HomeMy WebLinkAboutORDINANCE 21-070
TOWN OF ESTES PARI COLORADO
ACTING BY AND THROUGH ITS LIGHT AND POWER ENTERPRISE
ORDINANCE NO.21-07
AN ORDINANCE OF THE TOWN OF ESTES PARK,
COLORADO,ACTING BY AND THROUGH ITS LIGHT AND
POWER ENTERPRISE,AUTHORIZING THE ISSUANCE OF
LIGHT AND POWER REVENUE BONDS,SERIES 2007,IN
THE AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
$6,500,000,FOR THE PURPOSE OF FINANCING CERTAIN
IMPROVEMENTS TO THE LIGHT AND POWER SYSTEM;
PROVIDING FOR THE FORM AND OTHER DETAILS IN
CONNECTION WITH SAID BONDS;PROVIDING FOR THE
PAYMENT OF THE BONDS FROM THE NET INCOME
DERIVED FROM PROVIDING LIGHT AND POWER
SERVICES,AND MAKING CERTAIN COVENANTS IN
CONNECTION THEREWITH;AND AUTHORIZING THE
EXECUTION OF A REGISTRATION AND PAYING AGENCY
AGREEMENT,AN OFFICIAL STATEMENT AND NOTICE OF
SALE AND OTHER AGREEMENTS AND DOCUMENTS IN
CONNECTION WITH THE BONDS.
WHEREAS,the Town of Estes Park,Colorado (the “Town”)is a statutory town and
political subdivision duly organized and existing pursuant to the laws of the State of Colorado
(the “State”);and
WHEREAS,the Town is authorized by section 3 1-15-707,Colorado Revised Statutes,to
own,operate and maintain electric light and power works and distribution systems and all
appurtenances necessary to said works and systems,and the Town has heretofore undertaken to
acquire and develop an electric light and power works and distribution system,which are
operated and maintained as a utility and income-producing project (collectively,the “Light and
Power Facilities”or the “Facilities”);and
WHEREAS,the Board of Trustees (the “Board”)of the Town has formally established a
Light and Power Enterprise (the “Enterprise”)pursuant to Ordinance No.7-99;and
WHEREAS,the Facilities have been and continue to be operated by the Enterprise as a
government-owned business,which is authorized to issue its own revenue bonds and receives
under 10%of annual revenue in grants from all Colorado state and local governments combined,
and it is hereby determined that the Enterprise is an enterprise within the meaning of Article X,
Section 20 of the Colorado Constitution;and
WHEREAS,the Town,acting by and through the Enterprise,has heretofore issued
certain of its obligations designated as “Light and Power Revenue Bonds,Series 1999”in the
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aggregate principal amount of $3,135,000 and which are currently outstanding in the aggregate
principal amount of S1,935,000 (the “Series 1999 Bonds”);and
WHEREAS,the Board,acting as the governing body of the Enterprise,has heretofore
determined and does hereby determine that it is necessary to make improvements to the
Facilities,including,but not limited to,acquiring and constructing a new substation and
rebuilding certain distribution lines (collectively,the “Project”)to further the health,safety and
welfare of the Town and its residents;and
WHEREAS,the Board,acting as the governing body of the Enterprise,deems it
necessary and appropriate to authorize the issuance of Light and Power Revenue Bonds,Series
2007,in the aggregate principal amount not to exceed $6,500,000 (the “Series 2007 Bonds”),
upon the terms described herein,for the purposes of:(a)financing the Project.(b)funding,or
paying the cost of a surety bond or insurance policy to fund,a debt service reserve fund,and
(c)paying the costs of issuance of the Series 2007 Bonds;and
WHEREAS,the Series 2007 Bonds,when issued by the Town,acting by and through the
Enterprise,are permitted,under Article X,Section 20 of the Colorado Constitution,to be issued
without an election;and
WHEREAS,the Series 2007 Bonds will be payable solely from and secured by a first
lien on the net income,after payment of operating expenses,derived by the Enterprise from the
operation of the Facilities,including the Project,which lien will be on a parity with the lien
thereon of the Series 1999 Bonds;and
WHEREAS,pursuant to Section 18-8-308,Section 24-18-109,and Section 24-18-110,
Colorado Revised Statutes (“C.R.S.”),no member of the Board has any substantial financial
interest in the subject of this Ordinance,or any personal or private interest,whether or not
financial,in the subject of this Ordinance;and
WHEREAS,bonds of the Town may be sold by public or private sale to the best
advantage of the Town;and
WHEREAS,the Board has engaged James Capital Advisors Inc.,of Greenwood Village,
Colorado as financial advisor to the Town (“James Capital Advisors”or the “Financial
Advisor”);and
WHEREAS,there have been filed with the Board (a)a proposed form of Paying Agency
Agreement,as defined herein;(b)a form of the Preliminary Official Statement,containing the
Official Notice of Sale,to be distributed to prospective bidders for the Series 2007 Bonds;and
(c)a proposed form of Continuing Disclosure Agreement,as defined herein;and
WHEREAS,the Mayor,the Town Administrator or the Finance Officer of the Town
shall receive bids for the purchase of the Series 2007 Bonds and,together with the Financial
Advisor,shall review such bids and determine the best bid or bids from a responsible bidder or
bidders and shall be authorized to approve such bid or bids on behalf of the Board,acting as the
governing body of the Enterprise;and
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WHEREAS,the Board,acting as the governing body of the Enterprise,desires to approve
the form of such documents,authorize the execution thereof,and authorize the issuance of the
Series 2007 Bonds pursuant to this Ordinance.
BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES
PARK,COLORADO,ACTING AS THE GOVERNING BODY OF ITS LIGHT AND POWER
ENTERPRISE:
Section 1.Definitions.In addition to the terms defined in the preambles of this
Ordinance,the following capitalized terms shall have the respective meanings set forth below
unless the context hereof requires otherwise:
“Acquire”or “Acquisition”means the design,construction,reconstruction,purchase,
lease,gift,transfer,assignment,option to purchase,grant from the federal government or any
public body or other person,endowment,bequest,devise,installation,condemnation,contract,or
other acquirement or other provision,or any combination thereof,of facilities,other property,
any project,or an interest therein.
“Additional Parity Bonds”means bonds,notes,securities or other obligations payable in
whole or in part from the Pledged Revenues and having a lien thereon on a parity with the lien
thereon of the Series 1999 Bonds and the Series 2007 Bonds and issued in accordance with the
requirements of this Ordinance.
“Board”means the Board of Trustees,the governing body of the Town,acting as such or,
as the context requires,acting as the governing body of the Enterprise.
“Bond Counsel”means (a)as of the date of issuance of the Series 2007 Bonds,Kutak
Rock LLP;and (b)as of any other date,Kutak Rock LLP or such other attorneys selected by the
Town with nationally recognized expertise in the issuance of municipal bonds.
“Bond Details Certificate”means a certificate executed by the Mayor,the Town
Administrator or the Finance Officer of the Town,dated on or before the date of delivery of the
Series 2007 Bonds to the Original Purchaser,setting forth (a)the rate or rates of interest on the
Series 2007 Bonds,(b)the conditions and prices at which the Series 2007 Bonds may be
redeemed before the maturities thereof;(c)the existence and amount of capitalized interest or
reserve ffinds,(d)the price at which the Series 2007 Bonds will be sold to the Original
Purchaser,(e)the total principal amount of the Series 2007 Bonds,(fl the amount of principal
maturing in each year,and (g)the dates on which principal and interest shall be paid,as
authorized by the Supplemental Act and this Ordinance,all of which shall be subject to the
parameters and restrictions contained in this Ordinance.
“Bond Year”means the 12 months commencing on the second day of November in a
given year and ending on the first day of November in the next succeeding calendar year.
“Code”means the Internal Revenue Code of 1986,as amended,and the regulations
promulgated or existing thereunder.
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“Combined Maximum Annual Debt Sen’ice Requirements”means,as of any date of
calculation,the sum of the maximum annual payments of principal of and interest on the Series
1999 Bonds,the Series 2007 Bonds and all issues of Additional Parity Bonds for which the
computation is being made.
“Commercial Bank”means 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
capital and surplus of $10,000,000 or more and which is located within the United States of
America.
“Comparable Bond Year”means,in connection with any Fiscal Year,the Bond Year
which ends in such Fiscal Year.For example,for the Fiscal Year commencing on January 1,
2008,the Comparable Bond Year ends in 2008 on November 1.
“Construction Account”means the special account created and referred to in Section 12
hereof.
