HomeMy WebLinkAbout1999 Ordinance No. 053•
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ORDINANCE NO. 63
SERIES OF 1999
COUNCIL BILL NO. 55
INTRODUCED BY COUNCIL
MEMBER BRADSHAW
AN ORDINANCE OF THE CITY OF ENGLEWOOD , COLORADO , AUTHORIZING THE
ISSUANCE OF SPECIAL ASSESSMENT BONDS IN THE AGGREGATE PRINCIPAL AMOUNT
OF $612,000.00; PRESCRIBING THE FORM OF THE BONDS ; PROVIDING FOR THE
PAYMENT OF THE BONDS FROM SPECIAL ASSESSMENTS IMPOSED UPON PROPERTY
WITHIN PAVING DISTRICT NO. 38 AND MAKING CERTAIN COVENANTS IN CONNECTION
THEREWITH ; PROVIDING OTHER DETAILS AND APPROVING DOCUMENTS IN
CONNECTION WITH THE BONDS.
WHEREAS , the City of Englewood , Arapahoe County, Colorado (the "City"), is a home rule
municipality and political subdivision of the State of Colorado (the "State"), duly organized and
operating under the Charter of the City (the "City Charter") and the constitution and laws of the
State; and
WHEREAS , by Ordinance No. 34 , Series of 1997, as amended by Ordinance No . 54, Series
of 1998, the City Council of the City has created Paving District No . 38 (the "District") within the
City for the purpose of constructing and installing street paving, curb , gutter, sidewalk and storm
drainage improvements , together with necessary incidentals (the "Project") and assessing the costs
thereof against the real property included in the District; and
WHEREAS , in accordance with the requirements of Section 20 of Article X of the State
Constitution, at an election duly held on November 4, 1997 , a majority of the votes cast by the
registered electors who were owners of property within or residents of the District approved the
special assessment bonds; and
WHEREAS , pursuant to Section 110 of the City Charter, the bonded debt of the City may be
sold in such manner that is of best advantage to the City, by negotiated sale , competitive sale or
private placement; and
WHEREAS , after consultation with George K. Baum & Company , the City Council has
determined that sale of the bonds by negotiated sale is of best advantage to the City and to the
District, as set forth herein; and
WHEREAS , none of the members of the City Council have any potential conflicting interests
in connection with the authorization, issuance, or sale of the bonds, or the use of the proceeds
thereof; and
WHEREAS , the City Council desires to authorize the execution of the necessary and
appropriate documents .
NOW , THEREFORE , THE CITY COUNCIL OF THE CITY OF ENGLEWOOD ,
COLORADO , ORDAINS:
Sectio n 1.
used in this Ordinance:
Definitions . The following terms shall have the following meanings as
"Beneficial Owner" means any person for which a Participant acquires an interest in the
Bonds .
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"Bonds" means the Paving District No. 38 Special Assessment Bonds , Series 1999 , dated •
October 1, 1999, authorized herein.
"Bond Account" means the "Paving District No. 38 Bond Account" created in the section
hereof entitled "Creation of Accounts."
"Bond Counsel" means (a) as of the date of issuance of the Bonds , Kutak Rock , of Denver,
Colorado, and (b) as of any other date, Kutak Rock or such other attorneys selected by the City with
nationally recognized expertise in the issuance of municipal bonds.
"Bond Purchase Agreement" means the agreement between the Original Purchaser and the
City , dated as of the date of second and final reading of this Ordinance, concerning the offer and sale
of the 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.
"Cede" means Cede & Co., the nominee of DTC as record owner of the Bonds , or any
successor nominee of DTC with respect to the Bonds .
"City" means the City of Englewood, Colorado.
"City Charter" means the Charter of the City of Englewood, Colorado.
"City Council" 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 Bonds or the use of proceeds thereof, unless the context
clearly requires otherwise.
"C.R.S." means the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
"District" means "Paving District No. 38" created pursuant to Ordinance No. 34, Series of
1997, as amended by Ordinance No. 54, Series of 1998 of the City.
"DTC' means the Depository Trust Company, New York, New York, and its successors and
assigns, which shall act as the initial securities depository of the Bonds.
"DTC Blanket Letter of Representations" means the agreement between the City and DTC
whereby the City agrees to comply with DTC's operational requirements.
"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.
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"Negotiated Sale Resolution" means the Resolution of the City, adopted on the date of final
adoption of this Ordinance, which, among other things, establishes the estimated redemption
schedule and final interest rates for the Bonds .
"Official Statement" means the final version of the Preliminary Official Statement.
"Ordinance" means this ordinance which authorizes the issuance of the Bonds , including any
amendments properly made hereto.
"Original Purchaser" means George K. Baum & Company.
"Outstanding' means as of any date all Bonds except the following :
(a) any Bond cancelled by the City or the Paying Agent, or otherwise on the
City's behalf, at or before such date;
(b) any Bond for the payment or the redemption of which moneys or Federal
Securities sufficient to meet all of the payment requirements of the principal of and interest
on such Bond to the date of maturity or any redemption date thereof, shall have theretofore
been deposited in trust for such purpose; and
(c) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in
substitution for which another bond or other security shall have been executed and
delivered .
"Owner" or "Owners" means the Person or Persons in whose name or names a Bond is
registered on the registration books maintained by the Paying Agent pursuant hereto .
