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HomeMy WebLinkAboutbocc.ord.025.2001 AN ORDINANCE AUTHORIZING THE ISSUANCE BY PITKIN COUNTY, COLORADO OF A "PITKIN COUNTY, COLORADO GENERAL OBLIGATION OPEN SPACE ACQUISITION NOTE—JOY SMITH PROPERTY (JAMES H. SMITH NORTH STAR PARCEL)" IN THE PRINCIPAL AMOUNT OF $4,250,000 FOR THE PURPOSE OF THE ACQUISITION OF THE "JOY SMITH PROPERTY (JAMES H. SMITH NORTH STAR PARCEL)" PURSUANT TO THE AUTHORITY SET FORTH IN THE BALLOT QUESTION SET FORTH IN THIS ORDINANCE; PROVIDING FOR THE LEVY OF AD VALOREM PROPERTY TAXES FOR THE PAYMENT OF SUCH NOTE; PROVIDING THE FORM OF SUCH NOTE AND OTHER DETAILS WITH RESPECT TO SUCH NOTE AND THE PAYMENT THEREOF; APPROVING OTHER DOCUMENTS RELATING TO SUCH NOTE; AND PROVIDING THE EFFECTIVE DATE OF THIS ORDINANCE. ORDINANCE NO. 025-2001 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, and the Pitkin County Home Rule Charter, adopted March 21, 1978, as amended (the"Charter"). 2. The County is authorized by title 30, article 35, and title 11, article 57, part 2, Colorado Revised Statutes, as amended (as collectively defined herein, the "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 `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 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 02-90397.03 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 Ballot Question at the November 6, 1990 election voted in favor of the Ballot Question. 5. The County is desirous of acquiring the Joy Smith Property (James H. Smith North Star Parcel) (as defined herein), has authorized the acquisition thereof in its Ordinance No. 024-2001 (as defined herein, the "Acquisition Ordinance"), the recitals to which are incorporated herein by reference, and intends to issue and deliver the hereinafter-defined Note pursuant to the Act, the Charter, the Ballot Question and this Ordinance in payment of a portion of the cost of such acquisition. 6. 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 Note— Joy Smith Property (James H. Smith North Star Parcel) (the "Note") in the aggregate principal amount of $4,250,000 for the purpose of acquiring the Joy Smith Property (James H. Smith North Star Parcel) (as defined herein, the "Acquisition Project"). 7. No member of the Board has a potential conflict of interest in connection with the authorization or issuance of the Note. 8. This Ordinance is being adopted to authorize the issuance and delivery of the Note, to provide for the payment of the Note and to provide the details of the Note. 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 Ordinance" means the County's Ordinance No. 24-2001, authorizing the execution and delivery of the Purchase Contract by the County. "Acquisition Project" means the acquisition of the Joy Smith Property (James H. Smith North Star Parcel)pursuant to the Acquisition Ordinance. "Act" means, collectively, title 30, article 35, Colorado Revised Statutes, as amended, or any successor thereto, and title 11, article 57, part 2, Colorado Revised Statutes, as amended, or any successor thereto. 02-90397.03 2 "Ballot Question" means the ballot question approved by County voters on November 6, 1990, quoted and defined as such in the preambles hereto. "Board" means the Board of County Commissioners of the County, and any successor body. "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. "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 Note, unless the context clearly requires otherwise. "County"means Pitkin County, Colorado and any successor thereto. "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. "Event of Default" means any one or more of the events set forth in the Section hereof entitled "Events of Default." "Interest Payment Date" means the date that is six months after the original date of issuance of the Note and each six months thereafter. "Joy Smith Property (James H. Smith North Star Parcel)" means the property acquired by the County pursuant to the Purchase Contract. "Note Counsel" means (i) as of the date of issuance of the Note, 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 obligations. "Note" means the promissory note authorized in the Section hereof entitled "Authorization and Purpose of Note." "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. 02-90397.03 3 "Outstanding" means, as of any date, the entire principal amount of the Note, except the following: (a) Any portion of the Note cancelled by the County or on the County's behalf, at or before such date; (b) Any portion of the Note for the payment or the redemption of which moneys or Defeasance Securities sufficient to meet all of the payment requirements of the principal of and interest on such portion 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 "Owner" means, prior to any conversion of the Note made pursuant to the Section hereof entitled"Conversion of Note; Registration of Bond in Registration Book Maintained by County," Joy Smith, a natural person described as "Seller" in the Purchase Contract, or as otherwise provided in the Section hereof entitled "Transfer or Exchange of Note Prohibited," and after any such conversion, the Person or Persons in whose name or names the Note is registered on the registration book maintained by the County pursuant to the Section hereof entitled "Conversion of Note; Registration of Bond in Registration Book Maintained by 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. "Purchase Contract" means the "Contract to Buy and Sell Real Estate (Vacant Land— Farm-Ranch)" between the County and Joy Smith, the