“Continuing Disclosure Agreement”means the Limited Continuing Disclosure
Undertaking,in substantially the form filed with the Board at the time of introduction of this
Ordinance,to be executed by the Town,acting by and through the Enterprise,and dated the date
of issuance and delivery of the Series 2007 Bonds.
“Cost of the Project”means all or any part of the cost of Acquisition,Improvement and
Equipment of all or any part of the Project,including,without limitation,all or any property,
rights,easements,privileges,agreements and franchises deemed by the Town to be necessary or
useflul and convenient therefor or in connection therewith,interest or discount on the Series 2007
Bonds,costs of issuance of the Series 2007 Bonds,engineering and inspection costs and legal
expenses,costs of financial,professional,and other estimates and advice,contingencies,any
administrative,operating,and other expenses of the Town or the Enterprise prior to and during
such Acquisition,Improvement and Equipment and additionally during a period of not exceeding
one year after the completion thereof’,as may be estimated and determined by the Town,and all
such other expenses as may be necessary or incident to the financing,Acquisition,Improvement,
Equipment,and completion of the Project or any part thereof,and the placing of the same in
operation,provision of reserves for payment or security of principal of or interest on the Series
2007 Bonds during or after such Acquisition,Improvement or Equipment as the Town may
determine,and also reimbursements to the Town,the Enterprise or to any Person of any moneys
theretofore expended for the purposes of the Town,the Enterprise or other public body of any
moneys theretofore expended for or in connection with the Project.
means Colorado Revised Statutes,as amended.
“Debt Service Requirements”means the principal of,and interest on,and any premium
due in connection with the redemption of the Series 1999 Bonds,the Series 2007 Bonds,any
Additional Parity Bonds,or any other securities payable from the Pledged Revenues,excluding
any amounts actually on hand and irrevocably committed to the payment of Debt Service
Requirements.
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“Enteiprise”means the Light and Power Enterprise formally established by Ordinance
No.7-99 of the Town on September 28,1999.
“Equip”or “Equipment”means the design,manufacture,purchase,lease or installation or
replacement of items of equipment,machinery,tools,software,hardware and related property
and fixtures installed or used in the operation of the Light and Power Facilities,other property,
any project,or any interest therein.
“Event of Defa it it”means any one of the events described in Section 49 hereof.
“Excess investment Earnings Account”means the special account established by the
Series 1999 Bond Ordinance and reestablished and referred to in Section 12 hereof.
“Federal Securities”means bills,certificates of indebtedness,notes,or bonds which are
direct obligations of,or the principal of and interest on which obligations are unconditionally
guaranteed by,the United States of America.
“Finance Officer”means the Director of Finance of the Town.
“Fiscal Year”means the 12 months commencing on the first day of January of any
calendar year and ending on the last day of December of such calendar year or such other
12-month period as may from time-to-time be designated by the Board or by State statute as the
Fiscal Year of the Town.
“improvc”or “improvement”means the addition,extension,enlargement,betterment,
replacement or improvement or any combination thereof;of the Light and Power Facilities,oihtr
property,any project,or any interest therein.
“income”means all income from the rates,fees and charges imposed by the Town for the
Light and Power Facilities and services,together with all interest income of the Light and Power
Enterprise Fund;provided however,that no retained earnings shall ever be included as Income.
“Interest Payment Date”means May 1 and November 1,as determined in the Bond
Details Certificate.
“Letter of instructions”means the Letter of Instructions appended to or made a part of
any tax certificate for the Series 2007 Bonds,dated the date of issuance of the Series 2007
Bonds,and delivered by Bond Counsel to the Town,including any amendments thereto.
“Light and Power Enterprise Fund”means the enterprise ffind of the Town used to
account for revenues and expenditures of the Enterprise.
“Light and Power Facilities”means all light and power facilities of the Town used in
providing electric power to customers,including but not limited to substations,distribution,
transmission and generation facilities,and any light and power facilities specifically added to this
definition from time-to-time by ordinance of the Town.
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“Maximiun Annual Debt Service Requirements”means,as of any date of calculation,with
respect to the Series 1999 Bonds,the Series 2007 Bonds or any issue of Additional Parity Bonds
for which the computation is being made,the largest amount of Debt Service Requirements
coming due in any single Bond Year when such Series 1999 Bonds,Series 2007 Bonds or
Additional Parity Bonds are Outstanding.
“Operation and Maintenance Account”means the special account established by the
Series 1999 Bond Ordinance and reestablished and referred to in Section 12 hereof
“Operation and Maintenance Expenses”means such reasonable and necessary current
expenses of the Enterprise,paid or accrued,of operating,maintaining and repairing the Light and
Power Facilities as may be determined by the Board.The term may include,at the option of the
Board,except as limited by contract or othenvise limited by law,without limiting the generality
of the foregoing:
(a)engineering,auditing,legal and other overhead expenses directly related
and reasonably allocable to the administration,operation and maintenance of the Light
and Power Facilities;
(b)insurance and surety bond premiums appertaining to the Light and Power
Facilities;
(c)the reasonable charges of any paying agent,registrar,transfer agent,
depository or escrow bank appertaining to the Light and Power Facilities or any bonds or
other securities issued therefor;
(d)annual payments to pension,retirement,health and hospitalization funds
appertaining to the Light and Power Facilities;
(e)any assessments or franchise fees;
(f)ordinary and current rentals of equipment or other property under any
operating leases and rentals with respect to capital leases if the payment of such capital
leases is made subject to annual appropriation by the Board;
(g)contractual services,professional services,salaries,administrative
expenses,and costs of labor appertaining to the Light and Power Facilities and the cost of
materials and supplies used for current operation or routine maintenance and repair of the
Light and Power Facilities;
(h)repairs and replacements of equipment and other parts of the Light and
Power Facilities necessary to maintain the revenue producing capacity thereof
(i)the costs incurred in the collection of all or any part of the Income;
(j)all costs to purchase power and any costs of utility services furnished to
the Light and Power Facilities;
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(k)reasonable indirect administrative costs incurred for the benefit of the
Light and Power Facilities;
(1)costs of any professional services related to the calculation,payment or
application for reffind of arbitrage rebate;and
(m)any other such expenses considered in determining the amount of fees and
charges imposed to cover costs of operation and maintenance of the Light and Power
Facilities.
Except as expressly provided herein,“Operation and Maintenance Expenses”does not
include:
(a)any allowance for depreciation;
(b)any payments in lieu of taxes;
(c)any costs of Improvement,extensions or betterments;
(d)any accumulation of reserves for capital replacements;
(e)any accumulation of reserves for operation,maintenance or repair of the
Light and Power Facilities;
(f)any allowance for the redemption of any bonds or other securities or the
payment of any interest thereon;
(g)any liabilities incurred in the Acquisition of any properties comprising the
Light and Power Facilities or any existing properties comprising the Light and Power
Facilities or any combination thereof or
(h)any other ground of legal liability not based on contract.
“Ordinance”means,this Ordinance authorizing the issuance of the Series 2007 Bonds,
including any amendment hereto.
“Original Purchaser”means the Person or Persons submitting the best bid or bids for the
purchase of the Series 2007 Bonds,as determined by the Mayor,the Town Administrator or the
Finance Officer of the Town in accordance with the Official Notice of Sale provided by the
Town,acting by and through the Enterprise.
“Outstanding”means,as of any particular date,the Series 1999 Bonds,the Series 2007
Bonds,Additional Parity Bonds or any such other securities payable in whole or in part from the
Pledged Revenues which have been duly authorized,executed and delivered,except the
following:
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(a)any Series 1999 Bond,Series 2007 Bond,Additional Parity Bond or other
security canceled by the Paying Agent or otherwise on behalf of the Town on or before
such date;
(b)any Series 1999 Bond,Series 2007 Bond,Additional Parity Bond or other
security held by or on behalf of the Town;
(c)any Series 1999 Bond,Series 2007 Bond,Additional Parity Bond or other
security for the payment or the redemption of which moneys or Federal Securities
sufficient (including the known minimum yield available for such purpose from Federal
Securities in which such amount wholly or in part may be initially invested)to pay all of
the Debt Service Requirements of such Series 1999 Bond,Series 2007 Bond,Additional
Parity Bond or other security to the maturity date or specified Redemption Date thereof
shall have theretofore been deposited in escrow or in trust with a Trust Bank for that
purpose;and
(d)any Series 1999 Bond,Series 2007 Bond,Additional Parity Bond or other
security in lieu of or in substitution for which another Series 1999 Bond,Series 2007
Bond,Additional Parity Bond or other security shall have been executed and delivered.
