HomeMy WebLinkAbout1980-45 Relating to the Issuance of Town of Vail Land Transfer Tax Anticipation Warrants, Series B, Dated February 1, 1981, in the Principal Amount of $2,500,000 for the Purpose of Acquiring Real Property to be Used for Open Space, Recreational or Parkz ;
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ORDINANCE NO. 45, SERIES OF I.980
OF THE TOWN OF VAIL, COLORADO
A5 FINALLY ADOPTED
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ORDINANCE NO. 45
SERIES OF 198Q
AN ORDINANCE RELATING TO THE ISSUANCE OF
TOWN OF VAIL, COLORADO, LAND TRANSFER TAX
ANTICIPATION WARRANTS, SERIES B, DATED
FEBRUARY 1, 1981, IN THE PRINCIPAL AMOUNT
OF $2,500,0Q0, FOR THE PURPOSE OF ACQUIRING
REAL PROPERTY TO BE USED FOR OPEN SPACE,
RECREATTQNAL OR PARK PURPOSES.
BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VA IL, COLORADO,
THAT:
Section 1. Definitions and Construction.
A. Definitions. In this Ordinance the following terms have the
following respective meanings unless the context hereof clearly
requires otherwise:
{1} Acquisition Fund: that special fund referred to in
Section 5B hereof.
{2} Additional Parity General Obligation Bonds: any
general obligation bonds of the Town payable in whole or in part
from Pledged Sales Tax Revenues, issued after the date hereof, in -
accordance with the provisions of this Ordinance, Prior
Ordinances, the Charter and the Constitution and laws of the
State, having a lien on the Pledged Sales Tax Revenues equal to or
on a parity with the lien thereon of the Prior General Obligation
Bonds and superior or senior to the Lien thereon of the Warrants.
(3} Additional Parity Warrants: any warrants of the Town
issued after the date hereof, pursuant to and in accordance with
. Section 7B hereof.
{4} Average Annual Debt Service: for the warrants, or the
Superior General Obligation Bonds, or a given issue of Parity
Securities, the aggregate of all Debt Service Requirements
(excluding any redemption premiums) due on the Warrants, or the .
Superior General Obligation Bonds or any other given issue of
Parity Securities in question far all Bond Years beginning with
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the Bond Year in which both principal of and interest on the
Warrants, or the Superior General Obligation Bonds or the Parity
Securities are first payable and ending with the Bond Year in
which the last of the Debt Service Requirements (excluding any
redemption premiums} due on the Warrants, or the Superior General
Obligation Bonds or the other given issue of Parity Securities in
question are payable, divided by the number of such years.
(5} Bond Year: for the purpose of this Ordinance, the
twelve ;12) months commencing on the first day of December of any
calendar year and ending on the thirtieth day of November of the
ne~ct succeeding calendar year.
t6} C apital Improvements and Open Space Fund: the special
fund created by Resolution No. 1, Series 1980, of the Town adopted
by the Town Council on January 8, 198Q, into which the Pledged
Sales Tax Revenues are to be deposited.
(7} Charter: the Home Rule Charter of the Town, approved
by the electors of the Town on September 12, 1972, and filed in
the offa.ce of the Colorado Secretary of State on September 15,
1972.
(8} C ommercial Bank: a state or national bank or trust
company which is a member of the Federal Deposit Insurance
Corporation and of the Federal Reserve System, which has a capital
and surplus of $1,Q00,000 or more, and which is located within the
Dnited States; and such term includes, without limitation, any
Trust Bank, as herein defined.
(9) C omparable Bond Year: in connection with any Fiscal
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Year, the Bond Year which ends in such Fiscal Year, For example,
for i.he Fiscal Year commencing on January 1, 1982, the Comparable
Bond Year for the Warrants commences on December 1, 1981, and ends
on November 30, 1982.
(10} C ost of the Project: all or any part of the cost of
the real property to be acquired with the proceeds of the
Warrants, including, without limitation, all costs and estimated
costs of the issuance of the Warrants; all surveying, inspection,
fiscal, and legal expenses; any discount on the sale of the
Warrants; costs of financial, professional, and other estimates
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and advice; contingencies; any administrative, operating, and
other expenses of the Town prior to and during the acquisition
period far the Project, as may be determined by the Town Council;
and all such other expenses as may be necessary ar incident to the
financing and acquisition of the Project, or part thereof, and the
placing of the same in public use; provision for reserves for
replacement expenses or for payment or security of principal of or
interest on the Warrants during or after the acquisition period as
the Tawn Council may determine.
{ll} C oupons or coupons: those obligations evidencing
interest an and pertaining to the Warrants and any other
securities payable from the Pledged Revenues, or such part of such
securities as may be designated.
(12} Debt Service Requirements: the principal of, interest
on, and any premiums due in connection with the redemption of, the
Warrants, the Superior General Obligation Bonds, the Additional
Parity Warrants, Parity Securities and any other securities
payable from the Pledged Revenues and heretofore ar hereafter
issued, if any, or such part of such securities as may be
designated, as such principal, interest and premiums become due.
(l3) Event of Default: each of the events stated in Section
14 hereof.
{14) Exempt Transfers: transfers to which the wand Transfer
Tax does not apply as provided in Section 5 of Ordinance No. 26.
{15) Federal Securities: bills, certificates of
indebtedness, notes, bonds or similar securities which are direct
obligations of, or the principal and interest of which obligations
are unconditionally guaranteed by, the United States of America.
{16) Fiscal Xear: the twelve (12) months commencing an the
First day of January of any calendar year and ending on the
thirty-first day of becember of such calendar year or such other
t;aelve (12) month period as may from time to time be designated by
the Town Council as the Fiscal Year of the Town,
{17) Grass Project Revenues: {a} all income, if any, from
rates, fees, tolls, rentals and charges or any combination thereof
for the services or privileges furnished by, with or from the use
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of the Project; and (ba all income or other gain, if any, from any
investment of Gross Project Revenues.
(18} Holder: when used in conjunction with any coupons, any
Warrants, or any other designated securities, the Person in
possession and the apparent owner of the designated item.
(19 ) Independent Accountant: any certified public
accountant, or any firm of such accountants, duly lzcensed to
practice and practicing as such under the laws of the State,
appointed and paid by the Town, who (aj is, in fact, independent
and not under the domination at the Town or the Tawn Council, (b)
does not have any substantial interest, direct or indirect, in any
of the affairs of the Town, and (e) is not connected with the Town
as a member, officer ar employee of the Town Council, but who may
be regularly retained to make annual or similar audits of any
books or records of the Town.
(20) Land Maintenance and Planning Fund: the special fund
referred to in Section 5F' hereof.
(21) Land Transfer Tax: the land transfer tax established
by Ord inanee Na~ 26 upon the Transfer of interests in Real
Property in the Town, in such percentage as set forth in Ordinance
No. 26 or any supplement or amendment thereof.
(22) Land Transfer Tax Fund: the special fund created by
Section 9 of Ordinance No. 26 into which the proceeds of the Land
Transfer Tax are to be deposited.
(23 } Mayor : the de j ure ar de facto Mayor of t:~e Town or
his or her successor in functions, if any.
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~~:5:~~:``-'~ (24} Net Project Revenues: all Gross Project Revenues
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~" remaining after the deduction of Operation and Maintenance
"` Expenses .
~. ~ (25} Operatian and Maintenance Expenses: in the event that
the Town has any Gross Project Revenues, such reasonable and
necessary current expenses of the Town, paid or accrued, of
operating, maintaining and repairing the Project as may be
determined by the Town Council, and the term may include at the
Town Council's option, except as limited by contract or otherwise
limited by law, without limiting the generality of the foregoing:
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(a} Legal and overhead expenses of the various
departments of the Town directly related and reasonably
allocable to the administration of the Project;
(b) Fidelity bond and insurance premiums appertaining
to the Project or a reasonably allocable share of a premium
of any blanket bond or policy pertaining to the Project;
. (c) Contractual services, professional services,
salaries, administrative expenses, and costs of labor
appertaining to Project;
{d) The casts incurred in the collection of all or any
part of the Gross Project Revenues;
{e) Any costs of utility services furnished to the
Project by the Town or otherwise.
"Operation and Maintenance Expenses" does not include:
(i) Any allowance far depreciation;
{ii} Any costs of reconstruction, improvements,
extensions, or betterments;
(iii) Any accumulation of reserves for capital
replacements;
{iv} Any reserves for operation, maintenance, or repair
of the Project;
{v} Any allowance far the redemption of the Warrants,
or the payment of any interest thereon;
{vi) Any liabilities incurred in the acquisition or
improvement of any properties comprising the Project or any
Combination thereof;
(vii} Any other ground of legal liability not based on
contract.
(26) Ordinance: This Ordinance No. 45, Series of 1980, of
the Town, which provides for the issuance and delivery of the
Warrants.
{27} Ordinance No. 4: Ordinance No. 4, Series of 1980, of
the Town, which provides for the issuance and delivery of the
Series 1980A Warrants.
{28} Ordinance No. 11: Ordinance No. 11, Series of 1973, of
the Town authorized by the electors of the Town on September 25,
1973, and any supplements or amendments thereof.
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(29) ordinance too. 26: Ordinance No. 26, Series of 1979, of
the Town, adopted and enacted on July 17, 1979, by the Town
Council, entitled "An Ordinance Imposing a Land Transfer Tax ~Jpon
the Transfer of Interests in Re a1 Property; Earmarking the
Proceeds Therefrom for the Purchase of Real Property to be Used
for Open Space, Recreational or Park Purposes, ~tequiring the
Collection of such Tax by the Town Manager or His Agents;
Authorizing the Town Manager to Enter into an Inter-Governmental
Contract with Eagle County for the Collection of the Tax Imposed;
Exempting Certain Transactions From the Tax Imposed; Establishing
Procedures for Acquiring a Certificate of Exemption; Establishing
Penalties for Violations of this Ordinance; Creation of a Lien on
the Property Transferred for the Amount of the Tax Unpaid; and
Setting Forth Details in Relation to the Foregoing," and any
supplements or amendments thereof.
{3Q) Outstanding or outstanding: when used with reference to
the Warrants, the Additional Parity Warrants, the Superior General
obligation Bonds, Parity Securities or any other designated
securities of the Town and as of any particular date, means all
the Warrants, the Additional Parity Warrants, the Superior General
Obligation Bonds, Parity Securities or any such other securities
payable in whole or in part from the Pledged Revenues or otherwise
pertaining to the Project, as the case may be, in any manner
theretofore and thereupon being executed and delivered, except the
followings
{a) Any Warrant, Additional Parity Warrant, Superior
General Obligation Bond, Parity Security or other security
cancelled by the Town, by the Paying Agent, or otherwise on
the Town's behalf, at or before such date;
(b) Any Warrant, Additional Parity Warrant, Parity
Security or Superior General. Obligation Bond held by or on
behalf of the Town;
{c} Any Warrant, Additional Parity Warrant, Superior
General Obligation Bond, Parity Security or other sec unity of
the Town far the payment or the redemption of which moneys or
Federal Securities sufficient to meet all of the payment
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requirements of the principal of, the interest on, and any
prior redemption premiums due in connection with such
Warrant, Additional Parity Warrants, Superior General
Obligation Bond, Parity Security or other security to the
date of maturing or any redemption date thereof, shall have
theretofore been deposited in escrow or in trust with a Trust
Bank for that purpose, as provided in and required by Section
9 hereof ; and
(d) Any lost, apparently destroyed, or wrongfully taken
Warrant, Additional Parity Warrant, Superior General
Obligation Bond or other security pf the Town in lieu of or
in substitution for which another warrant, bond or other
security shall have been executed and delivered pursuant to
this Ordinance.
(31} Parity Securities: warrants, bonds or securities
payable from the Pledged Revenues equally or on a parity with the
Warrants, including the Series 1980A Warrants.
(32} Paying Agent: First National Bank of Englewood,
Englewood, Colorado, which is the agent of the Town for the
payment of the Warrants.
(33} Person: any individual., firm, partnership, corporation,
company, association, joint-stock association, or body politic;
and the term includes any trustee, receiver, assignee, or other
similar representative thereof.
(34} Pledged Land Transfer Tax Revenues: the gross receipts
collected by the Town from the Land Transfer Tax.
(35} Pledged Revenues: alI or a portion of the Pledged Land
Transfer Tax Revenues, and, on a basis subordinate and junior to
-the Superior General Obligation Bonds, the Pledged Sales Tax
Revenues. The designated term indicates a source of revenues and
does not necessarily indicate all or any portion or other part of
ssch revenues in the absence of further qualification.
(36] Pledged Sales Tax Revenues: the one-half of the gross
receipts collected by the Town from its 4o sales tax authorized by
Ordinance No. ll devoted to and specifically Earmarked by
Ordinance No. 11 for the purpose of real estate acquisition and
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for the acquisition, construction and equipping of buildings and
facilities of the Town.
(37) Principal and Interest Fund: the special fund referred
to in Section 5C hereof .
(38} Prior General Obligation Bonds: the following Series of
General Obligation Bonds of the Town: Series 1974, dated November
15, 1974, in the original principal amount of $2,64D,000 which
issue refunded Series November 1, 1973; Series September 1, 1976,
in the original principal amount of $300,000; Series 197b, dated
November 1, 1976, in the original principal amount of $6,345,000
which issue refunded Series March 1, 1974, and Series December 1,
1975; Series May 1, 1977, in the original principal amount of
$450,000; and Series December 1, x.977, in the original principal
amount of $2,350x000.
(39} Prior Ordinances: the fallowing ordinances of the Town:
Ordinance No. I9, Series 1973; Ordinance No. 3, Series of 1974;
Ordinance No. 21, Series of 1974; Ordinance No. 21, Series of
1975; Ordinance No. 24, Series of 1976; Ordinance No. 26, Series
of 1976; Ordinance Na. 11, Series of 1977; and Ordinance No. 31,
Series of 1977.
(40) Project: the acquisition of real property in the Town
for parks, recreation, open space and other similar purposes, for
which purposes the Warrants are issued hereunder, whether such
acquisition is undertaken at one time or in stages.
(41} Purchaser: Han if en, Imhoff & Samford, of Denver,
Colorado, and its associates, if any.
(42} Real Property: real property as defined by and under
the 3.aws of the State .
(43) Redemption Date: the date fixed for the redemption
prior to their maturity of any Warrants or other designated
securities payable from the Pledged Revenues in any notice of
prior redemption authorized by the `T'own, or otherwise fixed and
designated by the Town.
(44) Redemption Price: when used with respect to a Warrant
or other designated security pa,~ahle from the Pledged Revenues,
the principal amount thereof plug the applicable premium, if any,
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payable upon the redemption thereof prior to the stated maturity
date of such Warrant or other security on a Redemption Date in the
manner contemplated in accordance with the terms of the Warrant or
other security.