execution and delivery of which is authorized by the Acquisition Ordinance. "Record Date" means, with respect to each Interest Payment Date, the date that precedes such Interest Payment Date by fifteen days. "State"means the State of Colorado. "Tax Letter of Instructions" means the Tax Letter of Instructions, dated the date on which the Note is originally issued and delivered to the County by Note Counsel, as such instructions may be superseded or amended in accordance with their terms. Section 2. Authorization and Purpose of Note. Pursuant to and in accordance with the Act, the Charter and the Ballot Question, the County hereby authorizes, and directs that there shall be issued, the promissory note of the County entitled the "Pitkin County, Colorado, General Obligation Open Space Acquisition Note—Joy Smith Property (James H. Smith North Star 02-90397.03 4 Parcel)," in the original principal amount of$4,250,000, for the purpose of financing a portion of the Acquisition Project. Section 3. Note Details. (a) Original Dated Date. The Note shall be dated as of its original date of issuance and shall be maintained by the County pursuant hereto. (b) Maturity Date and Interest Rate. The Note shall mature on the date that is twenty years from its date of issuance and shall bear interest at 5.3%per annum, except that, following an Event of Default by the County hereunder, the Note shall bear interest at the default rate set forth in the Section hereof entitled "Remedies for Events of Default." (c) Accrual and Dates of Payment of Interest. Interest on the Note shall accrue at the rate set forth above from the later of the original date of issuance of the Note 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 by the County on each Interest Payment Date. (d) Manner and Form of Payment. Principal of the Note shall be payable to the Owner thereof upon presentation and surrender of the Note at the administrative offices of the County in Aspen, Colorado upon the maturity thereof. Interest on the Note shall be payable by check or draft of the County 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 County that does not require the County to make moneys available earlier than otherwise required hereunder or increase the costs borne by the County hereunder. All payments of the principal of and interest on the Note shall be made in lawful money of the United States of America. Section 4. Redemption of Note Prior to Maturity. (a) Optional Redemption. The Note is subject to redemption prior to maturity at the option of the County, in whole or in part in integral multiples of$5,000, on the date that is fifteen years from the original date of issuance of the Note, and on any date thereafter, at a redemption price equal to the principal amount thereof to be redeemed (with no redemption premium),plus accrued interest to the redemption date. (b) Redemption Procedures. Notice of any redemption of the Note or any portion thereof shall be given by the County 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 the Note. Such notice shall specify whether such redemption shall be in whole or shall be in part and the redemption date. If the Note or any portion thereof shall have 02-90397.03 5 been duly called for redemption and if, on or before the redemption date, there shall have been deposited in escrow in accordance with this Ordinance funds sufficient to pay the redemption price of the Note or such portion thereof on the redemption date, then the Note or such portion thereof 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 with respect to any portion of the Note shall not affect the validity of the proceeding for the redemption of the portion of the Note with respect to which such failure or defect did not occur. The Note or any portion thereof redeemed prior to its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled. Section 5. Security for the Note. (a) General Obligation. The Note shall be a general obligation 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 and interest on the Note. The full faith and credit of the County are pledged for the punctual payment of the principal of and interest on the Note. (b) Levy of Ad Valorem Taxes. For the purpose of paying the principal of and interest on the Note 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 and interest on the Note 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 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 and interest on the Note 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 Note and for no other purpose until the Note, including principal and interest, is fully paid, satisfied and discharged. 02-90397.03 6 (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 Note when due, respectively, are hereby appropriated for that purpose, and all amounts required to pay the principal of and interest on the Note 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 or interest on the Note. If and to the extent such other legally available moneys are used to pay the principal of or interest on the Note, 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 Note. 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) Payment of Interest. On each Interest Payment Date, or, if such date is not a Business Day, on the immediately succeeding Business Day, the County, from proceeds of the taxes levied pursuant to subsections (b) and (c) this Section or other legally available moneys, shall pay to the Owner of the Note the interest due on the Note on such date. (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 and interest on the Note, notwithstanding the provisions of Sections 13.1.2 and 13.1.3 of the Charter. Section 6. Form of Note. The Note 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 Note are hereby approved and adopted as the covenants, statements, representations and agreements of the County. The Note shall contain a recital that it is issued pursuant to the Act. 