HomeMy WebLinkAbout2021 Ordinance No. 0124832-0593-0462.3
BY AUTHORITY
ORDINANCE NO. 12 COUNCIL BILL NO. 09
SERIES OF 2021 INTRODUCED BY COUNCIL
MEMBER SIERRA
AN ORDINANCE OF THE CITY OF ENGLEWOOD, ACTING BY AND
THROUGH ITS STORM WATER ENTERPRISE, AUTHORIZING THE
ISSUANCE OF STORM WATER ENTERPRISE REVENUE BONDS,
SERIES 2021, FOR THE PURPOSE OF FINANCING CAPITAL
IMPROVEMENTS FOR USE IN ITS STORM WATER ENTERPRISE;
PRESCRIBING THE FORM OF THE BONDS; PROVIDING FOR THE
PAYMENT OF THE BONDS FROM THE OPERATION OF THE STORM
WATER SYSTEM; AND PROVIDING OTHER DETAILS AND
APPROVING DOCUMENTS IN CONNECTION WITH THE BONDS.
WHEREAS, the City of Englewood, Colorado is a municipal corporation duly
organized and operating as a home rule city under Article XX of the Constitution of the
State of Colorado and the Charter of the City (unless otherwise indicated, capitalized
terms used in this preamble shall have the meanings set forth in Section 1 of this
Ordinance);
WHEREAS, as established by City Ordinance No. 20, Series of 1993 and codified
in Title 12, Chapter 5 of the City of Englewood Municipal Code 2000, the City has
established its Storm Water Enterprise;
WHEREAS, the financial activities of the Storm Water Enterprise are accounted
for in the Storm Water Drainage Fund;
WHEREAS, as provided in Section 12-5-3(A) of the City of Englewood Municipal
Code 2000 there is imposed on every lot or parcel of land within the City a storm drainage
service charge which is reviewed annually and set from time to time by ordinance of the
City;
WHEREAS, the Storm Water Enterprise constitutes a “water activity enterprise”
within the meaning of the Title 37, Article 45.1, C.R.S., and a government owned business
which is authorized to issue its own revenue bonds and which receives under 10% of
annual revenue in grants from all Colorado state and local governments combined;
WHEREAS, pursuant to Section 105 of the Charter the City may issue revenue
bonds as provided for municipalities by State statute and revenue bonds for a storm water
enterprise are permitted under Title 31, Article 35, Part 4, C.R.S. and Title 37, Article 45.1,
C.R.S.;
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WHEREAS, in September of 2018, the City contracted with Calibre Engineering to
perform a Storm Water Analysis and Alternatives Feasibility Study, significant elements
of which have been completed and presented to the City Council in a flood-prone study;
WHEREAS, the Stifel, Nicolaus & Company, Incorporated, of Denver, Colorado,
as municipal advisor to the City, has assisted the City in the process of requesting
proposals for the selection of an underwriter for the City’s issuance Storm Water
Enterprise Revenue Bonds, Series 2021, and the City Council has determined that it is in
the best interests of the City, and the residents thereof, that Storm Water Enterprise
Revenue Bonds, Series 2021 be sold by negotiated sale and issued to finance the Project;
WHEREAS, prior to the final reading of this Ordinance the City will have received
and there will be available to the members of the City Council, forms of the Preliminary
Official Statement, the Bond Purchase Agreement and the Paying Agent Agreement; and
WHEREAS, the City Council desires to authorize the issuance and sale of the
Bonds and, as provided in Title 11, Article 57, Part 2, C.R.S., delegate authority to the
Sale Delegate to make certain determinations regarding the Bonds to be set forth in the
Sale Certificate in accordance with the provisions of this Ordinance;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. Definitions. The following terms shall have the following meanings
as used in this Ordinance:
“Bank” means UMB Bank, n.a., a national banking association duly organized and
existing under the laws of the United States of America or such other financial institution
selected by the City which has full and complete trust powers and is a qualified institution
under the Public Deposit Protection Act of the State.
“Bond Account” means a special account of the City designated as the “Storm
Water Enterprise 2021 Bond Account,” created by this Ordinance for the purpose of
paying the principal of, premium if any, and interest on the Bonds, including the Interest
Subaccount and the Principal Subaccount.
“Bond Counsel” means (a) as of the date of issuance of the Bonds, Kutak
Rock LLP, and (b) as of any other date, Kutak Rock LLP or such other attorneys selected
by the City with nationally recognized expertise in the issuance of municipal bonds.
“Bond Insurance Policy” means the financial guaranty insurance policy issued by
the Bond Insurer pursuant to the Commitment, if any, insuring the payment when due of
the principal and interest on the Bonds as provided therein.
“Bond Insurer” means the financial guaranty insurance company, if any, identified
in the Sale Certificate.
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“Bond Obligation” means, as of any date, the principal amount of the Bonds
outstanding as of such date.
“Bond Purchase Agreement” means the Bond Purchase Agreement, pursuant to
which the City is to agree to sell and the Underwriter is to agree to purchase the Bonds
at the prices and on the terms set forth therein.
“Bonds” and “Series 2021 Bonds” means the Bonds authorized by the Section
hereof titled “Authorization and Purpose of Bonds.”
“Business Day” means any day other than (a) a Saturday or Sunday or (b) a day
on which banking institutions in the State are authorized or obligated by law or executive
order to be closed for business.
“Call Date” means the date or dates on which the Bonds shall be eligible for
optional redemption by the City prior to maturity, as established in the Sale Certificate.
“Capital Improvements” means the acquisition of land, easements, facilities and
equipment (other than ordinary repairs and replacements), and the construction or
reconstruction of improvements, betterments and extensions, for use by or in connection
with the Storm Water System which, under Generally Accepted Accounting Principles for
governmental units as prescribed by the Governmental Account Standards Board, are
properly chargeable as capital items.
“Certified Public Accountant” means an independent certified public accountant
within the meaning of § 12-2-115, C.R.S., and any amendment thereto, licensed to
practice in the State of Colorado.
“Charter” means the home rule Charter of the City.
“City” means the City of Englewood, Colorado, acting by and through its Storm
Water Enterprise.
“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.
“Combined Maximum Annual Principal and Interest Requirements” means, with
respect to the Bonds or an issue of Parity Lien Bonds for which such term is used, an
amount equal to the maximum amount required to be paid in any single current or future
calendar year as the principal of (including any mandatory sinking fund requirements) and
interest on outstanding Bonds or Parity Lien Bonds, respectively, excluding any such
bonds which have been defeased pursuant to the terms of the authorizing documents.