{45) Reserve Fund: the special fund referred to in Section
5D hereof.
(46) Sales Tax: the sales tax established by Ordinance No.
11 upon the sale of tangible personal property at retail and the
furnishing of services within the Town, in such percentage as set
forth in Ordinance No. ll, or any supplements ar amendments
thereof .
{47} security or securities: when used with reference to
securities of the Town, any warrant or bond issued by the Town, or
any other evidence of the advancement of money to the Town.
{48) Series 198.0A Warrants: $1,850,000 of Town of Vail Land
Transfer Tax Anticipation Warrants, Series 1980A, issued by the
Town and dated February 1, 1980.
{457 State: the State of Colorado.
{50) Subordinate Warrants or Subordinate Securities: bonds
or securities payable from the Pledged Revenues having a lien
thereon subordinate or junior to the lien thereon of the Warrants.
(51) Superior Sonds or Superior Securities: the Prior
General Obligation Bonds, Additional Parity General Obligation
Bonds and any other bonds or securities payable from the Pledged
Sales Tax Revenues having a lien thereon superior or senior to the
lien thereon of the Warrants.
(52) Superior General Obligation Bonds: the Prior General
Obligation Bonds and Additional Parity General Obligation Bonds,
which bonds have a lien on the Pledged sales Tax Revenues superior
or senior to the lien thereon of the Warrants.
(53) Town: the Town of Vail, Colorado.
(54) Town Clerk: the de jure or de facto Town Clerk of the
Town ar his ar her successor in functions, if~any.
(55) Town Council: the Town Council of the Town or any
successor in .functions thereto.
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(~6) Transfer(s): whether or not the same is in writing or
is recorded, (1) any sale, grant, assignment, transfer, exchange,
or conveyance of any ownership or title to Real Property situated
in the Town of Vail, or {2) the sale, letting, conveyance,
assignment or transfer of a possessory interest in Re a1 Property
subject to the exemptions provided in Ordinance No. 25.
(57 ) Trust Bank: a Commercial. Bank located within the State
of Colorado, which bank is authorized to exercise and is
exercising trust powers.
(58) Warrants or Warrant: those securities issued hereunder
and designated a5 the "Town of Vail, Colorado, Land Transfer Tax
Anticipation Warrants, Series B," dated February 1, 1981., in the
aggregate principal amount of $2,500,000.
{59) Warrant Purchase Agreement: the agreement between the
Purchaser and the Town for the purchase and sale of the Warrants
referred to in Section 4B hereof.
B. C onstruction. This Ordinance, except where the context by
clear implication herein otherwise requires, shall be construed as
follows
(1) Words in the singular number include the plural, and
words in the plural include the singular.
(2) Wards in the masculine gender include the feminine and
the neuter, and when the sense so indicates words of Lhe neuter
gender refer to any gender .
(3) Articles, sections, subsections, paragraphs and
subparagraphs mentioned by number, letter, or otherwise,
correspond to the respective articles, sections, subsections,
paragraphs and subparagraphs of this Ordinance so numbered or
otherwise so designated.
(4) The titles and headlines applied to articles, sections
and subsections of this Ordinance are inserted only as a matter of
convenience and ease in reference and in no way define, or limit
the scope or intent of, any provisions of this Ordinance.
Section 2. Recitals; Authority.
A. Necessity. The Town has need for and desires to acquire real
property far use as parks, recreation, open space ar similar purposes,
including the Fro~ect.
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B. Land Transfer Tax. Pursuant to Ordinance No. 26 and Section
11.1 of the Charter, the Town Council has imposed the Land Transfer
Tax on all Transfers of Real Property located in the Town, except
Exempt Transfers, has created the Land Transfer Tax Fund and has
provided that all proceeds of the Land Transfer Tax be deposited in
the Land Transfer Tax Fund, to be used for certain public purposes
including the Project .
C. Authority For Warrants. The Town is authorized, by the
Colorado Constitution and the Charter, to borrow money and issue
anticipation warrants to evidence such borrowing, maturing within such
period as shall be determined by the Town Council.
D. Pledged Sales Tax Revenues. Pursuant to the Prior Ordinances
and related authorizing elections, the Town has previously issued the
Prior General Obligation Bonds and has covenanted and agreed, in each
of the Prior Ordinances, to pledge and set aside all of the Pledged
Sales Tax Revenues to pay the principal of and interest on ~.he Prior
General Obligation Bonds. The Prior Ordinances provided that the
Pledged Sales Tax Revenues may also be pledged and used for the
payment of the principal of and interest on any other or additional
general obligation bands of the Town which may be issued thereafter on
a parity with oz subordinate to the Prior General Obligation Bonds,
with respect to the Pledged Sales Tax Revenues. The Prior Ordinances
also provided that, to the ex~.ent that the principal of and interest
on the Prior General Obligation Bands are fully provided for in any
Fiscal Year by tax revenues and other moneys legally available
therefor, the Town is authorized to use such excess Pledged Sales Tax
Revenues for other purposes, including, but not limited to, payment of
special r.on--general obligation bonds of the Town which may not be
issued on a parity with the Prior General Obligation Bonds, but only
may be issued in a subordinate and inferior position to the claim of
the Prior General Obligation Bonds to the Pledged Sales Tax Revenues.
Section 3. The Warrants.
A. Authorization. The Town of Vail, Colorado, Land Transfer Tax
Anticipation Warrants, Series B, in the aggregate principal amount of
$2,500,000, payable as to all Debt Service Requirements solely out of
Pledged Revenues are hereby authorized to be issued, pursuant to the
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Colorado Constitution, the Charter and the terms of the Ordinance, and
the Town assigns and pledges irrevocably, but not necessarily
exclusively, the Pledged Revenues to the payment of the Debt Service
Requirements for the Warrants, the proceeds of the Warrants authorized
herein to be used solely to defray the Cost of the Project.
B. Warrant Details.
(1) Generally. The Warrants shall be issued payable to bearer,
and dated as of February 1, 1981, consisting of 50D Warrants in the
denomination of $S,OOD each numbered consecutively in regular
numerical order from 1 through 500.
The Warrants shall bear one set of interest coupons evidencing
interest thereon from February 1, 19$1, to their respective maturity
dates, except if redeemed prior thereto, at the per annum coupon
interest rates stated below. The coupon interest shall be payable
June 1, 1981, and semiannually thereafter on the 1st day of December
and the 1st day of June of each year .
The Warrants shall be numbered, shall mature an the 1st day of
December in the principal amounts and years, and shall bear per annum
interest at the rates as shown in the following schedule:
Warrants Principal Fer Annum Coupon
(both inclusive) Amounts Years Interest Rates
1 to &0 $300,000 199J. 10.750
61 to 130 350,000 1992 10.75
131 to 210 400,000 1993 11.00
211 to 300 450,000 1994 11.00
301 to 400 500,000 1995 11,00 ,
401 to 500 500,000 199b 11.00
The Debt Service Requirements of the Warrants are payable in lawful
money of the United States of America, without deduction for exchange
or collection charges, upon presentation and surrender of the Warrants
and the interest coupons as they severally become due, at the office
of the Paying Agent.
If upon presentation at maturity payment of any Warrant is not
made as herein provided, interest shall continue thereon at the
interest rate designated in the Warrant until the principal thereof is
paid in full.
{2) Redemption of Warrants Prior to Maturity. The Warrants sha11
be redeemable in whole or in part at the option of the Issuer on any
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interest payment date beginning December 1, 1990, at a price equal to
the principal amount thereof plus a premium of two per centum {2 0) of
the principal amount thereof, and accrued interest thereon to the
Redemption Date only. All Warrants subject to redemption prior to
their respective maturity dates shall be redeemable in inverse
numerical order.
Notice of any redemption shall be given by the Town Clerk in the
name of the Issuer:
{i) Fublication. Sy publication of such notice at least one (1)
time by one {1) publication, such publication being not less than
thirty (30) days prior to the Redemption bate specified in such notice
in The Vail Trail, if then in business and publishing, and if not,
then in a newspaper of general circulation in the Town, and
{ii) Mail. By sending a copy of such notice by certified or
registered first-class postage prepaid mail, at least thirty (30) days
prior to the Redemption Date, to the holder of each of the Warrants
being redeemed, if the names and addresses of the holders are recorded
with the Town Clerk. For_this purpose, the holder of any such Warrant
may at any time furnish his name and address to the Clerk.
Such notice shall specify the number or numbers of the Warrants to
be redeemed and the date fixed for redemption and shall further state
that on the Redemption Date there will become and will be due and
payable upon each Warrant to be redeemed at the office of the Paying
Agent the principal amount thereof, accrued interest on the principal
amount of each Warrant to the Redemption Date, and any premiums
payable on prior redemption, and that from and after such date
interest will cease to accrue. Any Warrants redeemed prior to their
maturity by call for prior redemption or otherwise shall not be
reissued and shall be cancelled the same as Warrants paid at or after
maturity.
{3) Negotiable Instruments. Title to any warrant or to any
coupon shall pass by delivery merely, as a negotiable instrument
payable to bearer. Subject to the provisions expressly made or
necessarily implied herein, the Warrants and the coupons pertaining
thereto shall be fully negotiable and shall have all the qualities of
negotiable paper within the meaning and far all the purposes of
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investment securities under the provisions of part ~, of article 8 of
title 4, Colorado Revised Statutes 1973, as amended, the ~lniform
Commercial Cade--investment Securities; and each Holder or Holders of
the warrants, by accepting the same, shall be conclusively deemed to
have agreed that the Warrants, except as otherwise provided, are and
hall be fu11y negotiable within the meaning and for ail purposes of
investment securities pursuant to said statute.
(4) Interest Rates. The maximum net effective interest rate
specified for the Warrants of this issue is 120.
{5) Execution and Delivery. The Warrants shall be signed and
executed by and on behalf of the Town with the facsimile signature of
the Mayor, shall bear a facsimile of the seal of the Town and shall be
attested by the manual signature of the Town Clerk; and each of the
Warrants shall have attached thereto coupons bearing the facsimile
signature of the Mayor, securing the payment of the interest accruing
thereon as it falls due. Should any officer whose signature or
facsimile signature appear on the Warrants ar the coupons thereto
attached cease to be such officer before delivery of the Warrants to
the Purchaser, such signature or facsimile signature shall
nevertheless be valid and sufficient for all purposes.
The Mayor and the Town Clerk are hereby authorized and directed to
prepare and to execute the Warrants as herein provided. When the
Warrants have been duly executed and sold, the officers of the Town
are authorized to, and shall, deliver the Warrants to the Purchaser
thereof on receipt of the agreed purchase price.
(6) Lost, Destroyed or Taicen Warrants. If any Outstanding
Warrant or coupon shall become lost, apparently destroyed, or
wrongfully taken, it may be reissued in the form and tenor of the
lost, destroyed or taken Svarrant or coupon, upon request therefor by
the owner prior to receipt by the Town of notice that such outstanding
Warrant or coupon has been acquired by a bona fide purchaser, and upon
the owner furnishing, to the satisfaction of the Town Council: {a)
proof of ownership, (b) proof of loss or destruction, (c) a surety
bond in twice the amount of the securities in question, including any
unmatured coupons appertaining thereto, and {d) payment of the cost of
preparing and issuing the new security. Nothing contained in the
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provisions of this Section prohibits the Town from reissuing, upon
such terms and conditions as the Town Council may determine, and
provided that such terms and conditions are not otherwise contrary to
the provisions of this Ordinance or the requirements of law, any
Outstanding Warrant or coupon which shall not have become lost,
apparently destroyed, or wrongfully taken.
(7) Recitals in Warrants. Each Warrant shall recite in substance
that the Warrant is payable solely from the Pledged Land Transfer Tax
Revenues and, on a basis subordinate and junior to the Prior General
Obligation Bonds and Additional General Obligation Bonds issued an a
parity with the Prior General Obligation Bonds, the Pledged Sales Tax
Revenues (or, collectively, Pledged Revenues), that the Warrant does
not constitute a debt of the Town within the meaning of any Colorado
Constitution, Charter or statutory limitations, that the Warrant is
not payable in whole or in part from the proceeds of general property
taxes and that the full faith and credit of the Town is not pledged to
pay the principal of or interest on such Warrant. Each Warrant shall
further recite that it is issued under the authority of the Charter
and this Ordinance .
(8) Form of Warrants and Coupons. Subject to the provisions of
this Ordinance, each Warrant, and the coupons to be attached thereto,
shall. be in substantially the following form, with such omissions,
insertions, endorsements, and variations as to recitals of fact or
other provisions as may be required by the circumstances and as may be
required or permitted by this Ordinance, and as may be ne;.essary or
appropriate to conform to the rules and requirements of any
governmental authority or to any usage or requirement of law with
respect .hereto:
-19-
f~ ~
(Form of Warrant)
UNITED STATES OF AMERICA
STATE OF COLORADO COUNTY OF EAGLE
TOWN OF VAIL
LAND TRANSFER TAX ANTICIPATION WARRANT
SERIES B
tr'o. $5,000
The Tawn of Vail, in the County of Eagle, and State of Colorado
{the Tawn), for value received, hereby pr amises to pay to the bearer
hereof, solely from the special funds provided therefor, as
hereinafter set forth, on the 1st day of December, 19~, the principal
sum of
FIVE THOUSAND DOLLARS
and to pay solely from said special funds interest thereon as
evidenced by interest coupons hereto attached, at the rate of
per centum ( a) per annum from February 1, 1981, to the maturity
date of this Warrant, except if redeemed prior thereto, payable~June
1, 1981, and semiannually thereafter on the lst day of December and
the 1st day of June of each year, upon presentation and surrender of
this Warrant and said caupc,ns as they severally become due. If upon
presentation at maturity payment of this Warrant is not made as herein
provided, interest shall continue at the interest rate designated
herein until the principal hereof is paid in full.
The principal of and interest on this Warrant and any premium due
in connection with the early redemption of this Warrant (the Debt
Service Requirements) are payable in lawful money of the United States
of America, without deduction for exchange or collection charges, out
of the special funds hereinafter specified, but not otherwise, at
First National Bank of Englewood, in Englewood, Colorado {the Paying
Agent}, upon presentation and surrender of said coupons and this
Warrant as they severally become due. This Warrant and the Warrants
of the series of which this is one are redeemable at the option of the
Town on December 1, 1990 and on any interest payment date thereafter
at a redemption price equal to the principal amount thereof plus a
premium of two percentum {20) of the principal amount thereof, and
accrued interest to the date of redemption. A11 Warrants subject to
redemption prior to their respective maturity dates are redeemable in
inverse numerical order.