"Participant" means any broker-dealer, bank, or other financial institution from time to time
for which DTC or another substit ute securities depository holds the Bonds .
"Paying Agent" means The Bank of Cherry Creek, N .A., in Denver, Colorado, and its
successors in interest or assigns approved by the City, which shall act as paying agent, bond
registrar, and authenticating agent for the Bonds.
"Paying Agent Agreement" means the agreement between the City and the Paying Agent
regarding the establishment of the duties and responsibilities of the Paying Agent .
"Permitted Investments" means any investment lawfully permitted by applicable State law
and the City's investment policy .
"Person" means a corporation, firm, other _body corporate , partnership , association or
individual and also includes an executor, administrator, trustee , receiver or other representative
appointed according to law .
"Preliminary Official Statement" means the Preliminary Official Statement concerning the
Bonds , the District and the City.
"Project" means the constructing and installing street paving, curb, gutter, sidewalk and
storm drainage improvements , together with necessary incidentals , all as more specifically set forth
in the plans and specifications approved pursuant to the ordinances of the City establishing the
District .
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"Project Account" means the "Paving District No. 38 Project Account" created in the section •
hereof entitled "C reation of Accounts."
"Project Costs" means the City's costs properly attributable to the Project, or any parts
thereof, including without limitation: all engineering, inspection, fiscal and legal expenses; the costs
of reimbursing funds advanced by the City in anticipation of reimbursement from Bond proceeds,
including any intrafund or interfund loan ; the costs of issuing the Bonds ; all expenses as may be
necessary or incident to the financing , construction, installation, acquisition and completion of the
Project; and all other lawful costs as determined by the City Council.
"Record Date" means the last day of the calendar month next preceding each interest
payment date .
"Special Assessment Net Proceeds" means the proceeds of the District special assessments
imposed and collected pursuant to an assessment ordinance adopted by the City Council on or
about the date of adoption of this Ordinance , less any collection fees of the County Treasurer or the
Director of Financial Services permitted to be retained in accordance with the City Charter and
State law; provided however , except to the extent necessary to offset any discount allowances made
for early payments pursuant to Section 11-2-110 of the Englewood Municipal Code , there shall be
excluded from Special Assessment Net Proceeds the proceeds of District special assessments
imposed and collected on parcels owned by the South Suburban Parks and Recreation District,
being two parcels identified by Arapahoe County tax identification numbers 2077-16-1-00-010 and
2077-16-1-00-018.
"State" means the State of Colorado.
Section 2. Authorization and Purpose of the Bonds . Pursuant to and in •
accordance with the City Charter, the Constitution of the State of Colorado, and the procedural
ordinance of the City relating to local improvement districts (Title 11 , Chapter 2 of the Englewood
Munici pal Code), there shall be issued by the City the "Paving District No. 38 Special Assessment
Bonds , Series 1999", in the aggregate principal amount of $612,000.00. The Bonds shall be issued
for the purpose of paying the Project Costs.
Section 3. Bond Details .
(a) Registered Form, Denomination, Original Dated Date and
Numbering . The Bonds shall be issued as fully registered bonds in denominations of
$1,000 or any integral multiple thereof, shall be dated as of an original dated date of
October 1, 1999, shall be consecutively numbered in the manner determined by the Paying
Agent and shall be registered in the names of the Persons identified in the registration
books of the City maintained by the Paying Agent.
(b) Maturity Date, Principal Amount and Interest Rate. The Bonds shall
all mature on December 15 , 2009. The maximum net effective interest rate authorized on
the Bonds is hereby specified to be 7.5% per annum and the actual net effective interest rate
on the Bonds does not exceed said amount. The Bonds shall bear interest at the rates per
annum (ca lculated based on a 360-day year of twelve 30-day months) approved by the City
Council in the Negotiated Sale Resolution . The debt represented by the Bonds does not
exceed $970 ,000 , and the estimated repayment cost of the Bonds does not exceed
$1,300,000.
(c) Accrual and Dates of Payment of Interest. Interest on the Bonds shall
accrue at the rates established in the Negotiated Sale Resolution from the later of the •
original dated date or the latest interest payment date (or in the case of defaulted interest,
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the latest date) to which interest has been paid in full and shall be payable on June 15 and
December 15 of each year, commencing June 15, 2000 .
(d) Manner and Form of Payment. Principal of and the final installment of
interest on each Bond shall be payable to the Owner thereof upon presentation and
surrender of such bond at the principal operations office of the Paying Agent or at such other
location as identified by the Paying Agent . Interest (other than the final installment of
interest) on each Bond shall be payable by check or draft of the Paying Agent mailed on the
interest payment date to the Owner thereof as of the Record Date. 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 Registration. The Bonds shall be initially issued in the form
of a single , certificated , fully registered Bond for each maturity. Upon initial issuance , the
ownership of each such Bond shall be registered in the registration books kept by the Bond
Registrar in the name of Cede, and principal of and interest on the Bonds shall be paid to
DTC in accordance with the DTC Blanket Letter of Representations ; provided, however , if at
any time the Paying Agent determines , and notifies the City of its determination, that DTC
is no longer able to act as , or is no longer satisfactorily performing its duties as, securities
depository for the Bonds , the City may, at its sole and absolute discretion, either (i)
designate a substitute securities depository for DTC and reregister the Bonds as directed by
such substitute securities depository or (ii) terminate the book-entry registration system and
reregister the Bonds in the names of the Beneficial Owners thereof. Neither the City nor the
Paying Agent shall have any liability to DTC, Cede , any substitute securities depository,
any Beneficial Owner, any Person in whose name the Bonds are reregistered at the direction
of any substitute securities depository, or any other Person for any action taken to
implement the City's discretionary determination set forth above that is taken pursuant to
any direction of or in reliance on any information provided by DTC, Cede, any substitute
securities depository, any Beneficial Owner, or any Person in whose name the Bonds are
reregistered.
