
"Qualified Tax-Exempt Obligations" means qualified tax-exempt obligations within the
meaning of Section 265(b)(3) of the Code.
"Rebate Account" means the account created and designated as such in the Section hereof
entitled "Federal Income Tax Covenants."
4827-5936-4865.1 7
"Record Date" means, with respect to each Interest Payment Date, the fifteenth day of the
month immediately preceding the month in which such Interest Payment Date occurs (whether or
not such day is a Business Day).
"Refunded Bonds" means those Series 2000 Acquisition Bonds specified in the Sale
Certificate as being included in the Refunded Bonds pursuant to the Section hereof entitled
"Delegation and Parameters."
"Refunded Bond Requirements" means the principal of, premium, and interest due on the
Refunded Bonds upon their redemption.
"Refunding Act" means Title 11, Article 56, Colorado Revised Statutes, as amended, and
any successor thereto.
"Refunding Project" means any purpose for which proceeds of the Bonds may be
expended under the Refunding Act and the Charter, including, but not limited to, the refunding,
paying and discharging of the Refunded Bond Requirements and the payment of an allocable
portion of the costs of issuance of the Bonds.
"Sale Certificate" means the certificate executed by the Sale Delegate under the authority
delegated pursuant to this Ordinance which sets forth, among other things, the total aggregate
principal amount of the Bonds, the interest rates and annual maturing principal for the Bonds, the
prices at which the Bonds will be sold, the Dated Date, the dates on which the Bonds may be
redeemed and the redemption prices therefor, the Series 2000 Acquisition Bonds to be included
in the Refunded Bonds, the portions of the Bonds to be allocated to the Refunding Project and
the Acquisition Project, the identification of the Bond Insurer, if any, the Insured Bonds, if any,
and any terms required by the Bond Insurer for its issuance of the Bond Insurance Policy.
"Sale Delegate" means the Chief Financial Officer, or in the absence of the Chief
Financial Officer, the County Manager.
"Series 2000 Acquisition Bonds" means the $8,795,000 principal amount portion of the
Series 2000 Bonds allocated by the Series 2000 Ordinance to the purchase, improvement and
maintenance of open space and trails pursuant to the Ballot Questions.
"Series 2000 Bonds" means the Pitkin County, Colorado, General Obligation Refunding
and Open Space Acquisition Bonds, Series 2000, originally issued in the aggregate principal
amount of $10,000,000 and currently outstanding in the aggregate principal amount of
$9,190,000.
"Series 2000 Ordinance" means the County's Ordinance No. 48-2000, adopted by the
County on December 6, 2000, authorizing the issuance of the Series 2000 Bonds.
"State" means the State of Colorado.
4827-5936-4865.1 $
"Supplemental Public Securities Act" means Title 11, Article 57, Part 2, Colorado
Revised Statutes, as amended, and any successor thereto.
"Tax Compliance Certificate" means the Tax Compliance Certificate, dated the date on
which the Bonds are originally issued, as such Tax Compliance Certificate may be superseded or
amended in accordance with its terms.
"Underwriter" means D.A. Davidson & Co.
Section 2. Authorization and Purpose of Bonds. Pursuant to and in accordance with
the Acts, the Charter and, with respect to the portion of the Bonds allocated to the Acquisition
Project, the Ballot Questions, the County hereby authorizes, and directs that there shall be issued,
the "Pitkin County, Colorado, General Obligation Open Space Acquisition and Refunding
Bonds, Series 2006," in an aggregate original principal amount set forth in the Sale Certificate
pursuant to the Section hereof entitled "Delegation and Parameters," for the purpose of financing
the Acquisition Project and the Refunding Project.
Section 3. Bond Details.
(a) Registered Form, Denominations, Original Dated Date and Numbering.
The Bonds shall be issued in fully registered form, shall be dated as of the Dated Date,
and shall be registered in the names of the persons identified in the registration books
maintained by the Paying Agent pursuant hereto. The Bonds shall be issued in
denominations of $5,000 in principal amount or any integral multiple thereof. The Bonds
shall be consecutively numbered, beginning with the number one, preceded by the letter
«R „
(b) Maturity Dates, Principal Amounts and Interest Rates. The Bonds shall
mature on December 1 of the years and in the principal amounts, and shall bear interest at
the rates per annum (calculated based on a 360-day year of twelve 30-day months), set
forth in the Sale Certificate pursuant to the Section hereof entitled "Delegation and
Parameters."
(c) Accrual and Dates of Payment of Interest. Interest on the Bonds shall
accrue at the rates set forth above from the later of the Dated Date or the latest Interest
Payment Date (or in the case of defaulted interest, the latest date) to which interest has
been paid in full and shall be payable on each Interest Payment Date.
(d) Manner and Form of Payment. Principal of and premium, if any on each
Bond shall be payable to the Owner thereof upon presentation and surrender of such
Bond at the principal office of the Paying Agent in the city identified in the definition of
Paying Agent in the Section hereof entitled "Definitions." Interest on each Bond shall be
payable by check or draft of the Paying Agent mailed on each Interest Payment Date to
the Owner thereof as of the close of business on the corresponding Record Date; provided
that, interest payable to any Owner may be paid by any other means agreed to by such
4827-5936-4865.1 9
Owner and the Paying Agent that does not require the County to make moneys available
to the Paying Agent earlier than otherwise required hereunder or increase the costs borne
by the County hereunder. All payments of the principal of, premium, if any, and interest
on the Bonds shall be made in lawful money of the United States of America.
(e) Book-Entry Registration. Notwithstanding any other provision hereof,
the Bonds shall be delivered only in book-entry form registered in the name of Cede &
Co., as nominee of DTC, acting as securities depository of the Bonds and principal of,
premium, if any, and interest on the Bonds shall be paid by wire transfer to Cede & Co,.
as nominee of DTC; provided, however, if at any time the Paying Agent determines, and
notifies the County of its determination, that DTC is no longer able to act as, or is no
longer satisfactorily performing its duties as, securities depository for the Bonds, the
Paying Agent may, at its discretion, either (i) designate a substitute securities depository
for DTC and reregister the Bonds as directed by such substitute securities depository or
(ii) terminate the book-entry registration system and reregister the Bonds in the names of
the beneficial owners thereof provided to it by DTC. Neither the County nor the Paying
Agent shall have any liability to DTC, Cede & Co., any substitute securities depository,
any Person in whose name the Bonds are reregistered at the direction of any substitute
securities depository, any beneficial owner of the Bonds or any other Person for (A) any
determination made by the Paying Agent pursuant to the proviso at the end of the
immediately preceding sentence or (B) any action taken to implement such determination
and the procedures related thereto that is taken pursuant to any direction of or in reliance
on any information provided by DTC, Cede & Co., any substitute securities depository or
any Person in whose name the Bonds are reregistered.
Section 4. Redemption of Bonds Prior to Maturity.
(a) Optional Redemption. The Bonds shall be subject to redemption at the
option of the County, in whole or in part, and if in part in such order of maturities as the
County shall determine and by lot within a maturity, on such dates, if any, and at such
prices, as set forth in the Sale Certificate pursuant to the Section hereof entitled
"Delegation and Parameters."