-2 0-
r ~ ~
Redemption shall be made upon not less than thirty (30} days'
prior notice by publication of such notice at least one (1} time by
one (1} publication, such publication being not less than thirty (30}
days prior to the Redemptian Jute specified in such notice, in The
Vail Trail, if then in business and publishing, and if not, then in a
newspaper of general circulation in the Town, and by sending a copy of
such notice by certified or registered first-class postage prepaid
mail, at least thirty (30) days prior to the Redemption Date specified
in such notice to the holders of each of the Warrants being redeemed,
if the names and addresses of the holders are recorded with the Town
Clerk. Far this purpose, the holder of any such Warrant may at any
time furnish his name and address to the Town Clerk. Tf this Warrant
shall have been duly called far redemption and if on or before the
Redemption Date there shall have been deposited with the Paying Agent
funds sufficient to pay this Warrant at the Redemptian Date, then this
Warrant shall become due and payable upon such Redemption Date,.and
interest shall cease to accrue hereon after the Redemption Date.
This Warrant and the Warrants of the series of which this is one
are limited and special obligations of the Town payable solely out of
and secured by an irrevocable assignment and pledge (but not an
exclusive assignment and pledge) of the Pledged Land Transfer Tax
Revenues derived and to be derived from the Land Transfer Tax of the
Town, and, an a basis subordinate and junior to certain outstanding
General Obligation Bonds or the Town and General Obligation Bonds of
the Town hereafter issued on a parity with such outstanding General
Obl igation Bonds, the Pledged Sales Tax Revenues der ived or to be
derived from a portion of the sales tax levied in the Town (the
Pledged I:and Transfer Tax Revenues and the Pledged Sales Tax Revenues,
collectively called Pledged Revenues), as more specifically provided
in Ordinance No. 45, Series of 198Q (the Ordinance), pursuant to which
this Warrant is issued. This Warrant and the interest coupons
appurtenant hereto do not constitute a debt or an indebtedness of the
Town within the meaning of any constitutional or statutory provision
ar limitations of the State of Colorado or any provision or limitation
of the Charter of the Town, This Warrant is not payable in whole or
in part from the proceeds of general property taxes and the full faith
W21_
~, ~
and credit of the Town is not pledged to pay the principal of or
interest on this warrant,
Payment of the Debt Service Requirements of this Warrant shall be
made solely from, and as security for such payment there are
irrevocably (but not exclusively) pledged, pursuant to the Ordinance,
two special funds created pursuant to Ordinance No. 4, Series of 198Q
of the Town, and identified as the "Town of Vail, Colorado, Land
Transfer Tax Ar,ticipatian Warrants, Principal and Interest Fund" and
the "Yawn of Vail, Colorado, Land Transfer Tax Anticipation Warrants,
Reserve Fund", into which funds the Town has covenanted in the
Ordinance to pay, respectively, from the Pledged Revenues sums
sufficient to pay when due the Debt Service Requirements of the
Warrants of the series of which this is one and any additional. parity
securities heretofore or hereafter issued and payable from such
revenues, and to accum elate and maintain a specified reserve for such
purposes. In addition, the Town may at its option augment such funds
with any other moneys of the Town legally available for expenditure
for the purposes thereof as provided in the Ordinance,
It is hereby recited, certified and warranted that for the payment
of this Warrant and of the interest hereon, the Town has created and
will maintain said special funds and will deposit the Pledged Revenues
therein, out of the amounts and revenues specified in the Ordinance
referred to above authorizing the issuance of this Warran'~, and out of
said special funds, as an irrevocable charge thereon, will pay this
Warrant and the interest hereon, in the manner provided by the
Ordinance.
The Warrants of the series of which this is one are equitably and
ratably secured by a lien on the Pledged Land Transfer Tax Revenues
and such Warrants constitute an irrevocable and first lien (but not
necessarily an exclusive first lien) upon the Pledged Land Transfer
Tax Revenues. Such Warrants are also equitably and ratably secured by
a lien an the Pledged Sales Tax Revenues, but such Warrants only
constitute an irrevocable and second and subordinate lien (but not
necessarily an exclusive second lien} upon the Pledged Sales Tax
Revenues, such lien being second and subordinate to the lien an such
revenues of certain outstanding General Obligation Bonds of the Town
-22-
~ ~ ~
and General Obligation Bonds hereafter issued on a parity with such
outstanding General Obligation Bonds. Warrants and other types of
securities, in addition to the Warrants of the series of which this is
one, subject to expressed conditions, may be issued and made payable
from the Pledged Revenues having a lien thereon subordinate and junior
to the lien of the Warrants of the series of which this is one or,
subject to additional expressed conditions, having a lien thereon on a
parity with the lien of such Warrants in accordance with the
provisions of the Ordinance. General Obligation Bonds of the Town, in
addition to the General Obligation Bonds outstanding on the date
hereof, subject to expressed conditions, may be issued and made
. payable from the Pledged Sales Tax Revenues having a lien thereon
subordinate and junior to the lien of the General Obligation Bonds
outstanding on the date hereof and of the Warrants of the sexa.es of
which this is one or, subject to additional expressed conditions,
having a lien thereon on a parity with the lien of such outstanding
General Obligation Bonds and superior to the lien of such Warrants in
accordance with the provisions of the Ordinance. Except as otherwise
expressly provided i.n this Warrant and the Ordinance, the Pledged Land
Transfer Tax Revenues and the Pledged Sales Tax Revenues are assigned,
pledged and set aside to the payment of this Warrant, the series of
which this Warrant is one, and the interest hereon and thereon in
anticipation of the collection; of the Pledged Land Transfer Tax
Revenues and the Pledged Sales Tax Revenues.
The Town covenants and agrees with the holder of this Warrant and
with each and every person who may become the holder hereof that it
will keep and will perform all of the covenants of this Warrant and of
the Ordinance.
This Warrant is one of a series of 500 Warrants in the aggregate
principal amount of $2,500,000, of like tenor and date, except as to
number and interest rate, issued and authorized for the purpose of
defraying in whole or in part the cost of acquiring real property for
parks, recreation, open space and other similar purposes, under the
authority of and in full conformity with the Constitution of the State
of Colorado, the Town Charter, and all other laws of the State of
Colorado thereunto enabling, and pursuant to the Ordinance anal other
-23-
^
R ~
ordinances of the Town, duly adopted. published and made laws o£ the
Town prior to the issuance of this Warrant.
Reference is hereby made to the Ordinance, and to any and all
modifications and amendments thereof, for a description of the
provisions, terms and conditions upon which the Warrants of the series
cf which this is one are issued and secured, including, without
limitation, the nature and extent of the security for the Warrants,
provisions with respect to the custody and application of the proceeds
of the Warrants, the collection and disposition of the revenues and
moneys charged with and pledged to the payment of the I]ebt Service
Requirements of the Warrants, the terms and conditions on which the
Warrants are issued, a description of said special funds referred to
above and the nature and extent of the security and pledge afforded
thereby for the payment of the Debt Service Requirements, and the
manner of enforcement of said pledge, as well as the rights, duties,
immunities and obligations of the Town and the members of its Tawn
Council and also the rights and remedies of the holders of the
Warrants.
To the extent and in the respects permitted by the Ordinance, the
provisions of the Ordinance, ar any instrument amendatory thereof or
supplemental thereto, may be modified or amended by action of the Town
taken in the manner and subject to the conditions and exceptions
provided in the Ordinance. The pledge of revenues and other
obligations of the Town under the Ordinance may be discharged at or
prior to the maturity of the Warrants upon the making of provision for
the payment of the Warrants on the terms and conditions set forth in
the Ordinance.
Zt is hereby recited, certified and warranted that all the
requirements of law have been fu11y complied with by the proper
officers of the Town in the issuance of this harrant; that it is
issued pursuant to and in strict conformity with the Constitution of
the State of Colorado, the Town Charter, and all other Taws of the
State of Colorado, and with the Ordinance and any instrument
supplemental thereto; that this Warrant does not contravene-any
constitutional or statutory limitation of the State of Colorado or any
limitation of the Town Charter; and that this Warrant and each of the
_~~_
~ ~
other Warrants of the series of which it is one are issued under the
authority of the Ordinance.
For the payment of this Warrant and the interest hereon, the Town
pledges the exercise of all its lawful corporate powers.
IN WITNESS WHEREOF, the Tawn Council of the Town of Vail,
Colorado, has caused this Warrant to be signed in its name and on its
behalf with the facsimile signature of the Mayor of the Town, to be
sealed with a facsimile seal of the Town, and to be signed and
attested by the manual signature of the Town Clerk of the Town, and
has caused the attached coupons to be signed with the facsimile
signature of the Mayor of the Town, all as of the 1st day of February,
1981.
TOWN OF VA IL, COLORADO
By (Facsimile Signature)
Mayor
(FACSIMILE)
( SEAL )
Attest:
(Manual Signature)
Town Cler k
(End of Form of Warrant)
-25-
!~ ~ }
(Form of Interest Caupan)
Coupon
No .
Tune ,
On the first day of December, 19~, the Town of Vail, in the
County of Eagle ~~nd State of Colorado, will upon surrender of this
coupon pay to bearer the amount shown hereon in lawful money of the
United States of America, without deduction for exchange or collection
charges, at First National Bank of Englewood, in Englewood, Colorado,
Solely Pram and secured by a pledge of two special funds, created from
the Pledged Revenues derived from the sources set forth in the Warrant
to which this coupon pertains, being the interest then due on its Town
of Vail, Colorado, Land Transfer Tax Anticipation Warrant, Series B,
dated February 1, 1981, bearing
Warrant No .
(Facsimile Signature)
' Mayor
Town of Vail, Colorado
(End of Farm of Coupon}
-26-
* I~
C. Warrants Equally Secured. The covenants and agreements
herein set Earth to be performed on behalf of the Town shall be for
the equal benefit, protection and security of the Holders of any and
all of the Warrants and the coupons pertaining thereto, all of which,
regardless of the time or times of their maturity, shall be of equal
rank without preference, priority or distinction of any of the
Warrants or coupons over any other thereof, except as otherwise
expressly provided in or pursuant to this Ordinance.
D. Special Obligations. All of the Warrants, as to all Debt
Service Requirements thereof, shall be payable and collectible solely
out of the Pledged Revenues, which revenues are hereby so assigned and
pledged for that purpose; the Solder or Holders of any of the Warrants
or coupons may not loo~C to any general or other fund of the Town for
the payment of the Debt Service Requirements, except the
herein-designated special funds pledged therefor; the Warrants and
cnupons appertaining thereto shall not constitute an indebtedness or a
debt of the Town within the meaning of any constitutional or statutory
provision or limitation of the State of Colorado or any provision or
limitation of the Town of Vail Charter; and the Warrants and coupons
shall not be considered or held to be general obligations of the Town
but shall constitute the special and limited obligations of the Town.
The Warrants are not payable in whole or in part from the proceeds of
general property taxes and th~:~ full faith and credit of the Town is
not pledged for payment of the Warrants or their coupons.
Section 4. Sale of Warrants.
A. Necessity of Project and Issuance of Warrants. It is
necessary and for the best interests of the Town and the inhabitants
thereof chat the Town acquire the Project and defray all or a portion
of the Cost of the Project by issuing the Warrants.
_2~_
* ~a ~
S. Warrant Purchase Agreement; Award of Sale. The Town and the
Purchaser have entered into a Warrant Purchase Agreement dated
December l6, 1980 for the sale and purchase of the warrants. Said
Warrant Purchase Agreement is hereby approved, ratified and confirmed.
C. Preliminary Official Statement; Official Statement. The Town
Council has received for approval and there is now on file in the
office of the Town Clerk the Preliminary Official Statement of the
Town, dated December 3, 1980, relating to the issuance and sale of the
Warrants. The contents of the Preliminary Official Statement are
hereby approved. The use of the Preliminary Official Statement by the
Purchaser far the rAoffering of the Warrants to the public is approved
and the Mayor, on behalf of the Town, is authorized to sign one or
more copies of the Preliminary Official Statement and the Final
Official Statement.
Section 5. Funds Created by Ordinance.
A. Disposition of Warrant Proceeds and Other Revenues, Security
Far Warrants. The proceeds from the sale of the Warrants, the Pledged
Revenues and all Net Project Revenues received by the Town from the
Project shall be deposited by the Town in the funds described in this
Section 5, to be accounted for in the manner and priority set forth in
this Section 5.
The val. idity of the Warrants shall not be dependent on nor be
affected by the validity or regularity of any proceedings relating to
the Project or any part thereof. The Purchaser of the Warrants, any
associate thereof, and any Subsequent Holder of any Warrants shall in
no manner be responsible for the application or disposal by the Town
or by any of its officers, agents and employees of the moneys derived
from the sale of the Warrants or of any other moneys designated in
this Section 5.
Until the proceeds of the Warrants are applied as provided in this
Section 5 and used to defray the Cost of the Project from time to
-28-
~ ~ !
tamer the proceeds of the Warrants shall be subject to a lien thereon
and pledge thereof for the benefit of the Holders of the Warrants from
time to time as provided in this Section 5.
The Pledged Revenues, and all moneys and securities paid or to be
paid to or held ar to be held in any fund or account hereunder are
hereby assigned and pledged to secure the payment of the Debt Service
Requirements of the Warrants, subject to the provisions herein
relating to the Acquisition Fund and subject to the application of the
Pledged Revenues for payment of Debt Service Requirements of Parity
Securities; and this assignment and pledge shall be valid and binding
from and after the date of the first delivery of the Warrants, and the
moneys, as received by the Town and hereby assigned and pledged, shall
immediately be subject to the lien of this assignment and pledge
without any physical delivery thereof, any filing, or further act, and
the lien of this assignment and pledge and the obligation to perform
the contractual provisions hereby made sha11 have priority over any or
all other obligations and liabilities of the Town (except as herein
otherwise expressly provided), and the lien of this assignment and
pledge shall be v alid and binding as against all parties having claims
of any kind in tort, contract or otherwise ag ainst the Town (except as
herein otherwise expressly provided}, irrespective of whether such
parties have notice thereof.
B. Acquisition Fund. The proceeds of the Warrants, except the
sums required in Section 5~ and 5D hereof to ;~e deposited in the
Principal and Interest Fund and the Reserve Fund, shall be deposited
in a special fund, heretofore created by Ordinance No. 4 and
designated as the "Town of Vail, Colorado, Land Transfer Tax
Anticipation Warrants, Ac quisitian Fundr" and said Warrant proceeds
shall be used and withdrawn only as provided in this Section 5B.