Section 4. Form of the Bonds.
(a) Bond Form. The Bonds shall be in substantially the form set forth in
Appendix A hereto, with such changes thereto, not inconsistent herewith, as may be
necessary or desirable and approved by the officials of the City executing the same (whose
manual or facsimile signatures thereon shall constitute conclusive evidence of such
approval). Although attached as an appendix for the convenience of the reader, Appendix A
is an integral part of this Ordinance and is incorporated herein as if set forth in full in the
body of this Ordinance. The Bonds may contain a reproduction of the opinion of Bond
Counsel as to the Bonds and a certification of such opinion by the City Clerk.
(b) Incontestable Recital in Bonds. In accordance with Section 11-2-9 of the
Englewood Municipal Code , each Bond shall recite that it is issued under the authority of
the City Charter and the procedural ordinance or ordinances adopted pursuant to the City
Charter; such recital shall conclusively impart full compliance with all of the provisions
thereof, and all Bonds issued containing such recital shall be incontestable for any cause
whatsoever after their delivery for value.
Section 5. Execution, Authentication and Delivery of the Bonds .
(a) Execution. The Bonds shall be executed in the name and on behalf of the
City with the manual or facsimile signature of the Mayor, shall be countersigned with the
manual or facsimile signature of the Director of Financial Services , shall bear a manual or
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facsimile of the seal of the City and shall be attested by the manual or facsimile signature of •
the City Clerk, all of whom are hereby authorized and directed to prepare and execute the
Bonds in accordance with the requirements hereof. Should any officer whose manual or
facsimile signature appears on the Bonds cease to be such officer before delivery of any Bond,
such manual or facsimile signature shall nevertheless be valid and sufficient for all
purposes.
(b) Authentication. When the Bonds have been duly executed, the officers of
the City are authorized to , and shall, deliver the Bonds to the Paying Agent for
authentication. No Bond shall be secured by or entitled to the benefit of this Ordinance , or
shall be valid or obligatory for any purpose, unless the certificate of authentication of the
Paying Agent has been manually executed by an authorized signatory of the Paying Agent.
The executed certificate of authentication of the Paying Agent upon any Bond shall be
conclusive evidence , and the only competent evidence, that such Bond has been properly
authenticated hereunder.
(c) Delivery. Upon the authentication of the Bonds , the Paying Agent shall
deliver the same to DTC in accordance with the provisions of the DTC Blanket Letter of
Representations. Upon receipt of the agreed purchase price of the Bonds from the Original
Purchaser in accordance with the Bond Purchase Agreement, and issuance of the approving
opinion of Bond Counsel, DTC shall be directed to release the Bonds to the Beneficial
Owners .
Section 6. Registration, Transfer and Exchange of the Bonds.
(a) Regist ration. The Paying Agent shall maintain registration books in which
the ownership , transfer and exchange of Bonds shall be recorded. The person in whose •
name any Bond shall be registered on such registration books shall be deemed to be the
absolute owner thereof for all purposes, whether or not payment on any Bond shall be
overdue, and neither the City nor the Paying Agent shall be affected by any notice or other
information to the contrary.
(b) Transfer and Exchange. The Bonds may be transferred or exchanged, at
the principal office of the Paying Agent at the location identified in the definition of Paying
Agent in the section hereof entitled "Definitions," upon payment by the transferee of a
transfer fee , any tax or governmental charge required to be paid with respect to such
transfer or exchange and any cost of printing bonds in connection therewith. Upon surrender
for transfer of any Bond, duly endorsed for transfer or accompanied by an assignment duly
executed by the Owner or his or her attorney duly authorized in writing, the City shall
execute and the Paying Agent shall authenticate and deliver in the name of the transferee a
new Bond .
(c) Limitations on Transfer. The City and Paying Agent shall not be required
to issue or transfer any Bonds: (i) during a period beginning at the close of business on the
Record Date and ending at the opening of business on the first Business Day following the
ensuing interest payment date , or (ii) during the period beginning at the opening of business
on a date 45 days prior to the date of any redemption of Bonds and ending at the opening of
business on the first Business Day following the day on which the applicable notice of
redemption is mailed. The Paying Agent shall not be required to transfer any Bonds
selected or called for redemption.
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Section 7. Replacement of Lost, Destroyed or Stolen Bonds. If a ny Bond shall
become lost, apparently destroyed, stolen or wrongfully taken, it may be replaced in the form and
tenor of the lost, destroyed, stolen or taken bond and the City shall execute and the Paying Agent
shall authenticate and deliver a replacement Bond upon the Owner furnishing , to the satisfaction of
the Paying Agent: (a) proof of ownership (which shall be shown by the registration books of the
Paying Agent), (b) proof of loss , destruction or theft, (c) an indemnity to the City and the Paying
Agent with respect to the Bond lost, destroyed or taken, and (d) payment of the cost of preparing
and executing the new bond or bonds.
