HomeMy WebLinkAbout2009 Ordinance No. 019•
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RDINAN CE NO . ./!j__
ERI E 01' 2009
BY AUT HORITY
OUNCIL BILL NO 20
INTRODUCED BY COUNCIL
MEMBER PENN
AN ORDINAN E OF THF. CITY OF ENGLEWOOD AUTHORIZING
THE I UANCE OF <,ENERAL OBLIGATION BONDS , SERIES
2009, TO l'INANCE Tl E CONSTRUCTION OF IMPROVEMENTS
TO THE CITY'S WATER SYS'CEM AND AUTHORIZING THE LEVY
OF PROPERTY TAXES , IF 1/ECESSARY, TO PAY SUCH BONDS ;
PROVIDING THE FORM O.' THE BONDS AND OTHER DETAILS
IN CONNECTION THEREWITH ; AND APPROVING DOCUMENTS
RELAT ING 'fO THE BONDS .
WITNESSETH :
WHEREAS, the City of Englewood , Colorado is a municipal corporation duly
organized and operating a s a L me ruie city under Article XX of the Constitution of
the State ofColoraclo a11 rl th,• hartor of the City (unless otherwise indicated,
capitalized terms use·l in C ·, 1>1-erunble shall ha"e the meanings set forth in Section 1
of this Ordinance}; and
WHEREAS, pursuant to Sec tion 104 of the Charter, the City is authorized to issue
general obligation bonds for any p ublic capital purpose , subject to obtaining voter
approval of a bal lot question authorizing s uch bonds; and
WHEREAS , at an election on Nov ember 4, 1997 , the following ballot q u estion (the
"Ba llot Question"} was approved by a majority of the eligible el ecto rs of the City
voting on the Ballot Que stion:
SHALL THE CITY OF ENGLEWOOD DEBT BE INCREASED $15,100,000.00
WITH A REPAYMENT COST OF $25 ,300,000 AND SHALL THE Cl'lY OF
ENGLEWOOD'S TAXES BE INCREASED $1,300,000 ANNUALLY FOR THE
PAYMENT OF SUCH DEBT, ALL FOR THE PURPOSE OF FINANCING THE
CONSTRUCTION OF IMPROVEMENTS TO THE CITY'S WATER SYSTEM AN'.}
THE PURCHASE OF WATER PROCESSING EQUIPMENT INCLUDING ALL
NE CESSARY AND APPURTENANT FACILITIES , BY THE I!'SUANCE AND
PAYMENT OF GENERAL OBLIGATION BONDS PAYABLE FR0M SUCH CITY
FEES, TAXES OR OTHER REVENUES AS THE CITY COUNCIL MAY
DETERMINE, WHI CH BONDS 3 HALL BE SUBJECT TO REDEMPTION , WITH
OR WITHOUT PREMIUM , AND BE ISSUED AT SUCH MAXIMUM INTEREST
RATE , DATED AND SOLD AT SUCH TIME OR TIMES AT SUCH PRICES (AT,
ABOVE, OR BELOW PAR} AND IN SUCH MANNE R AND CO NTAINING SUCH
TERMS NOT INCONSISTENT HEREWITH, AS THE CITY COUNCIL MAY
DETERMINE, WHICH AUTHORIZATION SHALL INCLUDE AUTHORIZATION
TO REFUND SUCH BONDS WITHOUT ADDITIONAL VOTER APPROVAL; AND
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IN CONNECT ION THEREWITH IF DETERMINE D BY THE CITY COUNCIL •
(I) SHALL THE CITY'S AD VALOREM PROPERTY TAXES BE IN CREASED IN
ANY YEAR IN AN AMOUNT SUFFICIENT TO PAY THE PRINC IPAL OF ,
PREMIUM, IF ANY, AND INTEREST ON SUCH BONDS WHEN DUE, WITHOUT
LIMITATION AS TO RATE OR AMOUNT OR ANY OTHER CONDITION , AND
(II) SHALL THE REVENUES FROM SUCH TAXES AND ANY EARNINGS
THERE ON AND FROM THE INVESTMENT OF THE PROC EEDS OF SUCH
BONDS CONSTITUTE A VOTER-APPROVED REVENUE CHANGE?; and
WHF.REAS , the Cowicil previously issued its General Obligation Water Bond s,
Series 2004 in the amount of$3,055,000 pursuant t o ouch ,.,,to r authorization and has
determined t!-.... t it is in the best interests of the City and its residents to issue
additional general obligation bonds at this time for the P'-'-r po se offinancing the
construction of improvements to the City's water system; ar.d
WHEREAS, on the date of is s uance of the Series 200 9 bonds, the amount of
bonded indebtedness will not exceed 3% of the latest actual valuation for assessment
of the City; and
WHEREAS, the issuance of general obligation bonds by the City secured from a
pledge to levy property tax€,, if necessary . r~sults in the low oot borrowing cost to the
City, such obligation can be r,,paid fromo tJ,,,r legally available moneys of the City
and the Cowicil intends to use revenues f, m the operation of the City's water system
to repay the Bonds; and
WHEREAS , the City has bt,en presented with a proposed form of agreement from
Stifel , Nicolaus & Compa'ly, Incorporated, of Denver, Colorado, for the purchase of
the Bonds upon specified terms and conditions and, after consideration, the Council
has determined that the negotiated sale of the Bonds to said firm is to the bes t
advantage of the City; and
WHEREAS , the Cowicil desires to authorize the issuance and sale of the Bonds
and, as provided in Title 11 , Article 57 , Part 2, Colorado RP.vi sed Statutes , delegate
authority to the Sale Delegate to make ce r1.ain determinations regarding the Bond s to
be set forth in the Sale Ce rtificate in accordance with the provisions of this
Ordinance.