The proceeds of the Warrants deposited in the Acquisition Fund,
except as herein otherwise expressly provided, sha11 be used and paid
out from time to time solely for the purpose of paying the Cost of the
Project and are hereby pledged therefor. Any surplus remaining in the
Acquisition Fund after completion of the acquisition of the Project
may be deposited in the Principal and Interest Fund and used for the
purposes of the Principal and Interest Fund, may be used to the extent
-29--
1~ ~ !
feasible to call and redeem the Warrants in advance of maturity or may
be used to acquire other real property far parks, recreational, open
space or other similar use purposes in the Town. The Town shall use
any proceeds of the Warrants credited to the Acquisition Fund, without
further order, to pay the Debt Service Requirements of the Warrants as
the same became due whenever and to the extent moneys in the Principal
and Interest Fund and the Reserve Fund or moneys otherwise available
therefor are insufficient for that purpose, unless such proceeds shall
be needed to defray obligations accrued and to accrue under any
contracts then existing and pertaining to the Project. Any moneys so
used shall be restored to the Acquisition Fund, from the first Pledged
Revenues thereafter received and not needed to meet the requirements
provided in Sections 5C and 5D hereof.
C. Principal and Interest Fund. The Town shall deposit in the
special .fund heretofore created by Ordinance Na. 4 and designated as
the "Town of Vail, Colorado, Land Transfer Tax Anticipation Warrants,
Principal and Interest Fund," forthwith upon receipt of the proceeds
of the Warrants, interest accrued thereon from their date of issue to
the date of delivery thereof to the Purchaser, to apply to the payment
of interest an the Warrants as the same becomes due after their
delivery.
As moneys are received in the Land Transfer Tax Fund they shall. be
credited immediately to the Principal and Interest Fund ui.til the
total amount accumulated therein is equal to the sum of the following:
(1) Interest Payments. The aggregate amount of the next maturing
installment of interest on the Warrants, any Additional Parity
Warrants and any other Parity Securities then Outstanding; plus
(2) Principal Payments. The aggregate amount of the next
maturing installment of principal of the Warrants, any Additional
Parity Warrants and any other Parity Securities then Outstanding.
Such interest and principal. sha13 be promptly paid when due.
T!~e moneys credited to the Principal and Interest Fund shall be
used to pay the Debt Service Requirements of the Warrants, any
Additional Parity Warrants and any other Parity Securities then
Outstanding, as such Debt Service Requirements become due, except as
otherwise provided in this Ordinance.
-30-~
~ ~ ~
In accordance with and within the limitations set forth in Section
7 hereof, in the event that Pledged Land Transfer Tax Revenues are not
sufficient to pay the Debt Service Requirements as set forth in this
Section, on or before ten days prior to the date on which the next
maturing installment of interest on or principal of the Warrants, any
Additional Parity Warrants or any other Parity Securities then
Outstanding is due in any Fiscal 'Year, the Town shall determine the
Debt Service Requirements of Outstanding Superior General Obligation
Bonds to be paid from the Capital improvements and Open Space Fund in
that Fiscal Year and the sums estimated to be remaining and available
on such date to be applied to the Debt Service Requirements of the
Warrants, any Additional Parity Warrants and any other Parity
Securities then Outstanding. On or before the date on which the next
maturing installment of interest on or principal of the Warrants, any
Additional Parity Warrants or any other Parity Securities then
Outstanding is due in any Fiscal Year, but only after the Debt Service
Requirements of the Outstanding Superior General Obligation Bonds due
in that Fiscal Year have ~aeen provided for in full, the Town shall
crQdit to the Principal and Interest Fund, from Pledged Sales Tax
Revenues a sum equal to the difference between the Debt Service
Requirement tkaen due and the sums deposited to the Principal and
Interest Fund from Pledged Land Transfer Tax Revenoes, to the extent
that Pledged Sales Tax Revenues are legally available for such
purpose.
D. Reser;re Fund. The Town sha11 deposit in the spe^_i.al fund
created by Ordinance No_ 4 and designated as the "Town of Vail,
Colorado, Land Transfer Tax Anticipation Warrants, Reserve: Fund,"
forthwitY. upon receipt of the proceeds of the Warrants, the sum of
$325,000. No payment need be made into the Reserve Fund so long as
the moneys therein shall equal an amount not less than $325,000 plus
thane amounts hereafter or heretofore required to be deposited in the
Reserve Fund. The moneys in the Reserve Fond shall be maintained as a
continuing reserve to be used, except as hereinafter provided in this
Section 5D and Sections 5E and 9 hereof, only to prevent deficiencies
in payment of the Debt Service Requirements of the Warrants, any
Additional Parity Warrants and any other Parity Securities, then
-31-
~ ~ !
Outstanding, resulting from failure to deposit into the Principal and
Interest Fund sufficient funds to pay such Debt Service Requirements
as the same accrue.
If at any time the Town sha11 for any reason fail to pay into the
Principal and Interest Fund the full amount above stipulated, then an
amount sha11 be paid into the Principal and Interest Fund at such time
from the Reserve Fund equal to the difference between that paid from
the Pledged Revenues and the full amount so stipulated . The money so
used shall be replaced to the Reserve Fund from the first moneys
credi_ed to the Land Transfer Tax Fund thereafter received and not
required to be otherwise applied by Section 5C hereof. In accordance
with and subject to the limitations set forth in Section 7 hereof, in
the event that said first moneys credited to the Land Transfer Tax
Fund have been insufficient during a given Fiscal Year to rebuild the
Reserve Fund to the minimum amount required to be maintained therein,
then during the month of December of said Fiscal Year, but only after
the Debt Service Requirements of the Outstanding Superior General
Obligation Bonds due in that Fiscal Year have been provided for in
full, the Town shall credit to the Reserve Fund, from Pledged Sales
Tax Revenues, a sum equal to the difference between the m: nimum amount
required to be maintained in the Reserve Fund and any lesser sum
deposited therein, to the extent that Pledged Sales Tax Revenues are
legally available for such purpose. Nothing in this Ordi~~ance sha11
be construed as limiting the right of the Town to augment the Bond
Fund or the Reserve Fund with any other money which is legally
available for payment of the Debt Service Requirements of the
Warrants, Additional Parity ~7arrants or Parity Securities. If
Additional Parity Warrants or other Parity Securities are Outstanding
(other than the Warrants), then the moneys replaced in the Reserve
Fund shall be replaced on a pro rata basis based upon the principal
amount Of the then Outstanding Warrants and the total. principal amount
of the then Outstanding Additional Parity t~~arrants or other Parity
Securities, including the Warrants, as moneys become available
therefor.
£, Termination of Deposits; Use of 2~oneys in Principal and
Interest Fund and Reserve Fund. No pay:~+ent need be made into the
-32-
~ ~ !
Principal. and Interest Fund or the Reserve Fund, or both, if the
amount in the Principal and Interest Fund and the amount in the
Reserve Find total a sum at least equal to the entire amount of the
Outstanding Warrants and any Outstanding Additional Parity Warrants
and Parity Securities, as to all Debt Service Requirements, to their
respective maturities ar to any Redemption Date or Redemption Dates an
which the Town shall have exercised or shall have obligated itself to
exercise its option to redeem, prior to their respective maturities,
any Warrants, any Additional Parity Warrants and any other Parity
Securities, then Outstanding, and thereafter maturing, both accrued
and not accrued (provided that, solely far the purpose of this Section
5E, there' shall be deemed to be a credit to the Reserve Fund of
moneys, Federal Securities and bank deposits, or any combination
thereof, accounted for in any other account or accounts of the Town
and restricted solely for the purpose of paying the Debt Service
Requirements}, in which case moneys in the Principal and Interest Fund
and the Reserve Fund in an amount, except for any known interest ar
other gain to accrue from any investment ar deposit of moneys pursuant
to Section 6B hereof from the time of any such investment or deposit
to the time or respective times the proceeds of any such investment or
deposit shall be needed for such payment, at least equal. to such Debt
Service Requirements, shall be used together with any such gain from
such investments and deposits solely to pay such Debt Service
Requirements as the same become due; and any ,noneys in excess thereof
in the Principal and Interest Fund and the Reserve Fund and any other
moneys derived from the Pledged Revenues or otherwise pertaining to
the Project may be used in any lawful manner determined by the Town.
The r,:oneys in the Principal and Interest Fund and, in the Reserve
Fund shall be used solely and only for the purpose of paying the Debt
Service 1equirements of the Warrants, any Additional Parity Warrants
and any other Par.~ty Securities authorized and Outstanding from time
to time; but any moneys at any time in excess of the minimum amount
required to be maintained in the Reserve Fund may be withdrawn
therefrom, and transferred from time to time to the Principal and
Interest Fund and distributed in the same manner as other moneys in
the Principal and Interest Fund.
-33-
r ~ ~
. ~ ~ ~ ~
F. Land Maintenance and Planning Fund. Subject to the payments
required by Sections 5B, 5C and 5D, from and to the extent that any
moneys remain in the Land Transfer Tax Fund, there may be deposited at
the option of the Town, any remaining Land Transfer Tax revenues, in a
special. fund, created by Ordinance No. 4 and designated as the "Town
of Vail, Colorado, Land Transfer Tax Anticipation Warrants, Land
Maintenance and Planning Fund." The moneys in the Land Maintenance
and Planning Fund may be set aside from time to time, and maintained
for the purpose of: {1) First, eliminating any deficiency in the
Principal and Interest Fund or in the Reserve Fund, or both, in which
event all available moneys from the Land Maintenance and Planning Fund
shall be transferred to the Principal and Interest Fund or to the
Reserve Fund, or to both, to the extent required to eliminate such
deficiency; and (2) Second, paying the costs of unusual maintenance or
repairs of the Project, renewals or replacements thereof, or the costs
of planning, surveying, inspections and engineering in preparation of
future acquisitions by the Town of real property for parks,
recreational., open space and other similar purposes.
G. Payment of Additional Subordinate Securities. Subsequent to
the payments required by the foregoing provisions of this Section S,
any moneys remaining in the Land Transfer Tax Fund and any moneys
remaining from Pledged Sales Tax Revenues may be used by the Town for
the payment of Debt Service :4~~quirements of additional Subordinate
Securities payable from the Pledged Revenues and hereafter authorized
to be issued in accordance with this Ordinance and any other
provisions herein supplemental thereto, including reasonable reserves
for such Subordinate Sec urities, as the same accrue; but the lien of
such Subordinate Securities on the Pledged T~evenues and the pledge
thereof for the payment of such Subordinate Securities shall be
subordinate to the lien and pledge of the Warrants, the Superior
General Obligation Bands, Additional Parity Warrants and any Parity
Sec urities as herein provided .
H. Ilse of Remaining Revenues. After the payments hereinabove
required to be made by Sections 5A through 5G hereof are made, at the
end of any Fiscal Year, ar whenever in any Fiscal Year there shall
have been credited to the Principal and Interest Fund, and to the
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Reserve Fund for the payment of the Warrants and any other securities
payable from the Fledged Revenues all amounts required to be deposited
in those special funds at that time, as herein provided, any remaining
Pledged Sales Tax Revenues may be used for any lawful purpose as set
forth in Ordinance No. ll, and any remaining moneys credited to the
Land Transfer Tax Fund may be used only for any one or any combination
of lawful purposes as set forth in Ordinance No. 26 and in Section 8B
hereof .
I. Budget and Appropriation of Funds. The sums provided to make
the payments specified in this Section 5 are hereby appropriated for
said purposes, and said amounts for each year shall be included in the
annual budget and the appropriation ordinance or measures to be
adopted or passed by the Town Council in each year respectively while
any of the Warrants, either as to principal or interest, are
Outstanding and unpaid. No provisions of any constitution, statute,
charter, ordinance, resolution, or other order or measure enacted
after the issuance of the Warrants shall in any manner be construed as
limiting or impairing the obligation of the Town to keep and perform
the covenants contained in this Ordinance so long as any of the
Warrants remain Outstanding and unpaid. Nothing herein stall prohibit
the Town Council from appropriating other funds of the Town legally
available for this purpose to the Land Transfer Tax Fund or the
Principal and Interest Fund for the purpose of providing far the
payr.ent of the principal af, interest on or any premiums due with
respect to the Warrants.
Section b. General Administration of Funds.
A. Places and Times of Deposits, Each of the special funds
referred to in Section 5 hereof, the Land Transfer Tax Fund and the
Capital Improvements and Open Space Fund sha11 be maintained in a
Commercial Bank as a book account kept separate and apart from all
other acco ants or funds of the Town as trust accounts solely for the
purposes herein designated therefor. For purposes of investment of
moneys, nothing herein prevents the commingling of moneys accounted
far in any two or more such book accounts pertaining to the Pledged
Revenues ar to such fund and any other funds of the Town to be
established under this Ordinance. Such book account shall be
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continuously secured to the €ullest extent required or permitted by
the laws of the State far the securing of public funds and shall be
irrevocable and not withdrawable by anyone for any purpose other than
the respective designated purposes of such €unds ar accounts. Each
periodic payment shall be credited to the proper book account not
later than the date therefor herein designated, except that when any
such date shall be a Saturday, a Sunday or a Legal holiday, then such
payment shall be made ~on ar before the next preceding business day.
~, Investment of Funds. Any moneys in any fund established by
this Ordinance, by Ordinance No. 4 or in the Land Transfer Tax fund or
the Capital Improvements and Open Space Fund may be deposited,
invested, or reinvested in any manner permitted by law. Securities or
obligations purchased as such an investment sha].1 either be subject to
redemption at any time at face value by the holder thereof at the
option of such holder, or shall mature at such time or times as sha11
most nearly coincide with the expected need for moneys from the fund
in question. Securities or obligations so purchased as an investment
of moneys in any such fund shall be deemed at all times to be a part
of the applicable Band; provided that, with the exception of the
Reserve Fund, the interest accruing on such investments and any profit
realized therefrom shall be credited to the Land Transfer Tax Fund,
and any loss resulting from such investments shall be charged to the
particular fund in question. Interest and profit realized from
investments in the Reserve Fund shall be credited to the Reserve Fund,
provided that, so long as the amount in the Reserve Fund equals at
least that amount specified in Section 5D hereof, such interest and
profit may be transferred to the Principal and Interest Fund and
distributed in the same manner as other moneys in the .Principal and
Interest Fund. Any loss resulting from such investments in the
Reserve Fund sha11 be charged to the Reserve Fund. The Town sha11
present for redemption or sale on the prevailing market any securities
or oblig atians so purchased as an investment o£ moneys in a given fund
whenever it shall be necessary to do so in order to provide moneys to
meet any required payment or transfer from such fund. The Town shall
have na obligation to make any investment or reinvestment hereunder,
unless any moneys on hand and accounted for in any one account exceeds
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$5,000 and at least $5,000 therein will not be needed for a period of
not less than sixty (60) days. In such event the Town shall invest or
reinvest not less than substantially all of the amount which will not
be needed during such sixty (60) day period, except for any moneys on
deposit in an interest bearing account in a Commercial Bank, without
regard to whether such moneys are evidenced by a certificate of
deposit or otherwise, pursuant to this Section 6B and Section 6D
hereof; but the Town is not required to invest, or so to invest in
such a manner, any moneys accounted for hereunder if any such
investment would contravene the covenant concerning arbitrage in
Section 8U hereof.