Section 8. Redemption of Bonds Prior to Maturity.
(a) Optional Redemption. The Bonds are subject to call and prior payment on
any interest payment date, in direct numerical order as indicated by Bond number, upon
payment of par and accrued interest.
(b) Redemption Procedures. Notice of any redemption of Bonds shall be given
by the Paying Agent in the name of the City by sending a copy of such notice by first-class ,
postage prepaid mail, not less than 30 days prior to the redemption date , to the Owner of
each Bond being redeemed. Such notice shall specify the number or numbers of the Bonds so
to be r edeemed (if redemption shall be in part) and the redemption date . If any Bond shall
have been duly called for redemption and if, on or before the redemption date , there shall
have been deposited with the Paying Agent in accordance with this Ordinance funds
sufficient to pay the redemption price of such Bond on the redemption date , then such Bond
shall become due and payable at such redemption date , and from and after such date
interest will cease to accrue thereon. Failure to deliver any redemption notice or any defect
in any redemption notice shall not affect the validity of the proceeding for the redemption of
Bonds with respect to which such failure or defect did not occur . Any Bond redeemed prior to
its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled .
Section 9. Creation of Accounts. There are hereby created and established within
the appropriate fund of the City the Bond Account and the Project Account. In accordance with
generally accepted accounting principles, for the purpose of accounting for the moneys provided for in
this Ordinance the Director of Financial Services may create offsetting revenue and expense accounts
not inconsistent with the provisions hereof, all as may be determined by the Director of Financial
Services.
Section 10. Application of Proceeds of the Bonds.
(a) Application of Bond Proceeds. Upon payment to the City of the purchase
price of the Bonds in accordance with the Bond Purchase Agreement, the proceeds received
by the City from the sale of the Bonds shall be applied as a supplemental appropriation of
the City as follows:
(i) accrued interest on the Bonds from the dated date thereof to the date
of issuance and capitalized interest shall be deposited into the Bond Account; and
(ii) a ll remaining proceeds shall be deposited into the Project Account.
Section 11. Bond Account.
(a) Pledge of Bond Account. The Bonds and the interest thereon shall be
payable solely from , and as security for such payment there is pledged, the Bond Account .
The Bond Account shall contain: (i) the accrued interest and capitalized interest on the
Bonds; (ii) the Special Assessment Net Proceeds ; and (iii) other funds legally available
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therefore , including without limitation the net proceeds of any bonds or other obligations
issued to refund the Bonds.
(b) Use of Moneys in the Bond Account. Whenever the balance of funds in
the Bond Account exceeds (i) on May lQth of the calendar year, the interest on the unpaid
principal of the Outstanding Bonds for the next succeeding June 15 and December 15
interest payment dates , or (ii) on November lQth of the calendar year, the interest on the
unpaid principal of the Outstanding Bonds for the next succeeding December 15 interest
payment date , the Director of Financial Services shall call in or direct the Paying Agent to
call in a suitable number of Bonds for payment , in direct numerical order, on the next
succeeding interest payment date.
(c) Investments. Moneys deposited in the Bond Account may be invested or
deposited in securities or obligations which are Permitted Investments. The investment of
moneys deposited in the Bond Account shall, however , be subject to the covenants and
provisions of the section hereof entitled "Covenants Regarding Exclusion of Interest on Bonds
from Gross Income for Federal Income Tax Purposes ."
Section 12. Project Account.
(a) Use of Moneys in Project Account. All moneys deposited in the Project
Account shall be applied solely to the payment of the Project Costs. Upon the determination
of the City Council that all Project Costs have been paid or are determinable , any balance
remaining in the Project Account (less any amounts necessary to pay Project Costs not then
due and owing) shall be transferred to the Bond Account .
(b) Investments. Moneys deposited in the Project Account may be invested or
deposited in securities or obligations which are Permitted Investments. The investment of
moneys deposited in the Project Account shall, however, be subject to the covenants and
provisions of the section hereof entitled "Covenants Regarding Exclusion of Interest on Bonds
from Gross Income for Federal Income Tax Purposes." Except to the extent otherwise
required by such section, interest income from the investment or reinvestment of moneys
deposited in the Project Account shall remain in said account.
Section 13. General Covenants. In addition to the other covenants of the City
contained herein, the City hereby further covenants for the benefit of Owners of the Bonds that:
(a) Leuy of Assessments. The City Council will cause the assessments to be
levied in amounts calculated to be sufficient to pay the principal of and interest on the
Bonds for the benefit of the Owners of the Bonds. The City covenants to credit promptly or
cause to be deposited to the Bond Account the Special Assessment Net Proceeds, and take
such action as may be reasonably necessary and practicable to enforce the collection for such
assessments in the manner provided by law.
(b) Collection and Disposition of Assessments. So long as any of the Bonds
remain outstanding, the City will keep or cause to be kept books and records showing full,
true and complete entries covering the collection and disposition of the assessments and any
delinquencies in the collection thereof, covering deposits and disbursements in each of the
accounts herein described , and covering the payment of the Bonds. Any Owner shall have
the right at all reasonable times to inspect such books and records .