(b) Mandatory Sinking Fund Redemption. All or any portion of the Bonds
may be subject to mandatory sinking fund redemption by lot on December 1 of the years
and in the principal amounts specified in the Sale Certificate pursuant to the Section
hereof entitled "Delegation and Parameters," at a redemption price equal to the principal
amount thereof (with no redemption premium), plus accrued interest to the redemption
date.
At its option, to be exercised on or before the forty-fifth day next preceding each
sinking fund redemption date, the County may (i) purchase and cancel any Bonds with
the same maturity date as the Bonds subject to such sinking fund redemption and
(ii) receive a credit in respect of its sinking fund redemption obligation for any Bonds
with the same maturity date as the Bonds subject to such sinking fund redemption which
4827-5936-4865.1
10
/~
prior to such date have been redeemed (otherwise than through the operation of the
sinking fund) and cancelled and not theretofore applied as a credit against any sinking
fund redemption obligation. Each Bond so purchased and cancelled or previously
redeemed shall be credited at the principal amount thereof to the obligation of the County
on such sinking fund redemption date, and the principal amount of Bonds to be redeemed
by operation of such sinking fund on such date shall be accordingly reduced.
(c) Redemption Procedures. Notice of any redemption of Bonds shall be
given by the Paying Agent by sending a copy of such notice by first-class, postage
prepaid mail, not less than 30 days prior to the redemption date, to the Owner of each
Bond being redeemed. Such notice shall specify the number or numbers of the Bonds so
to be redeemed (if redemption shall be in part) and the redemption date. If any Bond
shall have been duly called for redemption and if, on or before the redemption date, there
shall have been deposited with the Paying Agent in accordance with this Ordinance funds
sufficient to pay the redemption price of such Bond on the redemption date, then such
Bond shall become due and payable at such redemption date, and from and after such
date interest will cease to accrue thereon. Failure to deliver any redemption notice or any
defect in any redemption notice shall not affect the validity of the proceeding for the
redemption of Bonds with respect to which such failure or defect did not occur. Any
Bond redeemed prior to its maturity by prior redemption or otherwise shall not be
reissued and shall be cancelled.
Section 5. Escrow Account. The County hereby creates the "Pitkin County Series 2006
Escrow Account" (the "Escrow Account"). The Escrow Account shall be maintained in
accordance with the provisions hereof and of the Escrow Agreement.
Section 6. Security for the Bonds.
(a) General Obligations. The Bonds shall be general obligations of the
County, payable from the ad valorem property taxes levied pursuant to this Section and
other moneys separately accounted for by the County to pay the principal of, premium, if
any, and interest on the Bonds. The full faith and credit of the County are pledged for the
punctual payment of the principal of and interest on the Bonds.
(b) Levy of Ad Valorem Taxes. For the purpose of paying the principal of,
premium, if any, and interest on the Bonds when due, respectively, the Board shall
annually determine a rate of levy for general ad valorem taxes, without limitation as to
rate or amount, on all of the taxable property within the County, sufficient when
combined with other moneys separately accounted for by the County for such purpose, to
pay the principal of, premium, if any, and interest on the Bonds when due, respectively,
whether at maturity or upon earlier redemption. The Board shall, in certifying annual
levies for general ad valorem taxes, take into account the maturing indebtedness of the
Bonds for the ensuing year and deficiencies and defaults of prior years and shall make
ample provision for the payment thereof.
4827-5936-4865.1 1 1
~/
(c) Levy of Additional Ad Valorem Taxes. If the moneys produced from the
taxes levied by the County pursuant to subsection (b) of this Section, together with other
revenues of the County available therefor, are not sufficient to pay punctually the annual
installments on the contracts or bonds of the County, and interest thereon, and to pay
defaults and deficiencies, the Board shall make such additional levies of taxes as may be
necessary for such purposes, and such taxes shall be made and continue to be levied until
the indebtedness is fully paid.
(d) Application of Proceeds of Ad Valorem Taxes. The general ad valorem
taxes levied pursuant to subsection (b) of this Section and any additional taxes levied to
pay the principal of, premium, if any, and interest on the Bonds pursuant to subsection (c)
of this Section, when collected, shall be separately accounted for by the County and
applied solely to the payment of the principal of and interest on the Bonds and for no
other purpose until the Bonds, including principal and interest, are fully paid, satisfied
and discharged.
(e) Appropriation and Budgeting of Proceeds of Ad Valorem Taxes.
Moneys received from the general ad valorem taxes levied pursuant to subsections (b)
and (c) of this Section in an amount sufficient to pay the principal of and interest on the
Bonds when due, respectively, are hereby appropriated for that purpose, and all amounts
required to pay the principal of and interest on the Bonds due, respectively, in each year
shall be included in the annual budget and appropriation ordinance to be adopted and
passed by the Board for such year.
(f) Use or Advance of Other Legally Available Moneys. Nothing herein
shall be interpreted to prohibit or limit the ability of the County to use legally available
funds of the County other than the proceeds of the general ad valorem property taxes
levied pursuant to this Section to pay all or any portion of the principal of, premium, if
any, or interest on the Bonds. If and to the extent such other legally available moneys are
used to pay the principal of, premium, if any, or interest on the Bonds, the County may,
but shall not be required to, (i) reduce the amount of taxes levied for such purpose
pursuant to subsection (b) of this Section or (ii) use proceeds of taxes levied pursuant to
subsection (b) of this Section to reimburse the fund or account from which such other
legally available moneys are withdrawn for the amount withdrawn from such fund or
account to pay the principal of or interest on the Bonds. If the County selects
alternative (ii) in the immediately preceding sentence, the taxes levied pursuant to
subsection (b) of this Section shall include amounts sufficient to fund the reimbursement.
(g) Deposit of Moneys To Pay Bonds With, and Payment of Bonds by,
Paying Agent. No later than the Business Day immediately preceding each date on
which a payment of principal of, premium, if any, or interest on the Bonds is due, the
County, from proceeds of the taxes levied pursuant to subsections (b) and (c} this Section
or other legally available moneys, shall deposit moneys with the Paying Agent in an
amount sufficient to pay the principal of premium, if any, and interest on the Bonds ~on
4827-5936-4865.1 12
I
such date. The Paying Agent shall use the moneys so deposited with it to pay the
principal of, premium, if any, and interest on the Bonds when due.
(h) Inapplicability of Certain Charter Provisions. Pursuant to Section 13.1.5
of the Charter, any and all revenues from ad valorem taxes levied pursuant to this Section
shall be available for the payment of the principal of, premium, if any, and interest on the
Bonds, notwithstanding the provisions of Sections 13.1.2 and 13.1.3 of the Charter.
Section 7. Form of Bonds. The Bonds shall be in substantially the form set forth in
Appendix A hereto, with such changes thereto, not inconsistent herewith, as may be necessary or
desirable and approved by the officials of the County executing the same (whose manual or
facsimile signatures thereon shall constitute conclusive evidence of such approval). All
covenants, statements, representations and agreements contained in the Bonds are hereby
approved and adopted as the covenants, statements, representations and agreements of the
County. The Bonds shall contain a recital that they are issued pursuant to the Acts. Although
attached as an appendix for the convenience of the reader, Appendix A is an integral part of this
Ordinance and is incorporated herein as if set forth in full in the body of this Ordinance.