“Commitment” means that certain written offer, if any, from the Bond Insurer to
issue the Policy and generally designated as the Commitment.
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“City Council” means the Englewood City Council.
“County” means Arapahoe County, Colorado.
“C.R.S.” means the Colorado Revised Statutes, as amended and supplemented
as of the date hereof.
“Dated Date” means the original dated date for the Bonds as established in the
Sale Certificate.
“Defeasance Securities” means bills, certificates of indebtedness, notes, bonds or
similar securities which are direct, noncallable 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.
“DTC Blanket Letter of Representations” means the letter of representations from
the City to DTC to induce DTC to act as securities depository for the Bonds.
“Enabling Laws” means the Charter; Title 12, Chapter 5 of the City of Englewood
Municipal Code 2000; Title 37, Article 45.1, C.R.S.; Title 31, Article 35, Part 4, C.R.S.;
and Title 11, Article 57, Part 2, C.R.S.
“Event of Default” means any of the events specified in the Section hereof titled
“Events of Default.”
“Fiscal Year” means the 12 months commencing January 1 of any year and ending
December 31 of said year.
“Gross Revenue” means all income and revenues directly or indirectly derived by
the City from the operation and use of the Storm Water Enterprise, including without
limitation, any rates, fees and charges for the services furnished by, or the use of, the
Storm Water Enterprise, and all income attributable to any past or future dispositions of
property or rights or related contracts, settlements or judgments held or obtained in
connection with the Storm Water Enterprise or its operations, and including investment
income accruing from moneys held to the credit of the Storm Water Drainage Fund;
provided however, that there shall be excluded from Gross Revenue any moneys
borrowed and used for providing Capital Improvements; any money and securities, and
investment income therefrom, in any refunding fund, escrow account or similar account
pledged to the payment of any bonds or other obligations; and any moneys received as
grants or appropriations from the United States, the State of Colorado or other sources,
the use of which is limited or restricted by the grantor or donor to the provision of Capital
Improvements or for other purposes resulting in the general unavailability thereof, except
to the extent any such moneys shall be received as payments for the use of the Storm
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Water System, services rendered thereby, the availability of any such service or the
disposal of any commodities therefrom.
“Interest Payment Date” means each June 1 and December 1, commencing
December 1, 2021, or such other dates as established in the Sale Certificate for payment
of interest on the Bonds.
“Interest Subaccount” means a subaccount of the Bond Account reaffirmed by the
provisions hereof for the purpose of paying the interest on the Bonds.
“Net Revenue” means the Gross Revenue after deducting the Operation and
Maintenance Expenses.
“Official Statement” means the final Official Statement relating to the Bonds.
“Operation and Maintenance Expenses” means all reasonable and necessary
current expenses of the City, paid or accrued, for operating, maintaining and repairing the
Storm Water System, including without limitation legal and overhead expenses of the City
directly related to the administration of the Storm Water Enterprise, insurance premiums,
audits, charges of depository banks and paying agents, professional services, salaries
and administrative expenses, labor and the cost of materials and supplies for current
operation; provided however, that there shall be excluded from Operation and
Maintenance Expenses any allowance for depreciation, payments in lieu of taxes or
franchise fees, legal liabilities not based on contract, expenses incurred in connection
with Capital Improvements, payments due in connection with any bonds or other
obligations, and charges for the accumulation of reserves.
“Ordinance” means this Ordinance, including any amendments or supplements
hereto.
“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.
“Parity Lien Bonds” means one or more series of additional bonds, notes, interim
securities or other obligations issued by the City pursuant to the Section hereof entitled
“Additional Bonds,” having a lien on the Net Revenue which is on a parity with the lien of
the Bonds.
“Paying Agent” means the Bank and its successors in interest or assigns approved
by the City.
“Paying Agent Agreement” means an agreement between the City and the Paying
Agent concerning the duties and obligations of the Paying Agent with respect to the
Bonds.
“Permitted Investments” means any investment in which funds of the City may be
invested under the Charter and the laws of the State at the time of such investment.
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“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 prepared
in connection with the sale and issuance of the Bonds.
“Principal Payment Date” means December 1, or such other date or dates of each
year as established in the Sale Certificate for payment of principal of the Bonds.
“Principal Subaccount” means a subaccount of the Bond Account reaffirmed by
the provisions hereof for the purpose of paying the principal of and premium, if any, on
the Bonds.
“Project” means the construction, acquisition and installation of Capital
Improvements to the Storm Water System and such other improvements as determined
by the City Council, including all necessary or appropriate appurtenances, property rights
and equipment.
“Project Account” means the “Storm Water Enterprise 2021 Bond Project Account,”
established by the provisions hereof for the purpose of paying the Project Costs.
“Project Costs” means the City’s costs properly attributable to the Project or any
part thereof and permitted by the provisions of the Enabling Laws, including without
limitation: (a) the costs of labor and materials, of machinery, furnishings and equipment,
and of the restoration of property damaged or destroyed in connection with construction
work; (b) administrative and general overhead costs; (c) the costs of reimbursing funds
advanced by the City in anticipation of reimbursement from Bond proceeds, including any
intrafund or interfund loan; (d) the costs of surveys, appraisals, plans, designs,
specifications and estimates; (e) the costs of issuing the Bonds; and (f) all other lawful
costs as determined by the City Manager.
“Pro Rata Portion” means when used with respect to a required credit to the
Principal Subaccount or the Interest Subaccount, the dollar amount derived by dividing
the amount of principal or interest to come due on the next Principal Payment Date or
Interest Payment Date by the number of monthly credits required to be made prior to such
payment date.
“Record Date” means, if the Interest Payment Date is on the first day of the month,
the fifteenth day of the month immediately preceding the month (whether or not such day
is a Business Day) in which such Interest Payment Date occurs and, if the Interest
Payment Date is on the fifteenth day of the month, the first day of the month (whether or
not such day is a Business Day) in which such Interest Payment Date occurs.
“Required Reserve Amount” means the amount, if any, determined by the Sale
Delegate and established in the Sale Certificate; provided however, as of any date on
which it is calculated, the Required Reserve Amount shall not exceed the of least of
(a) 10% of the principal amount of the outstanding Bonds, (b) the maximum annual debt
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service in any calendar year on the outstanding Bonds, or (c) 125% of the average annual
debt service on the outstanding Bonds.
“Reserve Account” means a special account of the City, if established, designated
as the “Storm Water Enterprise 2021 Reserve Account,” created by this Ordinance for the
purpose of paying, if necessary, the principal of, premium if any, and interest on the
Bonds.