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(c) Audits. At least once a year in the time and manner provided by law , the
City will cause an audit to be performed of the records relating to the Bond Account and the •
Project Account. Such audit may be made part of and included within the general audit of
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the City, and made at the same time as the general audit. In addition, at least once a year
in the time and manner provided by law, the City will cause a budget to be prepared and
adopted. Copies of the budget and the audit will be filed and recorded in the places , time,
and manner provided by law.
Section 14. Covenants Regarding Exclusion of Interest on Bonds from Gross
Income for Federal Income Tax Purposes. For purposes of ensuring that the interest on the
Bonds is and remains excluded from gross income for federal income tax purposes , the City hereby
covenants that:
(a) Prohibited Actions. The City will not use or permit the use of any proceeds
of the Bonds or any other funds of the City from whatever source derived, directly or
indirectly, to acquire any securities or obligations and shall not take or permit to be taken
any other action or actions, which would cause any Bond to be an "arbitrage bond" within
the meaning of Section 148 of the Code, or would otherwise cause the interest on any Bond
to be includible in gross income for federal income tax purposes.
(b) Affirmative Actions. The City will at all times do and perform all acts
permitted by law that are necessary in order to assure that interest paid by the City on the
Bonds shall not be includible in gross income for federal income tax purposes under the Code
or any other valid provision of law. In particular, but without limitation, the City
represents , warrants and covenants to comply with the following rules unless it receives an
opinion of Bond Counsel stating that such compliance is not necessary: (i) gross proceeds of
the Bonds will not be used in a manner that will cause the Bonds to be considered "private
activity bonds" within the meaning of the Code ; (ii) the Bonds are not and will not become
directly or indirectly "federally guaranteed"; and (iii) the City will file timely Internal
Revenue Form 8038-G which shall contain the information required to be filed pursuant to
Section 149(e) of the Code.
(c) Bank Qualified. The City hereby designates the Bonds as "qualified tax-
exempt obligations" for purposes of Section 265(b)(3) of the Code.
Section 15. Defeasance. Any Bond shall not be deemed to be Outstanding hereunder
if it shall have been paid and cancelled or if cash or Federal 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 m
accordance with this Ordinance). In computing the amount of the deposit described above , the City
may include interest to be earned on the Federal Securities.
Section 16. Events of Default .
(a) Event of Default. With respect to the Bonds , each of the following events
constitutes an Event of Default:
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(i) failure to make any payment of principal of or interest on the Bonds
when due hereunder ;
(ii) breach by the City of any material covenant set forth herein relating
to the Bonds 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 the City of written notice thereof from the Paying
Agent or from the Owners of at least 10 % in principal amount of the Outstanding
Bonds ; or
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(iii) an order or decree is entered by a court of competent jurisdiction
appointing a receiver for all or any portion of the revenues; and, moneys pledged for •
the payment of the Bonds pursuant hereto 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 30 days after it is entered.
Section 17. Remedies for Events of Default. Upon the occurrence and continuance
of an Event of Default, the Owner of any Bond , or a trustee therefor, may protect and enforce the
rights of any Owner by proper legal or equitable remedy deemed most effectual including
mandamus, specific performance of any covenants , injunctive relief, or requiring the City Council to
act as if it were the trustee of an express trust, or any combination of such remedies . All
proceedings shall be maintained for the equal benefit and protection of all Owners . The failure of
any Owner to proceed does not relieve the City or any person of any liability for failure to perform
any duty hereunder. The foregoing rights are in addition to any other right, and the exercise of any
right by any Owner shall not be deemed a waiver of any other right.
Section 18. Amendment of Ordinance.
(a) Amendments Permitted without Notice to or Consent of Owners. The
City may, without the consent of or notice to the Owners of the Bonds , adopt one or more
ordinances amending or supplementing this Ordinance (which ordinances shall thereafter
become a part hereof) for any one or more or all of the following purposes:
(i) to cure any ambiguity or to cure , correct or supplement any defect or
inconsistent provision of this Ordinance ;
(ii) to subject to this Ordinance additional revenues , properties or
collateral;
(iii) to facilitate the designation of a substitute securities depository or to
terminate the book-entry registration system for the Bonds in accordance with the
section hereof entitled "Bond Details ;" or
(iv) to make any other change that does not materially adversely affect
the Owners of the Bonds .
(b) Amendments Requiring Notice to and Consent of Owners. Except for
amendments permitted by paragraph (a) of this section, this Ordinance may only be
amended (i) by an ordinance of the City amending or supplementing this Ordinance (which,
after the consents required therefor, shall become a part hereof) and (ii) with the written
consent of the Owners of at least 66 2/3 % in aggregate principal amount of the Bonds then
Outstanding; provided that any amendment that makes any of the following changes with
respect to any Bond shall not be effective without the written consent of the Owner of such
bond: (A) a change in the maturity of such bond; (B) a reduction of the interest rate on such
bond; (C) a change in the terms of redemption of such bond ; (D) a delay in the payment of
principal of or interest on such bond ; (E) the creation of any pledge of or lien upon any
revenues or moneys pledged for the payment of such bond hereunder that is superior to the
pledge and lien for the payment of such bond hereunder; (F ) a reduction of the principal
amount or percentage of Bonds whose consent is required for an amendment to this
Ordinance; or (G) the establishment of a priority or preference for the payment of any
amount due with respect to any other Bond over such bond.