Section 8. Execution of Bonds. The Bonds shall be executed in the name and on behalf
of the County with the manual or facsimile signature of the Chair of the Board, shall be
countersigned by the Chief Financial Officer, shall bear a manual or facsimile of the seal of the
County and shall be attested by the manual or facsimile signature of the Deputy County Clerk
and Recorder, all of whom are hereby authorized and directed to prepare and execute the Bonds
in accordance with the requirements hereof. Should any officer whose manual or facsimile
signature appears on the Bonds cease to be such officer before delivery of any Bond, such
manual or facsimile signature shall nevertheless be valid and sufficient for all purposes. When
the Bonds have been duly executed, the officers of the County are authorized to, and shall,
deliver the Bonds to the Paying Agent for authentication. No Bond shall be secured by or
entitled to the benefit of this Ordinance, or shall be valid or obligatory for any purpose, unless
the certificate of authentication of the Paying Agent has been manually executed by an
authorized signatory of the Paying Agent. The executed certificate of authentication of the
Paying Agent upon any Bond shall be conclusive evidence, and the only competent evidence,
that such Bond has been properly authenticated and delivered hereunder.
Section 9. Temporary Bonds. Until Bonds in definitive form are ready for delivery, the
County may execute, and upon the request of the County, the Paying Agent shall authenticate
and deliver, subject to the provisions, limitations and conditions set forth herein, one or more
Bonds in temporary form, whether printed, typewritten, lithographed or otherwise produced,
substantially in the forms of the definitive Bonds, with appropriate omissions, variations and
insertions, and in authorized denominations. Until exchanged for Bonds in definitive form such
Bonds in temporary form shall be entitled to the benefits and security of this Ordinance. Upon
the presentation and surrender of any Bond in temporary form, the County shall, without
unreasonable delay, prepare, execute and deliver to the Paying Agent and the Paying Agent shall
authenticate and deliver, in exchange therefor, a Bond or Bonds of the same series in definitive
4827-5936-4865.1 13 /~
form. Such exchange shall be made by the Paying Agent without making any charge therefor to
the registered owner of such Bond in temporary form.
Section 10. Registration of Bonds in Registration Books Maintained by Paying
Agent. The Paying Agent shall maintain registration books in which the ownership, transfer and
exchange of Bonds shall be recorded. The person in whose name any Bond shall be registered
on such registration book shall be deemed to be the absolute owner thereof for all purposes,
whether or not payment on any Bond shall be overdue, and neither the County nor the Paying
Agent shall be affected by any notice or other information to the contrary.
Section 11. Transfer and Exchange of Bonds. The Bonds may be transferred or
exchanged at the principal office of the Paying Agent in the city identified in the definition of
Paying Agent in the Section hereof entitled "Definitions," for a like aggregate principal amount
of Bonds of other authorized denominations of the same type, maturity and interest rate, upon
payment by the transferee of a transfer fee, any tax or governmental charge required to be paid
with respect to such transfer or exchange and any cost of printing bonds in connection therewith.
Upon surrender for transfer of any Bond, duly endorsed for transfer or accompanied by an
assignment duly executed by the Owner or his or her attorney duly authorized in writing, the
County shall execute and the Paying Agent shall authenticate and deliver in the name of the
transferee a new Bond. Notwithstanding any other provision hereof, the Paying Agent shall not
be required to transfer any Bond (a) which is scheduled to be redeemed in whole or in part
between the Business Day immediately preceding the mailing of the notice of redemption and
the redemption date or (b) between the Record Date for any Interest Payment Date for such Bond
and such Interest Payment Date.
Section 12. Replacement of Lost, Destroyed or Stolen Bonds. If any Bond shall
become lost, apparently destroyed, stolen or wrongfully taken, it may be replaced in the form and
tenor of the lost, destroyed, stolen or taken Bond and the County shall execute and the Paying
Agent shall authenticate and deliver a replacement Bond upon the Owner furnishing, to the
satisfaction of the Paying Agent: (i) proof of ownership (which shall be shown by the registration
books of the Paying Agent), (ii) proof of loss, destruction or theft, (iii) an indemnity to the
County and the Paying Agent with respect to the Bond lost, destroyed or taken, and (iv) payment
of the cost of preparing and executing the new Bond.
Section 13. Delivery of Bonds and Application of Bond Proceeds. Upon payment to
the County of the purchase price of the Bonds in accordance with the Bond Purchase Agreement,
the Bonds shall be delivered to or as directed by the Underwriter and the proceeds received by
the County from the sale of the Bonds shall be applied as a supplemental appropriation by the
County as follows:
(a) accrued interest, if any, on the Bonds shall be separately accounted for by
the County to be applied to the first payment of interest on the Bonds;
4827-5936-4865.1 14 /
(b) the costs of issuing the Bonds shall be delivered to the County to pay the
same, including the premium for the Bond Insurance Policy, if any of the Bonds are
issued as Insured Bonds;
(c) the proceeds of the Bonds allocated to the Refunding Project shall be
deposited into the Escrow Account; and
(d) the remaining proceeds of the Bonds shall be separately accounted for
within the Open Space Fund by the County to pay the costs of the Acquisition Project.
Section 14. Investments. Moneys on deposit in the Rebate Account and any moneys
held by the Paying Agent with respect to the Bonds shall be invested in Permitted Investments,
provided that the investment of such moneys shall be subject to any applicable restrictions set
forth in the Tax Compliance Certificate and the tax compliance certificate delivered by the
County in connection with the issuance of the Bonds that describes the County's expectations
regarding the use and investment of proceeds of the Bonds and other moneys. Except as
otherwise provided above, earnings from the investment of moneys separately accounted for to
pay principal of, premium, if any, and interest on the Bonds and moneys separately accounted for
to pay costs of the Acquisition Project shall be transferred to the Rebate Account in the amounts
and at the times required to fund the Rebate Account in accordance with the Tax Compliance
Certificate and all other earnings from the investment of moneys shall be retained in the account
in which earned. By adoption of this Ordinance, the Board specifically authorizes the investment
of moneys held in Permitted Investments with a maturity date later than five years from the date
of purchase.