“Sale Certificate” means the certificate executed by the Sale Delegate under the
authority delegated pursuant to this Ordinance.
“Sale Delegate” means the City Manager or, in the event such person is
unavailable, the City Finance Director.
“State” means the State of Colorado.
“Storm Water Drainage Fund” means the Storm Drainage Fund of the City which
accounts for the financial activity of the Storm Water Enterprise.
“Storm Water Enterprise” means the Storm Water Enterprise as established by
City Ordinance No. 20, Series 1993, as said ordinance may be amended from time to
time.
“Storm Water System” means all storm water facilities of the City, including without
limitation interests in real and personal property now owned or hereafter acquired,
whether situated within or without the City boundaries and all present or future
improvements, extensions, enlargements, betterments, replacements and additions
thereto.
“Subordinate Lien Bonds” means one or more series of additional bonds, notes,
interim securities or other obligations issued by the City pursuant to the Section hereof
entitled “Additional Bonds,” having a lien on the Net Revenue which is subordinate or
junior to the lien of the Bonds.
“Tax Letter of Instructions” means the Tax Letter of Instructions, dated the date on
which the Bonds are originally issued and delivered to the City by Bond Counsel, as such
instructions may be superseded or amended in accordance with their terms.
“Underwriter” means the municipal securities broker-dealer firm selected by the
City to underwrite the Bonds on a negotiated sale basis.
Section 2. Authorization and Purpose of Bonds. Pursuant to and in
accordance with the Enabling Laws, the Englewood City Council hereby authorizes, and
directs that there shall be issued, the “Storm Water Enterprise Revenue Bonds,
Series 2021” for the purpose of paying the Project Costs. The accomplishment of the
Project is hereby authorized, approved and ordered and it is hereby determined that the
Bonds mature at such time not exceeding the estimated life of the Project.
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Section 3. Bond Details.
(a) Registered Form, Denominations, 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 the Principal Payment Date 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.
(c) Accrual and Dates of Payment of Interest. Interest on the Bonds
shall accrue at the rates set forth in the Sale Certificate 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) Delegation for Sales Certificate. The Englewood City Council
hereby delegates to the Sale Delegate for a period of one year from the date of
adoption of this Ordinance the authority to determine the following terms (which
shall be set forth in the Sale Certificate for the Bonds) and any other matters that,
in the judgment of the Sale Delegate and not inconsistent with the authority
conferred by Enabling Laws and the parameters set forth below, are necessary or
convenient to be established in the Sale Certificate:
(i) the Dated Date of the Bonds;
(ii) the Principal Payment Date;
(iii) the Interest Payment Date;
(iv) the aggregate principal amount of the Bonds;
(v) the price at which the Bonds will be sold pursuant to the Bond
Purchase Agreement;
(vi) the amount of principal of the Bonds maturing in any particular
year and the respective interest rates borne by the Bonds;
(vii) the Call Date and prices at which callable Bonds may be
optionally redeemed;
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(viii) the principal amounts, if any, of Bonds subject to mandatory
sinking fund redemption and the years in which such Bonds will be subject
to such redemption;
(ix) the existence and amount of any reserve funds;
(x) the Maturity Date; and
(xi) whether the Bonds will be secured by the Bond Insurance
Policy and the terms of any agreement with the Bond Insurer providing the
assurance of payment.
(e) Sale Parameters. The authority delegated to the Sale Delegate by
this Section shall be subject to the following parameters:
(i) the aggregate principal amount of the Bonds shall not exceed
$10,500,000;
(ii) the final maturity of the Bonds shall be no later than
December 31, 2051;
(iii) the net effective interest rate on the Bonds shall not exceed
3.50%;
(iv) the Call Date for the Bonds shall occur no later than the final
Principal Payment Date in calendar year 2031; and
(v) in the event that the Sale Delegate determines, based upon
information provided by the Underwriter, that the lowest acceptable
premium bid for issuance of the Bond Insurance Policy is less than the
interest cost savings to be realized by the City as a result of the issuance of
the Bond Insurance Policy, the Sale Delegate shall accept the Commitment
issued by the lowest acceptable bidder and the Bonds, or any maturities
thereof, shall be secured by the Bond Insurance Policy issued by such
lowest acceptable bidder, who shall be deemed to be the Bond Insurer
hereunder (for purposes of this parameter, the term “lowest acceptable
premium bid” means the lowest bid submitted which is not conditioned upon
the City’s compliance with conditions deemed unacceptable by the City
Manager, and the term “lowest acceptable bidder” means the bidder
submitting the lowest acceptable premium bid).
(f) Manner and Form of Payment. Principal of each Bond shall be
payable to the Owner thereof upon presentation and surrender of such Bond at the
principal operations office of the Paying Agent or at such other office of the Paying
Agent designated by the Paying Agent for such purpose. 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
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paid by any other means agreed to by such Owner and the Paying Agent that does
not require the City to make moneys available to the Paying Agent earlier than
otherwise required hereunder or increase the costs borne by the City hereunder.
All payments of the principal of and interest on the Bonds shall be made in lawful
money of the United States of America.
(g) 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 and interest on the Bonds shall be paid by wire transfer to DTC;
provided, however, if at any time the Paying Agent determines, and notifies the
City 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 City nor the Paying Agent shall have any liability to DTC, Cede &
Co., any substitute securities depository, any Person in whose name the Bonds
are reregistered at the direction of any substitute securities depository, any
beneficial owner of the Bonds or any other Person for (A) any determination made
by the Paying Agent pursuant to the proviso at the end of the immediately
preceding sentence or (B) any action taken to implement such determination and
the procedures related thereto that is taken pursuant to any direction of or in
reliance on any information provided by DTC, Cede & Co., any substitute securities
depository or any Person in whose name the Bonds are reregistered.
Section 4. Redemption of Bonds Prior to Maturity.
(a) Optional Redemption. The Bonds shall subject to redemption at
the option of the City, in whole or in part, and if in part in such order of maturities
as the City shall determine and by lot within a maturity on such dates as set forth
in the Sale Certificate.
(b) Mandatory Sinking Fund Redemption. All or any principal amount
of the Bonds may be subject to mandatory sinking fund redemption by lot on the
Principal Payment Date of the years and in the principal amounts specified in the
Sale Certificate, at a redemption price equal to the principal amount thereof (with
no redemption premium), plus accrued interest to the redemption date.
