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HomeMy WebLinkAbout2019 Ordinance No. 028ORDINANCE NO. 28 SERIES OF 2019 BY AUTHORITY COUNCIL BILL NO. 28 INTRODUCED BY COUNCIL MEMBER RUSSELL AN ORDINANCE AUTHORIZING THE ISSUANCE BY CITY OF ENGLEWOOD OF A GENERAL OBLIGATION REFUNDING NOTE TO EVIDENCE A LOAN INCURRED FOR THE PURPOSE OF REFUNDING OUTSTANDING CITY BONDS AT A LOWER INTEREST RATE; AND PROVIDING FOR THE PAYMENT AND CANCELLATION OF THE REFUNDED BONDS, FOR THE LEVY OF PROPERTY TAXES TO PAY THE NOTE AND OTHER DETAILS IN CONNECTION THEREWITH. 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); and WHEREAS, pursuant to Section 106 of the Charter, the City may issue refunding bonds by ordinance, without an election, for the purpose of paying outstanding bonds of the City; and WHEREAS, pursuant to Article X, Section 20 of the State Constitution (TABOR) refinancing bonded debt at lower interest rates does not require voter approval in advance under the terms and provisions of TABOR; and WHEREAS, the City previously issued its "City of Englewood, Colorado, General Obligation Water Bonds, Series 2009" of which $2,615,000 in aggregate principal amount are currently outstanding and bear interest at rates between 4.150% and 4.625% per annum (the "Series 2009 Bonds"); and WHEREAS, the Series 2009 Bonds are subject to redemption prior to maturity, at the option of the City, upon thirty days prior notice to bondholders and the payment of par and accrued interest to the redemption date (without redemption premium); and WHEREAS, the principal of and interest on the Series 2009 Bonds are payable at UMB Bank, n.a., in Denver, Colorado, or its successor, as paying agent; and WHEREAS, following the receipt of a refunding proposal from Wells Fargo Bank, National Association and consultation with Stifel, Nicolaus & Company, Incorporated, of Denver, Colorado, the City's municipal advisor, regarding the formulated Loan interest rate to be fixed shortly before the Dated Date, as well as the anticipated gross savings to be realized by the City as a result of the refunding, the City Council has determined that the acceptance of such proposal is in the best advantage of the City; and 4848-5166-3256.3 WHEREAS, the proceeds derived from the Loan will be irrevocably deposited with the Series 2009 Paying Agent and immediately applied to the payment and cancellation of the Series 2009 Bonds; and WHEREAS, to evidence the Loan the City Council desires to authorize the issuance and delivery of the Note and delegate authority to the Loan Delegate to make certain determinations regarding the Note to be set forth in the Loan Certificate in accordance with the provisions of this Ordinance; and WHEREAS, no member of the City Council has a potential conflict of interest in connection with the authorization, issuance, delivery or use of proceeds of the Note; and WHEREAS, this Ordinance is being adopted to authorize the issuance and delivery of the Note, and to provide for the details and payment of such obligation. 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: "Authorized Denomination" means the outstanding principal amount of the Note. "Bond Counsef' means (a) as of the date of issuance of the Note, 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. "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 home rule Charter of the City. "City" means the City of Englewood, Colorado "City Councir' means the City Council of the City. "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 or the use of proceeds thereof, unless the context clearly requires otherwise. "County" means Arapahoe County, Colorado. "C.R.S." means the Colorado Revised Statutes, as amended. "Dated Date" means the date of issuance and delivery of the Note. "Default Rate" means the fixed rate of interest per annum equal to 12.00%. 2 4848-5 I 66-3256.3 "Determination ofTaxability" means any determination, decision or decree made by the Commissioner or any District Director of the Internal Revenue Service of the Department of Treasury, or by any court of competent jurisdiction, that the interest payable on the Note is includable, in whole, or in part, in the gross income for federal income tax purposes of the Holder by virtue of (i) the taking of any action by the City, or the failure to take any action by the City, or the making by the City of any misrepresentation herein or in any certificate required to be given in connection with the Note) which has the effect of causing interest paid or payable on the Note to become includable, in whole or in part, in the gross income of the Holder for federal income tax purposes or (ii) the entry of any decree or judgment by a court of competent jurisdiction, or the taking of any official action by the Internal Revenue Service of the Department of the Treasury (which decree,judgment or action arose as a result of, or is based on, in whole or in part, the City's action, inaction or misrepresentation described under (i)) shall be final under applicable procedural law, in either case, which has the effect of causing interest paid or payable on the Note to become includable, in whole or in part, in the gross income of the Holder pursuant to Section I 03 (b) of the Internal Revenue Code, and the rules and regulation promulgated thereunder if and so long as such determination, decision or decree is not being appealed or otherwise contested in good faith by the City. "EMMA" means the Municipal Securities Rulemaking Board's Electronic Municipal Access System or any service or services established by the Municipal Securities Rulemaking Board ( or any of its successors) as a successor to the Electronic Municipal Access System. "Enabling Laws" means the Charter, the Supplemental Public Securities Act and other applicable law relating to the authorization and issuance of the Note. "Event of Default" means any of the events specified in the Section hereof entitled "Events of Default." "Federal 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. "Holder" means