C. No Liability far Losses Incurred in Performing Terms of
Ordinance. Neither the Town nor any officer of the Town shall be
liable or responsible for any loss resulting from any investment or
reinvestment made in accordance with this Ordinance.
D. Character of Funds. The moneys in any fund herein authorized
shall consist of lawful money of the United States or investments
permitted by Section 6B hereof or both such money and such
investments. Moneys deposited in a demand ar time deposit account in
ar evidenced by a certificate of deposit of a Commercial Rank pursuant
to Sections 6A and 6B hereof, appropriately secured according to the
laws of the State, shall be deemed lawful money of the United States.
E. Accelerated Payments Optional. Nothing contained herein
prevents the accumulation in any fund herein designated of any
monetary requirements at a faster rate than the rate or minimum rate,
as~the case may be, provided therefor, but na payment shall be so
accelerated if such acceleration shall cause a default in the payment
of any obligation of the Town pertaining to the Pledged Revenues.
Nothing herein contained requires in connection with the Pledged
Revenues received in any Fiscal Year the accum~~lation in any fund or
account for the payment in the Comparable Bond Year of Debt Service
Requirements due in connection with any series of warrants, bonds or
other securities payable from the Pledged Revenues and heretofore,
herein or hereafter authorized, in excess of such Debt Service
Requirements due in such Comparable Bond Year, or in excess of any
reserves required to be accumulated and maintained therefor, and of
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any existing deficiencies, and payable from such fund or account, as
the case may be, except as may be otherwise provided herein.
Section 7. Priorities; Liens; Issuance of Additional Bonds and
Additional Warrants.
A. First Lien on Pledged Land Transfer Tax Revenues; Second Lien
an Pledged Sales Tax Revenues.
Except as expressly provided in this Ordinance with respect to the
issuance of Additional Parity Warrants, Additional Parity General
Obligation Bonds, or Parity Securities or Subordinate Securities, and
subject to the prior and superior r fights of Pr iar General Obl igation
Bonds to the Pledged Sales Tax Revenues, the Pledged Revenues shall be
and hereby are irrevocably assigned, pledged and set aside to pay the
Debt Service Requirements of the Warrants in anticipation of the
collection of the Pledged Revenues.
The Warrants constitute an irrevocable and first lien (but not
necessarily an exclusive first lien) upon the Pledged Land Transfer
Tax Revenues. The Warrants are also equitably and ratably secured by
a lien on the Pledged Sales Tax Revenues. but the Warrants, in
accordance with the requirements of the Prior Ordinances, only
constitute an irrevocable and second and subordinate lien (but not
necessarily an exclusive second lien) upon the Pledged Sales Tax
Revenues, such lien being second and subordinate to the lien of the
Outstanding Superior General obligation Bonds. In connection with the
Pledged Sales Tax Revenues and as required by the Prior Ordinances,
the Tawn shall fully provide for the Debt Service Require.~ents of the
Outstanding Superior General Obligation Bonds in any Fiscal Year and,
only after such provision, may use such excess Pledged Sales Tax
Revenues, if necessary, for the Debt Service Requirements of the
Warrants. any Additional Parity Warrants and any other Parity
Securities, by transferring such excess Pledged Sales Tax Revenues to
the Principal and Interest Fund and the Reserve Fund as set forth in
Sections 5C and 5D hereof but only to the extent that Pledged Land
Transfer Tax Revenues are insufficient 'for that purpose.
Such Warrants, any Additional Parity Warrants and any other Parity
Securities authorized to be issued and from time to time Outstanding
are equitably and ratably secured by a lien on the Pledged Revenues
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and shall not be entitled to any priority one over the other in the
application of the Pledged Revenues regardless of the time or times of
the issuance of the warrants, any Additional Parity Warrants and any
other Parity Securities, it being the intention of the Town Council
that there shall be no priority among the Warrants, any Additional
Farity Warrants and any other Parity Securities, regardless of the
fact that they may be actually issued and delivered at different
times.
B. Issuance of Parity Warrants. Nothing herein, subject to the
limitations stated in Sections 7T and 7J hereof, prevents the issuance
by the Town of Additional Parity Warrants or other additional Parity
Sec urities payable from the Pledged Revenues and constituting a lien
an the Pledged Revenues on a parity with, but not prior or superior
to, the lien thereon of the Warrants, or prevents the issuance of
warrants or other securities refunding all or a part of the Warrants,
except as provided in Sections 7H through 7J hereof; but before any
such Additional Parity Warrants or other additional Parity Securities
are authorized or actually issued (excludinq (i) any parity refunding
securities refunding the Warrants, ( ii) any Parity Securities
refunding Additional Parity Warrants or additional Parity Securities,
and (iii) any Subordinate Securities as permitted in Section 7F
hereof) the following provisions must first be satisfied:
(1) Issuance on ar Before February 1, 1982. The issuance of
Ad;;itianal Parity Warrants on ar before February 1, 1982, must be
approved in writing by the Purchaser, which approval shall be based
upon whether in the opinion of Purchaser the intent of this Section 7B
is being satisfied.
(2) Absence of Default. At the time of the adoption of the
supplemental ordinance or other instrument authorizing the issuance of
the Additional Parity Warrants as provided in Section 7J hereof, the
Town shall not be in default in making any payments required by
Section 5 hereof.
(3) Historic Revenues Test. The Pledged Land Transfer Tax
Revenues, as certified by an Sndependent Accountant, derived in the
last complete Fiscal Year immediately preceding the date of the
issuance of such Additional Parity Warrants or other Parity
_8g_
•
Securities, shall have been sufficient to pay an amount at least equal
to 135 of the sum der ived by adding the fol. .lowing ( i ) the Actual Debt
Service Requirements of the Outstanding Warrants in that same last
complete Fiscal Year, {ii) the Actual Debt Service Requirements of
each and every other issue of Outstanding Additional Parity Warrants
ar other Parity Securities in that same last complete Fiscal Year,
(iii) the Average Annual Debt Service Requirements for those
Outstanding Warrants, Additional Parity Warrants or other Parity
Securities for which (i) or {ii) hereof equals -0-, and (iv) the
Average Annual Debt Service requirements for the Additional Parity
Warrants or other Parity Sec unities pro posed to be issued.
(~4) Projected Revenues Test. The estimated Pledged Land Transfer
Tax Revenues, as reasonably estimated and certified by the Town
Council, for the first full Fiscal Year next fallowing the estimated
date of issuance of the proposed Additional Parity Warrants shall be
sufficient to pay an amount at least equal to 135 of the sum derived
by adding : (1) the Aver age Annual Debt Service far the Outstanding
Warrants, and {2} the Average Annual Debt Service for all other
Outstanding Additional Parity Warrants or other Parity Securities and
{3) the Average Annual Debt Service for the Additional Parity Warrants
or additional Parity Securities proposed to be issued, except as
hereinafter otherwise expressly provided.
{5} Adjustment of Pledged Revenues. In the computation of the
pra~ected revenues test in Section 7B(4) hereof, the amount of the
Pledged Land Transfer Tax Revenues for such succeeding Fiscal Year may
be increased by the amount of gain which will result from any increase
in the amount of the Land Transfer Tax which will be applied to
Transfers of Real Property in the Town during that succeeding Fiscal
Year as provided in a f final ordinance of the Town amending or
Supplementing Ordinance too. 2b to provide for such increase.
(6) Adequate Reserves. The proceedings under which any such
Additional Parity Warrants or other additicnal Parity Securities are
issued must provide for the deposits of moneys to the Reserve Fund
Pram any source legally available to the Town, and contain a covenant
toy the Town to maintain the Reserve Fund, in an amount at least equal
to the Average Annual Debt Service of the Additional Parity Warrants
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ar other additional Parity Securities, which amount shall be in
addition to the amounts required to be maintained in the Reserve Fund
with respect to the Warrants or any other Additional Parity Warrants
or other Parity Securities issued prior to the proposed Parity
Securities.
(7) Authorized Purposes. The Additional Parity Warrants or other
additional Parity Securities are issued solely for the purpose of
paying the cost of projects of the Tawn consisting of the acquisition
of real property for parks, recreational, open space ar other similar
purposes.
C. Issuance of Superior Bonds. Nothing herein prevents the
issuance by the Town of Additional Parity General Obligation Bond s
payable from the Pledged Sales Tax Revenues and constituting a lien on
Pledged Sales Tax Revenues on a parity with the Prior General
Dbligation Bonds and superior to the lien thereon of the Warrants and
Additional Parity Warrants, or prevents the issuance of Additional
Parity General Obligation Bonds refunding all or part a~ the Superior
General Obligation Bonds; but before any such Additional Parity
General Dbligation Bonds are issued (excluding (i) any general
obligatian bonds refunding Prior General Obligation Bonds, (ii} any
general obligatian bonds refunding Additional Parity General
Obligation Bonds, (iii} any Subordinate Securities as permitted in
Section 7F hereof, and (iv) the Additional Parity General Obligation
Bands authorized to be issued by the electors of the Town on November
20, 1979, in a principal amount of not to exceed $7,000,000, which
bonds may be issued in one or mare series) the following provisions
must first be satisfied:
{1} Absence of Default. At the time of the adoption of the
ordinance ar other instrument authorizing the issuance of the
Additional Parity General Obligation Bonds as provided in Section 7,7
hereof, the Town shall not be in default in making any payments
required by Section 5 hereof,
(2} Historic Revenues Test - Pledged Sales Tax Revenues. The
total sums, including the Pledged Sales Tax Revenues, as certified by
an Independant Accountant, deposited to the Capital Improvements and
Open Space Fund in the last complete Fiscal Year immediately preceding
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the date of the issuance of such Additional Parity General Obligation
Bonds shall have been sufficient to pay an amount at least equal to
135$ of the sum derived by adding the following: (i) the Actual Debt
Service Requirements of the Outstanding Prior General Obligation Bonds
in that same last complete Fiscal Year, (ii) the Actual Debt Service
Requirements of each and every other issue of Outstanding Additional
Parity General Obligation Bonds in that same last complete Fiscal
Year, (iii) the Average Annual Debt Service Requirements for those
Outstanding Prior General Obligation Band s or Additional Parity
General Obligation Bonds for which (i) or (ii) hereof equals -0--, and
(iv) the Average Annual. Debt Service requirements for the Additional
Parity General Obligation Bonds proposed to be issued.
(3} Projected Revenues Test - Pledged Sales Tax Revenues. The
estimated Pledged Sales Tax Revenues, as reasonably estimated by the
Town Council, for the first full fiscal Year next following the
estimated date of issuance of the proposed Additional Parity General
Obligation Bonds shall be sufficient to pay an amount at Least equal
to 135 of the sum derived by adding: (1) the Average Annual Debt
Service for the Outstanding Prior General Obligation Bonds, and (2}
the Average Annual Debt Service for all other Outstanding Additional
Parity General Obligations and (3) the Average Annual Debt Service for
the Additional Parity General Obligation Bonds proposed to be issued,
except as hereinafter otherwi:~e expressly provided.
(4} Historic Revenues Test - Pledged Land Transfer Tax. The
Pledged Land Transfer Tax RRevenues, any other revenues credited to the
Land Transfer Tax Fund and leg ally available for the purpose of
providing for the Debt Service Requirements of the Warrants and
Additional Parity Warrants and any Pledged Sales Tax revenues in
excess of the 135 coverage requirement set forth in Section 7C (2}
hereof, as certified by an Independent Accountant, derived in the last
complete Fiscal Year immediately preceding the date of issuance of
such Additional Parity General Obligation Londs shall have been
sufficient to pay an amount at Least equal to 1350 of the sum derived
by adding the Average Annual Debt Service for the Outstanding Warrants
to the Average Annual Debt Service for each and every other issue of
Outstanding Additional Parity Warrants or other Outstanding Parity
Securities.
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(5) Adjustment of Pledged Sales Tax Revenues. In the
computations of the revenue test set forth in Section 7C (3} hereof the
amount of the Pledged Sales Tax Revenues may be increased by the
amount of gain, as reasonably estimated and certified by the Town
Council, which would result from any increase in the amount of the
Sales Tax as provided in a final ordinance of the Town supplementing
or amending Ordinance No. 11 to provide for such increases.
D. Reduction of Annual Requirements. The respective annual Debt
Service Requirements set Earth in Sections 7B and 7C hereof (including
as such a requirement, the amount of any prior redemption premiums due
an any Redemption Date as of which the Town shall have exercised or
shall have obligated itself to exercise its prior redemption option by
a call of bonds ar warrants for redemption} shall be reduced to the
extent such Debt Service Requirements are scheduled to be paid in each
of the respective Bond Years with moneys held in trust or in escrow
far that purpose by any Trust Bank located within or without the
State, including the known minimum yield from any investment of such
moneys in Federal Securities and bank deposits, including any
certificate of deposit.
E. Certification of Revenues. In the case of the computation of
the revenue tests provided in Sections 7B(3), 7B(4), 7C(2), 7C (3) and
7C(4) hereof, and when adjusted in the manner provided in Sections
7B(5), 7C (5) and 7D, the specified and required written certifications
by the Independent Accountant or by the Town Council that such annual
revenues are sufficient to pay such amounts as provided in Sections
7S,(3), 7B(4), 7C(2}, 7C(3} and 7C(~) hereof shall be conclusively
presumed to be accurate in determining the right of the Town to
authorize, issue, sell and deliver Additional Parity Warrants or other
additional Parity Securities an a parity with the Warrants or
Additional Parity General Obligation Bonds as Superior Bands.
F. Subordinate Securities Permitted. Nothing herein, subject to
the limitations Stated in Sections 7I and 7J hereof, prevents the Town
from issuing additional warrants, additional general obligation bonds
or other additional securities for any lawful purpose payable from the
Pledged Revenues and having a lien thereon subordinate, inferior and
junior to the lien thereon of the Warrants.
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G. Superior Securities Prohibited, With Exception. Except as
provided in Section 7C hereof, authorizing the issuance of Additional
Parity General Obligation Bonds, nothing herein permits the Town to
issue additional warrants, additional bonds or other additional
securities payable from the Pledged Revenues and having a lien thereon
prior and superior to the lien thereon of the Warrants.
H. Refundine~ Warrants or Bonds. At any time after the Warrants,
or any part thereof, are issued and remain Outstanding, if the Town
Council shall find it desirable to refund any Outstanding Warrants,
Outstanding Superior General Obligation Bonds, or other Outstanding
securities payable from and constituting a Lien upon any Pledged Land
Transfer Tax Revenues and any Sales Tax Revenues, such Warrants,
Superior General Obligation Bonds or other securities, or any part
thereof, may be refunded regardless of whether the priority of the
lien for the payment of the refunding securities on the Pledged
Revenues is different from the priority of the lien for the payment of
the refunded securities (except as provided in Section 7G), provided
that the issuance of any such refunding warrants or other refunding
securities (but not general obligation bonds or refunding Superior
General Obligation Bonds) sha11 be subject to the following additional
requirements and conditions:
(1) Surrender for Payment. The Warrants or other securities to
be refunded, at the time or 4~mes of their required surrender for
payment on refunding, sha11 either then mature or sha11 be then
callable for prior redemption at the Town's option upon proper call,
unless the Holder or Holders of all such Warrants or securities
consent to such surrender and payment.
