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HomeMy WebLinkAboutbocc.ord.030.2008 ORDINANCE N0.030-2008 THESE BONDS WERE NEVER ISSUED AS PER THE ATTACHED ORDINANCE 1 ~,.,a.....,~...e. ORDINANCE 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 BONDS, SERIES 2008, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $10,000,000 FOR THE PURPOSES OF PURCHASING, IMPROVING AND MAINTAINING OPEN SPACE AND TRAILS; PROVIDING FOR THE LEVY OF AD VALOREM PROPERTY TAXES FOR THE PAYMENT OF SUCH BONDS; PROVH)ING 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.b~a2008 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 2, 1999, the County submitted the following question (the "1999 Ballot Question") 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 4831-2307-6099.2 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 IN 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 IN ANY YEAR WITHOUT LIMITATION AS TO RATE OR AMOUNT TO REPAY SUCH DEBT, 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? 4. 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. 5. At an election called on November 7, 2006, the County submitted the following question (the "2006 Ballot Question" and, collectively with the 1999 Ballot Question, the "Ballot Questions") to County voters for approval: 4831-2307-6099.2 2 w.- SHALL PITKIN COUNTY DEBT BE INCREASED $20 MILLION WITH A MAXIMUM REPAYMENT COST OF UP TO $56 MILLION, AND SHALL PITKIN COUNTY TAXES BE INCREASED UP TO $2,100,000 ANNUALLY AND BE LEVIED IN ANY YEAR WITHOUT LIMITATION AS TO RATE OR AMOUNT TO REPAY SUCH DEBT, WITH THE ACTUAL PROPERTY TAX LEVY REQUIRED TO REPAY SUCH DEBT AND DEBT PREVIOUSLY APPROVED BY THE ELECTORATE FOR OPEN SPACE AND TRAILS, ANNUALLY DEDUCTED TO REDUCE THE LEVY OF UP TO 3.75 MILLS AUTHORIZED BELOW; SUCH DEBT TO BE EVIDENCED BY THE ISSUANCE OF GENERAL OBLIGATION BONDS OR NOTES IN ONE OR MORE SERIES AND WITH OR WITHOUT A PREMIUM FOR REDEMPTION PRIOR TO MATURITY; ALL FOR THE PURPOSE OF FUNDING THE PURCHASE, IMPROVEMENT AND MAINTENANCE OF OPEN SPACE AND TRAILS; AND SHALL THE EXISTING PITKIN COUNTY OPEN SPACE AND TRAILS PROPERTY TAX LEVY OF 3.75 MILLS BE EXTENDED FOR TEN YEARS, COMMENCING WITH THE TAX YEAR 2010 (COLLECTION TO BEGIN IN 2011) AND CONTINUING THEREAFTER THROUGH THE TAX YEAR 2019, AT A LEVY OF UP TO 3.75 MILLS BUT NOT 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 LEVY EXCEED THE REVENUE LIMITATIONS CONTAINED IN THE COUNTY HOME RULE CHARTER, STATE LAW OR THE STATE CONSTITUTION; 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 098-2006? 6. A majority of the registered electors of the County voting on the 2006 Ballot Question at the November 7, 2006 election voted in favor of the 2006 Ballot Question. 7. 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 Bonds, Series 2008 (the "Bonds") in an aggregate principal amount not to exceed $10,000,000 for the purposes of: purchasing, improving and maintaining open space and trails (as further defined herein, the "Project"); and paying the costs of issuance of the Bonds. 8. 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. 4831-2307-6099.2 3 9. 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. 10. 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: "Acts" means, collectively, the Home Rule County Act and the Supplemental Public Securities Act. "Ballot Questions" means, collectively, the 1999 Ballot Question and the 2006 Ballot Question. "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 Bonds, Series 2008, authorized in the Section hereof entitled "Authorization and Purpose of Bonds." 4831-2307-6099.2 4 "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. "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. "Event of Default" means any one or more of the events set forth in the Section hereof entitled "Events of Default." "Financial Advisor" means Citigroup Global Markets 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), 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, 2009. "Moody's" means Moody's Investors Service, Inc. 4831-2307-6099.2 5 "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. "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. "Preliminary Official Statement" means the Preliminary Official Statement relating to the Bonds. "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, 4831-2307-6099.2 6 the purchase, improvement and maintenance of open space and trails and the payment of the costs of issuance of the Bonds. "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." "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). "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 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. "State" means the State of Colorado. "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. "2006 Ballot Question" means the ballot question approved by County voters on l~ovember 7, 2006, quoted and defined as such in the preambles hereto. "Underwriter" means D.A. Davidson & Co. Section 2. Authorization and Purpose of Bonds. Pursuant to and in accordance with the Acts, the Charter and the Ballot Questions, the County hereby authorizes, and directs that there shall be issued, the "Pitkin County, Colorado, General Obligation Open Space Acquisition Bonds, Series 2008," 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 Project. 4831-2307-6099.2 7 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 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, 4831-2307-6099.2 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 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 4831-2307-6099.2 9 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. 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. (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 4831-2307-6099.2 1 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 Payrrtent 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 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 6. 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 7. 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 A83]-2307-6099.2 1 1 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 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 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 9. 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 10. 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 4831-2307-6099.2 12. l the redemption date or (b) between the Record Date for any Interest Payment Date for such Bond and such Interest Payment Date. Section 11. 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 12. 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; (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; and (c) 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 Project. Section 13. 