the Lender as of the Dated Date, and thereafter, following a transfer and exchange of the Note, the Person in whose name the Note is registered on the registration books maintained by the Note Registrar pursuant to the terms of this Ordinance. "Interest Payment Dates" means each January 1 and July 1 commencing January 1, 2020 and continuing until the principal of the Note is paid in full on the Maturity Date. "Interest Rate" means (i) the Tax-Exempt Rate, which is interest rate on the Note on the Dated Date; (ii) the Default Rate, which is the interest rate on the Note upon an Event of Default until such Event of Default is cured to the satisfaction of the Holder; or (iii) the Taxable Rate, which is interest rate on the Note upon a Determination of Taxability "Lender" means Wells Fargo Municipal Capital Strategies, LLC, a wholly owned subsidiary of Wells Fargo Bank, National Association, Wells Fargo Bank, National Association, 3 4848-5166-3256.3 or any other wholly owned subsidiary of Wells Fargo Bank, National Association, which entity is the initial registered owner of the Note. "Loan" means the loan extended by the Lender pursuant to the terms established in this Ordinance and evidenced through the issuance and delivery of the Note by the City. "Loan Certificate" means the certificate executed by the Loan Delegate under the authority delegated pursuant to this Ordinance which sets forth the final terms of the Note. "Loan Delegate" means the City Finance Director or the City Manager. "Maturity Date" means January I, 2029. "Maximum Federal Corporate Tax Rate" means the maximum rate of income taxation imposed on corporations pursuant to Section 11 (b) of the Code, as in effect from time to time ( or, if as a result of a change in the Code, the rate of income taxation imposed on corporations generally shall not be applicable to national banking associations, the maximum statutory rate of federal income taxation which could apply to national banking associations). "Note" and "Series 2019 Note" mean the "General Obligation Refunding Note, Series 2019" authorized by the Section hereof entitled "Authorization and Purpose of Note." The Note shall be considered a bond as said term is used in Article X, Part III of the Charter. "Note Account" means the account or subsidiary accounts established by the City for deposit of ad valorem taxes and other legally available moneys to satisfy the Loan repayment obligation evidenced by the Note. "Note Registrar" means the City Finance Director, who shall perform or cause to be performed the function of registrar with respect to the Note, or any Qualified Bank successor appointed in accordance with this Ordinance. "Ordinance" means this Ordinance which authorizes the Loan as evidenced by the issuance and delivery of the Note, including any amendments or supplements hereto. "Paying Agent" means the City Finance Director, who shall perform or cause to be performed the function of paying agent with respect to the Note, or any Qualified Bank successor appointed in accordance with this Ordinance. "Permitted Investments" means any lawful investment permitted for the investment of funds of the City by the Enabling Laws. "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. "Principal Redemption Date" means January I each year, commencing January 1, 2020 and continuing until the principal of the Note is paid in full on the Maturity Date. "Public Deposit Protection Act" means Title 11, Article 10.5, Part I, C.R.S. 4 4848-5166-3256.3 "Qualified Banlc' means a national banking association duly organized and existing under the laws of the United States of America or other eligible public depository duly certified under the Public Deposit Protection Act and having full and complete trust powers. "Record Date" means, with respect to each Interest Payment Date and Principal Redemption Date, 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 and Principal Redemption Date occurs. "Refunded Bond Requirements" means the principal of and interest due in connection with the payment and cancellation of the Series 2009 Bonds on the Series 2009 Redemption Date. "Refunding Project" means any purpose for which proceeds of the Note may be expended under the Enabling Laws, including, but not limited to, the payment of the costs of issuance of the Note and the refunding, paying and discharging of the Refunded Bond Requirements. "Series 2009 Bonds" means the City's General Obligation Water Bonds, Series 2009, dated July 8, 2009 and outstanding in the aggregate principal amount of$2,615,000. "Series 2009 Paying Agent" means UMB Bank, n.a., in Denver, Colorado. "Series 2009 Bond Ordinance" means the Ordinance of the City authorizing the issuance of the Series 2009 Bonds. "Series 2009 Redemption Date" means August I, 2019, or such later date, if necessary, as established by the Loan Delegate in the Loan Certificate. "State" means the State of Colorado. "Supplemental Public Securities Act" means Title 11, Article 57, C.R.S. "Taxable Rate" means the interest rate per annum equal to the product of (i) the Tax- Exempt Rate or Default Rate in effect at the time that the Taxable Rate applies to the Note and (ii) the quotient of(a) one divided by (b) one minus the Maximum Federal Corporate Tax Rate in effect on the date of calculation. "Tax-Exempt Rate" means the per annum fixed rate of interest for the Note established pursuant to the Loan Certificate. "Tax Letter of Instructions" means the Tax Letter of Instructions, dated the date on which the Note is originally issued and delivered to the City by Bond Counsel, as such instructions may be superseded or amended in accordance with their terms. Section 2. Authorization and Purpose of the Note. Pursuant to and in accordance with the Enabling Laws, the City Council hereby authorizes, approves and orders that, as evidence of the Loan from the Lender, there shall be issued the "City of Englewood General Obligation Refunding Note, Series 2019" for the purpose of providing funds for the Refunding Project. 