“Owner”means the holder of any bearer instrument or registered owner of any registered
instrument.
“Paying Agency Agreement”means the Registration and Paying Agency Agreement,
between the Town,acting by and through the Enterprise,and the Registrar and Paying Agent.
“Paying Agent”means American National Bank,or its successor,which shall perform the
thnction of paying agent with respect to the Series 2007 Bonds.
“Permitted Investments”means any investment which,as of the time made,is permitted
by the laws of the State for moneys of the Town and the policies of the Town pertaining to Town
investments to be made with Town finds;provided that such investment must be rated at least
investment grade by Standard &Poor’s Ratings Services and by Moody’s Investors Service,Inc.
“Person”means any individual,firm,partnership,corporation,company,association,
joint stock association,limited liability company or body politic or any trustee,receiver,assignee
or similar representative thereof
“Pledged Revenues”means all Income remaining after the deduction of Operation and
Maintenance Expenses.
“Policy Costs”means the repayment of draws and payment of expenses and accrued
interest thereon to any insurance company that is guaranteeing the payment of the principal of
and interest on the Series 1999 Bonds or the Series 2007 Bonds when due or that has issued a
surety bond,insurance policy or similar instrument for the Series 1999 Debt Service Reserve
Account or the Series 2007 Debt Service Reserve Account.
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“Principal and Interest Account”means the special account established by the Series
1999 Bond Ordinance and reestablished and referred to in Section 12 hereof.
“Fi-oject”means the Acquisition,Improvement and Equipment of a new substation and
rebuilding of certain distribution lines,and any other Improvement to the Light and Power
Facilities deemed necessary or desirable by the Board.
“Record Date”means the fifteenth day of the calendar month next preceding an Interest
Payment Date for the Series 2007 Bonds.
“Redemption Date”means the date fixed for the redemption prior to maturity of any
Series 2007 Bond,Series 1999 Bond or other designated securities payable from the Pledged
Revenues in any notice of prior redemption given by or on behalf of the Town,acting by and
through the Enterprise.
“Registrar”means American National Bank,or its successors and assigns,which shall
perform the fhnction of bond registrar with respect to the Series 2007 Bonds.
“Series 1999 Bond Ordinance”means Ordinance No.12-99 adopted by the Board,acting
as the governing body of the Enterprise,authorizing the issuance of the Series 1999 Bonds.
“Series 1999 Bonds”means the Towi of Estes Park,Colorado,acting by and through its
Light and Power Enterprise,Light and Power Revenue Bonds,Series 1999,issued in the
aggregate principal amount of $3,135,000.
“Series 1999 Debt Service Reserve Account”means the Debt Service Reserve Account
established for the Series 1999 Bonds under the Series 1999 Bond Ordinance.
“Series 2007 Bonds”means the Town of Estes Park,Colorado,acting by and through its
Light and Power Enterprise,Light and Power Revenue Bonds,Series 2007,authorized by this
Ordinance.
“Series 2007 Debt Sen’ice Reserve Account”means the special account created and
referred to in Section 12 hereof.
“State”means the State of Colorado.
Subordinate Bonds”or “Subordinate Securities”means bonds or securities payable from
the Pledged Revenues having a lien thereon subordinate or junior to the lien thereon of the Series
1999 Bonds and the Series 2007 Bonds.
“Superior Bonds”or “Superior Securities”means bonds or securities payable from the
Pledged Revenues having a lien thereon superior or senior to the lien thereon of the Series 1999
Bonds and the Series 2007 Bonds.
“Supplemental Act”means the Supplemental Public Securities Act,constithting part 2 of
article 57 of title 11,C.R.S.
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“Town”means the Town of Esles Park,Colorado,acting as such or,as the context
requires,acting by and through,and as the operator of;the Enterprise.
“Trust Bank-”means a Commercial Bank which is authorized to exercise and is exercising
trust powers.
Section 2.Construction.This Ordinance,except where the context by clear implication
herein otherwise requires,shall be construed as follows:
(a)words in the singular include the plural,and words in the plural include
the singular;
(b)words in the masculine gender include the feminine and the neuter,and
when the sense so indicates words of the neuter gender refer to any gender;
(c)sections,paragraphs and clauses mentioned by number,letter,or
otherwise,correspond to the respective sections,paragraphs and clauses of this
Ordinance so numbered or otherwise so designated;and
(d)the lead lines applied to sections and paragraphs of this Ordinance are
inserted only as a matter of convenience and ease of reference and in no way define or
limit the scope or intent of any provisions of this Ordinance.
Section 3.Authorization.The Series 2007 Bonds,payable as to all Debt Service
Requirements solely out of Pledged Revenues,are hereby authorized to be issued in the
aggregate principal amount not to exceed $6,500,000 in accordance with the Colorado
Constitution,particularly Article X,Section 20 thereof;Title 31,Article 15,Parts 3 and 7,
C.R.S.,and all other laws thereunto appertaining.The Series 2007 Bonds are also being issued
as Additional Parity Bonds under the Series 1999 Bond Ordinance.The Board elects to apply all
of the provisions of the Supplemental Act to the issuance of the Series 2007 Bonds.
Section 4.Bond Details.The Series 2007 Bonds shall be issued in filly registered form
in denominations of $5,000 and any integral multiple thereof (provided that no Series 2007 Bond
may be in a denomination which exceeds the principal coming due on its maturity date,and no
individual Series 2007 Bond may be issued to mature on more than one maturity date).The
Series 2007 Bonds shall be dated as of their date of registration and authentication by the Paying
Agent.Series 2007 Bonds authenticated prior to the first interest payment date,as determined in
the Bond Details Certificate,shall bear interest from their date of original issuance,as
determined in the Bond Details Certificate.Series 2007 Bonds authenticated on the first interest
payment date,as determined in the Bond Details Certificate,shall bear interest from that date,
and Series 2007 Bonds authenticated on any later date,shall bear interest from the May 1 or
November 1 next preceding their date of authentication,or if authenticated on a May I or
November 1,shall bear interest from that date;provided,however,that if interest on the Series
2007 Bonds shall be in default,Series 2007 Bonds issued in exchange for Series 2007 Bonds
surrendered for transfer or exchange shall be dated and bear interest as of the date to which
interest has been paid in thll on the Series 2007 Bonds so surrendered.The Series 2007 Bonds
shall bear interest until their respective maturities or prior redemption,such interest being
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payable semiannually on May 1 and November 1 in each year.as provided in the Bond Details
Certificate.
Pursuant to Section 11-57-205 of the Supplemental Act,the Board hereby delegates to
the Mayor,the Town Administrator or the Finance Officer of the Town the authority to
determine the best bid or bids by a responsible bidder or bidders for the Series 2007 Bonds,to
accept such bid or bids for and on behalf of the Town,acting by and through the Enterprise,and
to award the sale of the Series 2007 Bonds to the Original Purchaser and the authority to
determine the details of the Series 2007 Bonds identified in the definition of Bond Details
Certificate in Section 1 of this Ordinance.
The Series 2007 Bonds shall bear interest at the rate or rates determined by the Mayor,
the Town Administrator or the Finance Officer of the Town in the Bond Details Certificate,
calculated on the basis of a 360 day year consisting of twelve 30 day months;provided,however,
that the net effective interest rate of the Series 2007 Bonds shall not exceed 5.25%.The Series
2007 Bonds shall mature no later than November 1,2027,and on November 1 in the years and in
the principal amounts determined by the Mayor,the Town Administrator or the Finance Officer
of the Town in the Bond Details Certificate.The Maximum Annual Debt Service Requirements
for the Series 2007 Bonds shall not exceed 5525,000.
Section 5.Book Entry.The Series 2007 Bonds initially shall be issued in the name of
Cede &Co.,as nominee of The Depository Trust Company,New York,New York (“DIC”),as
registered owner of the Series 2007 Bonds,and immobilized in the custody of DTC.A single
certificate for each maturity date of the Series 2007 Bonds will be issued and delivered to DTC
for the total principal amount due on each maturity date of the Series 2007 Bonds.Beneficial
owners of the Series 2007 Bonds will not receive physical delivery of Series 2007 Bond
certificates,except in the event that replacements are issued therefor as provided in the Paying
Agency Agreement.All subsequent transfers of ownership interests,after immobilization of the
original Series 2007 Bond certificates as provided above,will be made by book entry only,and
no investor or other party purchasing,selling or otherwise transferring Series 2007 Bonds is to
receive,hold or deliver any Series 2007 Bond certificate as long as DTC or any successor
depository holds the immobilized Series 2007 Bond certificates.The Mayor and all other
members of the Board and the Town Administrator and the Finance Officer of the Town are
hereby authorized to take any and all actions as may be necessary and not inconsistent with this
Ordinance in order to qualif’the Series 2007 Bonds for DTC’s book entry system,including the
execution of DTC’s Blanket Letter of Representations,and payments to DTC by the Paying
Agent shall be made in accordance with such Letter of Representations.