NOW, THEREFORE , BB IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS :
Section I. Definitions . The followin g terms shall havo the fo ll owing
meanings as used in thi s Ordinance :
"A ct" m eans Part 2 of Article 57 of Title lJ , Colorado Revis ed Statutes , or any
s uccessor statutes thereto.
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"Ballot Qu es tion" means t.he ballot q ues ti on ap proved by City voters quo ted and
defi ned a s •uch in the prean ibl es hereto .
"Bond A cco unt" means th account es tablished by the provisions her eo f to account
for the m oneys for which a ,eparate tax levy is made, or legally available moneys are
ap pli ed, to sati•fy the obli!;ations of the Bond s. The Bond Account shall be a
s ub sidiary acco=t of the a ppropriate fund or acco unt of the City and se parately
acco un ted for by the City in accordance with the provis it•ns hereo f.
"Bond Co un sel" means (a) as of the date of issuance of the Bonds , Kutak Iwck LLP,
and (b) as of any other date, Kutak Iwck LLP or s uch other attorneys selected by the
City with nationally recognized expertis e in the iss uance of municipal bonds .
"Bond In surance Policy" means the municipal bond ins urance policy issued by the
Bond Insurer, if any, insuring the payment when due of the pn ".cipal of and interest
on the Bonds as provided therein.
"Bond Insurer" means entity, if any, des ignated in the Sale Certific .. te which is to
issue the Bond Insurance Policy.
"Bond Obligation" n •~ans, as of any date , the pri nci pal ame ·=t of the Bonas
Outstanding as of such da te.
"Bond Purchase Agree m ent" means the Bond Purchaue ,\greement, pursuant to
which the City is to agree to sell and th,, Underwriter i• to agree to purchase the
Bo nds a t the prices and on the terms set forth therein .
"Bonds" and "S eries 2009 Bonds" means the Bond s a uthoris e-.! by the Section
hereof titled "Authorization a .-,d Purpose of Bonds."
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on
which banking institutions in the State are authorized or obligated by law or
executive order to be closed for business.
"Charter" means the home rule Ch "1"Vlr of the City.
"Ci ty" means the City of Englewood , Colorado, and any s uccessor thereto.
"Code" means the Internal Rev enu e Code of 1986 , as amended . Each refe rence to a
section of the Code herein shall be deemed to include the United States Treasury
Regulations propo sed or in effect there under and applicable to the Bonds or the use of
procee ds thereo f, unless the context clearly requires otherwise .
"Comm itment" means that certain offer , if any, to is s ue the Bond Insurance Policy
iss ued by the Bond Ins urer.
"Co un cil" means the City Council of the City .
·County" means Arapahoe County, Colorado.
"Dated Date" means the original dated date for the Bonds as established in the
Sale Certificate.
"De fea sance S ecurities" means bills , certificates of indebtedness, notes, bonds or
similar securities which are direct, non callable obligations of the Uni ted States of
America or which are ful ly and unconditionally guaranteed as to the timely payment
of principal and interest by the United States of Am Grica, tc le ex tent s uch
inves tments are Permitted Investments .
"DTC" means The Dep<l'<itory Trust CompaJ1 1· . :,,, Yc ,·t , Ne w York, and its
successors in interest and aseigni,.
"DTC Blanket Letter of Representation s" means l.!lo • ..tter ofrap1·esentations from
the City to DTC to induce DTC to act as securities depo sitory for the Bonds.
"Euent of Default" meBDs any of the events specified in the Section hereof titled
"Events of Default."
"Interest Payment Date" means the dates established in the Sale Certificate for the
payment of interest on the Bonds .
"Official Statement" meBDs the final Official Statemen ' relating to the Bonds .
"Ordinance" means this OrdiDBDce , includiDg any amendments or supplements
hereto.
"Outstanding" meBDs , as of BDY date, all Bonds issued and delivered by the City,
except the following:
(a) any Bond cBDcelled by the City or the Paying Agent, or otherwise on
the City's behalf, at or before such date ;
(b) any Bond held by or on behalf of the City;
(c ) any Bond for the payment or the r edemption of which moneys or
DefeasBDce Securities sufficient to meet all of the payment
requirements of the principal of, premium, if any, and interest on
such Bond to the date of maturity or prior redemption thereof, shall
have theretofore been deposited in trust for such pw-po se in
accordance with the Section hereof titled "Defeasance"; and
(d) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or
in substitution for which anoth er bond or other sec urity shall have
been executed and delivered.