5 4848-5166-3256.3 Section 3. Note Details. (a) Registered Form, Denomination, Dated Date and Numbering. The Note shall be issued in the Authorized Denomination as a single, certificated, fully registered Note, dated as of the Dated Date, which shall be registered in the name of the Holder. The Note shall be numbered R-1, and if transferred thereafter numbered consecutively beginning with the number "2" preceded by the letter "R." (b) Note Detail Delegation and Parameters. (i) Loan Delegate. The City Council hereby delegates to the Loan Delegate, for a period of three months from the effective date of this Ordinance, the authority to determine following provisions to be set forth in the Loan Certificate, subject to the parameters established in paragraph (ii) of this subsection (b ): (A) the Dated Date; (B) the aggregate principal amount of the Note; (C) the Interest Rate; (D) the mandatory scheduled principal redemption in any particular year; and (E) the Series 2009 Redemption Date. (ii) Loan Parameters. The authority delegated to the Loan Delegate in paragraph (i) of this subsection (b) shall be subject to the following parameters: (i) the aggregate principal amount of the Note shall not exceed $2,700,000; (ii) the maximum net effective interest rate for the Note shall not exceed 3.00% per annum for the Tax-Exempt Rate or 12.00% per annum for the Default Rate or Taxable Rate; (iii) the amortization schedule for the payment of principal of and interest on the Note shall be structured to result in approximately level annual savings; and (iv) the gross savings realized by the City from the Refunding Project, taking into consideration moneys available for payment of the debt service on the Series 2009 Bonds which may be applied for such purpose, shall be not less than $190,000. (c) Accrual and Dates for Payment of Interest. Interest on the Note (calculated based on a 360 day year of twelve 30-day months) shall accrue at the Interest Rate 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. 6 4848-5166-3256.3 (d) Manner and Form of Payment. (i) Manner of Payment. The interest on the Note is payable to the Holder at its address as it appears on the registration book maintained by or on behalf of the City by the Paying Agent. The principal of the Note shall be payable to the Holder, at its address as it appears on the registration book maintained by or on behalf of the City by the Paying Agent, upon prior mandatory scheduled principal redemption or on the Maturity Date. (ii) Form of Payment. Interest and principal payments shall be paid by check or draft of the Paying Agent mailed on or before each Interest Payment Date, Principal Redemption Date and Maturity Date to the Holder. The Paying Agent may make payments of interest and principal by alternative means, such as by wire transfer, as may be mutually agreed to between the Holder of the Note and the Paying Agent. All payments of the principal of and interest on the Note shall be made in lawful money of. the United States of America. (iii) Presentment of the Note. The Note certificate must be presented for the final payment of the principal of the Note on the Maturity Date but is not required to be presented for mandatory scheduled principal redemption payments. Presentation of the Note to the Paying Agent for the final payment of the principal of the Note on the Maturity Date shall be made at the principal office of the Paying Agent, or at such other address as provided in writing by the Paying Agent to the Holder. Section 4. Redemption of the Note Prior to Maturity. (a) No Optional Redemption. The Note shall not be subject to redemption at the option of the City. (b) Mandatory Scheduled Principal Redemption. The principal amount of the Note shall be subject to mandatory scheduled principal redemption on each Principal Redemption Date and in the principal amounts specified in the Loan Certificate, at a redemption price equal to the principal amount thereof (with no redemption premium), plus accrued interest to the scheduled Principal Redemption Date. No notice to the Holder shall be required for mandatory scheduled principal redemption. Section 5. Security for the Note. (a) General Obligatio11. The Note shall be a general obligation of the City, and the full faith and credit of the City are pledged for the punctual payment of the principal of and interest on the Note. The Note shall not constitute a debt or indebtedness of the County, the State or any political subdivision of the State other than the City. (b) Levy of Ad Valorem Taxes. For the purpose of paying the principal of and interest on the Note when due, respectively, the City Council shall annually 7 4848-5166-3256.3 determine and certify to the Board of County Commissioners of the County, a rate of levy for general ad valorem taxes on all of the taxable property which is within the City or otherwise responsible for the payment of the Note sufficient to pay the principal of and interest on the Note when due, whether at maturity or upon mandatory scheduled principal redemption. (c) Application of Proceeds of Ad Valorem Taxes. The general ad valorem taxes levied pursuant to subsection (b) of this Section, when collected, shall be deposited in the Note Account and shall be applied solely to the payment of the principal of and interest on the Note and for no other purpose (except as otherwise provided in subsection (e) of this Section) until the Note, including principal and interest, are fully paid, satisfied and discharged. (d) Appropriation and Budgeting of Proceeds of Ad Valorem Taxes. Moneys received from the general ad valorem taxes levied pursuant to subsection (b) of this Section are hereby appropriated for that purpose, and all such amounts required to pay the principal of and interest on the Note due, respectively, in each year, subject to the limitations set forth in this Ordinance, shall be included in the annual budget and appropriation Ordinance to be adopted and passed by the City Council for such year. (e) Use or