Section 6.Payment of Bonds;Paying Agent and Registrar.The principal of,
premium,if any,and interest on the Series 2007 Bonds shall be payable in lawflñ money of the
United States of America,without deduction for exchange or collection charges.The principal
of and premium,if any,on each Series 2007 Bond shall be payable upon surrender thereof at the
principal operations office of the Paying Agent or at the principal operations office of any
successor Paying Agent appointed by the Town,acting by and through the Enterprise.Interest
on each Series 2007 Bond shall be paid by the Paying Agent on behalf of the Town,acting by
and through the Enterprise,to the Owner thereof by check or draft mailed to such Owner at the
address of such Owner as it appears on the registration books of the Town,acting by and through
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the Enterprise,maintained by the Registrar,or by wire transfer as described in the Paying
Agency Agreement.In the event that the date upon which any payment of interest on or
principal of the Series 2007 Bonds shall be due is not a Business Day (as defined in the Paying
Agency Agreement)then such interest or principal (or both,as the case may be)shall be payable
on the next succeeding Business Day without additional interest.
The Town,acting by and through the Enterprise,shall cause,pursuant to the Paying
Agency Agreement,books for the registration and for the transfer of Series 2007 Bonds to be
kept by the Paying Agent.American National Bank,is hereby constituted and appointed the
Paying Agent and Registrar of the Town,acting by and through the Enterprise,with respect to
the Series 2007 Bonds;however,the Town,acting by and through the Enterprise,may,in its
discretion,appoint any one or more successor or additional Paying Agents and Registrars for the
Series 2007 Bonds in accordance with the Paying Agency Agreement.The Series 2007 Bonds
shall be subject to registration,transfer and exchange in the manner,and subject to the terms and
conditions,set forth in the Paying Agency Agreement,which is hereby incorporated herein by
this reference.
Section 7.Prior Redemption.The Series 2007 Bonds or any part thereof may be
callable for redemption,at the option of the Town,acting by and through the Enterprise,prior to
the final maturity thereof;at the price or prices (expressed as a percentage of the principal
amount)and on the redemption date or dates as determined by the Mayor,the Town
Administrator or the Finance Officer of the Town in the Bond Details Certificate.The Series
2007 Bonds or any part thereof may be callable for mandatory sinking ffind redemption at a price
(expressed as a percentage of principal amount)of 100%,plus accrued interest to the redemption
date,as determined by the Mayor,the Town Administrator or the Finance Officer of the Town in
the Bond Details Certificate.
If less than all of the Series 2007 Bonds within a maturity are to be redeemed on any
prior redemption date,the Series 2007 Bonds to be redeemed shall be selected by lot prior to the
date fixed for redemption,in such manner as the Paying Agent shall determine.The Series 2007
Bonds shall be redeemed only in integral multiples of $5,000.In the event a Series 2007 Bond is
of a denomination larger than 55,000,a portion of such Series 2007 Bond may be redeemed,but
only in the principal amount of $5,000 or any integral multiple thereof.Such Series 2007 Bond
shall be treated for the purpose of redemption as that number of Series 2007 Bonds which results
from dividing the principal amount of such Series 2007 Bond by $5,000.In the event a portion
of any Series 2007 Bond is redeemed,the Paying Agent shall,without charge to the Owner of
such Series 2007 Bond,authenticate and deliver a replacement Series 2007 Bond or Series 2007
Bonds for the unredeemed portion thereof.
Notice of any redemption of the Series 2007 Bonds shall be given by the Paying Agent in
the name of the Town,acting by and through the Enterprise,by mailing a copy of the redemption
notice by first-class mail to the Owners of the Series 2007 Bonds to be redeemed at the addresses
of such Owners shown on the registration books maintained by the Paying Agent pursuant to the
Paying Agency Agreement,not more than 60 nor less than 30 days prior to the redemption date.
Failure to mail notice to the Owner of any Series 2007 Bond designated for redemption,or any
defect in any notice given,shall not affect the validity of any proceedings for the redemption of
the Series 2007 Bonds as to which no such failure shall have occurred.Any notice mailed as
4840-2359-3985.2 12
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provided herein shall be conclusively presumed to have been duly given,whether or not the
Owner actually receives the notice.Each notice of redemption shall specif’the date fixed for
redemption,the redemption price,the place or places of payment,that payment will be made
upon presentation and surrender of the Series 2007 Bonds to be redeemed,that interest accrued
to the date fixed for redemption will be paid as specified in said notice,and that on and afier said
date interest thereon will cease to accrue.If less than all the outstanding Series 2007 Bonds are
to be redeemed,the notice of redemption shall specify the numbers of the Series 2007 Bonds (or
portions of Series 2007 Bonds issued in a principal amount in excess of S5,000)to be redeemed.
On or prior to the date fixed for redemption,funds sufficient to pay the Series 2007
Bonds or portions of the Series 2007 Bonds called for redemption,together with the premium,if
any,and the accrued interest to the redemption date,are to be deposited with the Paying Agent.
The giving of notice and the deposit of funds for redemption shall cause interest on any Series
2007 Bond or portion thereof called for redemption to cease to accrue from and after the date
fixed for redemption.
In addition to the foregoing notice,ftirther notice may be given by the Paying Agent in
order to comply with the requirements of any depository holding the Series 2007 Bonds but no
defect in said further notice nor any failure to give all or any portion of such further notice shall
in any manner defeat the effectiveness of a call for redemption if notice thereof is given as above
prescribed.
Section 8.Form of Series 2007 Bonds.The Series 2007 Bonds shall be signed with the
manual or facsimile signature of the Mayor of the Town,sealed with a facsimile or manual
impression of the seal of the Town,and attested by the manual or facsimile signature of the
Town Clerk.Should any officer whose manual or facsimile signature appears on the Series 2007
Bonds cease to be such officer before delivery of the Series 2007 Bonds,such manual or
facsimile signature shall nevertheless be valid and sufficient for all purposes.
The Series 2007 Bonds shall be in substantially the following form:
4840-2359-3985.2 13
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(Form of Series 2007 Bond]
UNITED STATES OF AMERICA
STATE OF COLORADO
COUNTY OF LARIMER
TOWN OF ESTES PARK,COLORADO
acting by and through its
LIGHT AND POWER ENTERPRISE
LIGHT AND POWER REVENUE BOND
SERIES 2007
No.R-S
Original
Interest rate Maturity date Issue Date CUSIP
_____%
November 1,
______________,2007 _____________
REGISTERED OWNER:Cede &Co.
PRThJCIPAL AMOUNT:DOLLARS
The Town of Estes Park,Colorado (the “Town”),acting by and through its Light and
Power Enterprise (the “Enterprise”),for value received,hereby promises to pay,solely out of the
special accounts hereinafter designated but not otherwise,to the Registered Owner (named
above),or registered assigns,on the Maturity Date (specified above)or on the date of prior
redemption,the Principal Amount (specified above).In like manner the Town,acting by and
through the Enterprise,promises to pay interest on such Principal Amount (computed on the
basis of a 360 day year of twelve 30-day months)from the interest payment date next preceding
the date of registration and authentication of this Bond,unless this Bond is registered and
authenticated prior to *,in which event this Bond shall bear interest from
*2007,at the Interest Rate per annum specified above,payable semiannually on
May 1 and November 1 each year,commencing on
______________,
until the Principal Amount
hereof is paid at maturity or upon prior redemption.The principal of this Bond is payable in
lawful money of the United States of America to the Registered Owner hereof upon maturity or
prior redemption and presentation and surrender hereof at the principal office of American
National Bank,in Denver,Colorado,or its successor,as Paying Agent.
Payment of each installment of interest hereon shall be made to the Registered Owner
hereof whose name shall appear on the registration books of the Town,acting by and through the
*To be determined by Mayor,Town Administrator or Town Finance Officer.