(2) Partial Refundings. In the event of a refunding of less than
all of the Outstanding Warrants or less than all of the Outstanding
securities o£ a particular issue thereof, the refunding warrants or
refunding securities issued pursuant to this Section 7H shall enjoy
complete equality of lien upon the Pledged Revenues with the
unrefunded portion of the Warrants or unrefunded portion of any other
Outstanding securities. In addition, the Holder or Holders of such
refunding warrants or refunding securities shall be subrogated to,
have, and enjoy all of the rights and privileges previously had and
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enjoyed by the Halder or Holders of the Warrants or securities
refunded thereby.
(3) Limitations Upan Refundings. Any refunding warrants or
refunding securities payable from any Pledged Revenues shall be issued
with such details as the Tawn may by ordinance or other instrument
provide, subject to the provisians of Sections 7I and 7J hereof, and
subject to the inclusion of the applicable rights and privileges
designated in Section 7H(2}, but without any impairment of any
contractual obligation imposed upon the Town by any proceedings
authorizing the issuance of any unrefunded portion of the Outstanding
Warrants or any unrefunded portion of other Outstanding securities.
(4} Protection of Warrants or Additional Warrants Not Refunded.
If only a part of the Outstanding Warrants or other Outstanding
securities of any issue or issues payable from the Pledged Revenues is
to be refunded, then such part of said securities may not be refunded
without the consent of the Holder or Holders of the unrefunded portion
Of such SeCLlr].tle5, L1nleSS:
(a} Requirements Not Increased. For the period of time up
to and including the last maturity date or 3.ast Redemption Date,
if any, whichever is later , of the Outstanding unrefunded Warrants
ar of any Outstanding unrefunded securities, the refunding
warrants or refunding Securities do not in any Bond Year cause the
aggregate principal and interest due on such refunding warrants ar
refunding securities and the Outstanding unrefunded Warrants and
any Outstanding unrefunded securities to exceed the aggregate
principal and interest which would hav e been due in any such Bond
Year but far the issuance of the refunding warrants or refunding
securities, and unless the lien of the refunding warrants or
refunding securities on the Pledged Revenues is not raised to a
higher priority than the lien thereon of t.~e Warrants or
securities refunded thereby; or
(b} Subordinate Lien. The lien on any Pledged Revenues for
the payment of the refunding warrants or refunding securities is
subordinate to each such lien for the payment of any Warrants ar
securities not refunded; or
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(c} Default and Coverage Test. The refunding warrants or
refunding securities are issued in compliance with the Pledged
Land Transfer Tax Revenue coverage requirements and the Reserve
Fund Requirements of Section 7B hereof anti the requirement of
Section 7E hereof with respect to certification of revenues is
met, but excluding from any computation thereunder the securities
to be refunded and redeemed and which shall forthwith upon the
issuance of the refunding securities be no longer Outstanding.
I. Payment Dates of Additional Warrants. Any Additional Parity
or Subordinate Warrants or other additional Parity or Subordinate
Securities (including, without limitation, any funding or refunding
securities and subordinate additional general obligation bonds) issued
in compliance with the terms hereof shall bear interest payable
semiannually on the first days of June and December in each year, but
the first interest payment date may be for interest accruing for any
period not in excess in the aggregate of one year; and such additional
securities shall mature an December 1 in the year ar years designated
by the Town Council d uring the term of the additional warrants or
other additional securities. This provision shall not apply to the
Additional Parity General Obligation Bonds.
J. Supplemental Ordinances. Additional warrants or other
additional securities payable from any Pledged Revenues shall be
issued only after authorization thereof by ordinance, supplemental
ordinance or other instrument of the Town Council stating the purpose
or purposes of the issuance of such additional securities, directing
the application of the proceeds thereof to such purpose or purposes,
directing the execution thereof, and fixing and determining the date,
principal amount, maturity or maturities, designation and numbers `
thereof, the maximum rate or rates of interest to be borne thereby,
any prior redemption privileges of the Town with respect thereto, and
other provisions thereof in accordance with this Ordinance. All
additional securities shall bear such date, shall bear such numbers
and series designation, letters or symbols prefixed to their numbers
distinguishing them from each other security issued or to be issued,
shall be payable at such place or places, may be subject to redemption
prior to maturity on such terms and conditions, as may be provided,
ei ~
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and shall bear interest at such rate or at such different or varying
rates per annum, all as may be fixed by ordinance, instrument or other
document of the Town Council.
Section 8. Covenants.
The Town hereby particularly covenants and agrees with the Holders
c,f the Warrants and coupons pertaining
makes provisions which shall be a part
Holders, which covenants and provision
continuously until ali of the Warrants
been gully paid and discharged, to the
that:
A. Amendment of Ordinance No. 26
thereto from time to time, and
of its contract with such
s shall be kept by the Town
and the interest thereon, have
effect and with the purpose
and Ordinance No. 11;
Continuance and Collection of Taxes. Ordinance No. 26 and Ordinance
No. 11 are now in full force and effect and have not been repealed or
amended, except that Ordinance No. 11 has been amended by Ordinance
No. 8, Series of 1977, and by Ordinance No. 9, Series of 1979 and
except that Ordinance No. 26 has been amended by Ordinance No. 5,
Series of 1980. The Town will not repeal or amend Ordinance No. 26 ar
Ordinance No. 11 in any manner which would diminish the Pledged Land
Transfer Tax Revenue or the Pledged Sales Tax Revenue security for the
Warrants, including the amendment of Section 5 of Ordinance No. 26 to
provide far additional Transfers as Exempt Transfers.
The Town will continue to levy, impose, administer, e,~force and
collect the Land Transfer Tax on all Transfers of Real Property in the
Town except Exempt Transfers in accordance with Ordinance No. 26,
without reduction in the amount of the Land Transfer Tax as set forth
in Section 4 of Ordinance No, 26.
The Town will also continue to levy, impose, administer, enforce
arlG collect the Sales Tax on the sale of tangible personal property at
retail and the furnishing of services within t,~e Town in accordance
with Ordinance No. 11 without reduction in the amount of the Sales Tax
as set forth in Section 5 of Ordinance No. 11.
The Town shall maintain the Land Transfer Tax Fund as a fund of
the Town separate and distinct from all other funds of the Town and
shall place the proceeds of the Land Transfer Tax therein and, as set
forth in Section 9 of Ordinance No. 26, said fund shall be subject to
A "'~
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appropriation only for acquisition of real property for parks,
recreation, open space or similar purposes.
The Town shall maintain the Capital Improvements and Open Space
Fund as a fund of the Town separate and distinct from all other funds
of the Town and shall place the Pledged Sales Tax Revenues therein
and, as set forth in Ordinance No. 11, said Fund shall be subject to
appropriation only for real estate acquisition and for the
acquisition, construction and equipping of buildings and facilities of
t he Town .
The foregoing covenants are subject to compliance by the Town with
any legislation of the United States or the State or any regulation ar
other action taken by the federal government or any State agency or
any political Subdivision of the State pursuant to such legislation,
in the exercise of the police power thereof for the public welfare,
which legislation, regulation or action applies to the Town as a
Colorado home rule town and limits ar otherwise inhibits the amount of
such tax revenues due to the Town. All of the Pledged Revenues
resulting from the imposition and collection of the Land Transfer Tax
and the Sales Tax shall be subject to the payment of the Debt Service
Requirements of all securities payable from the Pledged R~.venues,
including reserves therefor, as provided herein or in any instrument
supplemental or amendatory hereto.
B. Defense of Legality of Pledged Revenues; Applica~ion of
Proceeds of Project; Use of Proceeds of Land Transfer Tax. There is
not pending or threatened any suit, action or proceeding against or
affecting the Town before or by any court, arbitrator, administrative
agency or other governmental authority which affects the validity or
legality of this Ordinance, Ordinance Nos. 4, 26 and 11, or the
imposition and collection of the Land Transfer Tax or the Sales Tax,
any of the Town's obligations under this Ordinance or any of the
transactions contemplated by this Ordinance or Ordinance Nos. 4, 26
and~11.
The Town shall, to the extent permitted by law, defend the
validity and legality of the Land Transfer Tax, the Sales Tax and
Ordinance Nos. 4, 26 and 11, and all amendments thereto against all
claims, suits and proceedings which would diminish or impair the
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Pledged Revenue security for the Warrants. Furthermore, the Town
shall amend from time to time the provisions of Ordinance No. 26,
including without limitation provisions relating to Exempt Transfers,
as necessary to prevent impairment of the Pledged Land Transfer Tax
Revenues as required to meet the Debt Service Requirements of the
Warrants when due.
In the event that the Town sells, conveys, grants an easement
across or otherwise encumbers the Project or any part thereof, the
consideration received by the Town far the same shall be deposited in
the Land Transfer Tax Fund and used in the manner set forth in this
Section 8S and in Ordinance Na. 26. Except far the granting of
required easements or the sale or conveyance of the Project ar any
part thereof to other political subdivisions of the State for the
purpose and in a m annex consistent with the purposes set forth in .
Ordinance No. 26, no such sale or conveyance shall be made at a sales
price which is less than the fair market value of such conveyance as
determined and certified by an independent real estate appraiser.
The Town shall apply the proceeds of the Land Transfer Tax solely
to the payment of the Warrants, any Additional Parity Warrants and any
other Parity Securities and the acquisitions of real property, other
than the Praject. for parks, recreation, open space and other similar
purposes as required by Ordinance No. 25.
Except as specified in th:s Ordinance, the Town has not assigned
ar pledged the Pledged Revenues in any manner which would diminish the
security far payment of the Warrants.
C. Application of Net Project Revenues. In the event that the
Town has Gross Project Revenues in any year, the Town shall segregate
the Gross'Project Revenues to a separate and distinct income fund
which it shall create for the purpose of receiving the Gross Project
Revenues, providing for the payment of Operation and Maintenance
Expenses and administering the Net Project Revenues in accordance with
this Section. At the end of any Fiscal Year, the Tawn shall deposit
any and all Net Project Revenues remaining in that year to the Land
Transfer Tax Fund.
D. Performance of Duties. The Tawn, acting by and thrauQh its
officers, or otherwise, shall faithfully and punctually perform, or
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cause to be performed, all duties with respect to the Pledged Revenues
and the Project required by the Constitution and laws of the State,
the Charter and the various ordinances, resolutions and contracts of
the Town, including, without limitation, the proper segregation of the
proceeds of the Warrants and the Pledged Revenues and their
application from time to time to the respective funds provided
therefor.
~. Costs of Warrant Issue and of Performance. Except as
otherwise specifically provided herein, all costs and expenses
incurred in connection with the issuance of the Warrants, payment of
the Debt Service Requirements, or with the Town's performance of or
compliance with any covenant or agreement contained in this Ordinance,
sha11 be paid exclusively (but only from the appropriate special fund
in the manner authorized herein} from the proceeds of the Warrants, or
from the Pledged Revenues, ar from other legally available moneys, and
in no event shall any of such costs ar expenses be required to be paid
out of or charged to the general funds of the Town.
F. Contractual Obligations. The Tawn will perform all
contractual ob~.igations undertaken by it under the Warrant Purchase
Agreement with the Purchaser, as described in Section 4B }:ereof and
any other agreements relating to the Warrants, the Pledged Revenues or
the Project.
G. Further Assurances. At any and all times the Town shall, so
far as it may be authorized by law, pass, make, do, execute,
acknowledge, deliver, and file or record all and every such further
instruments, acts, deeds, conveyances, assignments, transfers, other
documents, and assurances as may be necessary or desirable for the
better assuring, conveying, granting, assigning and confirming all and
singular the rights, the Pledged Revenues and other funds and accounts
hereby pledged or assigned, or intended sa to ~e, or which the Town
may hereafter become bound to pledge or to assign, or as may be
reasonable and required to carry out the purposes of this Ordinance.
The Town, acting by and through its officers, or otherwise, shall at
all times, to the extent permitted by law, defend, preserve and
protect the pledge of the Pledged Revenues and other funds and
accounts pledged hereunder and all the r fights of every Holder of any
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of the Warrants against all claims and demands of all Persons
whomsoever .
H. Conditions Precedent. Upon the date of issuance of any of
the Warrants, all conditions, acts and things required by the
Constitution or laws of the United States, the Constitution or laws of
the State, the Charter, or this Ordinance, to exist, to have happened,
and to have been performed precedent to or in the issuance of the
Warrants shall exist, have happened and have been performed, and the
Warrants, together with all other obligations of the Town, shall not
contravene any debt or other limitation prescribed by the Constitution
or laws of the United States, the Constitution or laws of the State or
the Char ter .
I. Efficient Operation and Maintenance. The Town shall at all
times operate the Project properly and in a sound and economical
manner. The Town shall maintain, preserve and keep the Project
properly or cause the same so to be maintained, preserved, and kept,
with the appurtenances and every part and parcel thereof in good
condition, and sha11 from time to time make or cause to be made all
necessary and proper replacements and renewals so that at all times
the maintenance of the Project may be properly and adv antageously
conducted, AlI salaries, fees, wages and other compensation paid by
the Town in connection with the maintenance and operation of the
k~roject shall be reasonable and no more than would be paid by other
m unicipal corporations for similar services. The Town shall include
in its annual budgets and appropriations measures, amounts sufficient
to pay for all municipal service so furnished.
J. Records. The Town will keep proper books of record and
acco unt, separate and apart from all other records and accounts,
showing complete and correct entries of all transactions relating to
the Funds established herein, and payments made from the Acquisition
Fund .
K. Rules, Regulations and Other Details. The Town, acting by
and through its officers, shall establish and enforce reasonable rules
and regulations governing the operation, care, repair, maintenance,
management, control, use and services of the Project. The Town shall
observe and perform all of the terms and conditions contained in this
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Ordinance and shall comply with all valid acts, rules, regulations,
orders and directives of any legislative, executive, administrative or
judicial body applicable to the Project or to the Town.