Advance of Other Legally Available Moneys. Nothing herein shall be interpreted to prohibit or limit the ability of the City to use legally available moneys other than the proceeds of the general ad valorem property taxes levied pursuant to subsection (b) of 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 City 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 City 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. (f) Certification to County Commissioners. It is hereby declared that, if the City does not otherwise determine and certify to the Board of County Commissioners of the County a rate oflevy for general ad valorem property taxes as required by subsection (b) of this Section, the foregoing provisions of this Section shall constitute a certificate from the City Council to the Board of County Commissioners of the County showing the aggregate amount of ad valorem taxes to be levied by the Board of County Commissioners of the County from time to time, as required by law, for the purpose of paying the principal of and interest on the Note when due. Section 6. Form of the Note. The Note shall be in substantially the form set forth in Appendix A hereto, with such changes to such forms not inconsistent herewith, as may be necessary or desirable and approved by the officials of the City executing the same (whose manual signatures thereon shall constitute conclusive evidence of such approval). All covenants, statements, representations and agreements contained in the Note are hereby approved and 8 4848-5166-3256.3 adopted as the covenants, statements, representations and agreements of the City. 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. The Note shall recite that it is issued under the authority of the Enabling Laws, and specifically that it is issued pursuant to the Supplemental Public Securities Act. Such recital shall be conclusive evidence of the validity and the regularity of the issuance of the Note after its delivery for value. Section 7. Execution, Authentication and Delivery. (a) Execution. The Note shall be issued in physical form and shall be executed in the name and on behalf of the City with the manual signature of the Mayor of the City, shall bear a manual or facsimile of the seal of the City and shall be attested by the manual signature of the City Clerk of the City, both of whom are hereby authorized and directed to prepare and execute the Note in accordance with the requirements hereof. Should any officer whose manual signature appears on the Note cease to be such officer before delivery of the Note, such manual signature shall nevertheless be valid and sufficient for all purposes. (b) Autlzentication. When the Note has been duly executed, the officers of the City are authorized to, and shall, deliver the Note to the Paying Agent for I authentication. The Note shall not be secured by or entitled to the benefit of this Ordinance, and shall not 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 the Note shall be conclusive evidence, and the only competent evidence, that the Note has been properly authenticated hereunder. (c) Delivery. Upon the authentication of the Note, the receipt of the proceeds of the Loan evidenced by the Note from the Lender and the issuance of the approving opinion of Bond Counsel, the Note shall be released and delivered to the Lender in accordance with the directions of the Lender. Section 8. Registration, Exchange and Transfer. (a) Registration. The Paying Agent shall maintain a registration book in which the ownership, transfer and exchange of the Note shall be recorded. The Person in whose name the Note shall be registered on such registration book shall be deemed to be the absolute owner thereof for all purposes. (b) Transfer and Exc/zange. The Note may be transferred or exchanged in whole, but not in part, at the principal operations office of the Paying Agent or at such other location designated by the Paying Agent for such purpose, upon payment by the transferee of a transfer fee, any tax or goverrunental charge required to be paid with respect to such transfer or exchange; provided that the Note may only be transferred to (a) an affiliate of the Lender, (b) a trust or custodial arrangement established by the Lender or one of its affiliates, the owners of the beneficial interests in which are limited to qualified institutional buyers, as defined in Rule 144A promulgated under the Securities Act of 1933, as amended, or (c) to a Person that is a qualified institutional 9 4848-5166-3256.3 buyer and a commercial bank having capital and surplus of $5,000,000,000 or more that has executed and delivered such representation to the City and the Paying Agent. Upon surrender for transfer of the Note, duly endorsed for transfer or accompanied by an assignment duly executed by the Holder 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 Note. The transferring Holder shall pay any reasonable costs of the City incurred in connection with the transfer of the Note. Notwithstanding any other provision hereof, the Paying Agent shall not be required to transfer the Note between the Record Date for any Interest Payment Date or Principal Redemption Date and the date on which such payments are due. (c) Assignments and Participations. Nothing in this Ordinance shall restrict the right of the Holder to assign or participate its interest in the Note; provided however, such assignments or participations shall not result in more than a single Holder of the Note or cause the ownership of the Note to be registered in the name of more than a single Person. The Lender shall represent that, as of the Dated Date, it is making the Loan and acquiring the Note for its own account, and with no present intention of (i) reselling or redistributing the Note or interests therein or (ii) of making assignments or participations of its interests in the Note. Section 9. Replacement and Cancellation. (a) Replacement. 