(c) Redemption Procedures. Notice of any redemption of Bonds shall
be given by the Paying Agent in the name of the City by sending a copy of such
notice by electronic means to DTC or its successors, or by first class, postage
prepaid mail, not less than thirty 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
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the redemption date, there shall have been deposited with the Paying Agent in
accordance with this Ordinance funds sufficient to pay the redemption price of such
Bond on the redemption date, then such Bond shall become due and payable at
such redemption date, and from and after such date interest will cease to accrue
thereon. Failure to deliver any redemption notice or any defect in any redemption
notice shall not affect the validity of the proceeding for the redemption of Bonds
with respect to which such failure or defect did not occur. Any Bond redeemed
prior to its maturity by prior redemption or otherwise shall not be reissued and shall
be cancelled.
Section 5. Security for the Bonds; Flow of Funds.
(a) Pledge of Net Revenues. The Net Revenue is hereby pledged to
the payment of the Bonds. The Bonds shall constitute an irrevocable and first lien
upon the Net Revenue, but not necessarily an exclusive such lien. In accordance
with Section 11-57-208, C.R.S., upon the issuance of the Bonds, the Net Revenues
shall immediately be subject to the lien of the pledge stated herein without any
physical delivery, filing, or further act.
(b) Flow of Funds. Immediately upon the issuance of the Bonds, all
Gross Revenue then held by the City shall be credited to the Storm Water Drainage
Fund. Thereafter, the City shall credit to the Storm Water Drainage Fund all Gross
Revenue immediately upon receipt. The City shall pay from the Storm Water
Drainage Fund all Operation and Maintenance Expenses as they become due and
payable. After such payment or the allocation of Gross Revenue to such payment,
the City shall apply the Net Revenue in the following order of priority:
FIRST, to the credit of the Interest Subaccount, the amounts required
by the Section hereof entitled “Establishment of Accounts,” and to the credit
of any other bond account or subaccount hereafter established for the
payment of interest on Parity Lien Bonds issued in accordance with the
Section hereof entitled “Additional Bonds”;
SECOND, to the credit of the Principal Subaccount, the amounts
required by the Section hereof entitled “Establishment of Accounts,” and to
the credit of any other bond account or subaccount hereafter established
for the payment of the principal of, and premium if any, on Parity Lien Bonds
issued in accordance with the Section hereof entitled “Additional Bonds”;
THIRD, to the credit of the Reserve Account, the amounts required
by the Section hereof entitled “Establishment of Accounts,” and to the credit
of any other account hereafter established as a reserve account for Parity
Lien Bonds issued in accordance with the Section hereof entitled “Additional
Bonds”;
FOURTH, to the credit of any other fund or account hereafter
established for the payment of the principal of, premium if any, and interest
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on Subordinate Lien Bonds, including any sinking fund, reserve fund or
similar fund or account established therefor, the amounts required by the
ordinance or other enactment authorizing issuance of the Subordinate Lien
Bonds; and
FIFTH, to the credit of any other fund or account as may be
designated by the City, to be used for any lawful purpose, any moneys
remaining in the Storm Water Drainage Fund after the payments and
accumulations set forth in FIRST through FOURTH hereof.
(c) Maintenance of Rates and Coverage. The City hereby covenants
that it will establish, maintain, enforce and collect rates, fees and charges for
services furnished by or the use of the Storm Water System to create Gross
Revenue each Fiscal Year sufficient to pay Operation and Maintenance Expenses
and to create Net Revenue in an amount: (a) equal to not less than 115% of the
amount necessary to pay when due the principal of and interest on the Bonds and
any Parity Lien Bonds coming due during such Fiscal Year; and (b) to make up
any deficiencies in any reserve account established for the payment of the principal
of and interest on the Bonds or Parity Lien Bonds. In the event that the Gross
Revenue at any time is not sufficient to make such payments, the City shall
increase such rates, fees and charges to an extent which will ensure the payments
and accumulations required by this Ordinance.
(d) Bonds Do Not Constitute a Debt. All of the Bonds, together with
the interest thereon and any premium due in connection therewith, shall be payable
only out of: (i) the Bond Account; or (ii) if established, the Reserve Account. The
Owners may not look to any general or other fund of the City for the payment of
the principal of, premium if any, and interest on the Bonds, except the funds and
accounts pledged thereto by this Ordinance, and the Bonds shall not constitute a
debt or an indebtedness of the City within the meaning of any constitutional or
statutory provision or limitation; nor shall they be considered or held to be general
obligations of the City.
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 City 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 City. Although attached as appendices for the
convenience of the reader, Appendix A is an integral part of this Ordinance and are
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 City with the manual or facsimile signature of the Mayor, shall bear a
manual or facsimile of the seal of the City and shall be attested by the manual or facsimile
signature of the City Clerk, all of whom are hereby authorized and directed to prepare
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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 City are authorized to, and shall, deliver the Bonds to the Paying Agent for
authentication. No Bond shall be secured by or titled 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 8. 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 City nor the Paying Agent shall be affected by any notice or
other information to the contrary.
Section 9. 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 titled “Definitions” or at such other office
of the Paying Agent designated by the Paying Agent for such purpose for a like aggregate
principal amount of Bonds of other authorized denominations of the same maturity and
interest rate, upon payment by the transferee of a reasonable transfer fee established by
the Paying Agent, together with 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 City 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 (i) 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 (ii) between the Record
Date for any Interest Payment Date and such Interest Payment Date.
Section 10. 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 City shall execute
and the Paying Agent shall authenticate and deliver a replacement Bond upon the Owner
furnishing, to the satisfaction of the Paying Agent: (a) proof of ownership (which shall be
shown by the registration books of the Paying Agent); (b) proof of loss, destruction or
theft; (c) an indemnity to the City and the Paying Agent with respect to the Bond lost,
destroyed or taken; and (d) payment of the cost of preparing and executing the new Bond.
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Section 11. Establishment of Accounts.
(a) Reaffirmation of Storm Water Drainage Fund. There is hereby
reaffirmed the Storm Water Drainage Fund.
(b) Bond Account. There is hereby established the Bond Account of
the Storm Water Drainage Fund, which shall be maintained by the City in
accordance with the provisions of this Ordinance. Moneys in the Bond Account
shall be used solely for the purpose of paying the principal of, premium if any, and
interest on the Bonds. There shall be deposited with the Paying Agent not less
than three Business Days prior to each Interest Payment Date and Principal
Payment Date, respectively (i) an amount from the Interest Subaccount which is
sufficient to pay the interest on the Bonds due on such Interest Payment Date; and
(ii) an amount from the Principal Subaccount which is sufficient to pay the principal
of and premium, if any, due on the Bonds on such Principal Payment Date.