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 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 14. Various Findings, Determinations, Declarations and Covenants. The Board, having been fully informed of and having considered all the pertinent facts and 4831-2307-6099.2 1 3 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 net effective interest rate on the Bonds shall not exceed 8.5%, such rate being the maximum net effective interest rate permitted by the 1999 Ballot Question and the resolution of the Board approving the 2006 Ballot Question; (d) 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; (e) the issuance of the Bonds will not cause the County to exceed its debt limit under applicable State law; and (f) 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 15. 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 Project will not be used in a manner that will cause 4831-2307-6099.2 14 l 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 not limited by the provisions thereof regarding the application and investment of Bond proceeds, the use of the 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 2008 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 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 2008. 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 16. 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 4831-2307-6099.2 I S 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 17. Events of Default. Each of the following events constitutes an Event of Default: (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 18. 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 4831-2307-6099.2 16 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 19. Amendment of Ordinance. (a) Amendments Permitted Without Notice to or Consent 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 4831-2307-6099.2 1 7 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. Section 20. 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 21. 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; 4831-2307-6099.2 1 g (v) the rate or rates 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; (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; and (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. (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 effective interest rate of the Bonds shall not exceed 8.5%, such rate being the maximum net effective interest rate permitted by the 1999 Ballot Question and the resolution of the Board approving the 2006 Ballot Question; (iii) 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 (iv) the Sale Delegate is hereby authorized and directed to request that bids be submitted to insure all or any portion of the Bonds; provided, however, that bids shall only be solicited from monoline bond insurers rated "Aa2" or better by Moody's. 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 4831-2307-6099.2 19 (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)(iv), 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 22. 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 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, 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 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 23. 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 deemed 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." 4831-2307-6099.2 20 Section 24. 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 25. 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 26. 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 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 27. 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 28. 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 29. 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 30. 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 31. Declaration and Description of Emergency. The Board hereby declares that, because it is necessary to maintain flexibility in the timing of marketing the Bonds in the current 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 4831-2307-6099.2 21 Qualified Tax-Exempt Obligations, an emergency exists. The Board hereby 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 32. 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.] 4831-230'7-6099.2 22 INTRODUCED, READ, AND ADOPTED ON OCTOBER 22, 2008, AND SET FOR CONFIRMATORY PUBLIC HEARING ON NOVEMBER 5, 2008. NOTICE OF CONFIRMATORY PUBLIC HEARING AND THE FULL ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON OCTOBER 26, 2008. CONFIRMED AT A PUBLIC HEARING ON NOVEMBER 5, 2008. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON NOVEMBER 16, 2008. ATT T: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By ~ By: Jean t e Jones Jack atfi d, ChairMa~ Depu~ County Clerk Date: /v/2 APPROVED AS TO FORM: Kutak Rock LLP, Bond Counsel MANAGER APPROVAL: Hilary Flet r, County Manager 4831-2307-6099.2 23 APPENDIX A FORM OF BOND UNITED STATES OF AMERICA STATE OF COLORADO No. R- $ PITKIN COUNTY, COLORADO GENERAL OBLIGATION OPEN SPACE ACQUISITION BOND SERIES 2008 INTEREST RATE: MATURITY DATE: ORIGINAL DATED CUSIP: DATE: December 1, December , 2008 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, 2009 (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 4831-2307-6099.2 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 Bonds, Series 2008, 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, and Title 11, Article 57, Part 2, 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 2, 1999 and November 7, 2006; 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 IN 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 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. 4831-2307-6099.2 A-2 V 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] 4831-2307-6099.2 A-3 . ~14111Y Ffl I Y 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 By Chair, Board of County Commissioners Attest: By Deputy County Clerk and Recorder COUNTERSIGNED: By Chief Financial Officer and ex- officio Treasurer of the County 4831-2307-6099.2 A-4 J, 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 4831-2307-6099.2 A-5 J 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] 483 ] -230'7-6099.2 A-( [STATEMENT OF INSURANCE] [to be set forth herein on any Insured Bonds] 4831-2307-6099.2 f~-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: 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. 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. TRANSFER FEE MAY BE REQUIRED 4831-2307-6099.2 A-8 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 Signature of Authorized Prepayment Prepaid Representative of the Depository 4831-2307-6099.2 A-9