Section 15. Various Findings, Determinations, Declarations and Covenants. The
Board, having been fully informed of and having considered all the pertinent facts and
circumstances, hereby finds, determines, declares and covenants with the Owners of the Bonds
that:
(a) voter approval of the Ballot Questions was obtained in accordance with all
applicable provisions of law;
(b) it is reasonable, prudent and necessary and in the best interest of the
County and its residents that the Bonds be authorized, sold, issued and delivered at the
time, in the manner and for the purposes provided in this Ordinance;
(c) the Refunded Bonds maturing on and after December 1, 2011 are subject
to redemption prior to maturity at the option of the County, in whole or in part, on
December 1, 2010 and on any date thereafter, upon payment of the principal amount
thereof, plus accrued interest to the redemption date, with no redemption premium;
(d) the refunding of the obligations represented by the Refunded Bonds by the
issuance of the Bonds will, in accordance with the Refunding Act, reduce the net
effective interest rate of said obligations and effect other economies;
4827-5936-4865.1 15
lti
(e) in accordance with the Refunding Act, the principal amount of the Bonds,
when combined with the principal amount of the outstanding Series 2000 Bonds which
are not being refunded with the proceeds of the .Bonds and the outstanding principal
amount of all other obligations issued pursuant to the authorization of the Ballot
Questions, shall not exceed the aggregate principal amount authorized by the Ballot
Questions;
(f) the interest rate on the portion of the Bonds allocated to the Refunding
Project shall be lower than the interest rate of the Refunded Bonds, as required pursuant
to Section 20(4)(b) of Article X of the State Constitution;
(g) the net effective interest rate on the portion of the Bonds allocated to the
Acquisition Project shall not exceed 8.5%, such rate being the lesser of (i) the maximum
net effective interest rate permitted by the 1990 Ballot Question and (ii) that permitted by
the 1999 Ballot Question;
(h) the County hereby:
(i) exercises its option to redeem the Refunded Bonds maturing on
and after December 1, 2011 on December 1, 2010 at a redemption price equal to
the principal amount thereof and accrued interest thereon;
(ii) directs the Refunded Bonds Paying Agent to take all actions
necessary to redeem the Refunded Bonds maturing on and after December 1,
2011 on such redemption date, including, without limitation, the delivery of the
notice of such redemption required to be given by the Refunded Bonds Paying
Agent by Section 4(c) of the Series 2000 Ordinance; and
(iii) directs the Escrow Agent to use moneys in the Escrow Account
solely to pay the principal of and interest on the Refunded Bonds until the
maturity or earlier redemption thereof and the redemption price of the Refunded
Bonds on such redemption date in accordance with the Series 2000 Ordinance and
this Ordinance;
(i) the County and DTC have previously entered into a Blanket Letter of
Representations dated April 21, 1995, which Blanket Letter of Representations will
govern the book-entry registration system for the Bonds;
(j} the issuance of the Bonds will not cause the County to exceed its debt
limit under applicable State law;
(k) as required by the Refunding Act: (i) the Underwriter, simultaneously with
the submission to the County of its proposal to refund the Refunded Bonds, disclosed, in
writing, to the Board the entire income, from all sources, which it anticipated receiving if
its proposal was accepted, specifying all such sources and amounts, as well as disclosing
4827-5936-4865.1 16 / /
all expenses which it anticipated the County would incur as a part of the issuance of the
Bonds and the refunding of the Refunded Bonds; (ii) the Underwriter shall also provide
to the Board (A) an update of the information described in clause (i) above as of the date
of issuance of the Bonds and (B) a comparison of all payments of principal of, premium,
if any, and interest on all Bonds and Refunded Bonds before and after the refunding of
the Refunded Bonds, by year and amount, including funds which are required in addition
to Bond proceeds, showing the present value of all annual differences in such payments,
using as a discount factor the net effective interest rate of the Bonds, all computed from
the date on which the Bonds are issued, including funds provided by the County as a
reduction of, or an addition to, such payments and showing funds provided by the County
in excess of accrued principal, premium and interest, and earnings on the funds, over the
life of, and compounded at the net effective interest rate of, the Bonds; and
(1) the issuance of the Bonds and all procedures undertaken incident thereto
are in full compliance and conformity with all applicable requirements, provisions and
limitations prescribed by the Constitution and laws of the State, including the Acts, and
the Charter, and all conditions and limitations of the Acts and the Charter and other
applicable law relating to the issuance of the Bonds have been satisfied.
Section 16. Federal Income Tax Covenants. For purposes of ensuring that the interest
on the Bonds is and remains excluded from gross income for federal income tax purposes, the
County hereby covenants that:
(a) Prohibited Actions. The County will not use or permit the use of any
proceeds of the Bonds or any other funds of the County from whatever source derived,
directly or indirectly, to acquire any securities or obligations and shall not take or permit
to be taken any other action or actions, which would cause any Bond to be an "arbitrage
bond" within the meaning of Section 148 of the Code, or would otherwise cause the
interest on any Bond to be includible in gross income for federal income tax purposes.
(b) Affirmative Actions. The County will at all times do and perform all acts
permitted by law that are necessary in order to assure that interest paid by the County on
the Bonds shall not be includible in gross income for federal income tax purposes under
the Code or any other valid provision of law. In particular, but without limitation, the
County represents, warrants and covenants to comply with the following rules unless it
receives an opinion of Bond Counsel stating that such compliance is not necessary: (i)
gross proceeds of the Bonds and the Acquisition Project and Refunding Project will not
be used in a manner that will cause the Bonds to be considered "private activity bonds"
within the meaning of the Code; (ii) the Bonds are not and will not become directly or
indirectly "federally guaranteed"; and (iii) the County will timely file an Internal
Revenue Service Form 8038-G with respect to the Bonds, which shall contain the
information required to be filed pursuant to Section 149(e) of the Code.
(c) Tax Compliance Certificate. The County will comply with the Tax
Compliance Certificate delivered to it on the date of issuance of the Bonds, including but
4827-5936-4865.1 17 ~ 2
not limited by the provisions thereof regarding the application and investment of Bond
proceeds, the use of the Acquisition Project and the Refunding Project, the calculations,
the deposits, the disbursements, the investments and the retention of records described in
the Tax Compliance Certificate; provided that, in the event the Tax Compliance
Certificate is superseded or amended by new Tax Compliance Certificate drafted by, and
accompanied by an opinion of, Bond Counsel stating that the use of the new Tax
Compliance Certificate will not cause the interest on the Bonds to become includible in
gross income for federal income tax purposes, the County will thereafter comply with the
new Tax Compliance Certificate.
(d) Rebate Account. There is hereby created the "Pitkin County Open
Space/Trails Fund Series 2006 Rebate Account" (the "Rebate Account"). The Rebate
Account shall be funded pursuant to the Section hereof entitled "Investments" in the
amounts and at the times provided in the Tax Compliance Certificate from earnings from
the investment of moneys separately accounted for to pay principal of, premium, if any,
and interest on the Bonds and moneys separately accounted for to pay costs of the
Acquisition Project, from earnings on moneys on deposit in the Rebate Account and other
legally available moneys.
(e) Designation of Bonds as Qualified Tax-Exempt Obligations. The
County hereby designates the Bonds as Qualified Tax-Exempt Obligations. The County
currently expects that the aggregate face amount of all tax-exempt obligations issued by
the County, together with governmental entities which derive their issuing authority from
the County or are subject to substantial control by the County, shall not be more than
$10,000,000 during calendar year 2006. The County recognizes that such tax-exempt
obligations include notes, leases, loans and warrants, as well as bonds. The County
further recognizes that any bank, thrift institution or other financial institution that owns
the Bonds will rely on the County's designation of the Bonds as Qualified Tax-Exempt
Obligations for the purpose of avoiding the loss of 100% of any otherwise available
interest deduction attributable to such institution's tax-exempt holdings.
Section 17. Defeasance. Any Bond shall not be deemed to be Outstanding hereunder if
it shall have been paid and cancelled or if Defeasance Securities shall have been deposited in
trust for the payment thereof (whether upon or prior to the maturity of such Bond, but if such
Bond is to be paid prior to maturity, the County shall have given the Paying Agent irrevocable
directions to give notice of redemption as required by this Ordinance, or such notice shall have
been given in accordance with this Ordinance). In computing the amount of the deposit
described above, the County may include the maturing principal of and interest to be earned on
the Defeasance Securities. If less than all the Bonds are to be defeased pursuant to this Section,
the County, in its sole discretion, may select which of the Bonds shall be defeased.