(i) Interest Subaccount. The Interest Subaccount shall be used
to pay the interest on Bonds. On or before the last day of each month,
commencing in the month next succeeding the date of issuance of the
Bonds, the City shall credit to the Interest Subaccount, from the Net
Revenue and any interest income to be credited to the Interest Subaccount
pursuant to the terms hereof, an amount equal to the Pro Rata Portion of
the interest to come due on the Bonds on the next succeeding Interest
Payment Date.
(ii) Principal Subaccount. The Principal Subaccount shall be
used to pay the principal of and premium, if any, on the Bonds. On or before
the last day of each month, commencing in the month next succeeding the
date of issuance of the Bonds, the City shall credit to the Principal
Subaccount, from the Net Revenue and any interest income to be credited
to the Principal Subaccount pursuant to the terms hereof, an amount equal
to the Pro Rata Portion of the principal coming due on the Bonds on the
next succeeding Principal Payment Date.
(c) Project Account. There is hereby established the Project Account
of the Storm Water Drainage Fund, which shall be maintained by the City in
accordance with the provisions of this Ordinance. All moneys credited to the
Project Account shall be applied solely to the payment of the Project Costs. Except
to the extent otherwise required by the provisions of the Section hereof entitled
“Investments”, interest income from the investment or reinvestment of moneys
credited to the Project Account shall remain in and become part of the Project
Account. Upon the determination of the City Manager that all Project Costs have
been paid or are determinable, any balance remaining in the Project Account (less
any amounts necessary to pay Project Costs not then due and owing) shall be
credited to the Bond Account.
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(d) Reserve Account. There is hereby established the Reserve
Account of the Storm Water Drainage Fund, which shall be maintained by the City
in accordance with the provisions of this Ordinance; provided however, in the event
that the Required Reserve Amount is zero and no reserve is required by the
Underwriter, no Reserve Account shall be established or required to be maintained
by the City. In the event that the Reserve Account is established, moneys in the
Reserve Account shall be used, if necessary, only to prevent a default in the
payment of the principal of, premium if any, or interest on the Bonds, and the
Reserve Account is hereby pledged to the payment of the Bonds. In the event the
amounts credited to the Bond Account are insufficient to pay the principal of,
premium if any, or interest on Bonds when due, the City shall transfer from the
Reserve Account to the appropriate subaccount or subaccounts of the Bond
Account an amount which, when combined with moneys in the subaccount or
subaccounts, will be sufficient to make such payments when due.
(i) Maintenance of Reserve Account. The Required Reserve
Amount shall be funded and maintained in cash or Permitted Investments.
The Reserve Account shall be maintained in the amount of the Required
Reserve Amount until such time as the amount credited thereto, when
combined with moneys in the Bond Account, will be sufficient to pay the
principal of, premium if any, and interest on all of the Bonds, at which time
such moneys may be applied for such purpose. If at any time the amount
of the Reserve Account is less than the Required Reserve Amount, then the
City shall deposit to the Reserve Account from the Net Revenue, amounts
sufficient to bring the amount credited to the Reserve Account to the
Required Reserve Amount. Such deposits shall be made as soon as
possible after such use, but in accordance with and subject to the limitations
of the Section hereof entitled “Security for Payment of Bonds; Flow of
Funds.”
(ii) Valuation and Interest Income. Moneys credited to the
Reserve Account which are invested in Permitted Investments shall be
valued at fair market value and marked to market at least once per year.
Additionally, the investment of moneys credited to the Reserve Account
shall be subject to the covenants and provisions of the Section hereof
entitled “Federal Income Tax Covenants.” Except to the extent otherwise
required by such Section, so long as the amount of the Reserve Account is
equal to the Required Reserve Amount, all interest income from the
investment or reinvestment of moneys credited to the Reserve Account
shall be credited to the Interest Subaccount and/or the Principal
Subaccount, as may be determined by the City; provided that if the amount
of the Reserve Account is less than the Required Reserve Amount, then
such interest income shall be credited to the Reserve Account. The amount
on deposit to the Reserve Account shall never exceed the amount of the
Required Reserve Amount.
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Section 12. Initial Credit of Bond Proceeds. Upon payment to the City 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 City from the sale of the Bonds, together with legally available moneys of the City
available for such purpose, shall be applied as a supplemental appropriation by the City
for the payment of the costs of issuance of the Bonds and for deposit into the Project
Account.
Section 13. Investments. Moneys on deposit in the Bond Account, the Project
Account and the Reserve 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 Letter of Instructions and in the “Tax Compliance Certificate” or similar certificate
delivered by the City in connection with the issuance of the Bonds that describes the
City’s expectations regarding the use and investment of proceeds of the Bonds and other
moneys and the use of the Project.
Section 14. Various Findings, Determinations, Declarations and Covenants.
The City Council, having been fully informed of and having considered all the pertinent
facts and circumstances, hereby finds, determines, declares and covenants with the
Owners of the Bonds that:
(a) it is in the best interest of the City 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;
(b) the issuance of the Bonds will not cause the City to exceed its debt
limit under applicable State law;
(c) the DTC Blanket Letter of Representations entered into with DTC will
govern the book entry registration system for the Bonds; and
(d) 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 Charter, the Colorado Constitution and
laws of the State.
Section 15. Additional Covenants and Agreements. The City hereby further
irrevocably covenants and agrees with each and every Owner that so long as any of the
Bonds remain outstanding:
(a) Competent Management. The City shall employ competent
management personnel for the Storm Water System and will continue to operate
and manage the Storm Water System in an efficient and economical manner in
accordance with all applicable laws, rules and regulations.
(b) Maintenance of Records and Accounts. The City shall keep
proper books of record and accounts showing complete and correct entries of all
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transactions relating to the funds and accounts referred to herein and in such
manner that the Gross Revenue and the Net Revenue may at all times be readily
and accurately determined.
(c) Alienation of Property. The City will not sell or alienate any of the
property constituting any part or all of the Storm Water System in any manner or
to any extent as might reduce the security provided for the payment of the Bonds,
but the City may sell any portion of such property which shall have been replaced
by other similar property of at least equal value, or which shall cease to be
necessary for the efficient operation of the Storm Water System; provided
however, that the proceeds of any such sale of property shall be included as part
of the Gross Revenue.