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"Owner" means the Person or Person 1 whose name or names a Bond is
regstered on the registration books mah_ .med by the Payillg Agent pw-suant hereto. •
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"Paying Agen t" means UMB Ba.uk , n .a., iu Denv er, Co lorado, and its s uccesso r s in
intrres t or assigns a pproved by the Ci' r
"Paying Agent Agree ment" means an 1tgre oment betwe en the City and the Paying
Agent conc erning the duties and ob\igr.t ions of the Paying Agent with res pect to the
Bond s .
"Permitted Investments" means any investment in which funds of the City may be
invested under the Charter and the law s of the State at the time of s uch investment.
"Person " means a corporation , firm , other body corporate , partnership , association
or individual and also includes an exec i:tor, administrator, trustee, rec eiv er or other
representative appointed according to lnw.
"Preliminary Official Statement" ffi eans the Preliminary Offic ial Statement
prepared in connection with the sale nc l issuance of the Bonds .
"Principal Payment Da te" means the date or dates established in the Sale
Certificate for the payment of the principal of the Bonds.
"Project" means any purpose for "~ich proceed s of the Bond s may be expended
under the Act and the Ballot Ques tion , including, but not limited to, the payment of
costs of issuance of the Bonds .
"Project A cco unt" means the account established by the provi sions hereo f for the
purpose of paying the costs properly attributable to the Project. The Project Account
shall be a subsidiary account of the appropriate fund or acco unt of the City, and
se parately accounted for by the City in accordance with the provi sions her eo f.
"R eco rd 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 Interes t Payment Date occurs and, if the
Interest Payment Date is on the fifte enth day of the month , the first day of the month
(whether or not such day is a Bu ~in ess Day) in which such Interest Payment Da te
occurs.
"Sale Certificate" means tho certificate executed by the Sale Delegate under the
authority delegated pursuant tv thi s Ordinance, including but not limited to the
Sections her eof titled "Bond Details ," "Redemption of Bond s Prior to Ma turity",
"Approval of Related Doc um ents" and "Bond In surance Determination" which set
forth, among other things , the r ate of interes t on the Bondo , the conditions on which
and the price s at which the Bond s may be redee med before maturity, the price at
whi ch the Bond s will be sold , the Date d Date , the amount of principal maturing in
any particular year, the daten on which principal and interest will be paid , whether or
not the Bonds will be sec ured by the Bond Insurance Policy and the terms of any
agreement with the Bond Insurer if a Co mmitment is acce pted regardjng the Bond s .
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"Sale Delegate" means the Director of Fmance and Administrative Service• of the •
City or , in the eve nt s uch person is unavailable, the City Manager.
"State" means the State of Colorado.
"Tax Letter of In structions" means the Tax Letter of Instructions, dated the d ate on
which the Bond s are originally issued and delive red to the City by Bond Counsel , M
such instructions may be superseded or am ended in accordance with their terms.
"Underwriter" means Stifel, Nicolaus & Company, Incorporated, of Denver ,
Colorado.
Section 2. Authorization and Purpose of Bonds . Pursuant to and in
accordance with the Act, the Charter and the Ballot Question, the City hereby
authorizes, and directs that there shall be issued, the "City of Englewood, Colorado,
General Obligation Bonds, Series 2009," in the aggregate original principal amount
not to exceed $3,000,000 for the purpose of providing funds for the Project.
~ Bond Details.
(a) Regiatered Form, Denomination•, 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 pu r suant hereto. The Bonds shall
be issued in denominations of $5,000 in principal amount or any
integral multiple thereof. The Bonds shall ho consec utively
numbered , beginning with the number one, preceded by the lett.sr
"R."
(b) Maturity Date•, Principal Amoun.ts and Interest Rates.
The Bonds shall mature on the rincipal Payment Oat,, of the year11
and in the principal amounts, and shall bear i•·•erest at the rates
per annum (calc ulated based on a 360-day ye. : of twelve 30-day
months) set forth in the Sale Certificate. The Council hereby
delegates to the Sale Delegate the authority to determine the
aggregate principal of the Bonds , the Dated Date , the Interest
Payment Date, the Principal Payment Date , the price at which the
Bonds will be sold, the principal amount of Bonds maturing in any
partic ular year and the rate of 'nterest on the Bond s.
(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 Jr.test 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 Inte:rest Payment •
Date.
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(d) Manner and Form of Payment. Principal of eac h Bond shall
be payable to the Owner thereof upon presentation and surrender of
s uch Bond at the principal office of the Paying Agent in the city
identified in the definition of Paying Agent in the Section h ereof
titled "Defi:,itions" or at s uch 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 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.
(e) Book-Entry Regi•tration . 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,
s ecurities depository for the Bonds, the Paying Agent ma) , at its
discretion, either (i) designate a substitute ,ecurities depo,,itory for
DTC and reregister the Bonds as directe<i !:;· e•1eh substitute
securities de pository; 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
s ubstitute 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 se'.ltence 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 depos itory or any Person in whos e name the
Bonds are r eregistered.