Section 18. Events of Default. Each of the following events constitutes an Event of
Default:
4827-5936-4865.1 18
(a) Nonpayment of Principal or Interest. Failure to make any payment of
principal of or interest on the Bonds when due;
(b) Breach or Nonperformance of Duties. Breach by the County of any
material covenant set forth herein or failure by the County to perform any material duty
imposed on it hereunder and continuation of such breach or failure for a period of 60 days
after receipt by the Chair of the Board of written notice thereof from the Paying Agent or
from the Owners of at least 10% of the aggregate amount of the Bond Obligation,
provided that such 60 day period shall be extended so long as the County has commenced
and continues a good faith effort to remedy such breach or failure;
(c) Bankruptcy or Receivership. An order of decree by a court of competent
jurisdiction declaring the County bankrupt under federal bankruptcy law or appointing a
receiver of all or any material portion of the County's assets or revenues is entered with
the consent or acquiescence of the County or is entered without the consent or
acquiescence of the County but is not vacated, discharged or stayed within 30 days after
it is entered.
Section 19. Remedies for Events of Default.
(a) Remedies. Upon the occurrence and continuance of any Event of Default,
the Owners of not less than 25% of the aggregate amount of the Bond Obligation,
including, without limitation, a trustee or trustees therefor, may proceed against the
County to protect and to enforce the rights of the any Owners under this Ordinance by
mandamus, injunction or by other suit, action or special proceedings in equity or at law,
in any court of competent jurisdiction: (I) for the payment of interest on any installment
of principal of any Bond that was not paid when due at the interest rate borne by such
Bond, (ii) for the specific performance of any covenant contained herein, (iii) to enjoin
any act that may be unlawful or in violation of any right of any Owner of any Bond, (iv)
for any other proper legal or equitable remedy or (v) any combination of such remedies
or as otherwise may be authorized by applicable law; provided, however, that
acceleration of any amount not yet due on the Bonds according to their terms shall not be
an available remedy. All such proceedings at law or in equity shall be instituted, had and
maintained for the equal benefit of all Owners of Bonds then Outstanding.
(b) Failure To Pursue Remedies Not a Release; Rights Cumulative. The
failure of any Owner of any Outstanding Bond to proceed in accordance with subsection
(a) of this Section shall not relieve the County of any liability for failure to perform or
carry out its duties under this Ordinance. Each right or privilege of any such Owner (or
trustee therefor) is in addition and is cumulative to any other right or privilege, and the
exercise of any right or privilege by or on behalf of any Owner shall not be deemed a
waiver of any other right or privilege of such Owner.
Section 20. Amendment of Ordinance.
4827-5936-4865.1 19 /
(a) Amendments Permitted Without Notice to or Cansent of Owners. The
County may, without the consent of or notice to the Owners of the Bonds, adopt one or
more ordinances amending or supplementing this Ordinance (which ordinances shall
thereafter become a part hereof) for any one or more or all of the following purposes:
(i) to cure any ambiguity or to cure, correct or supplement any defect
or inconsistent provision of this Ordinance;
(ii) to subject to this Ordinance or pledge to the payment of the Bonds
additional revenues, properties or collateral;
(iii) to institute or terminate abook-entry registration system for the
Bonds or to facilitate the designation of a substitute securities depository with
respect to such a system;
(iv) to maintain the then existing or to secure a higher rating of the
Bonds by any nationally recognized securities rating agency; or
(v) to make any other change that does not materially adversely affect
the Owners of the Bonds.
(b) Amendments Requiring Notice to and Consent of Owners. Except for
amendments permitted by subsection (a) of this Section, this Ordinance may only be
amended (i) by an ordinance of the County amending or supplementing this Ordinance
(which, after the consents required therefor, shall become a part hereof) and (ii) with the
written consent of the Owners of at least 66 2/3% of the aggregate amount of the Bond
Obligation; provided that any amendment that makes any of the following changes with
respect to any Bond shall not be effective without the written consent of the Owner of
such Bond: (A) a change in the maturity of such Bond; (B) a reduction of the interest rate
on such Bond; (C) a change in the terms of redemption of such Bond; (D} a delay in the
payment of principal of, premium, if any, or interest on such Bond; (E} a reduction of the
Bond Obligation the consent of the Owners of which is required for an amendment to this
Ordinance; or (F) the establishment of a priority or preference for the payment of any
amount due with respect to any other Bond over such Bond.
(c) Procedure for Notifying and Obtaining Consent of Owners. Whenever
the consent of an Owner or Owners of Bonds is required under subsection (b) of this
Section, the County shall mail a notice to such Owner or Owners at their addresses as set
forth in the registration books maintained by the Paying Agent and to the Underwriter,
which notice shall briefly describe the proposed amendment and state that a copy of the
amendment is on file in the office of the County for inspection. Any consent of any
Owner of any Bond obtained with respect to an amendment shall be in writing and shall
be final and not subject to withdrawal, rescission or modification for a period of 60 days
after it is delivered to the County unless another time period is stated for such purpose in
the notice mailed pursuant to this subsection.
4827-5436-4865.1
20
go
Section 21. Appointment and Duties of Paying Agent. The Paying Agent identified in
the Section hereof entitled "Definitions" is hereby appointed as paying agent, registrar and
authenticating agent for the Bonds unless and until the County removes it as such and appoints a
successor Paying Agent, in which event such successor shall automatically succeed to the duties
of the Paying Agent hereunder and its predecessor shall immediately turn over all its records
regarding the Bonds to such successor. The Paying Agent, by accepting its duties as such, agrees
to perform all duties and to take all actions assigned to it hereunder in accordance with the terms
hereof.
Section 22. Delegation and Parameters.
(a) The Board hereby delegates to the Sale Delegate the authority to
determine and set forth in the Sale Certificate: (i) the matters set forth in subsection (b) of
this Section, subject to the applicable parameters set forth in subsection (c) of this
Section; and (ii) any other matters that, in the judgment of the Sale Delegate, are
necessary or convenient to be set forth in the Sale Certificate and are not inconsistent
with the Acts or the parameters set forth in subsection (c) of this Section. The Board
hereby authorizes and directs the Sale Delegate to prepare and execute the Sale
Certificate. Upon the execution of the Sale Certificate, the -matters set forth in the Sale
Certificate shall be incorporated into this Ordinance with the same force and effect as if
they had been set forth herein when this Ordinance was adopted.