(d) Payment for Use and Services. The City will promptly render bills
for services furnished by or the use of the Storm Water System, shall use all legal
means to assure prompt payment thereof, shall take such action as may be
necessary to make delinquent rates, fees and charges of the Storm Water System
a lien upon the real property served.
(e) Audits. At least once a year in the time and manner provided by
law, the City will cause an audit to be performed of the records relating to the
revenues and expenditures of the Storm Water System. Such audit may be made
part of and included within the general audit of the City, and made at the same
time as the general audit. In addition, at least once a year in the time and manner
provided by law, the City will cause a budget to be prepared and adopted. Copies
of the budget and the audit will be filed and recorded in the places, time and
manner provided by law.
(f) Insurance. The City will carry such forms of insurance on insurable
Storm Water System property as would ordinarily be carried by utilities having
similar properties of equal value, such insurance being in such amounts as will
protect the Storm Water System and its operation. In the event of any loss or
damage to the Storm Water System, or in the event part or all of the Storm Water
System is taken by the exercise of a power of eminent domain, the insurance
proceeds or the condemnation award shall be used for restoring, replacing or
repairing the property lost, damaged or taken, and the remainder thereof, if any,
shall be considered as Gross Revenue; provided however, that if the City Council
determines that the operation of the Storm Water System and the security for the
Bonds will not be adversely affected thereby, the City Council may determine not
to restore, replace or repair the property lost, damaged or taken and all of the
insurance proceeds or condemnation award shall be considered as Gross
Revenue.
(g) Surety Bonds. Each City official or other person having custody of
any funds derived from the operation of the Storm Water System, or responsible
for the handling of such funds, shall be fully bonded at all times, which bond shall
be conditioned upon the proper application of said funds.
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(h) Enterprise Status. The City has established, and covenants to
continue to maintain, the Storm Water System as an “enterprise” within the
meaning of Article X, Section 20 of the Colorado Constitution, and as a “water
activity enterprise” within the meaning of Title 37, Article 45.1, C.R.S.; provided,
however, after calendar year 2021 the City may disqualify the Storm Water System
as an “enterprise” in any year in which said disqualification does not materially,
adversely affect the enforceability of the covenants made pursuant to this
Ordinance. In the event the Storm Water System is disqualified as an enterprise
and the enforceability of the covenants made pursuant to this Ordinance are
materially, adversely affected, the City covenants to immediately take all actions
necessary to (i) qualify the Storm Water System as an enterprise within the
meaning of Article X, Section 20 of the Colorado Constitution; and (ii) permit the
enforcement of the covenants made herein.
(i) Protection of Security. The City, its officers, agents and
employees, shall not take any action in such manner or to such extent as might
prejudice the security for the payment of the principal of and interest on the Bonds
and any other securities payable from the Net Revenue according to the terms
thereof.
Section 16. Federal Income Tax Covenants. For purposes of ensuring that the
interest on the Bonds is and remains excluded from gross income for federal income tax
purposes, the City hereby covenants that:
(a) Prohibited Actions. The City will not use or permit the use of any
proceeds of the Bonds or any other funds of the City 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 City will at all times do and perform all
acts permitted by law that are necessary in order to assure that interest paid by the
City 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 City 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 itself
will not be used in a manner that will cause the Bonds to be considered “private
activity bonds” within the meaning of the Code; (ii) the Bonds are not and will not
become directly or indirectly “federally guaranteed”; and (iii) the City 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 Letter of Instructions. The City will comply with the Tax Letter
of Instructions delivered to it on the date of issuance of the Bonds, including but
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not limited by the provisions of the Tax Letter of Instructions 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 Letter of Instructions; provided that, in the event the
Tax Letter of Instructions are superseded or amended by new Tax Letter of
Instructions drafted by, and accompanied by an opinion of, Bond Counsel stating
that the use of the new Tax Letter of Instructions will not cause the interest on the
Bonds to become includible in gross income for federal income tax purposes, the
City will thereafter comply with the new Tax Letter of Instructions.
Section 17. Additional Bonds.
(a) No Superior Lien Bonds. No bonds, notes, interim securities or
other obligations shall be issued payable from the Net Revenue and having a lien
thereon which is superior to the lien of the Bonds.
(b) Parity Lien Bonds. The City may issue Parity Lien Bonds if:
(i) As of the date of issuance of the Parity Lien Bonds the City is
in substantial compliance with all of the covenants of this Ordinance;
(ii) As of the date of issuance of the Parity Lien Bonds the City is
current in the accumulation of all amounts required to be then accumulated
in the Bond Account and the Reserve Account, if any; and
(iii) For any 12-month period during the 18-month period
immediately preceding the date of issuance of such Parity Lien Bonds, the
Net Revenue is sufficient to pay an amount representing not less than 125%
of (or 1.25 times) the Combined Maximum Annual Principal and Interest
Requirements for the outstanding Bonds, outstanding Parity Lien Bonds, if
any, and the Parity Lien Bonds proposed to be issued. For purposes of
such test, if there has been adopted a schedule of increases in rates, fees
and charges during the preceding 18-month period, the Net Revenue may
be increased for those months in which such increase was not in effect for
the 12-month period in which such calculation is made by adding to the
actual revenues for such period an estimated sum equal to 100% of the
estimated increase in revenues which would have been realized during said
period had such increase been in effect for the entire 12-month period (the
requirement set forth in this subparagraph (iii) shall not apply to any Parity
Lien Bonds issued for the purpose of refunding less than all of the
outstanding Bonds).
A written certificate by the City Manager or City Finance Director that
the conditions set forth in paragraphs (i), (ii) and (iii) above have been met
shall conclusively determine that such conditions have been met in
accordance with the terms hereof.
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(c) Subordinate Lien Bonds. So long as no Event of Default shall have
occurred and be continuing, nothing herein shall prevent the City from issuing
Subordinate Lien Bonds.
Section 18. 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 City shall have given the
Paying Agent irrevocable directions to give notice of redemption as required by this
Ordinance, or such notice shall have been given in accordance with this Ordinance). In
computing the amount of the deposit described above, the City 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 City, in its sole discretion, may
select which of the Bonds shall be defeased. The sufficiency of the escrow shall be
determined by a Certified Public Accountant.
Notwithstanding anything herein to the contrary, in the event that the principal
and/or interest due on the Bonds or any portion thereof shall be paid by the Bond Insurer
pursuant to the Bond Insurance Policy, the Bonds shall remain outstanding for all
purposes, not be defeased or otherwise satisfied and not be considered paid by the City,
and all covenants, agreements and other obligations of the City to the Owners shall
continue to exist and shall run to the benefit of the Bond Insurer, and the Bond Insurer
shall be subrogated to the rights of such Owners.