Section 4. Redemption of Bonds Prior to Maturity .
(a) Optional Redem_ption. The Bonds shall be subject to
odemption 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
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lot within a maturity on such dates as se t forth in the Sale
Certificate. The Co un cil here by del egates to the Sale Del egate the •
a utho rity to determine the dates on which the Bonds shall be
s ubj ect to optional r edemption end the r edemption price or prices at
which such r edemption may be made.
(b) Mandatory Sinking Fund Redempiiun . All or any principal
amount of the Bonds may be s ubj ect to mandatory , 'ulcing fund
rede mption by lot on the Principal Payment Date of the years and in
the principal amounts specified in the Sale Certificats, e t a
redemption price equal to the principal amount thereof (with no
redemption premium), plus accrued interest to the redemption date.
The Council hereby delegatee to the Sale Delegate the authority to
determine the principal amounts and dates on which the Bonds
shall be subject to mandatory oinking fund redemption.
(c) &demption Procedure•. Notice of any redemption of Bonde
shall be given by the Paying Agent in the name of the City by
sending a copy of such notice by first class, postage prepaid mail,
not more than 60 days nor less than 30 days prior to the redemption
date, to the Owner of each Bond being redeemed . Such notice shall
specify the numoer or numbers of the Bonds so to be re deemed (if
redemption shall be in part) and the redemption date . If any Bond
shall have bee n duly called for redemption and if, on or before the
redemption date , there shall have been depo sited 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 tiefect in any
r edemption notice shall not affect. the validity of the proce eding 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 r eis s ued and shall be
cancelled .
Section S. Security for the Bonds.
(a) General Obligations. The Bonds sh al l be general obligations
of the City and the full faith and credit of the City are pl edged for
the punctual payment of the principal of and interes t on the Bonds.
The Bonds shall not consti tute a debt or indebtedness of the County,
the State or any political subdivi sion of the State other than the
City.
(b) Levy of Ad Valorem Taus. For the purpose of paying the
principal of and interest on the Bond s when due , respectively, the •
Council shall annually determine and certify to the Board of County
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(c)
(d)
Commiss ion er s of the Co unty, a rate of levy fo r general ad valorem
taxes , without limitation as to rate or amount , on all of the taxable
property in the City, s uffici ent to pay the principal of and .interest
on the Bonds when due , respectively, whether at maturity or upon
earlier re demption.
Application of Proceed, of Ad Valorem Ta.re,. The general
ad valorem taxes levied pursuant to subsection {b) of thin Sec tion,
when collected , shall be depos ited in the Bond Account and shall be
applied solely to the payment of the principal of and interest on the
Bonds and for no other purpose until the Bonds, inc 1nding principal
and interest, are fully paid , satisfied and discharged.
Appropriation and Budgeting of Proceed, of Ad Valorem
Ta.re,. Moneys received from the general ad valorem taxes levied
pu,:suant to subsection (b) of this Section in an amount sufficient to
pay the principal of and interest on the Bonds when due,
respectively, are hereby appropriated for that purpose, and all
amounts required to pay the principal of and interest on the Bonds
due, respectively, in each year shall be included in the annual
budget and appropriation ordinance to be adopted and passed by the
Council for such year.
(e) U,e or Advance of Other Legally Available Money, .
Nothing herein shall be inter pre ted to prohibit or limit the ability of
the City to use legally available moneys from the operation of its
water system to pay all or any portion of the principal of or interest
on the Bonds . If and to the extent such other legally available
moneys are used to pay the principal of or interest on the Bonds, the
City may, but shall not be r equired 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 thi s
Section to reimburse the fund or account from which such other
legally available moneys are withdrawn for the amount withdrawn
from such fund or account to pay the principal of or interest on the
Bonds . If the City se lects 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 CommiBBionerB . It is h er e by
declared that, if the City does not otherwise determine and certify to
the Board of County Commissioners of the County a rate of levy for
general ad valorem property taxes as required by subsection (b) of
this Section, the for egoing provisions of thi• Section shall constitute
a certificate from the Council to the Board of Coun~y Com.'Dissioners
of the County showing the aggregate amount of ad valorem taxes to
be levied by the Board of County Commissioners of the Co unty fr';;m
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time to time, as required by law , for the purpo se of paying the •
principal of and interest on the Bond s wh en due .
(g) Deposit of Moneys to Pay Bonds with, and Payment of
Bonds by Paying Agent. No later than three Business Days
immecliately preceding each date on which a payment of principal of
or interest on the Bonds is due , the City, from moneys in the Bond
Account , shall deposit moneys with the Paying Agent in an amount
s uffi cient to pay the principal of and intere st on the Bonds due on
such date. The Paying Agent shall use the moneys so deposited
with it to pay the p1incipal of and interest on the Bonds when due .