4840.2359-3985.2 14
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Enterprise,maintained by American National Bank,in Denver,Colorado,or its successor as
Registrar,at the close of business on the fifteenth day of the calendar month next preceding each
interest payment date (the “Record Date”),and shall be paid by check or draft of the Paying
Agent mailed on or before the interest payment date to such Registered Owner at his or her
address as it appears on such registration books.The Paying Agent may make payments of
interest on any Bond by such alternative means as may be mutually agreed to between the
registered owner of such Bond and the Paying Agent,as provided in the ordinance authorizing
the issuance of this Bond (the “Bond Ordinance”).Any such interest not so timely paid or duly
provided for shall cease to be payable to the person who is the Registered Owner hereof at the
close of business on the Record Date and shall be payable to the person who is the Registered
Owner hereof at the close of business on a Special Record Date (the “Special Record Date”)
established for the payment of any defaulted interest.Notice of the Special Record Date and the
date fixed for the payment of defaulted interest shall be given by first-class mail to the
Registered Owner hereof as shown on the registration books on a date selected by the Registrar.
If the date for making any payment or performing any action shall be a legal holiday or a
day on which the principal office of the Paying Agent or Registrar is authorized or required by
law to remain closed,such payment may be made or act performed on the next succeeding day
which is not a legal holiday or a day on which the principal office of the Paying Agent or
Registrar is authorized or required by law to remain closed.
This Bond is one of a series of Light and Power Revenue Bonds,Series 2007,issued in
the aggregate principal amount of S________(the “Bonds”),all of like date,tenor,and effect
except as to number,principal amount,interest rate,and date of maturity,issued by the Town of
Estes Park,Colorado,acting by and through its Light and Power Enterprise (the “Enterprise”),
for the purpose of financing a new electric substation and certain other improvements to the
Town’s light and power facilities.This Bond is issued under the authority of and in full
conformity with the Constitution of the State of Colorado;Title 31 Article 15,Parts 3 and 7,
C.R.S.,and all other laws of the State of Colorado thereunto enabling;the Supplemental Public
Securities Act,part 2 of article 57 of title 11,C.R.S.;and pursuant to the Bond Ordinance.
Pursuant to §11-57-210,C.R.S.,such recital shall conclusively impart full compliance with all
of the provisions of the Supplemental Public Securities Act,and this Bond issued containing
such recital is incontestable for any cause whatsoever after its delivery for value.It is hereby
recited,certified and warranted that all of the requirements of law have been fully complied with
by the proper officers in issuing this Bond.
Payment of the principal of and interest on this Bond is to be made solely from,and as
security for such payment there are irrevocably (but not necessarily exclusively)pledged,
pursuant to the Bond Ordinance,two special accounts,thereby identified as the Principal and
Interest Account and the Debt Service Reserve Account,into which the Town,acting by and
through the Enterprise,has covenanted in the Bond Ordinance to pay,from certain revenues
derived from the operation and use of and otherwise pertaining to the Light and Power Facilities
of the Town (the “hicome”as defined in the Bond Ordinance)after provision is made only for
the payment of all necessary and reasonable current expenses of operating,maintaining and
repairing the Light and Power Facilities (such remaining revenues being referred to as the
To be delermined by Mayor,Town Administrator or Town Finance Officer.
4840-2359-3985.2 15
Q C
“Pledged Revenues”),sums sufficient to pay when due the principal of and interest on the Bonds
and any parity securities payable from such revenues.
The Bonds are equally and ratably secured by a lien on the Pledged Revenues,and the
Bonds constitute an irrevocable and first lien (but not an exclusive first lien)thereon,which lien
is on a parity with the lien thereon of the Light and Power Revenue Bonds,Series 1999,issued
by the Town,acting by and through the Enterprise.In addition,obligations in addition to the
Bonds,subject to expressed conditions,may be issued and made payable from the Pledged
Revenues having a lien thereon subordinate and junior to the lien thereon of the Bonds,or
subject to additional expressed conditions,having a lien thereon on a parity with the lien thereon
of the Bonds,as provided in the Bond Ordinance.
THIS BOND IS A SPECIAL,LIMITED OBLIGATION PAYABLE SOLELY OUT
OF AND SECURED BY AN IRREVOCABLE AND FIRST LIEN (BUT NOT
NECESSARILY AN EXCLUSIVE SUCH LIEN)ON THE PLEDGED REVENUES,AS
MORE SPECIFICALLY PROVIDED IN THE BOND ORDINANCE.THIS BOND DOES
NOT CONSTITUTE A DEBT OR AN INDEBTEDNESS OF THE TOWN WITHIN THE
MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION OR
LIMITATION.THIS BOND IS NOT PAYABLE IN WHOLE OR IN PART FROM THE
PROCEEDS OF GENERAL PROPERTY TAXES OR ANY OTHER FORM OF
TAXATION,AND THE FULL FAITH AND CREDIT OF THE TOWN IS NOT
PLEDGED FOR THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON TifiS
BOND.
It is hereby recited,certified and warranted that for the payment of the principal of and
interest on this Bond,the Town,acting by and through the Enterprise,has created and will
maintain said special accounts and will deposit the Pledged Revenues therein,and out of said
special accounts,as an irrevocable charge thereon,will pay the principal of and interest on this
Bond in the manner provided by the Bond Ordinance.
Reference is made to the Bond Ordinance,and to any and all modifications and
amendments thereof,for an additional description of the provisions,terms and conditions upon
which the Bonds are issued and secured,including,without limitation,the nature and extent of
the security for the Bonds,provisions with respect to the custody and application of the proceeds
of the Bonds,the collection and disposition of the revenues and moneys charged with and
pledged to the payment of the principal of and interest on the Bonds,a description of the special
funds referred to above and the nature and extent of the security and pledge afforded thereby for
the payment of the principal of and interest on the Bonds,and the manner of enforcement of said
pledge,as well as the rights,duties,immunities and obligations of the Town,acting by and
though the Enterprise,and also the rights and remedies of the registered owners of the Bonds.
To the extent and in the respects permitted by the Bond Ordinance,the provisions of the
Bond Ordinance,or any instrument amendatory thereof or supplemental thereto,may be
modified or amended by action of the Board of Trustees of the Town,acting as the governing
body of the Enterprise,taken in the manner and subject to the conditions and exceptions
provided in the Bond Ordinance.The pledge of revenues and other obligations of the Town,
acting by and through the Enterprise,under the Bond Ordinance may be discharged at or prior to
4840-2359.3985.2 16
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the maturity or prior redemption of the Bonds upon the making of provision for the payment of
the Bonds on the terms and conditions set forth in the Ordinance.
The Bonds maturing on or before •are not subject to redemption prior to
maturity.The Bonds maturing on and after *
,are subject to redemption prior to
maturity,at the option of the Town,acting by and throu&the Enterprise,as a whole or in part,
in any order of maturity and in whole or partial maturities,on
__________,
and on any date
thereafter,at the redemption price (expressed as a percentage of the principal amount)of Z_..%,
plus accrued interest to the redemption date.
The Bonds will be redeemed only in integral multiples of $5,000.In the event a Bond is
of a denomination larger than $5,000,a portion of such Bond may be redeemed,but only in the
principal amount of $5,000 or any integral multiple thereof.Such Bond will be treated for the
purposes of redemption as that number of Bonds which results from dividing the principal
amount of such Bond by $5,000.In the event a portion of this Bond is redeemed,the Registrar
shall,without charge to the Registered Owner of this Bond,authenticate and deliver a
replacement Bond or Bonds for the unredeemed portion.
Notice of prior redemption shall be given by mailing a copy of the redemption notice,not
more than 60 days and not less than thirty (30)days prior to the date fixed for redemption,to the
Registered Owner of this Bond at the address shown on the registration books maintained by the
Registrar,in the manner set forth in the Bond Ordinance.All Bonds called for redemption will
cease to bear interest after the specified redemption date,provided ffinds for their redemption are
on deposit at the place of payment at that time.
The Town,acting by and through the Enterprise,and Registrar shall not be required to
issue or transfer any Bonds:(a)during a period beginning at the close of business on the Record
Date and ending at the opening of business on the first business day following the ensuing
interest payment date,or (b)during the period beginning at the opening of business on a date
forty-five (45)days prior to the date of any redemption of Bonds and ending at the opening of
business on the first business day following the day on which the applicable notice of redemption
is mailed.The Registrar shall not be required to transfer any Bonds selected or called for
redemption,in whole or in part.