L. Payment of Governmental Charges. The Tawn shall pay or cause
to be paid all taxes and assessments ar other municipal or
governmental charges, if any, lawfully levied or assessed upon or in
respect of the Project, or upon any part thereof, or upon any portion
of the Pledged Revenues, when the same shall become due, and shall
duly observe and comply with all valid requirements of any municipal
or governmental authority relative to the Project, or any part
thereof, except for any period during which the same are being
contested in good faith by proper legal proceedings. The Town shall
not create or suffer to be created any lien or charge upon the
Project, or any part thereof, or upon the Pledged Revenues, except the
pledge and lien created by this Ordinance for the payment of the Debt
Service Requirements due in connection with the Warrants, and except
as herein otherwise permitted. The Town shall pay or cause to be
discharged or shall make adequate provision to satisfy and to
discharge, within ninety (90} days after the same shall become
payable, all lawful claims and demands for labor, materia_s, supplies
or other objects which, if unpaid, might by law become a Lien upon the
Project or any part thereof, or the Pledged Revenues; but nothing
herein requires the Town to pay or to cause to be discharged ar to
make provision for any such tax, assessment, lien or charge, so long
as the validity thereof zs contested in goad faith and by appropriate
leg ai proceedings.
M. Protection of Security. The Town, its officers, agents and
employees, shall not take any action in such manner or to such extent
as might prejudice the security far the payment of the Debt Service
Requirements of the Warrants and any other securities payable from the
Pledged Revenues according to the terms thereof. No contract shall be
entered into nor any other action taken by which the rights of any
Holder of any Warrant or other security payable from Pledged Revenues
might be prejudicially and materially impaired or diminished.
N. Accumulation o£ Interest Claims, In order to prevent any
accumulation of coupons or claims for interest after maturity, the
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Town shall not directly or indirectly extend or assent to the
extension of the time for the payment of any coupon or claim for
interest on any of the Warrants or any other securities payable from
Pledged Revenues; and the Town shall not directly or indirectly be a
party to ~r approve any arrangements for any such extension or for the
purpose of keeping alive any o~ such coupons or other claims for
interest. If the time far the payment of any such coupons or of any
other such installment of interest is extended in contravention of the
foregoing provisions, such coupon or installment or installments of
interest after such extension or arrangement shall not be entitled in
case of default hereunder to the benefit or the security of this
Ordinance, except upon the prior payment in full of the principal of
all of the Warrants and any such securities or coupons the payment of
which has not been extended.
O. Prompt Payment of Warrants. The Town shall promptly pay the
Debt Service Requirements of every Warrant at the places, on the
dates, and in the manner specified herein and in the Warrants and in
the coupons thereto pertaining according to the true intent and
meaning hereof .
P. Use of Principal and rnterest and Reserve Funds. The
Principal and interest Fund and the Reserve Fund shall be used solely
and only, and the moneys credited to such accounts are hereby pledged,
for the purpose of paying the Debt Service Requirements of the
Warrants, Additional Parity Warrants or other Parity Securities to
their respective maturities or any Redemption Date or Redemption bates
on which the Town is oblig ated to redeem Warrants, Additional Parity
Warrants or other Parity Securities subject to the provisions
concerning surplus moneys in Section 5E and subject to Section 9
hereof.
Q. Additional Securities. The Town shall not hereafter issue
any bonds or securities payable from Pledged Revenues other than the
Warrants without compliance with the requirements with respect to the
issuance of Additional Parity Warrants, Additional Parity General.
Obligation Bonds or other securities set forth herein.
R. Other Liens. Other than as provided herein, there are no
liens or encumbrances of any nature whatsoever on or against the
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Project or any part thereof, or on or against the Pledged Revenues
derived or to be derived.
S. Disposal of Project Prohibited. Except as provided in
Section $B hereof, neither all nor a substantial part of the Project
shall be sold, mortgaged, pledged, encumbered, alienated or otherwise
disposed of, until all of the Warrants have been paid in full, as to
all Debt Service Requirements, or unless provision has been made
therefor, or until the Warrants have otherwise been redeemed,
including, without limitation, the termination of the pledge as herein
authorized.
T. Surety Bonds. Each official or other person having custody
of any Pleagea Revenues or Grass Project Revenues, or responsible for
their handling, shall be fully bonded at all times, which bond shall
be conditioned upon the proper application of said moneys.
U. Arbitrage Covenant. The Town covenants with the Holders of
the Warrants that it will make no use of proceeds of the Warrants at
any time during the term thereof which, if such use had been
reasonably expected on the date the Warrants are issued, would have
caused the Warrants to be arbitrage bands within the meaning of
Section 103 (c) of the. Internal ~ Revenue Code of 1954, as ar,.ended,
unless, under any provision of law hereafter enacted, the interest
paid on the Warrants (a) shall be excludable from the gross income of
a recipient thereof for federal income tax purposes without regard to
whether or nat the Warrants are arbitrage bonds, or (b} shall be
exempt from all income taxation.
Section 9. Defeasance.
When all Debt Service Requirements of the Warrants have been duly
paid, the pledge and lien and all obligations hereunder shall thereby
be discharged and the Warrants shall no longer be deemed to be
Outstanding within the meaning of this Ordinance. There shall be
deemed to be such due payment when the Town has placed in escrow or in
trust with a Trust Bank located within or without the State, moneys or
Federal Securities in an amount sufficient (including the known
minimum yield available for such purpose from 5'ederal Securities in
which such amount wholly or in part may be initia]ly invested} to meet
all Debt Service Requirements of the Warrants, as the same become due
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to the final maturities of the Warrants or upon any Redemption Date as
of which the Town shall have exercised or shall have obligated itself
to exercise its prior redemption option by a call of Warrants for
payment then. The Federal Securities shall become due prior to the
respective times at which the proceeds thereof sha11 be needed, in
accordance with a schedule established and agreed upon between the
Town and such bank at the time of the creation of the escrow or trust,
or the Federal Securities shall be subject to redemption at the option
of the balder thereof to assure such availability as so needed to meet
such schedule.
Section 10. Default Provisions and Remedies of Warrantholders.
A. Events of Default. Each of the following events is hereby
declared to be and to constitute an Event of Default:
(1) Nonpayment of Principal or Premium. Payment of the principal
of any of the Warrants, or any prior redemption premium due in
connection therewith, or both, is hot made when the same becomes due
and payable, either at maturity or by proceedings far prior
redemption, or otherwise;
(2) Nonpayment of Interest. Payment of any installment of
interest is not made when the same becomes due and payable or within
thirty (30) days thereafter;
(3) incapable to Perform. The Town for any reason is, or is
rendered, incapable of fulfilling its obligations hereunder;
(4 ) Nonperformance of Duties. The Town shall have failed to
carry out and i:o perform (or in good faith to begin the performance
of) all acts and things lawfully required to be carried out or to be
performed by~it under any contract relating to the Pledged Revenues,
to the Project, ar to all or any combination thereof, or otherwise
including, without limitation, this Ordinance, and such failure shall
continue for sixty (60) days after receipt of notice from the Holders
of 10~ in principal amount of the Warrants then Outstanding;
(5 ). Appointment of Receiver. An order or decree is entered by a
court of competent jurisdiction, with the consent or acquiescence of
the Town. appointing a receiver or receivers for the Pledged Revenues
and any other moneys subject to the lien to secure the payment of the
Warrants, or if any order or decree, having been entered without the
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consent or acquiescence of the Town, is not vacated or discharged or
stayed on appeal within sixty (60) days after entry;
(6) Default of Any Provision. The Town makes any default in the
due and gunctual performance of any other of the representations,
covenants, conditions, agreements and other provisions contained in
the Warrants or in this Ordinance on its part to be performed, and if
such default continues for sixty (GO) days after written notice,
specifying such default and requiring the same to be remedied, is
given to the Town by the Holders of 10 o in principal amaunt of the
Warrants then Outstanding.
B. Remedies for Defaults. Upon the happening and continuance of
any of the Events of Default, as provided in Section l0A hereof, then
and in every case the Holder or Holders of not less than loo in
principal amount of the Warrants then Outstanding, including, without
limitation, a trustee ar trustees therefor, may proceed against the
Fawn and its agents, officers and employees to protect and to enforce
the rights of any Holder of Warrants or coupons under this Ordinance
by mandamus or by other Suit, action, or special proceedings in equity
ar at law, in any court of competent jurisdiction, either for the
appointment of a receiver or an operating trustee or for the specific
performance of any covenant or agreement contained herein or for any
proper legal ar equitable remedy as such Holder ar Holders may deem
most effectual to protect and to enforce the rights aforesaid, or
thereby to enjoin any act ar thing which may be unlawful or in
violation of any right of any Holder of any Warrant, or to require the
Town to act as if it were the trustee of an expressed trust, or any
combination of such remedies, or as otherwise may be authorized by any
statute or other provision of law. A11 such proceedings at law or in
equity shall be instituted, had and maintained for the equal benefit
of all Holders of the Warrants, any Parity Securities, and the coupons
then Outstanding. Any receiver ar operating trustee appointed in any
proceedings to protect the rights of such Holders hereunder, the
consent to any such appointment being hereby expressly granted by the
Town, may collect, receive and apply all Pledged Revenues arising
after the appointment of such receiver or operating trustee in the
same manner as the Town itself might do,
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C. Rights and Privileges Cumulative. The failure of any Holder
of any Outstanding Warrant to proceed in any manner herein provided
shall not relieve the Town, or any of its officers, agents or
employees of any liability for failure to perform or carry out any
duty, obligation or other commitment. Each right or privilege of any
such Holder (or trustee thereof) is in addition and is cumulative to
any other right or privilege, and the exercise of any right or
pr ivileg e by or an behalf of any Holder shall not be deemed a waiver
of any other right or privilege thereof. Each Holder of any Warrant
shall be entitled to all of the privileges, rights and remedies
provided or permitted in this Ordinance and as otherwise provided or
permitted by law or in equity or by other statutes, except as provided
in Section 12A and 12B hereof, and subject to the applicable
provisions concerning the Pledged Revenues and the proceeds of the
Warrants. Nothing herein affects or impairs the right of any holder
of any Warrant to enforce the payment of the Debt Service Requirements
due in connection with his Warrant or the obligation of the Town to '
pay the Debt Service Requirements of each Warrant to the Holder
thereof at the time and the place expressed in such Warrant and in the
appurtenant coupons.
D. Duties Upon Defaults, Upon the happening of any of the
Events of Default as provided in Section l0A hereof, the Town, in
addition, will do and perform all proper acts on behalf of and for the
Holders of the Outstanding Warrants and coupons pertaining thereto to
protect and to preserve the security created for the payment of their
Warrants and coupons and to insure the payment of the Debt Service
Requirements promptly as the same become due. During any period of
default, so long as any of the Warrants ar coupons, as to any Debt
Service Requirements, are Outstanding, except to the extent it may be
unlawful to da so, all Pledged Revenues shall be paid into the
Principal and Interest Fund, or, in the event of securities hereafter
ar heretofore issued and Outstanding during such period of time on a
parity with the Warrants, shall be paid into tt~e Principal and
Interest Fund for all Parity Securities, including the Warrants, on an
equitable and prorated basis, and used far the purposes therein
provided. If the Town fails ar refuses to proceed as in this Section
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provided, the Holder or Holders of not less than loo in principal
amount of the Warrants then Outstanding, after demand in writing, may
proceed to protect and to enforce the rights of the Holders of the
Warrants as hereinabove provided; and to that end any such Holders of
Outstanding Warrants shall be subrogated to all rights of the Town
under any agreement or contract involving the Pledged Revenues entered
into prior to the effective date of this Ordinance or thereafter while
any of the Warrants are Outstanding. Nothing herein requires the Town
to proceed as provided herein if it determines in goad faith and
without any abuse of its discretion that such action is likely to
affect materially and prejudicially the Holders of the Outstanding
Warrants and any Outstanding Parity Securities.
E. Evidence of Securityholders. Any request, consent or other
instrument which this Ordinance may require or may permit to be signed
and to be executed by the Holder of any Warrants or other securities
may be in one instrument ar more than one instrument of similar tenor
and shall be signed or may be executed by each Holder in person or by
his attorney appointed in writing. Proof of the execution of any such
instrument or of any instrument appointing any such attorney, or the
holding by any Person of the securities or coupons pertaining thereto,
shall be sufficient for any purpose of this Ordinance (except as
otherwise herein expressly provided) if made in the following manner:
(1) Proof of Execution. The fact and the date of the
execution by any Holder of any Warrants or other securities or his
attorney of such instru*~ent may be proved by the certificate,
which need not be acknowledged or verified, of any officer of a
bank or trust company satisfactory to the Town Clerk or of any
notary public or other officer authorized to take acknowledgments
of deeds to be recorded in the state in which he purports to act,
that the individ ual signing such request or other instrument
acknowledged to him the execution, duly sworn to before such
notary public or other officer; the authority of the individual or
individuals executing any such instrument on behalf of a corporate
holder of any securities may be established without further proof
if such instrument is signed by an individual purporting to be the
president or vice-president of such corporation with the corporate
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seal affixed and attested by an individual purporting to be its
secretary or an assistant secretary; and the authority of any
Person or Persons executing any such instrument in any fiduciary
or representative capacity may be established without further
proof if such instrument is signed by a Person or Persons
purporting to act in such fiduciary or representative capacity;
and
(2} Proof of Holdings. The amount of Warrants or other
securities transferable by delivery held by any Person executing
any instrument as a holder of securities, and the numbers, date
and other identification thereof, together with the date of his
holding the securities, may be proved by a certificate which need
not be acknowledged or verified, in farm satisfactory to the Town
Clerk, executed by a member of a financial firm or by an officer
of a bank or trust company, insurance company ar financial
corporation or other depository satisfactory to the Town Clerk, or
by any notary public or other officer authorized to take
acknowledgments of deeds to be recorded in the state in which he
purports to act; showing at the date therein mentioned that such
Person exhibited to such member, officer, notary public ar other
officer so authorized to take acknowledgments of deeds or had on
deposit with such depository the securities described in such
certificate;
but the Town Clerk may nevertheless in his discretion reguire further
or other proof in cases where he deems the same advisable.
F. Warranty Upan Issuance of Warrants. Any of the Warrants as
herein provided, when duly executed and delivered for the purpose
provided for in this Ordinance shall constitute a warranty by and on
behalf of the Town for the benefit of each and every future Holder of
any of the Warrants that the Warrants have been issued for a valuable
consideration in full conformity with law.
G. Immunities of Purchaser. The Purchaser and any associate
thereof are under no obligation to any Holder of the Warrants for any
action that they may or may not take or in respect of anything that
they may or may not do by reason of any information contained in any
reports or other documents received by them under the provisions of
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this Ordinance. The immunities and exemption from liability of the
Purchaser and any associate thereof hereunder extend to their
partners, directors, successors, assigns, employees and agents.
Section 11. Amendment of Ordinance.