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. 02-90397.03 7 Section 7. Execution of Note. The Note 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 Director of Administrative Services, ex-officio Treasurer of the County, 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 Note in accordance with the requirements hereof. Should any officer whose manual or facsimile signature appears on the Note cease to be such officer before delivery of the Note, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes. Section 8. Transfer or Exchange of Note Prohibited. Notwithstanding anything else contained in this Ordinance, the Note may not be exchanged or transferred by the Owner thereof to any other Person prior to any conversion of the Note that may be effected by the County pursuant to the Section hereof entitled "Conversion of Note; Registration of Note in Registration Book Maintained by County,"except a transfer occurring by operation of law. Section 9. Conversion of Note; Registration of Bond in Registration Book Maintained by County. (a) At the option of the Owner of the Note, the Note may be converted by the County into a General Obligation Bond (the "Bond") of the County of the same principal amount, maturity and interest rate as the Note, or the then Outstanding principal amount thereof; provided, however, that the Note may not be converted into the Bond prior to the date that is twelve years from the original date of issuance of the Note. (b) Upon receipt of written notice by the Owner of the Note or his or her attorney duly authorized in writing of his or her exercise of the option to convert the Note to the Bond pursuant to subsection (a) of this Section, the County shall, within ninety days thereafter, (i) establish and maintain a registration book in which the ownership, transfer and exchange of the Bond made in accordance with the Section hereof entitled "Transfer and Exchange of Bond" shall be recorded and (ii) obtain an opinion from Note Counsel as to valid issuance and exclusion from gross income for federal and Colorado income tax purposes as of the original date of issuance of the Note. The establishment of such registration book shall constitute the conversion of the Note to the Bond without further act of the County. The Owner of the Note at the time of such conversion shall, upon such conversion, be recorded in such registration book as the Owner of the Bond. The person in whose name the 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 the Bond shall be overdue, and the County shall not be affected by any notice or other information to the contrary. (c) Upon the conversion of the Note to the Bond pursuant to this Section and thereafter, all provisions hereof except the prohibition against transfer and exchange of the Note pursuant to the Section hereof entitled "Transfer and Exchange of Note 02-90397.03 8 Prohibited" shall continue to govern the Bond and all references herein to the Note, with such exception, shall be deemed to apply to the Bond. Section 10. Transfer and Exchange of Bond. The Bond may be transferred or exchanged in whole at the administrative offices of the County in Aspen, Colorado, 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 in connection therewith. Upon surrender for transfer of the 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 deliver in the name of the transferee a new Bond. Notwithstanding any other provision hereof, the County shall not be required to transfer the Bond (a) if 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 the Bond and such Interest Payment Date. Section 11. Replacement of Lost, Destroyed or Stolen Note. If the Note 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 Note and the County shall execute and deliver a replacement Note upon the Owner furnishing, to the satisfaction of the County: (i)proof of ownership (which shall be shown following a conversion pursuant to the Section hereby entitled "Conversion of Note; Registration of Bond In Registration Book Maintained by County," by the registration book of the County), (ii)proof of loss, destruction or theft, (iii) an indemnity to the County with respect to the Note lost, destroyed or taken, and (iv) payment of the cost of preparing and executing the new Note. Section 12. Investments. Moneys separately accounted for by the County to pay for payment of principal of and interest on the Note 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 Letter of Instructions and the tax compliance certificate delivered by the County in connection with the issuance of the Note that describes the County's expectations regarding such moneys. 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 13. 