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 City shall execute and the Paying Agent shall authenticate and deliver a replacement Note upon the Holder furnishing, to the satisfaction of the Paying Agent: (a) proof of ownership (which shall be shown by the registration book 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 Note lost, destroyed or taken, and (d) payment of the cost of preparing and executing the new Note. (b) Cancellation. If the Note shall be delivered to the Note Registrar for cancellation pursuant to this Ordinance and upon payment of the principal amount and interest represented thereby, or whenever the Note shall be delivered to the Note Registrar for transfer or exchange pursuant to the provisions hereof, the Note shall be cancelled by the Note Registrar in accordance with the customary practice of the Note Registrar and applicable retention laws. The Note Registrar shall not be responsible for, and shall bear no liability to the City in connection with, any Note which the Holder fails to deliver to the Note Registrar in accordance with the requirements of this Ordinance. Section 10. Establishment of the Note Account. (a) Establisl,ment oftl,e Note Account. There is hereby established for the payment of the principal of and interest on the Note the Note Account, which shall be an account or subaccount within the appropriate fund of the City as determined by the City Finance Director. The foregoing account shall be maintained by the City in accordance with the provisions of this Ordinance. 10 4848-5166-3256.3 (b) Investments. Moneys credited to the Note Account shall be invested or deposited in securities or obligations which are Permitted Investments. The investment of moneys credited to the Note Account shall, however, be subject to the covenants and provisions of the Section hereof entitled "Federal Tax Covenants." Except to the extent otherwise required by such Section, all interest income from the investment or reinvestment of moneys credited to the Note Account shall remain in the Note Account. Section 11. Deposit of Loan Proceeds; Payment of Series 2009 Bonds. (a) Deposit of Loan Proceeds. The proceeds of the Loan evidenced by the Note shall be applied as a supplemental appropriation by the City as follows: (i) to the bond account held by the Series 2009 Paying Agent pursuant to the terms of the Series 2009 Bond Ordinance in an amount sufficient for the immediate payment of the Refunded Bond Requirements in full and cancellation of the Series 2009 Bonds; and (ii) for the payment of the costs of issuance of the Note. (b) Payment of Series 2009 Bonds. Subject to the issuance of the Note, the City Council does hereby reaffirm its intent to exercise on behalf of and in the name of the City its option to pay and cancel the Series 2009 Bonds on the Series 2009 Redemption Date, which is the earliest date on which the Series 2009 Bonds can be redeemed. The City Council hereby reaffirms the direction provided to the Series 2009 Paying Agent to give conditional notice for the redemption of the Series 2009 Bonds in accordance with the requirements of the Series 2009 Bond Ordinance. Section 12. 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 Holder that: (a) City's Best Interests. It is in the best interest of the City and its residents that the Loan from the Lender, as evidenced by the Note, be authorized, issued and delivered at the time, in the manner and for the purposes provided in this Ordinance. (b) Conformity with Enabling Laws. To the best of the knowledge of the City Council, 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 the Enabling Laws, and all conditions and limitations of the Enabling Laws relating to the issuance of the Note have been satisfied. (c) No Rating, CUSIP, Placement Agent or Securities Depository. The Note has not and will not be (i) rated by a nationally recognized statistical rating organization which regularly rates such obligations, (ii) assigned a CUSIP number, (iii) placed by a placement agent or (iv) registered with or made eligible for registration with any securities depository, including but not limited to the Depository Trust Company, New York, New York. 11 4848-5166-3256.3 (d) Annual Audit and Related Financial Information. The City will cause an annual audit to be made of the books relating to property taxes each year by an independent certified public accountant and shall furnish a copy thereof to the Holder at the address provided by the Holder within the earlier of (i) thirty days from the date of public release of the audit or (ii) two hundred and seventy days of the close of each fiscal year. The annual audit of the City's general purpose financial statements shall be deemed to satisfy this covenant. Additionally, the City shall furnish a physical or electronic copy of its annual budget to the Holder, at the address provided by the Holder, within sixty days of the adoption or amendment of the City's annual budget, but in no event later than thirty days after the start of each fiscal year. Finally, the City will provide such other financial information reasonably requested by the Holder. ( e) Additional Covenants and Agreements. In addition to the financial covenants contained in this Ordinance, the Lender shall receive the benefit of all existing and subsequent covenants, defaults and remedies agreed to by the City with any other lender, liquidity provider or credit provider supporting obligations of the City secured on the same basis as set forth for the Note in the Section hereof entitled "Security for the Note". (f) EMMA Filing. Promptly following the issuance of the Notes, the City shall post the Ordinance on EMMA, provided that the pricing and certain other information as directed by the Lender shall be redacted prior to such filing. Section 13. Federal Income Tax Covenants. For purposes of ensuring that the interest on the Note (which is evidence of the repayment obligation of the Loan) is and remains excluded from gross income for federal income tax purposes, the City hereby covenants that: (a) Prol,ibited Actions. The City will not use or permit