A. Amendment of Ordinance Not Requiring C ansent of Holders of
Warrants. The Town may, without the consent of, or notice to, the
Holders of the Warrants, adopt such ordinances supplemental hereto
(which amendments shall thereafter form a part hereof) for any one or
more or all of the fallowing purposes:
(Z) To cure any ambiguity, or to cure, correct or supplement any
defect or inconsistent provision contained in this Ordinance, or to
make any provision with respect to matters arising under this
Ordinance or for any other purpose if such provisions are necessary or
desirable and do not adversely affect the interests of the Holders of
the Warrants and coupons; or
(2) To subject to this Ordinance additional. revenues, properties
or collateral.
B. Amendment of Ordinance Requiring Consent of Holders of
Warrants. This Ordinance may be amended or modified by ordinances or
other instruments duly adopted by the Town Council, witho~~t receipt by
it of any additional consideration, but with the written consent of
the Holders of at least 66~ in aggregate principal amount of the
Warr ants and Outstanding at the time of the adoption of st_~ch
amendatory ordinance or other instrument, including any Outstanding
refunding securities as may be issued for the purpose of refunding any
of~the Warrants, provided that no such amendatory or modifying
instrument sha11 permit:
(1) C hanging Payment. A change in the maturity or in the
terms of redemption of the principal. of any Outstanding Warrant or
any installment of interest thereon; or
(2) Reducing Return. A reduction in the principal amount of
any Warrant, the rate of interest thereon, or any prior redemption
premium payable in connection therewith, without the consent of
the Haider of the Warrant; or
(3) Prior Lien. Except as provided in Section 7C hereof,
the creation of a lien upon or a pledge of revenues ranking prior
to the lien or to the pledge created by this Ordinance; or
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(4) Modifying Amendment Terms. A reduction of the principal
amount or percentages of Warrants, or any modification otherwise
affecting the description of Warrants, or otherwise changing the
consent of the Holders of Warrants, which may be required herein
for any amendment hereto; or
(~) Priorities Between Warrants. The establishment of
priorities as between Warrants issued and Outstanding under the
provisions of this Ordinance; or
(6} Partial Modification. Any modifications otherwise
materially and prejudicially affecting the rights or privileges of
the Holders of less than all of the Warrants then Outstanding.
Whenever the Town Council proposes to amend or modify this
ti
Ordinance under the provisions of this Section 11B it shall give
notice of the proposed amendment by publication at least one (1) time
by one {1) publication, in The Vail Trail, Vail, Colorado, if then in
b usiness and publishing (and if not, then in a newspaper of general
circulation in the Town), and in the Daily Band Buyer, New York, New
York, if then in business and publishing (and if not, then in a
similar financial newspaper or journal published in New York, New
York, as determined by the Tawn Council}, such notice to be deemed
complete ugon the last such publication; and copies of such notice
shall be mailed within thirty {3d} days after such last publication to
the Purchaser of the Warrants, or to any successor thereof known to
the Tawn Clerk and to all such Holders of Warrants as have furnished
their names and addresses to the Town Clerk pursuant to Section 3B(2}
hereof. Such notice shall briefly set forth the nature of the
proposed amendment and shall state that a copy of the proposed
amendatory ordinance or other instrument is on file in the office o.f
the Town Clerk for public inspection.
C. Time for Amencim~nt. Whenever at any time c~ithin one year
from the d ate of the completion of the notice required to be given by
Section 1lB hereof there shall be filed in the office of the Town
Clerk an instrument or instruments executed by the Holders of at least
66~ in aggregate principal amount of the Warrants then Outstanding,
which instrument or instruments shall refer to the proposed amendatory
ordinance or other instrument described in such notice and shall
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specifically consent to and approve the adoption of such ordinance or
other instrument, thereupon, but not otherwise, the Town Council may
adopt such amendatory ordinance or instrument authorized by Section
11B and such ordinance or instrument shall become effective. If the
~]olders of at Least 66~ in aggregate principal amount of the Warrants
then Outstanding, at the time of the adoption of such amendatory
ordinance or instrument, or the predecessors in title of such Holders,
shall. have consented to and approved the adoption thereof as herein
provided, no Holder of any Warrant whether or not such Holder shall
have consented to or shall have revoked any consent as herein provided
• shall have any right or interest to object to the adoption of such
amendatory ordinance or other instrument or to object to any of the
terms yr provisions therein contained or to the operation thereof or
to enjoin or restrain the Town from taking any action pursuant to the
provisions thereof. Any consent given by the Holder of a Warrant
pursuant to the provisions hereof shall be irrevocable for a period of
six (6} months from the date of the completion of the notice above
provided far and shall be conclusive and binding upon all future
Holders of the same Warrant during such period. Such consent may be
revoked at any time after six (6} months from the completion of such
notice, by the Holder who gave such consent or by a successor in
title, by filing notice of such revocation with the Tawn Clerk, but
such revocation shall not be effective if the Holders of 56o in
aggreg ate principal amount of the Warrants. Outstanding as herein
provided, prior to the attempted revocation, shall have consented to
and approved the amendatory instrument referred to in such revocation.
D. Unanimous Consent. Notwithstanding anything in the foregoing
provisions contained, the terms and the provis?ons of this Ordinance,
or of any ordinance or other instrument amendatory thereof and the
rights and the obligations of the Town and of the Holders of the
Warrants and coupons thereunder may be modified or amended in any
respect upon the adoption by the Town and upon the filing with the
Town Clerk of an instrument to that effect and with the consent of the
Holders of all the then Outstanding Warrants, such consent to be given
in the manner provided in Section 11C hereof; and no notice to Holders
of Warrants, either by mailing or by publication, shall be required as
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provided in Section 11B hereof, nor shall the time of consent be
limited except as may be provided in such consent.
E. Exclusion of Town's Warrants. At the time of any consent ar
of othex action taken hereunder the Town shall furnish to the Tawn
Clerk a certificate, upan which the Tawn Clerk may rely, describing
all Warrants to be excluded for the purpose of cansent or of other
action or of any calculation of Outstanding Warrants provided for
hereunder, arid, with respect to such excluded Warrants, she Town shall
not be entitled or required with respect to such Warrants to give or
obtain any consent ar to take any other action provided for hereunder.
F. Notation on Warrants. Any of the Warrants delivered after
the effective date of any action taken as provided in this Section 11,
or Warrants Outstanding at the effective date of such action, may bear
a notation thereon by endorsement or otherwise in form approved by the
Town Council as to such action; and if any such Warrant so
authenticated and delivered after such effective date does not bear
such natation, then upan demand of the Holder of any Warrant
Outstanding at such effective date and upon presentation of his
Warrant for such purpose at the principal office of the Town, suitable
notation shall be made on such Warrant by. the Town Clerk as to any
Such action. If the Town Council so determines, new warrants sa
modified as in the opinion of the Town Council to conform to such
action shall be prepared, authenticated and delivered; and upon demand
of the Iio~der of any Warrant then Outstanding, shall be exchanged
without cost to such Holder for Warrants then Outstanding upon
surrender of such Outstanding Warrants with all unmatured coupons
pertaining thereto.
G. Proof of Instruments and Warrants. The fact and date of
execution of any instrument under the provisions of this Section 11,
the amount and number of the Warrants held by any Person executing
such instrument, and the date of his holding the same may be proved as
provided by Section l0E hereof.
Section 12. Miscellaneous.
A. Character of Agreement. None of the covenants, agreements,
representations, or warranties contained herein or in the Warrants,
shall ever impose or shall be construed as imposing any liability,
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obligation, or charge against the Town (except for the special funds
pledged therefor} or against the general credit of the Town payable
out of general funds or out of any funds derived from general property
taxes .
S. Igo Pledge of Property. The payment of the Warrants is not
secured by an encumbrance, mortgage or other pledge of property of the
Town except for the Pledged Revenues of the Town. No property of the
Town, subject to such exception with respect to the Pledged Revenues
pledged for the paymezxt of the Warrants, shall be liable to be
forfeited or taken in payment of the Warrants.
C. Statute of Limitations. No action or suit based upon any
Warrant, coupon or other obligation of the Town shall be commenced
after it is barred by any statute of limitations pertaining thereto.
Any trust or fiduciary relationship between the Town and the Holder of
any warrant or coupon or the obligee regarding any such obligation
shall be conclusively presumed to have been repudiated on the maturity
date or other due date thereof unless the Warrant or coupon is
presented for payment or demand for payment of such other obligation
is otherwise made before the expiration of the applicable limitation
period. Any moneys from whatever source derived remaininc in any
account reserved, pledged or otherwise held for the payment of any
such obligation, action or suit, the collection of which has been
barred, shall revert to the Land Transfer Tax Fund, unless the Town
Council shall otherwise provide by ordinance of the Town. Nothing
herein prevents the payment of any such Warrant, coupon, or other
obligation after an action or suit for its collection has been barred
if the Town Council deems it in the best interests of the Town or the
public so to do and orders such payment to be made.
D. Delegated Duties. The officers of the Town are hereby
authorized and directed to enter into such agraements and take all
action necessary or appropriate to effectuate the provisions of this
Ordinance and to comply with the requirements of law, including,
without limitation:
(I) Printing Warrants. The printing of the Warrants,
including at the option of the Town Council the printing upon each
such Warrant of a copy of the legal. opinion of De Muth, Kemp &
Backus, bond counsel, duly certified by the Town Clerk;
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(2) Final Certificates. The execution of such certificates
as may be reasonably required by the Purchaser, relating, inter
alia, to:
(a) The signing of the Warrants;
(b} The tenure and identity of the officials of the
Town;
(c) xf in accordance with fact, the absence of
litigation, pending or threatened, affecting the validity of,
the Warrants;
(d) The delivery of the warrants and the receipt of the
Warrant purchase price;
(e) The exemption of interest on the Warrants from
,.
federal income taxation;
(f} The making of various statements, recitals,
certifications and warranties provided in the farm of Warrant
set forth in this Ordinance; and
(g) A statement concerning the disclosure of
information provided in any Warrant offering brochure,
preliminary official statement, official statement or
offering circular for prospective buyers.of the Warrants.
(3) Information. The assembly and dissemination of
financial and other information concerning the Town and the
Warr ants ;
(4) Official Statement or Offering Circular. The
preparation of a Warrant offering brochure, preliminary official
statement, official statement, or offering circular, for the use
of prospective buyers of the Warrants, including, without
limi'~ation, such use by the Purchaser and its associates, if any;
and
(5) Warrant Sale. The execution of the Warrants and the
sale, issuance, and delivery of the Warrants to the Purchaser
pursuant to the provisions of this Ordinance and the Warrant
Purchase Agreement approved by the Town Council as provided in
Section 4B.
E. Successors. Whenever herein the Town is named or is referred
ta, such provision shall be deemed to include any successors of the
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Town, whether so expressed or not. All of the covenants,
stipulations, obligations and agreements by or on behalf of and other
provisions for the benefit of the Town contained herein shall bind and
inure to the benefit of any officer, board, district, commission,
authority, agency, instrumentality or other person or persons to whom
or to which there shall be transferred by or in accordance with law
any right, power or duty of the Town or of its respective successors,
if any, the possession of which is necessary or appropriate in order
to comply with any such covenants, stipulations, obligations,
agreements or other provisions hereof.
F. Rights and Immunities. Dxcept as herein otherwise expressly
provided, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give to any Person, other than the
Town, and the Holders from time to time of the Warrants and the
coupons thereunto pertaining, any right, remedy or claim under or by
reason hereof or any covenant, condition or stipulation hereof. All
the covenants, stipulations, promises and agreements herein contained
by and on behalf of the Town shall be for the sole and exclusive
benefit of the Town, and any Holder of any of the Warrants and the
coupons thereunto pertaining.
Na recourse shall be had for the payment of the Debt Service
Requirements of the Warrants or for any claim based thereon or
otherwise upon this Ordinance authorizing their issuance or any other
ordinance or instrument pertaining thereto, against any individual
member, or any officer or other agent of the Town, past, present or
future, either directly or indirectly through the Town, or otherwise,
whether by virtue of any constitution, statute ar rule of law, Charter
provision ar by the enforcement of any penalty or otherwise, all such
liability, if any, being by the acceptance of the Warrants and as a
part of the consideration of their issuance specially waived and
released.
C. Ratification. All action heretofore taken (not inconsistent
with the provisions of this Ordinance) by the Town or its officers,
and otherwise by the Town directed:
(1} Project. Toward the Project, and
(2} Warrants. Toward the sale and delivery of the Warrants
for that purpose, is hereby ratified, approved and confirmed.
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H. Facsimile Signatures. Pursuant to the Uniform Facsimile
Signature of Public Officials Act, part 1 of article 55 of title 11,
Colorado Revised Statutes 1973, as amended, the Mayor and the Town
Clerk shall forthwith, and in any event prior to the time the Warrants
are delivered to the Purchaser thereof, file with the Colorado
Secretary of State their manual signatures certified by them under
oath, using a suitable Facsimile Signature Certificate"for said
pus p~ se .
I. Ordinance Irrepealable. This Ordinance is, and sha11
constitute, a legislative measure of the Town and after any of the
Warrant, are issued, this Ordinance shall constitute an irrevocable
contract between the Town and the Holder or Holders of the Warrants;
and this Ordinances subject to the provisions of Sections 9 and 11
hereof, i£ any Warrants are in fact issued, sha11 be and shall remain
irrepealable until the Warrants, as to all Debt Service Requirements,
shall be dully paid, cancelled and discharged, as )Herein provided.
J. Repealer. All ordinances, resolutions, bylaws, orders, and
other instruments, or parts thereof, inconsistent herewith are hereby
repealed to the extent only of such inconsistency. This repealer
shall not be construed to revive any ordinance, resolution, bylaws,
order, or other instrument, or part thereof, heretofore repealed.
K. Severability. 2f any section, subsection, paragraph, clause
or other provision of this Ordinance shall for any reason be held to
be inva~.id or unenforceable, the invalidity or unenforceability
thereof sha11 not affect any of the remaining sections, ssbsections,
paragraphs, clauses or provisions of this Ordinance.
I~. Public Hearing. A public hearing on this proposed Ordinance
shall be held by the Town Council at 7:30 p.rn. on Tuesday, January b,
1981, at the Vail Municipal Building, Vail, Colorado, and it is hereby
ordered that notice of said hearing be given as required by law.
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INTRODUCED, .PASSED ON FIRST READING, APPROVED AND ORDERED
PUBLISHED ONCE IN FULL THIS 16TH DAY OF DECEMBER, 1980.
(TOWN)
(SEAL)
Attest:
s ~
awn er k
~r
TOWN OF VAIL, COLORADO
/~
~` Maygk
PASSED ON SECOND READING AS AMENDED, ADOPTED, ENACTED, APPROVED
AND ORDERED PUBLISHED ONCE ZN FULL THIS 6TH DAX 0~' JANUARY, 1581.
TOWN OF VAIL , COLORADO
B y ~ ~ .,
,,.._ ~ .May- .~
~ ~row~v )
(SEAL)
Attest:
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~
Town Cler k
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