The Town,acting by and through the Enterprise,the Paying Agent and the Registrar may
deem and treat the Registered Owner of this Bond as the absolute owner hereof for all purposes
(whether or not this Bond shall be overdue),and any notice to the contrary shall not be binding
upon the Town,acting by and through the Enterprise,the Paying Agent or the Registrar.
This Bond may be exchanged at the principal office of the Registrar for a like aggregate
principal amount of Bonds of the same maturity of other authorized denominations.This Bond
is transferable by the Registered Owner hereof in person or by his or her attorney duly authorized
in writing,at the principal office of the Registrar,but only in the manner,subject to the
limitations,and upon payment of the charges provided in the Bond Ordinance and upon
surrender and cancellation of this Bond.This Bond may be transferred upon the registration
To be determined by Mayor,Town Administrator or Town Finance Officer..
484O23S9.J985.2 17
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books upon delivery to the Registrar of this Bond,accompanied by a written instrument or
instruments of transfer in form and with guaranty of signature satisfactory to the Registrar,duly
executed by the Registered Owner of this Bond or his or her attorney-in-fact or legal
representative,containing written instructions as to the details of the transfer of the Bond,along
with the social security number or federal employer identification number of such transferee.In
the event of the transfer of this Bond,the Registrar shall enter the transfer of ownership in the
registration books and shall authenticate and deliver in the name of the transferee or transferees a
new fully registered Bond or Bonds of authorized denominations of the same maturity and
interest rate for the aggregate principal amount which the Registered Owner is entitled to receive
at the earliest practicable time.The Registrar shall charge the Registered Owner of this Bond for
every such transfer or exchange an amount sufficient to reimburse it for its reasonable fees and
for any tax or other governmental charge required to be paid with respect to such transfer or
exchange.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the authorizing Bond Ordinance until the Certificate of Authentication
hereon shall have been signed by the Registrar.
4840-2359-1985.2 18
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IN TESTIMONY WHEREOF,the Board of Trustees of the Town,acting as the
governing body of the Enterprise,has caused this Bond to be signed by the manual or facsimile
signature of the Mayor of the Town,sealed with an impression or a facsimile of the seal of the
Town,and attested by the manual or facsimile signature of the Town Clerk,all as of the date set
forth below.
TOWN OF ESTES PARK,COLORADO,
ACTING BY AND THROUGH ITS LIGHT
AND POWER ENTERPRISE
[SEAL]By
_____
Mayor
Attested:
By
__________________________
Town Clerk
4840-2359-3985.2 19
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CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the within mentioned Bond
Ordinance.
Date of Registration AMERICAN NATIONAL BANK,
and Authentication:
___________________
as Registrar
By
Authorized Signatory’
STATEMENT OF INSURANCE
[To be provided by Bond Insurer,if any]
4840-2359-3985.2 20
0.q
ASSIGNMENT
FOR VALUE RECEIVED.the undersigned sells,assigns,am!transfers unto
SOCIAL SECURITY OR FEDERAL EMPLOYER
IDENTIFICATION NUMBER OF ASSIGNEE
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint
________________________
attorney,to transfer said Bond on the books kept for registration thereof with full power of
substitution in the premises.
Dated:
_______________________________
By
Name_______________________
Title
______________________________________
NOTICE:The signature to this Assignment
must correspond with the name of the
Registered Owner as it appears upon the face
of the within Bond in every particular,without,
alteration or enlargement or any change
whatsoever.
Signature of Registered Owner:
Signature Guaranteed:
(Bank.Trust Company,or Firm)
(End of Form of Series 2007 Bond)
4840-2359-3985.2 2 1
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Section 9.Authentication.No Series 2007 Bond shall be valid or obligatory for any
purpose or be entitled to any security or benefit under this Ordinance unless and until a
Certificate of Authentication on such Series 2007 Bond substantially in the form herein above set
forth shall have been duly executed by the Registrar,and such executed certificate of the
Registrar upon any such Series 2007 Bond shall be conclusive evidence that such Series 2007
Bond has been authenticated and delivered under this Ordinance.The Registrar’s Certificate of
Authentication on any Series 2007 Bond shall be deemed to have been executed by it if signed
by an authorized officer or signatory of the Registrar,but it shall not be necessary that the same
officer or signatory sign the Certificate of Authentication on all of the Series 2007 Bonds issued
hereunder.
Section 10.Delivery of Bonds.Following the adoption of this Ordinance,the Town,
acting by and through the Enterprise,shall execute the Series 2007 Bonds and shall deliver them
to the Registrar.The Registrar shall authenticate the Series 2007 Bonds and deliver them to
DTC,as directed by the Town,acting by and through the Enterprise.
Section 11.Disposition and Investment of Proceeds;Designation of Series 2007
Bonds as “Qualified Tax-Exempt Obligations”.The Series 2007 Bonds shall be issued and
sold for the purpose of paying the Project Costs.Neither the Original Purchaser nor any
subsequent Owners of the Series 2007 Bonds shall be responsible for the application or disposal
by the Town,acting by and through the Enterprise,or any of its officers of the funds derived
from the sale thereof.
All or any portion of the Series 2007 Bond proceeds shall be temporarily invested or
reinvested,pending such use,in Permitted Investments.Investments shall be valued by the
Town,acting by and through the Enterprise,at fair market value on an annual basis,exclusive of
accrued interest.
The Town hereby declares that it reasonably anticipates to issue (or has issued),together
with governmental entities which derive their issuing authority from the Town or are subject to
substantial control by the Town,not more than an aggregate total of $10,000,000 of tax-exempt
obligations during calendar year 2007.The Town recognizes that such tax exempt obligations
include notes,leases,loans and warrants,as well as bonds.The Town hereby designates the
Series 2007 Bonds as “qualified tax exempt obligations”within the meaning of Section 265 of
the Code,allowing certain banks,thrift institutions and other financial institutions owning the
Series 2007 Bonds to avoid the loss of 100%of any otherwise available interest deduction in
direct proportion to such institution’s tax-exempt holdings.
Section 12.Funds and Accounts.The proceeds of the Series 2007 Bonds,and the
Income,shall be deposited by the Town,acting by and through the Enterprise,in the funds and
accounts described in this Section 12,to be accounted for in the manner and priority set forth
herein.
The Pledged Revenues and all moneys and securities paid or to be paid to or held or to be
held in any fund or account hereunder (except the Operation and Maintenance Account and the
Excess Investment Earnings Account)are hereby pledged to secure the payment of the Debt
Service Requirements of the Series 2007 Bonds,subject to the provisions herein relating to the
4840-2359-3985.2 22
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Construction Account and subject to the application of the Pledged Revenues for the payment of
the Debt Service Requirements of the Series 1999 Bonds and any Additional Parity Bonds.This
pledge shall be valid and binding from and after the date of the first delivery of the Series 2007
Bonds,and the moneys,as received by the Town,acting by and through the Enterprise,and
hereby pledged,shall immediately be subject to the lien of this pledge without any physical
delivery thereof,any filing,or further act.The lien of this pledge and the obligation to perform
the contractual provisions hereby made shall have priority over any or all other obligations and
liabilities of the Town,acting by and through the Enterprise,(except as herein otherwise
expressly provided),and the lien of this pledge shall be valid and binding as against all parties
having claims of any kind in tort,contract or otherwise against the Town or the Enterprise
(except as herein otherwise expressly provided),irrespective of whether such parties have notice
thereof.
(a)Construction Account.The proceeds of the Series 2007 Bonds,except
the sums,if any,required in Sections 12(d)and (e)hereof to be deposited in the Principal
and Interest Account and the Series 2007 Debt Service Reserve Account,shall be
deposited in the Construction Account hereby created within the Light and Power
Enterprise Fund and shall be maintained,used and withdrawn only as provided herein
solely for the purpose of paying,or reimbursing the Town or the Enterprise for payments
of the Cost of the Project and are pledged therefor.Any such proceeds remaining in the
Construction Account after completion of the Project,excluding investment earnings
which may be required to be rebated to the federal government,shall be used first to pay
the costs of any additional capital improvements that the Town.acting by and through the
Enterprise,may determine to be part of the Project;then deposited in the Principal and
Interest Account to be used for the purposes of the Principal and Interest Account or shall
be used to the extent feasible to call and redeem Series 2007 Bonds in advance of
maturity.The Town,acting by and through the Enterprise,shall use any proceeds of the
Series 2007 Bonds credited to the Construction Account,without ftrther order,to pay the
Debt Service Requirements of the Series 2007 Bonds as the same become due whenever
and to the extent moneys in the Principal and Interest Account and the Series 2007 Debt
Service Reserve Account 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 Construction Account from the first Pledged Revenues thereafter
received and not needed to meet the requirements provided in paragraphs (d)and (e)
hereof.
b)Light and Power Enteiprise Fund.Except as otherwise provided herein,
the entire Income,upon receipt thereof from time-to-time by the Town,acting by and
through the Enterprise,shall be set aside and credited immediately to the Light and
Power Enterprise Fund.In addition,the Town may at its option credit to the Light and
Power Enterprise Fund any other moneys of the Town legally available for expenditure
for the purposes of the Light and Power Enterprise Fund as provided herein.