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(c) Procedure for Notifying and Obtaining Consent of Owners. Whenever •
the consent of an Owner or Owners of Bonds is required under paragraph (b) of this section,
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the City shall mail a notice to such Owner or Owners at their addresses as set forth in the
registration books maintained by t he Paying Agent and to the Original Purchaser, which
notice shall describe briefly the proposed amendment and state that a copy of the
amendment is on file in the office of the City Clerk for inspection. Any consent of any Owner
of any Bond obtained with respect to an amendment shall be in writing and shall be final
and not subject to withdrawal, rescission or modification for a period of 60 days after it is
delivered to the City unless another time period is stated for such purpose in the notice
mailed pursuant to this paragraph.
Section 19. Findings and Determinations. The City Council hereby finds ,
determines and declares that it is in the best interest of the City, and the residents of and owners of
property within the District, that the Bonds be authorized, sold, issued and delivered at the time , in
the manner and for the purposes provided herein.
Section 20. Appointment and Duties of Paying Agent . The Paying Agent is hereby
appointed as paying agen,t, registrar and authenticating agent for the Bonds unless and until the
City removes it as such and appoints a successor Paying Agent, in which event such successor shall
automatically succeed to the duties of the Paying Agent hereunder and its predecessor shall
immediately turn over all its records regarding the Bonds to such successor. The Paying Agent, by
accepting its duties as such, agrees to perform all duties and to take all actions assigned to it
hereunder in accordance with the terms hereof .
Section 21. Ap,Proval of Official Statement and Miscellaneous Documents. The
City Council hereby ratifies and approves the distribution and use of the Preliminary Official
Statement; authorizes and directs the City staff to prepare a final Official Statement for use in
connection with the sale of the Bonds in substantially the form thereof presented to the City Council
at the meeting at which this Ordinance is adopted, with such changes therein, if any, not
inconsistent herewith, as are approved by the City. The City Council authorizes and approves the
DTC Blanket Letter of Representations , an undertaking to facilitate compliance with Securities and
Exchange Commission Rule 15c2-12 (17 C .F.R. § 240.15c2-12); the Bond Purchase Agreement, the
Paying Agent Agreement, a "Tax Compliance 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 Form 8038-G with respect to the Bonds and all other
documents and certificates necessary or desirabl e to effectuate the issuance or administration of the
Bonds, the investment of proceeds of the Bonds and the transactions contemplated hereby and by
the Bond Purchase Agreement. The Mayor is hereby authorized and directed to execute the final
Official Statement and the Mayor, the Director of Financial Services , the City Clerk and all other
officers, agents and employees of the City are hereby authorized and directed to execute all
documents and certificates necessary or desirable to effectuate the issuance of the Bonds and the
transactions contemplated hereby.
Section 22. Ratification of Prior Actions . All actions heretofore taken (not
inconsistent with the provisions of this Ordinance) by the City Council or by the officers and
employees of the City directed toward the creation of the District and the issuance of the Bonds for
the purposes herein set forth are hereby ratified , approved and confirmed.
Section 23. 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 shall instead be made or occur on
the next succeeding day that is a Business Day .
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Section 24. Headings. The headings to the various sections and paragraphs to this
Ordinance have been inserted solely for the convenience of the reader, are not a part of this •
Ordinance , and shall not be used in any manner to interpret this Ordinance .
Section 25. Ordinance Irrepealable. After any of the Bonds have been issued, this
Ordinance shall constitute a contract between the Owners and the City, and shall be and remain
irrepealable until the Bonds and the interest accruing thereon shall have been fully paid, satisfied,
and discharged, as herein provided.
Section 26. Limitation of Actions . In accordance with Section 11-2-8 of the
Englewood Municipal Code , any person filing with the City Council a complaint, protest or objection
shall have the right, with the thirty (30) days after the final passage of this Ordinance , to commence
an action or suit in any court of competent jurisdiction to correct or set aside any determination by
the City Council or questioning the authority or proceedings of the City Council relating to the
issuance of the Bonds . Thereafter, all actions or suite attacking the issuance of the Bonds shall be
perpetually barred.
Section 27. Repealer. All orders , bylaws, ordinances , and resolutions of the City, or
parts thereof, inconsistent or in conflict with this Ordinance, are hereby repealed to the extent only
of such inconsistency or conflict.
Section 28. Publication and Effective Date. This Ordinance , after its final
passage , shall be numbered and recorded, and the adoption and publication shall be authenticated
by the signatures of the Mayor and City Clerk, and by the Certificate of Publication. This Ordinance
shall become effective thirty (30) days after publication following final passage.
Introduced, read in full, and passed on first reading on the 7 th day of September, 1999.
Published as a Bill for an Ordinance on the 10th day of September, 1999.
Read by title and passed on final reading on the 20th day of September, 1999 .
Published by title as Ordinance No.£, Series of 1999 , on the 24th day of September, 1999.
~
I , Loucrishia A. Ellis , City Clerk of the City of Englewood, Col ado, hereby certify that the above
and foregoing is a true copy of the Ordinance passed on fin eading and published by title as
Ordinance No . .53, Series of 1999.