the use of any proceeds of the Note 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, or omit to take any action or actions, which would (i) cause the Note to be considered an "arbitrage bond" within.the meaning of Section 148 of the Code, (ii) would otherwise cause the interest on the Note to be includible in gross income for federal income tax purposes or to lose its exclusion from alternative minimum taxable income as defined in Section 55(b )(2) of the Code except to the extent such interest is required to be included in the adjusted current earnings adjustments applicable to corporations under Section 56 of the Code in calculating corporate alternative minimum taxable income, or (iii) would cause interest on the Note to lose its exclusion from Colorado taxable income or Colorado alternative minimum taxable income under present Colorado law. (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 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 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 Note and the capital improvements originally funded with 12 4848-5166-3256.3 proceeds of the Series 2009 Bonds 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 City 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 City 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 application and investment of Note proceeds, the use of the capital improvements originally funded with proceeds of the Series 2009 Bonds, 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 Note to become includible in gross income for federal income tax purposes, the City will thereafter comply with the new Tax Letter oflnstructions. (d) Bank Qualification. The City hereby designates the Note as a qualified tax exempt obligation within the meaning of Section 265(b )(3) of the Code. The City covenants that the aggregate face amount of all tax exempt obligations issued by the City, together with governmental entities which derive their issuing authority from the City or are subject to substantial control by the City, are not reasonably expected to be more than $10,000,000 during calendar year 2019. The City recognizes that such tax exempt obligations include notes, bonds, leases, loans and warrants, as well as the Note. The City further recognizes that any bank, thrift institution or other financial institution that owns the Note will rely on the City's designation of the Note as a qualified tax exempt obligations for the purpose of avoiding the loss of I 00% of any otherwise available interest deduction attributable to such institution's tax exempt holdings. Section 14. Defeasance. The Note shall be deemed to have been paid, and shall not be deemed to be outstanding hereunder if cash or Federal Securities, or both, shall have been deposited in trust with a commercial bank located within or without the State, and exercising trust powers, for the payment of the principal of and interest on the Note, in full, as the same become due to the Maturity Date. In computing the amount of the deposit described above, the City may include the maturing principal of and interest to be earned on the Federal Securities. The computations made in determining the sufficiency of the deposit shall be verified by a certified public accountant licensed to practice in the State, and a copy of such report shall be delivered to the City and the Holder of the Note. Section 15. 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. 13 4848-5166-3256.3 (b) Breach or Nonperformance of Duties. Breach by the City of any covenant set forth herein or failure by the City to perform any duty imposed on it hereunder and continuation of such breach or failure for a period of thirty days after receipt by the City of written notice thereof from the Holder, 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; provided however the breach of any covenant in the Section hereof entitled "Federal Income Tax Covenants" which results in a Determination of Taxability shall not be considered an Event of Default but the City shall pay any reasonable expenses incurred by the Lender as a result of a Determination of Taxability. (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. Section 16. Remedies for Events of Default. (a) Remedies. Upon the occurrence and during the continuance of an Event of Default, the Holder, or a trustee therefor, may protect and enforce its rights by proper legal or equitable remedy deemed most effectual including a writ of mandamus issued by a court of competent jurisdiction compelling and requiring the City and the official thereof to observe and perform the contracts, covenants, obligations or conditions set forth in this Ordinance, specific performance of any covenants, injunctive relief or any combination of such remedies. The failure of the Holder to proceed does not relieve the City or any person of any liability for failure to perform any duty hereunder. Additionally, in the event of litigation arising out of an Event of Default, the City and the Holder, or a trustee therefor, waive the right to a jury trial. The foregoing rights are in addition to any other right, and the exercise of any right by the Holder shall not be deemed a waiver of any other right. (b) Default Interest. Without any required action on the part of the City or the Holder, upon the occurrence and during the continuance of an Event of Default, if any amount of principal or interest remains due and owing on the Note, or any other amounts remain payable to the Holder under this Ordinance or the Note, such amounts shall bear interest at the Default Rate until paid. (c) No Acceleration. Acceleration of any amount not yet due on the Note according to its terms shall not be an available remedy to the Holder; however, the City shall not grant acceleration as a remedy for any future obligations of the City secured on the same basis as set forth for the Note in the Section hereof entitled "Security for the Note" unless the Holder also is granted a similar right to acceleration. Section 17. Amendment of