The Light and Power Enterprise Fund shall be administered and the moneys on
deposit therein shall be deposited and applied in the following order of priority:
4S40-2359.3985.2 23
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FIRST,to the Operation and Maintenance Account to pay Operation and
Maintenance Expenses in the manner set forth in Section 12(c)hereof;
SECOND,to the Principal and Interest Account to pay the Debt Service
Requirements of the Series 1999 Bonds,the Series 2007 Bonds and any
Additional Parity Bonds then Outstanding in the manner set forth in Section 12(d)
hereof;
THIRD,to the Series 2007 Debt Service Reserve Account,in the manner
set forth in Section 12(e)hereof;and to the Series 1999 Debt Service Reserve
Account,in the manner set forth in Section 14(e)of the Series 1999 Bond
Ordinance;
FOURTH,to the payment of the Debt Service Requirements of
Subordinate Bonds or other Subordinate Securities in accordance with
Section 12(g)hereof and Section 14(g)of the Series 1999 Bond Ordinance;and
FIFTH,to be used in accordance with Sections 12(f)and (h)hereof and
Sections 14(f)and (h)of the Series 1999 Bond Ordinance.
(c)Operation and Maintenance Account.As a first charge on the Light and
Power Enterprise Fund,there shall be credited from time-to-time to the Operation and
Maintenance Account created by the Series 1999 Bond Ordinance and reestablished by
this Ordinance within the Light and Power Enterprise Fund moneys sufficient to pay the
Operation and Maintenance Expenses of the Light and Power Facilities as they become
due and payable,and thereupon the Operation and Maintenance Expenses shall be
promptly paid.
(d)Principal and Interest Account.The Town shall deposit in the Principal
and Interest Account created by the Series 1999 Bond Ordinance and reestablished by
this Ordinance within the Light and Power Enterprise Fund,forthwith upon receipt of the
proceeds of the Series 2007 Bonds,interest accrued thereon from their date to the date of
delivery thereof to the Original Purchaser,to apply to the payment of interest first due on
the Series 2007 Bonds.
Subject to the payments required by Section 12(c)hereof;for so long as the Series
2007 Bonds are Outstanding,the Town,acting by and through the Enterprise,shall
deposit in the Principal and Interest Account from the Pledged Revenues on or before the
last day of each month beginning with the month of issuance of the Series 2007 Bonds,
the amount of interest accruing on the Series 2007 Bonds,the Series 1999 Bonds and any
Additional Parity Bonds during said month (with a credit for the amount of any accrued
interest on the Series 2007 Bonds deposited in the Principal and Interest Account and not
theretofore credited)and on or before the last day of each month after the first Interest
Payment Date of the Series 2007 Bonds,the following amounts:
(i)Interest Payments.One-sixth of the aggregate amount of the next
installment of interest due in the then current Bond Year plus any other amounts
4840-2359-3985.2 24
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due for interest on the Series 2007 Bonds,the Series 1999 Bonds and any
Additional Parity Bonds then Outstanding;and
(ii)Principal Payments.The dollar amount derived by dividing the
amount of principal to come due on the first principal payment date for the Series
2007 Bonds by the number of months to such first principal payment date,and
thereafter,one-twelfth of the aggregate amount of the next installment of principal
due in the then current Bond Year plus any other amounts due for principal of the
Series 2007 Bonds,the Series 1999 Bonds and any Additional Parity Bonds then
Outstanding.
Such interest and principal shall be promptly paid when due.
The moneys credited to the Principal and Interest Account,excluding investment
earnings which may be required to be rebated to the federal government,shall be used to pay the
Debt Service Requirements of the Series 2007 Bonds,the Series 1999 Bonds and any Additional
Parity Bonds then Outstanding,as such Debt Service Requirements become due,except as
othenvise provided in this Ordinance.The Principal and Interest Account shall also be
maintained as a sinking fund for the mandatory redemption of any Series 2007 Bonds,Series
1999 Bonds or any Additional Parity Bonds which are subject to mandatory sinking fund
redemption.Any mandatory sinking fund redemption shall be treated as an installment of
principal for purposes of this Section 12(d).
Nothing herein shall be construed to prevent the Town from creating separate principal
and interest accounts for the Series 2007 Bonds,the Series 1999 Bonds and any Additional
Parity Bonds and accounting separately for any deposits made thereto on account of the Series
2007 Bonds,the Series 1999 Bonds and any Additional Parity Bonds,if such action is deemed
by the Town,acting by and through the Enterprise,to be necessary or desirable in order to
comply with any staWte or regulation governing the exemption from federal income taxes of
interest on the Series 2007 Bonds,the Series 1999 Bonds or any such Additional Parity Bonds,
provided that any such separate accounts shall have claims to the Pledged Revenues equal to and
on a parity with those of the other such accounts.Nothing herein shall be construed to prevent
the Town,acting by and through the Enterprise,from creating subffinds or subaccounts for the
purpose of recording the payments and accumulations made hereunder in a manner consistent
with the accounting principles which may be employed by the Town from time-to-time.
(e)Series 2007 Debt Service Reserve Account.From proceeds of the Series
2007 Bonds,the Town,acting by and through the Enterprise,shall deposit and maintain
in the Series 2007 Debt Service Reserve Account hereby created within the Light and
Power Enterprise Fund a sum equal to the lesser of (i)10%of the stated principal
amount (or,in certain cases,the issue price)of the Series 2007 Bonds,(ii)the Maximum
Annual Debt Service Requirements of the Series 2007 Bonds coming due in any Bond
Year or (iii)125%of the average annual principal and interest payments on the Series
2007 Bonds (the “Series 2007 Reserve Requirement”).Subject to the payments required
by Sections (c)and (d)hereof from the Pledged Revenues there shall be credited,as
hereinafter provided,to the Series 2007 Debt Service Reserve Account moneys sufficient
to maintain the Series 2007 Debt Service Reserve Account at the Series 2007 Reserve
4840-2359-3985.2 25
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Requirement.In the event that the amount of the Series 2007 Debt Service Reserve
Account falls below the Series 2007 Reserve Requirement,the Town,acting by and
through the Enterprise,shall credit immediately to the Series 2007 Debt Service Reserve
Account,from the Pledged Revenues,that sum of money needed to maintain the Series
2007 Reserve Requirement.The moneys required to be deposited in the Series 2007
Debt Service Reserve Account,excluding investment earnings which may be required to
be rebated to the federal government and any amounts greater than the Series 2007
Reserve Requirement,shall be set aside and maintained as a continuing reserve to be
used,except as hereinafter provided in this subparagraph (e)and in Section 48 hereof,
only to prevent deficiencies in payment of the Debt Service Requirements of the Series
2007 Bonds then Outstanding resulting from failure to deposit into the Principal and
Interest Account sufficient funds to pay such Debt Service Requirements as the same
become due.
Nothing in this Ordinance shall be construed as limiting the right of the Town,
acting by and through the Enterprise,to substitute for the cash deposit required to be
maintained hereunder a letter of credit,surety bond,insurance policy,agreement
guaranteeing payment,or other undertaking by a financial institution to ensure that cash
in the amount otherwise required to be maintained hereunder will be available to the
Town,acting by and through the Enterprise,as needed;provided that any such
substitution shall not cause the then current rating or ratings of the Series 2007 Bonds to
be adversely affected.If such letter of credit,surety bond,insurance policy,agreement
guaranteeing payment,or other undertaking is to be provided by any entity other than any
bond insurance company that is guaranteeing the payment of the principal of and interest
on the Series 2007 Bonds when due (the “Bond Insurer”),the Town,acting by and
through the Enterprise,shall obtain the written consent of the Bond Insurer to effect such
substitution.