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APPENDIX A
FORM OF THE BOND
R-_ $ __
EXCEPT AS OTHERWISE PROVIDED IN THE HEREINAFTER DEFINED ORDINANCE ,
THIS GLOBAL BOOK-ENTRY BOND MAY BE TRANSFERRED , IN WHOLE BUT NOT IN PART,
ONLY TO ANOTHER NOMINEE OF THE SECURITIES DEPOSITORY (AS DEFINED HEREIN)
OR TO A SUCCESSOR SECURITIES DEPOSITORY OR TO A NOMINEE OF A SUCCESSOR
SECURITIES DEPOSITORY.
UNITED STATES OF AMERICA
CITY OF ENGLEWOOD, COLORADO
CITY OF ENGLEWOOD PAVING DISTRICT NO. 38
Interest Rate:
%
REGISTERED OWNER:
PRINCIPAL SUM:
SPECIAL ASSESSMENT BOND
SERIES 1999
Maturity Date: Original Dated Date:
December 15, 2009 October 1 , 1999
CUSIP:
DOLLARS
CITY OF ENGLEWOOD, COLORADO, in the State of Colorado, a duly organized and
validly existing City and political subdivision of the State of Colorado, (the "City"), for value received,
here by promises to pay to the order of the registered owner named above or registered assigns,
solely from the special funds as hereinafter set forth, on the maturity date stated above, the
principal sum stated above , in lawful money of the United States of America, with interest thereon
from the original dated date stated above , at the interest rate per annum stated above , payable on
June 15th and December 15th of each year, commencing June 15 , 2000, the principal of and the final
installment of interest on this bond being payable to the registered owner hereof upon presentation
and surrender of this bond at the principal operations office of The Bank of Cherry Creek, N .A., as
Paying Agent (the "Paying Agent"), in Denver, Colorado, or at such other location as identified by the
Paying Agent, and the interest hereon (other than the final installment of interest hereon) to be paid
by check or draft of the Paying Agent mailed on the interest payment date to the registered owner
hereof as of the close of business on the last day of the month (whether or not such day is a
Business Day) preceding the interest payment date , except that so long as Cede & Co . is the
registered owner of this bond, the principal of and interest on this bond shall be paid by wire
transfer to Cede & Co.
This bond is one of an issue of bonds of the City designated Paving District No . 38 Special
Assessment Bonds , Series 1999 issued in the principal amount of $612 ,000.00 (the "Bonds"). The
Bonds are being issued by the City for the purpose of financing the construction and installation of
street paving, curb , gutter, sidewalk and storm drainage improvements , together with necessary
incidentals (the "Project") for Paving District No. 38 (the "District"), pursuant to and in full
conformity with the City Charter, the procedural ordinance of the City relating to local improvement
districts adopted pursuant to the City Charter (Title 11, Chapter 2 of the Englewood Municipal
02-4856 0.0 I A-1
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Code), the Constitution of the State of Colorado and an ordinance (the "Ordinance") duly adopted by •
the City prior to the issuance hereof. Pursuant to Title 11 , Chapter 2 of the Englewood Municipal
Code, such recital shall conclusively impart full compliance with all of the provisions thereof, and all
Bonds issued containing such recital shall be incontestable for any cause whatsoever after their
delivery for value.
It is hereby certified and recited that the total issue of Bonds of the City for the District,
including this Bond, does not exceed the amount authorized by law; that every requirement of law
relating to the creation of the District, the construction and installation of the Project, and the
issuance of this Bond has been fully complied with by the proper officers of the City; that at an
election lawfully held within that portion of the City comprising the District on November 4, 1997,
the issuance of this Bond was duly authorized by a majority of the electors qualified to vote and
voting at said election; and that all conditions required to exist and things required to be done
precedent to and in the issuance of this Bond to render the same lawful and valid , have happened,
been properly done and performed, and did exist in regular and due time, form , and manner, as
required by law . It is hereby further recited, certified, and warranted that all of the requirements of
law have been fully complied with by the proper officers in issuing this Bond.
Payment of this Bond and the interest thereon shall be made from, and as security for such
payment there is pledged, a special fund designated as "Paving District No. 38 Bond Account" (the
"Bond Account"). The Bond Account shall contain (a) the Special Assessment Net Proceeds (as
defined in the Ordinance), (b) the Bond proceeds set aside as capitalized interest and accrued
interest, and (c) any other legally available moneys , including without limitation, the net proceeds of
any bonds or other obligations issued to refund the Bonds.
The assessments levied against the property within the District constitute a lien on and
against each lot or tract of land in the respective amounts apportioned by an ordinance of the City. •
For the payment of this Bond and the interest thereon, the City pledges to exercise all of its lawful
corporate powers to collect the assessments against the real property included within the District
and specially benefited by the construction and installation of the Project, and take all necessary
action to collect any assessments that are in default.
This Bond is subject to call and prior payment on any interest payment date, upon
payment of par and accrued interest, as more fully set forth in the Ordinance.