Section 19. 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 City of any
material covenant set forth herein or failure by the City to perform any material duty
imposed on it hereunder and continuation of such breach or failure for a period of
thirty days after receipt by the City Attorney 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 thirty-day period shall be extended so long as
the City 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 City bankrupt under federal bankruptcy law or
appointing a receiver of all or any material portion of the City’s assets or revenues
is entered with the consent or acquiescence of the City or is entered without the
consent or acquiescence of the City but is not vacated, discharged or stayed within
thirty days after it is entered.
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Section 20. 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 City 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 City of any liability for failure to
perform or carry out its duties under this Ordinance. Each right or privilege of any
such Owner (or trustee therefor) is in addition and is cumulative to any other right
or privilege, and the exercise of any right or privilege by or on behalf of any Owner
shall not be deemed a waiver of any other right or privilege of such Owner.
(c) Rights of the Bond Insurer. To the extent that this Ordinance
confers upon or gives or grants to the Bond Insurer any right, remedy or claim
under or by reason of this Ordinance, the Bond Insurer is hereby explicitly
recognized as being a third-party beneficiary hereunder and may enforce any such
right, remedy or claim conferred, given or granted hereunder. Upon the occurrence
and continuance of an Event of Default, so long as it is not in default of its
obligations under the Bond Insurance Policy, the Bond Insurer shall be entitled to
control and direct the enforcement of all rights and remedies granted to the Owners
under this Ordinance and pursuant to State law.
Section 21. Amendment of Ordinance.
(a) Amendments Permitted Without Notice to or Consent of
Owners. The City may, without the consent of or notice to the Owners (but so long
as it is not in default of its obligations under the Bond Insurance Policy, if any, only
after prior written notice to the Bond Insurer), 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;
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(ii) to subject to this Ordinance or pledge to the payment of the
Bonds additional revenues, properties or collateral;
(iii) to institute or terminate a book 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 City 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
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 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. For purposes of this subsection (b), so long as the
Bond Insurer is not in default of its obligations under the Bond Insurance Policy,
the Bond Insurer shall be deemed to be an Owner of the Bonds, and no
amendatory or supplemental ordinance may be adopted under this Section without
its consent.
(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 City shall provide such notice by electronic
means to DTC or its successors, or by mail to such Owner or Owners at their
addresses as set forth in the registration books maintained by the Paying Agent
and to the Underwriter, which notice shall briefly describe the proposed
amendment and state that a copy of the amendment is on file in the office of the
City 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 sixty days after it is delivered to the City
unless another time period is stated for such purpose in the notice mailed pursuant
to this subsection.
Section 22. Appointment and Duties of Paying Agent. The Paying Agent
identified in the Section hereof titled “Definitions” is hereby appointed as paying agent,
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registrar and authenticating agent for the Bonds unless and until the City 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;
provided however, that so long as the Bond Insurer is not in default of its obligations under
the Bond Insurance Policy, if any, the City may not remove the Paying Agent or Bond
Registrar without the consent of the Bond Insurer. The Paying Agent shall agree to
perform all duties and to take all actions assigned to it hereunder in accordance with the
terms hereof.
Section 23. Bond Insurance. Upon the recommendation of the Underwriter
based upon market conditions and the rating on the Bonds, one or more bond insurers
may be requested to submit bids to issue the Bond Insurance Policy. In the event that
the Sale Delegate determines, based upon information provided by the Underwriter, that
the lowest acceptable premium bid for issuance of the Bond Insurance Policy is less than
the interest cost savings to be realized by the City as a result of the issuance of the Bond
Insurance Policy, the Sale Delegate shall accept the Commitment issued by the lowest
acceptable bidder and the Bonds, in whole or for specific maturities, shall be issued
insured by the Bond Insurance Policy issued by such lowest acceptable bidder, who shall
be deemed to be the Bond Insurer hereunder. In the event the Sale Delegate determines,
based upon information provided by the Underwriter that the lowest acceptable premium
bid for the Bond Insurance Policy is more than the interest cost savings to be realized by
the City as a result of the issuance of the Bond Insurance Policy, the Bonds shall be
issued without bond insurance. If the Bonds, in whole or for specific maturities, are issued
insured by the Bond Insurance Policy, the officers and employees of the City are hereby
authorized and directed to take all actions necessary to cause the Bond Insurer selected
to issue the Bond Insurance Policy in accordance with the Commitment, including without
limitation, payment of the premium due in connection therewith and entering into any
authorizing agreements. For purposes of this Section, the term “lowest acceptable
premium bid” means the lowest bid submitted which is not conditioned upon the City’s
compliance with conditions deemed unacceptable by the Sale Delegate, and the term
“lowest acceptable bidder” means the bidder submitting the lowest acceptable premium
bid.
Section 24. Approval of Related Documents. The City Council hereby ratifies
and approves the distribution and use in connection with the offering of the Bonds of the
Preliminary Official Statement and an Official Statement relating to the Bonds; and for a
period of one year following the adoption of this Ordinance, the Sale Delegate is
authorized to execute the Sale Certificate and the Bond Purchase Agreement. The
appropriate officers and officials of the City are hereby authorized and directed to execute
an undertaking to facilitate compliance with Securities and Exchange Commission
Rule 15c2-12 (17 C.F.R. § 240.15c2-12), the Paying Agent Agreement, a “Tax
Compliance Certificate” or similar certificate describing the City’s expectations regarding
the use and investment of proceeds of the Bonds and other moneys, 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.
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Section 25. Events Occurring on Days That Are Not Business Days. Except
as otherwise specifically provided herein with respect to a particular payment, event or
action, if any payment to be made hereunder or any event or action to occur hereunder
which, but for this Section, is to be made or is to occur on a day that is not a Business
Day, such payment, event or action shall instead be made or occur on the next
succeeding day that is a Business Day with the same effect as if it was made or occurred
on the date on which it was originally scheduled to be made or occur.
Section 26. Limitation of Actions. In accordance with Section 11-57-212,
C.R.S., no legal or equitable action can be brought with respect to any legislative acts or
proceedings in connection with the authorization of the Bonds more than thirty days after
the authorization of such securities.
Section 27. 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 City 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 City with respect to the Bonds shall have been satisfied in the
manner provided herein.