Ordinance. The City shall not, without the prior written consent of the Holder, adopt amendments or supplements to this Ordinance. Upon the execution of any amendatory or supplemental Ordinance pursuant to this Ordinance, this Ordinance shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties 14 4848-5166-3256.3 and obligations under this Ordinance of the City, the Note Registrar, the Paying Agent and the Holder shall thereafter be determined, exercised and enforced hereunder, subject in all respects to such modifications and amendments. Section 18. Appointment and Duties of the Note Registrar and Paying Agent; Successors. The Paying Agent and Note Registrar identified in the Section hereof entitled "Definitions" is hereby appointed as paying agent, registrar and authenticating agent for the Bonds unless and until the City removes it as such and appoints a successor Paying Agent and Note Registrar, in which event such successor shall automatically succeed to the duties of the Paying Agent and Note Registrar hereunder and its predecessor shall immediately tum over all its records regarding the Note to such successor. The Paying Agent and Note Registrar shall agree to perform all duties and to take all actions assigned to it hereunder in accordance with the terms hereof. Following the Dated Date, the City may engage a Qualified Bank to act as Paying Agent and Note Registrar, however, prior to such engagement, the City shall give written notice thereof to the Holder by mailing or providing by electronic means the name of the Qualified Bank and relevant contact information for the appropriate representative of the Qualified Bank. Section 19. Approval of Related Documents. The City Council hereby authorizes the Mayor of the City, or any other duly authorized officer of the City, to take all actions necessary or appropriate to effectuate the provisions of this Ordinance, including, but not limited to, and agreement with the Paying Agent, the execution of a "Tax Compliance Certificate" or similar certificate describing the City's expectations regarding the use and investment of proceeds of the Note and an Internal Revenue Service Form 8038-G with respect to the Note, and such certificates and affidavits as may be reasonably required by Bond Counsel or the Lender or as are necessary and appropriate to effectuate the transaction described in this Ordinance. The execution by the Mayor of the City or any other duly authorized officer of the City of any document authorized herein shall be conclusive proof of the approval by the City of the terms thereof. 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. Supplemental Public Securities Act. (a) Application of Act. Pursuant to Section 11-57-204, C.R.S., the City hereby elects to apply all of the provisions of the Supplemental Public Securities Act to the issuance and delivery of the Note. (b) 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 or issuance of the Note more than thirty days after the date of adoption of this Ordinance. 15 4848-5 I 66-3256.3 (c) Recourse against Officers and Agents. Pursuant to Section 11-57-209, C.R.S., if a member of the City Council, or any officer or agent of the City acts in good faith, no civil recourse shall be available against such member, officer, or agent for payment of the principal of or interest on the Note. Such recourse shall not be available either directly or indirectly through the City Council or the City, or otherwise, whether by virtue of any constitution, statute, rule oflaw, enforcement of penalty, or otherwise. Section 22. Ordinance is Irrepealable. After the Note has been issued, this Ordinance shall be and remain a contract between the City and the Holder 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 City with respect to the Note shall have been satisfied in the manner provided herein. Section 23. Headings, Table of Contents and Cover Page. The headings to the various sections and subsections to this Ordinance, and the cover page and table of contents that appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance. Section 24. 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 25. Repeal of Inconsistent Ordinances, Bylaws, Rules and Orders. All Ordinances, 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 26. Ratification of Prior Actions. All actions heretofore taken (not inconsistent with the provisions of this Ordinance or the Enabling Laws) by the City Council or by the officers and employees of the City directed toward the issuance of the Note for the purposes herein set forth are hereby ratified, approved and confirmed. Section 27. Effective Date. This Ordinance shall become effective thirty days after publication following final passage. [The balance of this page is intentionally blank.] 16 4848-5166-3256.3 Introduced, read in full, and passed as on first reading on the 10th day of June, 2019. Published by Title as a Bill for an Ordinance in the City's official newspaper on the 13 th day of June, 2019. Published as a Bill for an Ordinance on the City's official website beginning on the 12th day of June, 2019 for thirty (30) days. Read by Title and passed on final reading on the 24 th day of June, 2019. Published by Title in the City's official newspaper as Ordinance No. JfL Series of 2019, on the 27th day of June, 2019. Published by title on the City's official website beginning on the 26 th day of June, 2019 for thirty (30) days. . . . 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. Ji_, Series of 2019. 