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 nece ssary or desirable and approved by the officials of the City executing the
same (whose manual or facsimile signatures thereon shall constitute conclusive
evidence of s uch approval ). All covcnan•.s , statements, representations and
agreements contained in the Bonds are hereby approved and adopted as the
covenants, statements, representations and agreements of the (:ity. Although
attached as appenclices 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 tbs City Clerk of the Council, all of whom are
hereby authorized and directed to prepare and execute the Bonds in accordance
with the requirements h ereof. Should any officer whose manual or facsimile
signature appe ars on the Bonds cease to be s uch officer before delivery of any Bond ,
such m,mual or facsimile signature shall nevertheless be valid and sufficient for all
purposes . When the Bonds have been duly executed, the offic er s 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, unl es s the certificate of a uthentication of the
Paying Agent bas been manually exec uted by an authorized signatory of the Paying
Agent. Th e executed certificate of a uthentication of the Paying Agent upon any
Bond shall be conclusive evidence, and the onl y competent evidence, that s uch Bond
has bee n properly authenti cated and delivered her e under.
Section 8. Registration of Bonds in Registration Books Maintained by
Paying Agent. Th e Paying Agent shall maintain regi s tration book s in which the
own er s hip, trnnsfer and exchange of Bonds shall be r eco rd ed. The pe rs on in whose
name any Bond shall be r egi s tered on s uch registration book shall be dee med to be
the a bsolute owner thereo f for all purpo se s , whether or not payment. on any Bond
shall be overdue , and neither the City nor the Paying Agent shall be affec ted by any
notice or other info rm ation to the co ntrary.
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Section 9. Transfer and Exchange of Bonds. The 9onds may he
transfe1Ted 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 s uch other office of the Paying Agent designa ted 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 establiohe'.! by tl,e Paying Agent, together
with any tax or governmental charge r equired to be paid with respect to s uch
transfer or exchange and any cost of printing bonds in connection therewith. Upon
surrender for transfer of any Bond, duly enc!vr ,,ed 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 nru..~e 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 Buainess DRy
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 .
/,ectlon 10. Replacement of Lost, Destroyed or Stolen Bonds. If any
Bond sk ,; 11 become lost, apparently destroyed, stoleu or wrongfully taken, it may be
replaceci <:> tho form and tenor of the lost, destroyed, stolen or taken Bond and the
City shall execute and the Paying Agent shall authenticate encl deliver a
replacement Bond upon the Owner furnishing, to the satisfaction of : he 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 pre paring and executing the new Bond.
Section 11. Creation of Accounts; Initial Credits to Accounts.
(a) Creation of Accounts. There is hereby established the Bond
Account and the Project Account. The foregoing accounts shall be
maintained by the City in arcordance with the provisions of this
Ordinance .
(b) Initial Credits to Accounts . 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 shall be applied as a supplemental appropriation by the
City , as follows :
(i) to the Bond Account , the accrued interest on the Ilcnds from
the dated date thereof to the date of is nuance , if ar. v; ,. id
(ii) to the Proj ect Accow1t, the remaining proceeds of th e Bonds .
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Section 12. Investments. Proceeds of the Bond s delivered to the City
pursuant to the Section hereof titled "C r eation of Accounts ; Initial Credits to •
Accounts," money• on deposit in the Bond Account and any moneys held hy the
Paying Agent with respect to the Bonds shall be invested in P ermitted Investments,
provided that the investment of s uch 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 procee ds of the Bonds and other moneys and the use of the Project.
Section 13. Various Findings, Determinations, Declarations and
Covenants . The Council , having been fuJJy informed of and having
considered all the pertinent facts and circumstances, hereby finds,
determines, declares and covenants with the Owners of the Bonds
that:
(a) voter approvlll of the Ballot Questio was obtained in
accordance with all applicable provisions oflaw;
(b) it is in the best interest of the City and its residents tha t the
Bonds be authorized, sold, issued and delivered at the time, in the
manner and for the purposes provided in this Ordinance;
(c) the issuance of the Bonds will not cause the City to exceed its
debt limit under applicable State law; •
(d) the OTC Blanket Letter of Representations ent~red into with
OTC will govern the book entry registration system for the Bonds;
and
(e) 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 Ly
the Charter, the Constitution and Jaws of the State, including the
Act and the Ballot Question, and all conditions and limitations of
the Charter, the Act, the Ballot Question and other applicable law
relating to the issuance of the Bond• have been satisfied.
Section 14. Federal Income Ta•~ Covenants. For purposes of ensuring
that the interest on the Bonds is and r emains excluded from gross income for
fed eral 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
sec urities 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 meiwing of Section 148 of the Code . or •
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{b)
would otherwi se cause the inte rest on any Bond to be includible in
gross income for federal income tax purposes.
Affirmative Actions. The City will at all times do and
perfon,1 all acts pennitted by law that are nece ss ary 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
Couusel stating that such compliance is not necessary: (i) gross
proceeds ,,f tho Bonds and the Project will not be used in a manner
that will Cliw,e the Bonds to be considered "private activity bonds"
within the meaning of the Code; (ii) the Bonds are not and wir 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
'1'ax Letter of Instructions delivered to it on the date of issuance of
the Bonds, including but not limited b•r the provisions of the Tax
Letter of Instructions regarding the application and investm6nt of
Bond proceed s, the use of the Project, the calculations, the deposits,
the disbursements, the investments and the retention of records
described in the 1'.HX Letter of Instructions; provided that, in the
event the Tax Letter of Instn1ctions 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 fed eral inc on ·.e tax purposes, the City
will thereafter comply wi th the new Tax Letter of Instructions.