(b) The Sale Certificate shall set forth the following matters and other matters
permitted to be set forth therein pursuant to subsection (a) of this Section, but each such
matter must fall within the applicable parameters set forth in subsection (c) of this
Section:
(i) the date on which the Bonds will be issued; provided that, the Sale
Certificate may include a range of dates on which the Bonds will be issued, in
which case the Sale Delegate may select the actual date on which the Bonds will
be issued from such range after the execution of the Sale Certificate;
(ii) the Dated Date of the Bonds;
(iii) the aggregate principal amount of the Bonds;
(iv) the principal amount of the Bonds maturing in each year;
(v) the rate of interest on the Bonds;
(vi) the prices at which the Bonds will be sold pursuant to the Bond
Purchase Agreement;
(vii) the terms on which the Bonds may be redeemed at the option of
the County;
4827-5936-4865.1 21 ~ I
(viii) the principal amounts, if any, of Bonds subject to mandatory
sinking fund redemption, and the years in which such Bonds will be subject to
such redemption;
(ix) the identification of the Bonds, if any, that will be Insured Bonds
and any terms required by the Bond Insurer for its issuance of the Bond Insurance
Policy that are not set forth herein;
(x) the identification of the Series 2000 Acquisition Bonds to be
included in the Refunded Bonds; and
(xi) the principal amount portion of the Bonds to be allocated to the
Refunding Project and the principal amount portion of the Bonds to be allocated
to the Acquisition Project.
(c) The authority delegated to the Sale Delegate by this Section shall be
subject to the following parameters:
(i) in no event shall the Sale Delegate be authorized to execute the
Sale Certificate after the date that is 60 days after the date of adoption of this
Ordinance and in no event may the Bonds be issued after such date, absent further
authorization by the Board;
(ii) the net present value of the total of the principal of and interest on
the portion of the Bonds allocated to the Refunding Project, when compared to the
net present value of the total of the principal of and interest on the Refunded
Bonds, shall produce a net present value savings to the County of not less than 3%
of the aggregate principal amount of the Refunded Bonds on the date the Bonds
are issued;
(iii) the aggregate principal amount of the Bonds, when combined with
the principal amount of the outstanding Series 2000 Bonds which are not being
refunded with the proceeds of the Bonds, will not exceed the aggregate original
authorized principal amount for the Series 2000 Bonds;
(iv) the net effective interest rate of the portion of the Bonds allocated
to the Refunding Project shall be less than the net effective interest rate of the
Refunded Bonds;
(v) the net effective interest rate of the portion of the Bonds allocated
to the Acquisition Project shall not exceed 8.5%, such rate being the lesser of (A)
the maximum net effective interest rate permitted by the 1990 Ballot Question and
(B) that permitted by the 1999 Ballot Question;
4827-5936-4865.1
22
~~
(vi) the portion of the Bonds allocated to the Refunding Project shall be
the principal amount of Bonds required to accomplish the Refunding Project,
taking into account the prices at which the Bonds are sold pursuant to the Bond
Purchase Agreement;
(vii) the portion of the Bonds allocated to the Acquisition Project shall
be the remaining principal amount of the Bonds; provided that such amount shall
not exceed the remaining unissued principal amount authorized by the Ballot
Questions;
(viii) the Bonds shall be subject to redemption at the option of the
County not later than 15 years from the Dated Date at a redemption price not to
exceed 103% of the principal amount of the Bonds so redeemed; and
(ix) the Sale Delegate is hereby authorized and directed to request that,
MBIA Insurance Corporation, Ambac Assurance Corporation, Financial Security
Assurance Inc., XL Capital Assurance Inc., and CDC Ixis Financial Guaranty
North America, Inc. submit bids to insure all or any portion of the Bonds. In the
event that the Sale Delegate determines, based upon information provided by the
Underwriter, that issuing Bonds as Insured Bonds is advantageous for the County,
the Sale Delegate may, at his or her discretion, accept the Commitment issued by
the bidder offering the best acceptable premium bid and such Bonds shall be
issued as Insured Bonds insured by the Bond Insurance Policy issued by such
bidder, who shall be deemed to be the Bond Insurer hereunder. For purposes of
this Section the term "best acceptable premium bid" means (1) the bid submitted
which produces the lowest present value interest cost to the County, treating the
present value of such premium bid (including any fees of the bidder stated
separately from the premium) as interest on the Bonds for purposes of such
calculation, which (2) is not conditioned upon the County's compliance with
conditions deemed unacceptable by the Sale Delegate. Notwithstanding the
provisions of this subsection (c)(v), there shall be a maximum of one Bond
Insurer, and if the best acceptable premium bid of the Bond Insurer that is
accepted by the County is a bid to insure only a portion of the Bonds, then the
remainder of the Bonds shall be issued without bond insurance.
Section 23. Approval of Related Documents. The Board hereby authorizes and
approves the distribution and use in connection with the offering of the Bonds of the Preliminary
Official Statement relating to the Bonds in substantially the form provided to the Board, with
such changes therein, if any, not inconsistent herewith, as are approved by the Chief Financial
Officer, and hereby authorizes and directs the preparation of, and authorizes and directs the
execution by the Chair of the Board of, an Official Statement for use in connection with the sale
of the Bonds in substantially the form of the Preliminary Official Statement, with such changes
therein, if any, not inconsistent herewith, as are approved by the Chair of the Board (whose
signature thereon shall constitute conclusive evidence of such approval). The Board hereby
4827-5936-4865.1 23
~3
approves, and until the date that is 60 days after the adoption of this Ordinance, authorizes and
directs the execution by the Sale Delegate of the Bond Purchase Agreement in substantially the
form provided to the Board, with such changes therein (including, without limitation, the
inclusion of terms consistent with those set forth in the Sale Certificate), not inconsistent
herewith, as are approved by the Sale Delegate (whose signature thereon shall constitute
conclusive evidence of such approval). The Chair of the Board, the County Clerk and Recorder
or deputy and all other appropriate officers and employees of the County are hereby authorized
and directed to execute the Commitment, the Escrow Agreement, an undertaking to facilitate
compliance with Securities and Exchange Commission Rule 15c2-12 (17 C.F.R. § 240.15c2-12),
an agreement with the Paying Agent concerning the duties and obligations of the Paying Agent
with respect to the Bonds, a tax compliance certificate or similar certificate describing the
County's expectations regarding the use and investment of proceeds of the Bonds and other
moneys and the use of the Acquisition Project and the Refunding Project, an Internal Revenue
Service Form 8038-G with respect to the Bonds, and all other documents and certificates
necessary or desirable to effectuate the issuance or administration of the Bonds, the investment
of proceeds of the Bonds and the transactions contemplated hereby.
Section 24. Certain Rights of the Bond Insurer. Notwithstanding any other provision
hereof, if any of the Bonds are issued as Insured Bonds, (a) the Bond Insurer shall be an
expressly intended third party beneficiary hereof and (b) unless and until the Bond Insurer has
failed to make a payment due under the Bond Insurance Policy, the Bond Insurer shall be
deained to be the Owner of each Insured Bond for all purposes other than: (i) except as otherwise
provided in the Bond Insurance Policy, the right to receive payments of principal of, premium, if
any, and interest on the Insured Bonds; and (ii) the right to consent to an amendment to this
Ordinance that changes any of the matters described in clauses (ii)(A) through (F) of subsection
(b) of the Section hereof entitled "Amendment of Ordinance."
Section 25. Events Occurring on Days That Are Not Business Days. Except as
otherwise specifically provided herein with respect to a particular payment, event or action, if
any payment to be made hereunder or any event or action to occur hereunder which, but for this
Section, is to be made or is to occur on a day that is not a Business Day, such payment, event or
action shall instead be made or occur on the next succeeding day that is a Business Day with the
same effect as if it was made or occurred on the date on which it was originally scheduled to be
made or occur.