17 4848-5166-3256.3 APPENDIX A FORM OF THE NOTE AS PROVIDED IN THE AUTHORIZING ORDINANCE, THERE SHALL BE ONLY ONE REGISTERED OWNER OF THE SERIES 2019 NOTE AT ANY POINT IN TIME THIS NOTE MAY NOT BE TRANSFERRED EXCEPT TO QUALIFIED PERSONS IN ACCORDANCE WITH SECTION S(b) OF THE NOTE ORDINANCE AND ONLY UPON WRITTEN REPRESENTATION OF SUCH QUALIFICATION BY THE TRANSFEREE No.R- UNITED STATES OF AMERICA STATE OF COLORADO CITY OF ENGLEWOOD IN ARAPAHOE COUNTY, COLORADO GENERAL OBLIGATION REFUNDING NOTE SERIES2019 $ ___ _ Interest Rate % Maturity Date January 1, 2029 Dated Date ____ ,,2019 REGISTERED OWNER: ______________ _ PRINCIPAL AMOUNT: ________________ Dollars The City of Englewood (the "City"), a duly organized and validly existing home-rule municipality of the State of Colorado (the "State"), for value received in the form of a loan, hereby promises to pay to the order of the registered owner named above or registered assigns, on the Maturity Date specified above or on Principal Redemption Dates, the principal amount specified above. In like manner the City promises to pay interest on the unpaid principal amount ( computed on the basis of a 360-day year of twelve 30-day months) from the Interest Payment Date next preceding the date of registration and authentication of this Note, except that interest paid on the first Interest Payment Date shall be computed from the Dated Date set forth above, at the Interest Rate per annum specified above, payable on July 1 and January 1 each year, commencing on January 1, 2019, until the outstanding principal amount is paid in full. Capitalized terms used but not defined in this Note shall have the meaning assigned to them in the Ordinance authorizing the issuance of this Note (the "Note Ordinance") adopted by the governing body of the City on second and final reading (the "City Council") on June 24, 2019. This Note shall bear interest, be payable, and mature pursuant to the terms and provisions of the Note Ordinance. This Note constitutes a general obligation of the City and the full faith and credit of the City is hereby pledged for the punctual payment of the principal of and interest on this Note. A-1 4848-5166-3256.3 The final installment of the principal of and interest on this Note is payable upon presentation and surrender of this Note to the City Finance Director (as the "Paying Agent"). This Note need not be presented for the payment of principal when redeemed in the case of mandatory scheduled principal redemption. Prior to the final installment of principal and interest on this Note, this Note is payable by check or draft of the Paying Agent mailed on the Principal Redemption Date or the Interest Payment Date to the Holder; provided however, the Paying Agent may make payments of interest and principal by alternative means, such as by wire transfer, as may be mutually agreed to between the Holder of this Note and the Paying Agent. THE NOTE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE REGISTERED OWNER OF THIS NOTE AND THE CITY. THIS NOTE IS ONLY EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECTS TO THE TERMS OF THE NOTE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT STATEMENT IN THIS NOTE. This Note has been designated by the City as a qualified tax-exempt obligation within the meaning of Section 26S(b) of the Code. This Note is not be subject to redemption at the option of the City; however, the principal amount of this Note is subject to mandatory scheduled principal redemption on the Principal Redemption Dates and in the principal amounts set forth below: Principal Redemption Date 1/01/2020 1/01/2021 1/01/2022 1/01/2023 1/01/2024 Principal Amount Principal Redemption Date 1/01/2025 1/01/2026 1/01/2027 1/01/2028 1/01/2029 1 1 Final maturity, not a sinking fund redemption. Principal Amount If the date for making any payment or performing any action shall be a legal holiday or a day on which the principal operations office of the Paying Agent is authorized or required by law to remain closed, such payment may be made or act performed on the next succeeding day which is not a legal holiday or a day on which the principal operations office of the Paying Agent is authorized or required by law to remain closed. This Note is issued by the City Council by virtue of and in full conformity with the Constitution of the State; the City Charter and all other laws of the State thereunto enabling, and pursuant to the duly adopted Note Ordinance. This Note is issued under the authority of the Enabling Laws and such recital is conclusive evidence of the validity and the regularity of the issuance of this Note after its delivery for value. Reference is hereby made to the Note Ordinance for an additional description of the nature and extent of the security for this Note, the funds and revenues pledged to the payment thereof, the rights and remedies of the Holder of this Note, the manner in which the Note Ordinance may be A-2 4848-5166-3256.3 mended, and the other terms and conditions upon which this Note is issued, copies of which are on file for public inspection at the office of the City Clerk of the City. THIS NOTE DOES NOT CONSTITUTE A DEBT OR INDEBTEDNESS OF THE COUNTY, THE STATE OR ANY POLITICAL SUBDIVISION OF THE STATE OTHER THAN THE CITY. This Note shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the authorizing Note Ordinance until the certificate of authentication hereon shall have been signed by the Note Registrar. IN WITNESS WHEREOF, the City Council of the City has caused this Note 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] CITY OF ENGLEWOOD Attest: CERTIFICATE OF AUTHENTICATION This is the Note of the issue described in the within mentioned Note Ordinance. Dated: 20 ---~ A-3 4848-5166-3256.3 CITY OF ENGLEWOOD, as Note Registrar By~-~--------------City Finance Director A-4 4848-5166-3256.3 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please print or typewrite name and address of Transferee) (Tax Identification or Social Security No.) the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints ________________ attorney to transfer the within bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: ______ _ Signature Guaranteed: Signature(s) must be guaranteed by a national bank or trust company or by a brokerage firm having a membership in one of the major stock exchanges. NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within bond in every particular, without alteration or enlargement or any change whatever. TRANSFER FEE MAY BE REQUIRED A-5 4848-5166-3256.3