Section 28. 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 29. 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 30. Repeal of Inconsistent Ordinances, Resolutions, Bylaws, Rules
and Orders. All ordinances, resolutions, bylaws, rules and orders, 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 31. Ratification of Prior Actions. All actions heretofore taken (not
inconsistent with the provisions of this Ordinance, the Enabling Laws or the Charter) by
the City Council or by the officers and employees of the City directed toward the issuance
of the Bonds for the purposes herein set forth are hereby ratified, approved and
confirmed.
Section 32. Effective Date. This Ordinance shall take effect thirty days after
publication following final passage.
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Introduced, read in full, and passed on first reading on the 15th day of March, 2021.
Published by Title as a Bill for an Ordinance in the City’s official newspaper on the
18th day of March, 2021.
Published as a Bill for an Ordinance on the City’s official website beginning on the
17th day of March, 2021 for thirty (30) days.
Read by Title and passed on final reading on the 5th day of April, 2021.
Published by Title in the City’s official newspaper as Ordinance No. 12, Series of 2021,
on the 8th day of April, 2021.
Published by title on the City’s official website beginning on the 7th day of April, 2021
for thirty (30) days.
This Ordinance shall take effect thirty (30) days after publication following final
passage.
Linda Olson, Mayor
ATTEST:
Stephanie Carlile, City Clerk
I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that
the above and foregoing is a true copy of the Ordinance passed on final reading and
published by Title as Ordinance No. 12, Series of 2021.
Stephanie Carlile
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APPENDIX A
FORM OF BOND
UNITED STATES OF AMERICA
STATE OF COLORADO
CITY OF ENGLEWOOD, COLORADO
Acting By and Through Its
STORM WATER ENTERPRISE
STORM WATER ENTERPRISE REVENUE BOND, SERIES 2021
No. R __ $__________
Interest Rate Maturity Date Original Dated
Date
CUSIP
_____% ___
REGISTERED OWNER: Cede & Co.
Tax Identification Number: 13-2555119
PRINCIPAL SUM: **DOLLARS**
The City of Englewood, Colorado, a duly organized and validly existing home-rule
municipality of the State of Colorado, 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 _________
and _________ of each year, commencing _________. Capitalized terms used but not
defined in this bond shall have the meaning assigned to them in the Ordinance of the City
authorizing the issuance of the Bonds.
The principal of and interest on this bond is payable to the registered owner hereof
upon presentation and surrender of this bond at the principal operations office of UMB
Bank, n.a., as paying agent, in Denver, Colorado, or at such other office of the Paying
Agent designated by the Paying Agent for such purpose. Interest on this bond is payable
by check or draft of the Paying Agent mailed on the Interest Payment Date to the
registered owner hereof as of the [fifteenth day of the month immediately preceding] [first
day of] the month (whether or not such day is a Business Day) in which the Interest
Payment Date occurs; 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 City to make moneys available to the Paying Agent earlier
than otherwise required under the Ordinance or increase the costs borne by the City
under the Ordinance; provided further, that, so long as Cede & Co. is the registered owner
of this bond, the principal of and interest on this bond shall be paid by wire transfer to
Cede & Co. Any payment of principal of or interest on this bond that is due on a day that
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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 bond shall be made in lawful
money of the United States of America.
This bond is part of an issue of revenue bonds of the City designated the City of
Englewood, Colorado, Storm Water Revenue Bonds, Series 2021, 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 Charter, the Constitution and the laws of
the State, including, in particular, Part 2 of Article 57 of Title 11, Colorado Revised
Statutes; and pursuant to an ordinance adopted by the Englewood City Council. THE
ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE REGISTERED
OWNER OF THIS BOND AND THE CITY. 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 principal of, premium if any, and interest on this Bond are payable only out of:
(a) a special account designated as the “Bond Account,” into which the City covenants
and agrees to deposit, from the revenues derived from the operation of the water facilities
comprising the Storm Water Enterprise after deduction of operations and maintenance
costs (the “Net Revenue”), amounts sufficient to pay the principal of and interest on the
Bonds when the same become due and payable; [and (b) if necessary, a special account
designated as the “Reserve Account,”] all as more particularly set forth in the Bond
Ordinance. The Bonds shall constitute an irrevocable and first lien upon the Net Revenue,
but not necessarily an exclusive such lien. Subject to expressed conditions, obligations
in addition to the Bonds of this issue may be issued and made payable from the Net
Revenue having a lien thereon subordinate and junior to the lien of the Bonds of this issue
or, subject to additional expressed conditions, having a lien on the Net Revenue on a
parity with the lien of the Bonds of this issue, in accordance with the provisions of the
Bond Ordinance.
[The redemption provisions from Section 4 of the Ordinance and the Sale
Certificate shall be set forth herein.]
Notice of any redemption of Bonds shall be given by the Paying Agent in the name
of the City by electronic means to DTC or its successors, or by sending a copy of such
notice by first class, postage prepaid mail, not less than thirty 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 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
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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.
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 this bond shall be overdue, and neither
the City 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 office of the Paying
Agent in Denver, Colorado, or at such other office of the Paying Agent designated by the
Paying Agent for such purpose for a like aggregate principal amount of Bonds of other
authorized denominations ($5,000 or any integral multiple thereof) of the same maturity
and interest rate, upon payment by the transferee of a reasonable transfer fee established
by the Paying Agent, together with 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 City shall execute and the Paying Agent shall authenticate and
deliver in the name of the transferee a new Bond. 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.
It is hereby certified that all conditions, acts and things required by the Charter, the
Constitution and laws of the State, including the Act, and the ordinances of the City, 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 Charter,
the Constitution or laws of the State, including the Act, or the ordinances of the City.
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.
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IN WITNESS WHEREOF, the City Council of the City has caused this bond to be
executed with the signature of its Mayor and attested by the signature of its City Clerk,
and has caused the seal of the City to be impressed or imprinted hereon, all as of the
date set forth below.
[CITY SEAL]
THE CITY OF ENGLEWOOD
By
Mayor
Attest:
By
City Clerk
CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds of the issue described in the within mentioned
Ordinance.
Dated:
UMB BANK, N.A., as Paying Agent
By
Authorized Signatory
[PROVISION REGARDING BOND INSURANCE, IF ANY]
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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: [The form of legal opinion
of Bond Counsel shall be set forth here.] I, the undersigned City Clerk of the City of
Englewood, Colorado, do hereby certify that the foregoing approving opinion of Kutak
Rock LLP, Denver, Colorado, is a true and complete copy of a manually executed and
dated copy thereof on file in the official records of the City.
By (facsimile signature)
City Clerk
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
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