(d) Designation of Bonds as Qualified Tax Exempt
Obligations . The City hereby designates the Bonds as qua if'ied
tax exempt obli gations within the meaning of Section 266 (b)(3) of
the Co de . Th , Ci t y cove nants that the aggregate face amount of all
tax exem pt governmental obligatio ns defined in Section 14l. of the
Code or qualif'ied 601 (c)(3) bonds defin ed in Section 145 of the Code
issued by the Cit;·, together with governmental entities which derive
their issuing authority from the City or are s ubject to substantial
control by the City, are not expected to be more than $30,000,000
during calendar year 2009 . The City recognizes that such ta:x
exempt obligations include notes , le ases, loans and warrants, as
well as bonds . The City further recognize s that any bank, thrift
institution or other ,. nancial institntion thut owns the Bond s will
rely on the City's de s1gnation of the Bonds as qunli fied tax exempt
obligations for the purpo se of avoiding the loss of 100% of any
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otherwise available interest deduction attributable to such •
institution's tax exempt holdings .
Section 15. Defeasance. Any Bond shall not be deemed to be Outstanding
hereunder if it shall have been paid and cancelled or if Defea,ance 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 de posit described
above, the City may include the maturing principal of and interest to be earned on
the Defeasance Securities. Ifless than all the Bonds are to be efe ased pursuant to
this Section, the City, in its sole discretion, may select which of the Bonds shall be
def eased.
Notwithstanding anything herein to the contrary, in the event that the Bond
Insurance Policy is issued and principal and/or interest due on the Bonde is 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 16. Events of Default. Each of the following events constitutes an •
Event of Default:
(a) Nonpayment of Principal or Interest . Failure to make any
payment of principal of Qr int,.rest on the Bonds when due.
(b) Breach or Nonperformance of Duth,. 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 60 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
Obli gation, provided that such 60-day period shall be extended so
long as the City has colllltlenced and continues a good faith effort to
remedy such breach or failure.
(c) Bankruptcy or Receivership . An order of decree by a court of
co mpetf\nt jurisdiction declaring the City bankrupt unde r 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
acq · escence of the City but is not vacated, di scharged or stayed
within 30 days after it is entered.
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Section 17. Remedies for Events of Default .
(a) RemedieB . Upon the occurrence and continuance of any Ev ent
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 procee d 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 ,;>roceedings
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 prope r legal or
equitable remedy; or (v) any combination of such remedies or as
otherwise may be authorized by applicable law ; provided, howevsr,
that acceleration of any amount not yet aue on the Bonds ncc ording
to their terms shall not be an available remedy. All s uch
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 Pur•ue Remedie• Not a Release; Right•
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) Bond Insurer Third-Party Beneficiary; Right To Control
Remedies. In the event that the Bond Insurance Policy is issued
and to the extent that t his Ordinance confers upon or gives or
grants to the Bond Ins urer 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 hereunc'a r and may
enforce any s uch right, remedy or claim conferred, given or granted
here under . Upon the occurr6nce and continuance of an Event of
Default, so long as it is not in default of its obligations u ,1der the
Bond Insurance Policy, the Bond Insurer shall be entitled to control
and direct the enforcement of all rights and remedies grar.i:e d to the
Owners under iliis Ordinance and purs uant to State law .
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Section 18. Amendment of Ordinance.
(a) Amendments Permitted Without Notice to or Consent of
Owners . The City may, without tbe cons ent of or notice to tbe
Owners of the Bonds , adopt one or more ordinances amending or
supplementing this Ordinance (which ordinances shall thereafter
become a part hereoO 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 inconsiste nt provision of this Ordinance ;
(ii) to subject to this Ordinance or pledge to the payment of the
Bonds additional reve nues, 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 de pository with respect to such a system;
(iv) to maintain the then exi sting or to secure a higher rating of
I.he Bonds by ru .y nationally r ecognized securities rating
agency; or
(v) to make any other change that does not materially adver sely
affect the Owners of the Bonde .
(b) Am.::!!dment, Requiring Notice to and Con,ent ofOr.oners .
Except for am&,1Cimente permitted by subsection (a) of this Section,
this Ordinance may only be amended (i) by a ordinance of the City
amending or supplementing this Ordinance (which, after the
consents required therefor, shall become a part hereoO; and (ii) with
the written consent of th e 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 con se nt of the Owner of s uch Bond : (A) a change
in the maturity of such Bond; (B) a r eduction 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 r eduction of the Bond Obli gation the co nse nt of the Owne rs of
which is r equired for an runendment to this Ordinance ; or (F) the
establishment of a priority or preference for the payment of any
amount due with respect to any other Bond over such Bond .