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 Owner of the Note that: (a) voter approval of the Ballot Question was obtained in accordance with all applicable provisions of law; (b) it is in the best interest of the County and its residents that the Note be authorized, sold, issued and delivered at the time, in the manner and for the purposes provided in this Ordinance; 02-90397.03 9 (c) the net effective interest rate on the Note is less than the maximum net effective interest rate authorized in the Ballot Question; (d) the proceeds of the levy made by the County pursuant to the Section hereof entitled "Security for Note" shall be annually deducted from the proceeds authorized to be collected by the County pursuant to the levy authorized by the Ballot Question; provided, however that nothing contained herein is intended in any way to limit the levy made by the County pursuant to the Section hereof entitled"Security for Note"; (e) the issuance of the Note will not cause the County to exceed its debt limit under applicable State law; and (f) the issuance of the Note 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 and the County, including the Act and the Charter, and all conditions and limitations of the Act and the Charter and other applicable law relating to the issuance of the Note have been satisfied. Section 14. Federal Income Tax Covenants. For purposes of ensuring that the interest on the Note is and remains excluded from gross income for federal income tax purposes, the County hereby covenants that: (a) Prohibited Actions. The County shall not take or permit to be taken any other action or actions, which would cause the Note to be an "arbitrage bond" within the meaning of Section 148 of the Code, or would otherwise cause the interest on the Note 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 Note 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 Note Counsel stating that such compliance is not necessary: (i) the Acquisition Project will not be used in a manner that will cause the Note to be considered a "private activity bond" within the meaning of the Code; (ii) the Note is 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 Note, which shall contain the information required to be filed pursuant to Section 149(e) of the Code. (c) Tax Letter of Instructions. The County will comply with the Tax Letter of Instructions delivered to it on the date of issuance of the Note, including but not limited by the provisions of the Tax Letter of Instructions regarding the use of the Acquisition Project, the calculations, the disbursements, the investments and the retention of records described in the Tax Letter of Instructions; provided that, in the event the Tax 02-90397.03 10 Letter of Instructions is superseded or amended by new Tax Letter of Instructions drafted by, and accompanied by an opinion of, Note Counsel stating that the use of the new Tax Letter of Instructions will not cause the interest on the Note to become includible in gross income for federal income tax purposes, the County will thereafter comply with the new Tax Letter of Instructions. Section 15. Defeasance. The Note or any portion thereof 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 the Note, but if the Note or such portion thereof is to be paid prior to maturity, the County shall have given notice of redemption as required by 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. Section 16. 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 Note 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 Owner of the Note, 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; and (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 17. Remedies for Events of Default. (a) Remedies. Upon the occurrence and continuance of any Event of Default described in subsection (a) of the Section hereof entitled "Events of Default," the Note shall bear interest from the date of such Event of Default until the payment by the County of all amounts due and owing with respect to the Note at the default interest rate of 10%. Additionally, in the event of any Event of Default, the Owner of the Note, including, without limitation, a trustee or trustees therefor, may proceed against the County to protect and to enforce the rights of the Owner under this Ordinance by mandamus, injunction or by other suit, action or special proceedings in equity or at law, in any court 02-90397.03 11 of competent jurisdiction: (I) for the payment of interest on or principal of the Note that was not paid when due, (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 the Owner of the Note, (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 Note according to its terms shall not be an available remedy. (b) Failure to Pursue Remedies Not a Release, Rights Cumulative. The failure of the Owner of the Note 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 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 such Owner shall not be deemed a waiver of any other right or privilege of such Owner. Section 18. Amendment of Ordinance. (a) Amendments Permitted without Notice to or Consent of Owner. The County may, without the consent of or notice to the Owner of the Note, 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 Note additional revenues, properties or collateral; (iii) to make any other change that does not materially adversely affect the Owner of the Note. (b) Amendments Requiring Notice to and Consent of Owner. 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 Owner of the Note. (c) Procedure for Noting and Obtaining Consent of Owner. Whenever the consent of the Owner of the Note is required under subsection (b) of this Section, the County shall mail a notice to such Owner at his or her address (as set forth in the registration books maintained by the County for any such notice delivered after any conversion of the Note pursuant to the Section hereof entitled "Conversion of Note; Registration of Bond in Registration Book Maintained by County"), which notice shall 02-90397.03 12 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 the Owner of the Note 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 19. Approval of Related Documents. 