Notice of any redemption of Bonds shall be given by the Paying Agent in the name of the
City by sending a copy of such notice by first-class, postage prepaid mail, not less than 30 days prior
to the redemption date, to the Owner of each Bond being redeemed. Such notice shall specify the
number or numbers of the Bonds so to be redeemed (if redemption shall be in part) and the
redemption date. If any Bond shall have been duly called for redemption and if, on or before the
redemption date, there shall have been deposited with the Paying Agent in accordance with this
Ordinance funds sufficient to pay the redemption price of such Bond on the redemption date, then
such Bond shall become due and payable at such redemption date , and from and after such date
interest will cease to accrue thereon. Failure to deliver any redemption notice or any defect in any
redemption notice shall not affect the validity of the proceeding for the redemption of Bonds with
respect to which such failure or defect did not occur. Any Bond redeemed prior to its maturity by
prior redemption or otherwise shall not be reissued and shall be cancelled.
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The Paying Agent shall maintain registration books in which the ownership , transfer and
exchange of the Bonds shall be recorded. The person in whose name this Bond shall be registered
on such registration books shall be deemed to be the absolute owner hereof for all purposes ,
whether or not payment on this Bond shall be overdue, and neither the City nor the Paying Agent
shall be affected by any notice or other information to the contrary. This Bond may be transferred or
exchanged , at the principal operations office of the Paying Agent in Denver, Colorado, or at such
other location as identified by the Paying Agent, upon payment by the transferee of a transfer fee ,
any tax or governmental charge required to be paid with respect to such transfer or exchange and
any cost of printing bonds in connection therewith .
THIS BOND DOES NOT CONSTITUTE A DEBT OR AN INDEBTEDNESS OF THE CITY
OF ENGLEWOOD WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY
LIMITATION OR PROVISION, AND SHALL NOT BE CONSIDERED OR HELD TO BE A
GENERAL OBLIGATION OF THE CITY . THE PAYMENT OF THIS BOND AND THE INTEREST
THEREON IS NOT SECURED BY AN ENCUMBRANCE , MORTGAGE , OR OTHER PLEDGE OF
PROPERTY OF THE CITY EXCEPT FOR SUCH SPECIAL ASSESSMENTS AND OTHER
MONEYS PLEDGED FOR THE PAYMENT OF BONDS AS SET FORTH ABOVE. NO PROPERTY
OF THE CITY , SUBJECT TO SUCH EXCEPTION, SHALL BE LIABLE TO BE FORFEITED OR
TAKEN IN PAYMENT OF THE BONDS .
THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE REGISTERED
OWNER OF THIS BOND AND THE CITY . THIS BOND IS ONLY EVIDENCE OF SUCH
CONTRACT AND , AS SUCH, IS SUBJECT IN ALL RESPECTS TO THE TERMS OF THE
ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT STATEMENT IN THIS BOND .
The City agrees with the Owner of this Bond and with each and every person who may
become the Owner hereof, that it will keep and perform all the covenants and agreements contained
in the Ordinance .
The Ordinance may be amended or supplemented from time to time with or without the
consent of the registered owners of the Bonds as provided in the Ordinance .
This Bond shall not be entitled to any benefit under the Ordinance , or become valid or
obligatory for any purpose , until the Paying Agent shall have signed the certificate of authentication
hereon.
IN WITNESS WHEREOF , City of Englewood , Colorado, has caused this Bond to be signed
in the name and on behalf of the City with the manual or facsimile signature of the Mayor , to be
countersigned with the manual or facsimile signature of the Director of Financial Services , to be
sealed with the seal of the City or a facsimile thereof and to be attested by the manual or facsimile
signature of the City Clerk.
[MANUAL OR FACSIMILE SEAL]
Countersigned:
By CManual or Facsimile Signature)
Director of Financial Services
Attest:
02-48560 0 1
ENGLEWOOD , COLORADO
By CM a nual or Facsimile Signature)
Mayor
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By CManual or Facsimile Signature)
City Clerk
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds described in the within-mentioned Ordinance.
02-48560 .01
THE BANK OF CHERRY CREEK, N.A., as
Paying Agent
By ________________ ~
Authorized Representative
Date of Authentication: _________ _
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CERTIFICATE OF TRANSFER
FOR VALUE RECEIVED , , the undersigned, hereby
sells , assigns and transfers unto (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: ____ _
02-48560.01
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
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COUNCIL COMMUNICATION
Date Agenda Item Subject
September 7, 1999 Proposed Bill For An Ordinance
Authorizing the Issuance Special
11 a i Assessment Bonds in the amount of
$612,000.
Initiated By Staff Source
Department of Financial Services Frank Gryglewicz , Director
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
This bill for an ordinance authorizing the City of Englewood to issue $612,000 in special assessment bonds for Paving District
38. A ballot question requesting affected voters approve the issuance the bonded debt to finance improvements in Paving
District 38 was passed in 1998 by a vote of 8 to 6.
RECOMMENDED ACTION
Staff recommends Council approve the attached bill for an ordinance authorizing the issuance special assessment bonds in
the amount of $612 ,000 .
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
The City of Englewood Charter required a majority affirmative vote of the affected electors in the Paving District to issue
general obligation debt (Article X, Part Ill, Section 104). This issue was submitted to the eligible voters in Paving District 38
on November 4 , 1997 and passed 8 to 6 .
No other alternative funding mechanism has been identified .
FINANCIAL IMPACT
This bond issue will be repaid from special assessments collected from those benefited by this project.
LIST OF ATTACHMENTS
Proposed bill for an ordinance