Section 26. Ordinance Is Contract With Owners of Bonds and Irrepealable. After
the Bonds have been issued, this Ordinance shall be and remain a contract between the County
and the Owners of the Bonds and shall be and remain Irrepealable until all amounts due with
respect to the Bonds shall be fully paid, satisfied and discharged and all other obligations of the
County with respect to the Bonds shall have been satisfied in the manner provided herein.
Section 27. Headings, Table of Contents and Cover Page. The headings to the
various sections and subsections to this Ordinance, and the cover page and table of contents that
4827-5936-4865.1 24 ^ ,
appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are
not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance.
Section 28. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
situation; and if any provision hereof or the application thereof is determined by a court or
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as required to most fully implement its purpose.
Section 29. Repeal of Inconsistent Ordinances. All ordinances, or parts thereof that
are inconsistent with or in conflict with this Ordinance, are hereby repealed to the extent of such
inconsistency or conflict.
Section 30. Ratification of Prior Actions. All actions heretofore taken (not
inconsistent with the provisions of this Ordinance, the Charter, the Acts or the Ballot Questions)
by the Board or by the officers and employees of the County directed toward the issuance of the
Bonds for the purposes herein set forth are hereby ratified, approved and confirmed.
Section 31. Recording and Authentication. Upon adoption hereof, this Ordinance
shall be recorded in a book kept for that purpose and shall be authenticated by the signatures of
the Chair of the Board and the Clerk to the Board.
Section 32. Declaration and Description of Emergency. The Board hereby declares
that, because there is currently an opportunity to issue and sell the Bonds in a favorable interest
rate market, and because the issuance and sale of the Bonds during the current calendar year will
maximize the principal amount of bonds that the County may designate as Qualified Tax-Exempt
Obligations, an emergency exists. The Board herby further declares that, due to such emergency,
this Ordinance is necessary to the immediate preservation of the public peace, welfare, health
and safety of the residents of the County and is being adopted as an emergency ordinance
pursuant to Section 2.8.2 of the Charter.
Section 33. Effective Date. In accordance with Section 2.8.2 of the Charter, this
Ordinance shall take effect immediately upon its adoption.
[The remainder of this page is intentionally left blank.]
4827-5936-4865.1
25
~5
INTRODUCED, READ, AND ADOPTED ON NOVEMBER 28, 2006, AND SET FOR
CONFIRMATORY PUBLIC HEARING ON DECEMBER 6, 2006.
NOTICE OF CONFIRMATORY PUBLIC HEARING AND THE FULL ORDINANCE
PUBLISHED IN THE ASPEN TIMES WEEKLY ON NOVEMBER 25, 2006.
CONFIRMED AT A PUBLIC HEARING ON DECEMBER 6, 2006.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON DECEMBER /~ ~, 2006.
ATTEST:
By~~c- l~e- ~ ~~
Jeanette Jones
Deputy County Clerk
APPROVED AS TO FORM:
S-e ~ ~~{ .~-6-4
Kutak Rock LLP, Bond Counsel
MANAGER APPROVAL:
.`
Hilary F t her, County Manager
RECOMMENDED FOR APPROVAL:
Tom Oken, Treasurer and CFO
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
By: ~~~~l ~ z-~6' -~
Michael C. Ireland, Chair
Date: ~ ~Gti'w1,6 ~L,2 ~~~~ ZbOlo
4827-5936-4865.1 26
~G
ED, READ, AND ADOPTED ON NOVEMBER 28, 2006, AND SET FOR
.TORY PUBLIC HEARING ON DECEMBER 6, 2006.
OF CONFIRMATORY PUBLIC HEARING AND THE FULL ORDINANCE
ED IN THE ASPEN TIMES WEEKLY ON NOVEMBER 25, 2006.
AT A PUBLIC HEARING ON DECEMBER 6, 2006.
LISHED BY TITLE AND SHORT Si_JMMARY, AFTER ADOPTION, IN THE ASPEN
~S WEEKLY ON DECEMBER 16, 2006.
T: ~., BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLD O
~ By:
Jones Michael C. Ireland, Chair
County Cle "~
Date: ~~s ~ ~ ~
AS TO FORM:
yak Rock LLP, Bond Counsel
ONAGER APPROVAL:
~~
nary Fle er, County Manager
FOR APPROVAL:
~. ~ ~3,~~
Tam Oken, Treasurer and CFO
-5936-4865.1 26
~f~i~ /~
APPENDIX A
FORM OF BOND
UNITED STATES OF AMERICA
STATE OF COLORADO
No. R-
PITKIN COUNTY, COLORADO
GENERAL OBLIGATION OPEN SPACE ACQUISITION
AND REFUNDING BOND
SERIES 2006
INTEREST RATE: MATURITY DATE: ORIGINAL DATED CUSIP:
DATE:
December 1, December , 2006
REGISTERED OWNER: **CEDE & CO.**
Tax Identification Number: 13-2555119
PRINCIPAL SUM: * * DOLLARS
Pitkin County, Colorado (the "County"), a duly organized and validly existing home rule
county and political subdivision of the State of Colorado (the "State"), for value received, hereby
promises to pay to the order of the registered owner named above, or registered assigns, the
principal sum stated above on the maturity date stated above, with interest on such principal sum
from the original dated date stated above at the interest rate per annum stated above (calculated
based on a 360-day year of twelve 30-day months), payable on June 1 and December 1 of each
year, commencing June 1, 2007 (each, an "Interest Payment Date"). The principal of and
premium, if any, on this Bond are payable to the registered owner hereof upon presentation and
surrender of this Bond at the principal office of American National Bank, as Paying Agent (the
"Paying Agent"), in Denver, Colorado. Interest on this Bond is payable by check or draft of the
Paying Agent mailed on each Interest Payment Date to the registered owner hereof as of the
fifteenth day of the month immediately preceding the month in which such Interest Payment
Date occurs (whether or not such day is a Business Day, as defined in the below-defined
Ordinance); provided that, interest payable to the registered owner of this Bond may be paid by
any other means agreed to by such registered owner and the Paying Agent that does not require
the County to make moneys available to the Paying Agent earlier than otherwise required under
the Ordinance or increase the costs borne by the County under the Ordinance; provided further,
that, so long as Cede & Co. is the registered owner of this Bond, the principal of, premium, if
any, and interest on this Bond shall be paid by wire transfer to Cede & Co, as nominee of The
Depository Trust Company ("DTC"). Any payment of principal of or interest on this Bond that
is due on a day that is not a Business Day (as defined in the below-mentioned Ordinance) shall
be made on the next succeeding day that is a Business Day with the same effect as if made on the
4827-5936-4865.1
day on which it was originally scheduled to be made. All payments of principal of, premium, if
any, and interest on this Bond shall be made in lawful money of the United States of America.