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 a tax compliance certificate or similar certificate describing the County's expectations regarding the use of the Acquisition Project, an Internal Revenue Service Form 8038-G with respect to the Note and all other documents and certificates necessary or desirable to effectuate the issuance or administration of the Note and the transactions contemplated hereby. Section 20. 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 21. Ordinance Is Contract with Owners of Note and Irrepealable. After the Note has been issued, this Ordinance shall be and remain a contract between the County and the Owner of the Note and shall be and remain irrepealable until all amounts due with respect to the Note shall be fully paid, satisfied and discharged and all other obligations of the County with respect to the Note shall have been satisfied in the manner provided herein. Section 22. Headings. The headings to the various sections and subsections to 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 23. 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 24. Repeal of Inconsistent Ordinances. All ordinances, or parts thereof, that are in conflict with this Ordinance, are hereby repealed. 02-90397.03 13 Section 25. Ratification of Prior Actions. All actions heretofore taken (not inconsistent with the provisions of this Ordinance, the Charter, the Act or the Ballot Question) by the Board or by the officers and employees of the County directed toward the issuance of the Note for the purposes herein set forth are hereby ratified, approved and confirmed. Section 26. 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 27. Effective Date. This Ordinance shall take effect upon the satisfaction of all requirements for effectiveness contained in Section 2.8.1 of the Charter. 02-90397.03 14 INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 23rd DAY OF MAY, 2001. NOTICE OF PUBLIC HEARING PUBLISHED IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE 26th DAY OF MAY, 2001. APPROVED AND ADOPTED AT SECOND READING AND PUBLIC HEARING ON THE 13TH DAY OF JUNE, 2001. PUBLISHED AFTER ADOPTION IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE 23RD DAY OF JUNE, 2001. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO 44U,?� 00140 BY: �� kl T, - 4�G Je ette Jones Mick Ireland, Qhah D uty Clerk APPROVED AS TO FORM: MANAGER APPROVAL: John Hilary Kphith unty Attorney County Manager 02-90397.01 15 UNITED STATES OF AMERICA STATE OF COLORADO NOT REGISTERED $4,250,000 AS ORIGINALLY ISSUED PITKIN COUNTY, COLORADO GENERAL OBLIGATION OPEN SPACE ACQUISITION NOTE JOY SMITH PROPERTY INTEREST RATE: MATURITY DATE: ORIGINAL DATED DATE: 5.3% September 25, 2021 September 25, 2001 MADE TO THE ORDER OF: Joy Smith Social Security Number: PRINCIPAL SUM: "FOUR MILLION TWO HUNDRED FIFTY THOUSAND 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 owner named above, or to, subject to the restrictions contained herein and in the below-defined Ordinance, his or her registered assigns (as applicable, the "Owner" hereof), 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 the date that is six months after such original dated date and each six months thereafter(each, an "Interest Payment Date"). The principal of this Note is payable upon the maturity hereof to the Owner hereof upon presentation and surrender of this Note at the administrative offices of the County in Aspen, Colorado. Interest on this Note is payable by check or draft of the County mailed on each Interest Payment Date to the Owner hereof as of the day that precedes such Interest Payment date by fifteen days (whether or not such day is a Business Day, as defined in the Ordinance) (the "Record Date" with respect to such Interest Payment Date); provided that, interest payable to the Owner of this Note may be paid by any other means agreed to by such Owner and the County that does not require the County to make moneys available earlier than otherwise required under the Ordinance or increase the costs borne by the County under the Ordinance. Any payment of principal of or interest on this Note that is due on a day that is not a Business Day shall be made on the next succeeding day that is a Business Day with the same effect as if made on the day on which it was originally scheduled to be made. All payments of principal of and interest on this Note shall be made in lawful money of the United States of America. 02-90397.03 This Note has 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, or any successor thereto, and Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended (the "Act'); 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 an election duly called and held on November 6, 1990; 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 Note have the meaning assigned to them in the Ordinance. THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE OWNER OF THIS NOTE AND THE COUNTY. THIS NOTE 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 NOTE. This Note has been issued by the County for the purpose of funding a portion of the Acquisition Project described in the Ordinance. This Note is a general obligation of the County and the full faith and credit of the County are pledged for the punctual payment of the principal of and interest hereon. For the purpose of paying the principal of and interest on