(c) Procedure for Notifying and Obtaining Consent of
Owne rs. Whenever the consent of an Owner or Owners of Bonds is
required under subsection (b) of this Section, the City shall mail a
noti ce to such Owner or Own er s at their addresses as set forth in
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the r egistration booke maintained by the Payi ng Agent and to the •
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(d)
Undenvrite r , whi ch notic e 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 withd rnw al , rescission or
modification for a period of 60 days after it is delivered to the City
unless another time period is stated for s uch purpose in the notice
mailed pursuant to this subsection.
Consent of the Bond Insurer in Addition to Consent of
Owners. In the event that the Bond Insurance Policy is issued, the
Bond Insurer's consent shall be required in addition to the consent
of Owners , when required, for the following purposes: (i) execution
and delivery of any supplemental Ordinance or any amendment,
supplement or cha;;ge to or mudi ficati on of tbis Ordinance;
(ii) removal of the Paying Agent and ~elec tion and appointme'1t of a
s uccess or and (iii ) initiation or approval of any a ction not described
in clause (ii or (ii) above which requires the conse nt ofOwnera.
Section 19. Appointment and Duties of Paying Age .,,. ,f,,, Paying
Agent ide ntified in the Section hereof titled "Deti nitlo ns " is !:: ret1•1 t.11:.>0inte d as
paying agent, registrar and authenticating agent for the Bonds uni •• ~ and until the
City removes it as such and appoints a successor Paying Agent, in wluch event such
successor shall automatically succeed to the duties of the Paying Agent hereunder
and its predecessor shall immediately turn over all its reco rds regarding the Bonds
to such successor. The Paying Agent shall agree to perform all duties and ,., take
all actions assigned to it here under in accordance with the terms hereof.
Section 20. Approval of Related Documents. Th e Council hereby ratifies
and approves the distribution and use in connection with the offering of the Bonds
of the Preliminary Official Statement r elating to the Bonds; authorizes and directs
the preparation of, and authorizes and directs the exe cution by the Mayor of an
Official Statement for use in connection with the sale of the Bonds in s ubstantially
the form of the Preliminary Official Statement, with s uch changes therein, if any,
not inconsi stent herewith , as are approved by the Mayor (whose signature thereon
shall constitute conclusive evidence of such approval); and for a period of ninety
days following the adoption of this Ordinance, the Sale Delegate is authorized to
execute the Commitment, if any, the Sale Certificate and the Bond Purchase
Agreement. The appropriate officers and officials of the City are hereby authorized
and directed to exec ute an undertaking to facilitute compliance with Securities and
Exchange Commission Rule 15c2-12 (1 7 C.F.R. § 240.15c2-12 , the Paying Agent
Agre ement, 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 and the use of the Project, an Internal Revenue Service Fonn 8038-G
with re s pect to the Bond s and all other documents and certificates necessary or
desirable to effectuate the iss uance or administration of the Bonds, the investment
of proce ed s of the Bonds and the transactions contemplated hereby .
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Section 21. Bond Insurance De1 e nni'lation. Th e Co uncil her eby
delegates t o th e Sale Delegat e the authori ty :~ dete nnine wh ether or not the Bonds •
will be secured by t he Bond Insurance Polic y and the t erm s of any agreement with
the Bond Ins urer if a Commitment is acce pted regarding tht Bond s. S uch
determination shall be made by t he Sale Delegate on a bas is of wh ether or not an
interest co st savings can be r eali ze d by the City through t he issuance of the Bond
ins urance Poli cy when co mpared to t he premium t o be paid to the Bond Ins urer for
the issuance of the Bond Ins urance Policy.
Section 22. Events Occurring on Days That Are Not Business Days.
Except as otherwise s pecifically provided herein with r espect to a particular
payment, event or action, if any payment to be made h ereunder or any event or
ac tion to occ ur h er e under which, but for this Section, is to be made or is to occur on
a day that is not a Bu siness Day, such payment, event >r act.ion shall instead be
made or occur on the next succeeding dRy that is a Bus iness Day with the s ame
effect as if it was made or occurred on the date on which it was originally scheduled
to be made or occ ur.
Section 23. Limitatio n of Actions. In accordance with Section 11-57-212,
Colorado Revi se d Statutes, no legal or equitable action can be brought with respect
to any legislative acts or proceedings in co nnection with the a ut horization of the
Bonds more than 30 days after the a u th orization of s uch securities.
Section 24 . Ordinance is Contract with Owners of Bond~ and
Irrepealable . After the Bonds have been iss ued, thi s Ordinance shall be and •
remain a contract between the S ity and the Owners of the Bonds and sha ll be and
remain irrepealable until all amo ·mts due with r es pect to the Bonds s hall be fully
paid, satis fi ed and di scharged and all other obligations of the City with r espect to
the Bond s shall have been satisf.oCI in the manner provided herein.
Section 25. Headings. Th e headings t o the vario us sections and s ubsection s
to this Ordinance h ave been inser ted so lely fo r the conv eni enc e of the r eader, are
not a part of this Ordinance and shall not be used in any manner to interpret thi s
Ordinance .