This Bond is part of an issue of general obligation bonds of the County designated Pitkin
County, Colorado, General Obligation Open Space Acquisition and Refunding Bonds,
Series 2006, issued in the principal amount of $ (the "Bonds"). The Bonds have
been issued pursuant to, under the authority of, and in full conformity with, the Constitution and
the laws of the State, including, in particular, Title 30, Article 35, Colorado Revised Statutes, as
amended, other than Part 7 thereof, and any successor thereto, Title 11, Article 57, Part 2,
Colorado Revised Statutes, as amended, and any successor thereto, and Title 11, Article 56,
Colorado Revised Statutes, as amended, and any successor thereto (collectively, the "Acts");
pursuant to the Pitkin County Home Rule Charter, adopted March 21, 1978, as amended (the
"Charter"); pursuant to authorization by a majority of the registered electors of the County voting
in elections duly called and held on November 6, 1990 and November 2, 1999; and pursuant to
an ordinance (the "Ordinance") adopted by the Board of County Commissioners of the County.
Capitalized terms used but not defined in this Bond have the meaning assigned to them in the
Ordinance. THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE
REGISTERED OWNER OF THIS BOND AND THE COUNTY. THIS BOND IS ONLY
EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS SUBJECT 1N ALL RESPECTS TO
THE TERMS OF THE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT
STATEMENT IN THIS BOND.
The Bonds have been issued by the County for the purpose of providing funds for the
Acquisition Project and the Refunding Project described in the Ordinance. The Bonds are
general obligations of the County and the full faith and credit of the County are pledged for the
punctual payment of the principal of and interest on the Bonds. For the purpose of paying the
principal of and interest on the Bonds when due, respectively, the Board in the Ordinance has
covenanted annually to determine a rate of levy for general ad valorem taxes, without limitation
as to rate or amount, on all of the taxable property within the County, sufficient when combined
with other moneys separately accounted for by the County for such purpose, to pay the principal
of, premium, if any, and interest on the Bonds when due, respectively, whether at maturity or
upon earlier redemption.
[The redemption provisions set forth in the Sale Certificate to be set forth herein.]
Notice of any redemption of Bonds shall be given by the Paying Agent by sending a copy
of such notice by first-class, postage prepaid mail, not less than 30 days prior to the redemption
date, to the registered owner of each Bond being redeemed. Such notice shall specify the
number or numbers of the Bonds so to be redeemed (if redemption shall be in part) and the
redemption date. If any Bond shall have been duly called for redemption and if, on or before the
redemption date, there shall have been deposited with the Paying Agent in accordance with the
Ordinance funds sufficient to pay the redemption price of such Bond on the redemption date,
then such Bond shall become due and payable at such redemption date, and from and after such
date interest will cease to accrue thereon. Failure to deliver any redemption notice or any defect
in any redemption notice shall not affect the validity of the proceeding for the redemption of
Bonds with respect to which such failure or defect did not occur. Any Bond redeemed prior to
its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled.
4827-5936-4865.1 A-2
The Paying Agent shall maintain registration books in which the ownership, transfer and
exchange of Bonds shall be recorded. The person in whose name this Bond shall be registered
on such registration books shall be deemed to be the absolute owner hereof for all purposes,
whether or not payment on any Bond shall be overdue, and neither the County nor the Paying
Agent shall be affected by any notice or other information to the contrary. This Bond may be
transferred or exchanged at the principal operations office of the Paying Agent in Denver,
Colorado for a like aggregate principal amount of Bonds of other authorized denominations
($5,000 or any integral multiple thereof) of the same of the same type, maturity and interest rate,
upon payment by the transferee of a transfer fee, any tax or governmental charge required to be
paid with respect to such transfer or exchange and any cost of printing bonds in connection
therewith. Notwithstanding any other provision of the Ordinance, the Paying Agent shall not be
required to transfer any Bond (a) which is scheduled to be redeemed in whole or in part between
the Business Day immediately preceding the mailing of the notice of redemption and the
redemption date or (b) between the Record Date for any Interest Payment Date and such Interest
Payment Date.
The Ordinance may be amended or supplemented from time to time with or without the
consent of the registered owners of the Bonds as provided in the Ordinance.
[To be included on any Insured Bond: The Ordinance grants certain rights to
(the "Bond Insurer"), as issuer of the policy guaranteeing
payment of the principal of and interest on the Bonds when due (the "Bond Insurance Policy").
Such rights include, without limitation: (a) the right to be deemed to be an expressly intended
third party beneficiary of the Ordinance; and (b) unless and until the Bond Insurer has failed to
make a payment due under the Bond Insurance Policy, the right to be deemed to be the registered
owner of this Bond for all purposes other than: (i) except as otherwise provided in the Bond
Insurance Policy, the right to receive payments of principal of, premium, if any, and interest on
this Bond; and (ii) the right to consent to an amendment to the Ordinance that changes any of the
matters described in clauses (ii)(A) through (F) of subsection (b) of the Section thereof entitled
"Amendment of Ordinance."]
It is hereby certified that all conditions, acts and things required by the Constitution and
laws of the State, including the Acts, and the ordinances and resolutions of the County, to exist,
to happen and to be performed, precedent to and in the issuance of this Bond, exist, have
happened and have been performed, and that neither this Bond nor the other Bonds of the issue
of which this Bond is a part exceed any limitations prescribed by the Constitution or laws of the
State, including the Acts, or the ordinances or resolutions of the County.
This Bond shall not be entitled to any benefit under the Ordinance, or become valid or
obligatory for any purpose, until the Paying Agent shall have signed the certificate of
authentication hereon.
[remainder of this page intentionally left blank]
4827-5936-4865.1 A-3
IN WITNESS WHEREOF, the Board of County Commissioners of the County has
caused this Bond to be executed with the signature of its Chair, attested by the signature of the
Deputy County Clerk and Recorder and countersigned by the Chief Financial Officer and ex-
officio Treasurer of the County, and has caused the seal of the County to be impressed or
imprinted hereon, all as of the date set forth below.
[COUNTY SEAL] PITKIN COUNTY, COLORADO
Attest:
Y d
Chair, Board of County Commi sinners
By
Deputy County Clerk and Recorder
COUNTERSIGNED:
By
Chief Financial Officer and ex-
officio Treasurer of the County
4827-5936-4865.1
A-4
3~
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the within-mentioned Ordinance.
Dated:
AMERICAN NATIONAL BANK, as Paying
Agent
By
Authorized Signatory
4827-5936-4865.1 A'S
~, v
APPROVING LEGAL OPINION
Set forth below is a true copy of the approving legal opinion of Kutak Rock LLP,
delivered on the date on which the Bonds were originally issued:
[opinion to be inserted]
4827-5936-4865.1
A-6
33
[STATEMENT OF INSURANCE]
[to be set forth herein on any Insured Bonds]
4827-5936-4865.1 A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or typewrite name and address of Transferee)
(Tax Identification or Social Security No.)
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
Signature(s) must be guaranteed by a
national bank or trust company or by
a brokerage firm having a
membership in one of the major
stock exchanges.
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Bond in every particular, without
alteration or enlargement or any change whatever.
TRANSFER FEE MAY BE REQUIRED
4827-5936-4865.1 A-g ~ ~
PREPAYMENT PANEL
The following installments of principal (or portion thereof) of this Bond have been
prepaid in accordance with the terms of the Indenture.
Date of Principal
Prepayment Prepaid
Signature of Authorized
Representative of the Depository
4827-5936-4865.1 A-9