this Note when due, respectively, the Board in the Ordinance has covenanted annually to 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 and interest on this Note when due, respectively, whether at maturity or upon earlier redemption. This Note is subject to redemption prior to maturity at the option of the County, in whole or in part in integral multiples of$5,000, on the date that is fifteen years from the original date of issuance of this Note, and on any date thereafter, at a redemption price equal to the principal amount hereof to be redeemed (with no redemption premium), plus accrued interest to the redemption date. Notice of any redemption of this Note or any portion hereof shall be given by the County 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 this Note. Such notice shall specify whether such redemption shall be in whole or shall be in part and the redemption date. If this Note or any portion hereof shall have been duly called for redemption and if, on or before the redemption date, there shall have been deposited in escrow in accordance with the Ordinance funds sufficient to pay the redemption price of this Note or such portion hereof on the redemption date, then this Note or such portion hereof shall become due and payable at such redemption date, and from and after such date interest will cease to accrue hereon. Failure to deliver any redemption notice or any defect in any redemption notice with respect to any portion of this Note shall not affect the validity of the proceeding for the redemption of the portion of this Note with respect to which such failure or defect did not occur. This Note or any portion hereof redeemed prior to its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled. Notwithstanding anything else contained herein or in the Ordinance, this Note may not be exchanged or transferred by the Owner hereof to any other Person prior to any conversion of this Note that may be effected by the County pursuant to the Ordinance as described below, except a transfer occurring by operation of law. 02-90397.03 A-2 At the option of the Owner hereof, this Note may be converted by the County into a General Obligation Bond (the `Bond") of the County of the same principal amount, maturity and interest rate as this Note, or the then outstanding principal amount hereof; provided, however, that this Note may not be converted into the Bond prior to the date that is twelve years from the original date of issuance hereof. Upon receipt of written notice by the Owner hereof or his or her attorney duly authorized in writing of his or her exercise of the option to convert this Note to the Bond as described in the immediately preceding paragraph, the County shall, within ninety days hereafter, (a) establish and maintain a registration book in which the ownership, transfer and exchange of the Bond shall be recorded and (b) obtain an opinion from Note Counsel as to valid issuance and exclusion from gross income from federal and Colorado income tax purposes as of the original date of issuance of this Note. The establishment of such registration book shall constitute the conversion of this Note to the Bond without further act of the County. The Owner of this Note at the time of such conversion shall, upon such conversion, be recorded in such registration book as the Owner of the Bond. The person in whose name the 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 the Bond shall be overdue, and the County shall not be affected by any notice or other information to the contrary. Upon the conversion of this Note to the Bond as described above and thereafter, all provisions of the Ordinance except the prohibition against transfer and exchange of this Note shall continue to govern the Bond and all references in the Ordinance to this Note, with such exception, shall be deemed to apply to the Bond. The Bond may be transferred or exchanged in whole at the administrative offices of the County in Aspen, Colorado, 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 in connection therewith. Upon surrender for transfer of the 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 deliver in the name of the transferee a new Bond. Notwithstanding any other provision hereof, the County shall not be required to transfer the Bond (a) if 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 the Bond and such Interest Payment Date. The Ordinance may be amended or supplemented from time to time with or without the consent of the Owner of this Note as provided in the Ordinance. It is hereby certified that all conditions, acts and things required by the Constitution and laws of the State, including the Act, and the ordinances and resolutions of the County, to exist, to happen and to be performed, precedent to and in the issuance of this Note, exist, have happened and have been performed, and that this Note does not exceed any limitations prescribed by the Constitution or laws of the State, including the Act, or the ordinances or resolutions of the County. 02-90397,03 A-3 IN WITNESS WHEREOF, the Board of County Commissioners of the County has caused this Note to be executed with the signature of its Chair, attested by the signature of the Deputy County Clerk and Recorder and countersigned by the Director of Administrative Services, 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 �pYf* By o Chair, Board of County Co missione Attest: By i puty County Clerk and Recorder COUNTERSIGNED: By L Director of Administrative Services, ex-officio Treasurer of the County 02-90397,03 A-4