Section 26 . Severability. It is hereby ex pressly decl ar ed that all provis ion s
her eo f and their a pplication are intend ed to be and are sever able. In order to
implement s uch intent, if any provi sio n hereof or the application thereof is
de termined by a court or administr ative bo dy to be invalid or unenforc eabl e, in
wh ole or in part, s uch determination s hall not a ffec t, impair or invalid ate any other
provision hereo f or the a pplication of the provisio n in qu estion to any other
situa tion; and if any provi sion here of or the e.pplication thereof is determined by a
co urt or a dministr ative body to be valid or enforcea bl e only if its appli cation is
limi ted, its appli cation shall be limited as required to mo st full y implement its
purpos e.
Section 27. Repeal of Inconsistent Ordinances, Res-,lutions, Bylaws,
Rules and Orders. All ordinances, resoluti ons, bylaw ,, rul es and ord er s, or parts •
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thereof, that are inconsistent with or in conflict with this Ordinance, are h ereby
r epeal ed to the extent of s uch inconsistency or conflict.
Section 28. Ratification of Prior Actions. Ail actions hereu,fore tAk ~n
(not inconsistent with the provisions of this rdinance, the Act or ~ne Ballot
Question) by the Council or by the officers and employees 0f the City u.irected
toward the issuance of the Bonds for the purposes h erein set forth are hereby
ratified, approved and confirmed.
Section 29 . Effective Date . This Ordinance shall become effective thirty
days after publication following final p assdrte ,
Introduced, read in full , and passed on first reading on the 4th day of May, 2009.
Published as a Bill for an Ordinance in the Citv's official newspaper on the 8~ day of
May, 2009.
Published as a Bill for an Ordinance on the City's official website beginning on ·the
6th day of May, 2009 for thirty (30) days.
Read by lille and passed on fin al reading 011 lhe 18~ day of May, 2009.
Published by lille in 1he Ci ty's official newspaper as Ordinance No . J!l., Series of 2009, on
lhe 22nd day of May, 2009 .
I, Loucrishia A. Ellis , Ci 1y Clerk of 1he Ci1 y of Englewood , Colorado , hereby cenify chat the
above and foregoing is p,),IUe co py of lhe Ordinance passed on fi I reading and published by
title•• Ordinance No. ;..:J_, Series of 2009.
IN'T"1A.-«-• tf9
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COUNCIL COMMUN ICATIO N
Dat e: Agenda It em: Subject :
May 4, 2009 11 a V Proposed Bi ll For An Ordin ance
Au th orizing Th e I ,su ance of Bo nds For
Va ri ous Water Fu n d Ca ital Pr oj ects
Initiated By: I Staff Source :
Finan ce & Ad min is tra ti ve Services Dept. Frank Gryglewicz, Direc tor
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
City Council ap proved Ordinan ce 59 , Ser ies of 2004 o n November 5, 2004. Th e C ity is sue d
$3,075,000 in general obliga tion b o nds in 2004 .
Th e City Council approved Reso lutio n N umber 3, Seri es of 2009 o n Jan u ary 20, 2009 authorizi ng
th e Ci ty to re imburse i•se lf with proceeds of a fut ure borrowin g for capital outl ays incurred by the
U tiht ie, Depa rtm ent.
RECOMMENDED ACTION
Staff recommends Council approve the attached b ill for an o rdinance autho rizin g th e iss uance of
no more th an $3 ,055,000 in general o bli pa tion bonds fo r vari ous Water Fu nd ca pital projec ts .
BACKGROUND , ANALYSIS , ANO ALTERNATIVES IDENTIFIED
Th e City of Englewood Charte r requires a majo rity affirmative vote of the registere d elec tors to
iss ue ge neral obl:gation debt (Arti cle X, Part Ill , Sec ti on 104). Th e City recei ved citize n approval to
issu e $15 ,100,000 o f general o b l iga ti on b o nd s for th e purchase or const ru c ti o n of Water System
improvements and eq ui pmen t ai the ge neral elec tion held November 4, 1997.
Th e City o n ly used a p o rti o n ($3,075,000) of th e authoriza tion in 2004 b ec aus e o th er less
expe nsive funds we re avai lable th rough th e Colorad o Reso urces and Po wer D eve lo pment
A uthority.
The bo nds issued w;II take adva ntage o f "bank qualifi ed" provisions in th e Federal ta x code.
Th ese b onds are "genera l obligation' b onds w hi ch are backed b y th e 'full fa ith and c r edit " of the
Ci ty of Eng lewood, but it is expect ed th at o nl y reve nues genera ted by the W ater U tility will b e
nee ded to r epay th e principal and int eres t pay ments.
FINANCI AL IMPA CT
This acti o n shoul d no t have a direct im pact on th e C it y's (Genera l Fund ) fina n cia l condition, as de bt
service on this iss ue w ill be pai d by ava il ab le reso urces available to th e Water Fund. A se para•e
levy could (b ut is not c, .1t emplated) be assesse d to property owners if Water Fu nd re v enu es were
!na dequ ate to cover requ ired debt se rvice.
LI ST OF ATTACHMENTS
Proposed Bi ll for an O•din ance