(0 Termination of Deposits.No payment need be made into the Principal
and Interest Account if the amount in the Principal and Interest Account and the moneys
of the Enterprise in the Series 2007 Debt Service Reserve Account and the moneys of the
Enterprise in the Series 1999 Debt Service Reserve Account total a sum at least equal to
the entire amount of the Outstanding Series 2007 Bonds,the Outstanding Series 1999
Bonds and any Outstanding Additional Parity Bonds,as to all Debt Service
Requirements,to their respective maturities or to any Redemption Date or Redemption
Dates as of which the Town,acting by and through the Enterprise,shall have exercised or
shall have obligated itself to exercise its option to redeem,prior to their respective
maturity dates,the Outstanding Series 2007 Bonds,the Outstanding Series 1999 Bonds
and any Outstanding Additional Parity Bonds thereafter maturing and subject to such
redemption (provided that,solely for the purpose of this subparagraph (0 there shall be
deemed to be a credit to the Principal and Interest Account of moneys,Federal Securities
and bank deposits,or any combination thereot accounted for in any other fund or
account of the Town,acting by and through the Enterprise,and restricted solely for the
purpose of paying the Debt Service Requirements of the Series 2007 Bonds,the Series
1999 Bonds,and any Additional Parity Bonds),in which case moneys in the Principal
and Interest Account and moneys of the Enterprise in the Series 2007 Debt Service
Reserve Account and moneys of the Enterprise in the Series 1999 Debt Service Reserve
4840-2359-3985.2 26
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Account in an amount,except for any known interest or other gain to accrue from any
investment or deposit of moneys pursuant to Section 14 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.Any
moneys in excess thereof in the Principal and Interest Account and moneys of the
Enterprise in the Series 2007 Debt Service Reserve Account and moneys of the
Enterprise in the Series 1999 Debt Service Reserve Account and any other moneys
derived from the Income or otherwise pertaining to the Light and Power Facilities may be
used in any lawful manner determined by the Town,acting by and through the Enterprise.
(g)Payment of Subordinate Securities.After there has been deposited to the
Principal and Interest Account an amount sufficient to pay all the Debt Service
Requirements due during the current Bond Year on all Series 2007 Bonds,Series 1999
Bonds and Additional Parity Bonds then Outstanding and after any replenishment of the
Series 2007 Debt Service Reserve Account and the Series 1999 Debt Service Reserve
Account to be made in the current Bond Year have been made,any moneys remaining in
the Light and Power Enterprise Fund for such Bond Year may be used by the Town,
acting by and through the Enterprise,for the payment of Debt Service Requirements of
Subordinate Securities payable from the Pledged Revenues and authorized to be issued in
accordance with this Ordinance and the Series 1999 Bond Ordinance,including
reasonable reserves for such Subordinate Securities;but the lien of such Subordinate
Securities on the Pledged Revenues and the pledge thereof for the payment of such
Subordinate Securities shall be subordinate to the lien and pledge thereof for the Series
2007 Bonds,the Series 1999 Bonds and any Additional Parity Bonds as provided herein
and in the Series 1999 Bond Ordinance.
(h)Use of Renzainbzg Revenues.After the payments required to be made by
Sections 12(a)through (g)hereof are made,at the end of any Bond Year,or whenever in
any Bond Year there shall have been credited to the Principal and Interest Account and
the Series 2007 Debt Service Reserve Account and the Series 1999 Debt Service Reserve
Account all amounts required to be deposited in those special funds during said Bond
Year,as provided herein and in the Series 1999 Bond Ordinance,any remaining moneys
credited to the Light and Power Enterprise Fund may be used for the Acquisition of
Improvements or Equipment for the Light and Power Facilities or for any one or any
combination of other lawful purposes as the Town may from time-to-time determine.
(i)Budget and Appropriation of Sunis.The sums provided to make the
payments specified in this Section 12 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 Board in each year respectively
while any of the Series 2007 Bonds,either as to principal or interest,are Outstanding and
unpaid.No provisions of any constitution,charter,statute,ordinance,this Ordinance,or
other order or measure enacted after the issuance of the Series 2007 Bonds 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 Series 2007
4840-2359.3985.2 27
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Bonds remain Outstanding and unpaid.Nothing herein shall prohibit the Board from
appropriating other funds of the Town legally available for this purpose to the Light and
Power Enterprise Fund for the purposes thereof
(j)Excess Investment Earnings Account.The Finance Officer shall transfer
into and pay from the Excess Investment Earnings Account created by the Series 1999
Bond Ordinance and reestablished by this Ordinance within the Light and Power
Enterprise Fund the amount of required arbitrage rebate,if any,due to the federal
government under Sections 103 and 148(0(2)of the Code.The Finance Officer shall
determine or cause to be determined such amounts in the manner required by said
sections and related regulations and Section 41 hereof Transfer of the investment
earnings that are required to be rebated to the federal government shall be made from the
Construction Account,the Principal and Interest Account and the Series 2007 Debt
Service Reserve Account;provided,however,that required arbitrage rebate payments
shall be made to the federal government from legally available funds regardless of
whether there are any remaining proceeds or other funds attributable to the Series 2007
Bonds that are available for the purpose.
All amounts in the Excess Investment Earnings Account,including income earned
from investment thereof,shall be held by the Finance Officer free and clear of any lien
created by this Ordinance,and the Finance Officer shall remit the same to the federal
government from time-to-time as provided in Section 41(b)hereof.
Any moneys in the Excess Investment Earnings Account that are not needed to
make arbitrage rebate payments to the federal government may be transferred to the
Principal and Interest Account and used for the Debt Service Requirements of the Series
2007 Bonds.
Section 13.Places and Times of Deposits.Each of the special funds or accounts
created or referred to in Section 12 hereof shall be maintained as a book account of the Town and
all moneys accounted for therein shall at all times be either deposited in a Commercial Bank or
invested in Permitted Investments.For purposes of such deposits or investments of moneys,
nothing herein prevents the commingling of moneys accounted for in any two or more such
funds or accounts pertaining to the Income.Such funds or accounts shall be continuously
secured to the fullest extent required or permitted by the laws of the State for 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 funds or accounts.Each periodic payment shall be
credited to the proper fund or 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 or before the next succeeding business day.
Section 14.Investment of Funds.Any moneys in any fund or account described in
Section 12 hereof may be invested,reinvested or deposited only in Permitted Investments.
Securities or obligations so purchased as an investment of moneys in any such fund or account
shall be deemed at all times to be a part of the applicable fund or account;provided that (with the
exception of the Construction Account,the Series 2007 Debt Service Reserve Account and the
Excess Investment Earnings Account)the interest accruing on such investments and any profit
4840-2359.3985.2 28
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realized therefrom shall be credited to the Light and Power Enterprise Fund,and any loss
resulting from such investments shall be charged to the particular flrnd or account in question.
Interest and profit realized from investments of moneys in the Construction Account shall be
credited to the Construction Account.Any loss resulting from investments of moneys in the
Construction Account shall be charged to the Construction Account.Interest and profit realized
from investments in the Series 2007 Debt Service Reserve Account shall be credited to the Series
2007 Debt Service Reserve Account;provided that,so long as the amount in the Series 2007
Debt Service Reserve Account equals the Series 2007 Reserve Requirement,such interest and
profit may be transferred to the Principal and Interest Account and distributed in the same
maimer as other moneys in the Principal and Interest Account.Any loss resulting from such
investments in the Series 2007 Debt Service Reserve Account shall be charged to the Series 2007
Debt Service Reserve Account.The Town,acting by and through the Enterprise,shall present
for redemption or sale on the prevailing market any securities or obligations so purchased as an
investment of moneys in a given ftind or account whenever it shall be necessary to do so in order
to provide moneys to meet any required payment or transfer from such ftnd or account.The
Town,acting by and through the Enterprise,shall not invest any moneys accounted for hereunder
if any such investment would contravene the covenant concerning arbitrage in Section 41(a)
hereof.
Section 15.No Liability for 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.
Section 16.Character of Funds.The moneys in any find or account herein described
shall consist of lawful money of the United States of America or investments permitted by
Section 14 hereof or both such money and such investments.Moneys deposited in a demand or
time deposit account in or evidenced by a certificate of deposit of a Commercial Banlc pursuant
to Sections 13 and 14 hereof;appropriately secured according to the laws of the State,shall be
deemed lawfiil money of the United States of America.
Section 17.First Lien on Pledged Revenues;Equality of Bonds.Except as expressly
provided in this Ordinance with respect to Additional Parity Bonds,and Subordinate Securities,
the Pledged Revenues shall be and hereby are irrevocably pledged and set aside to pay the Debt
Service Requirements of the Series 2007 Bonds,the Series 1999 Bonds and Additional Parity
Bonds.
The Series 2007 Bonds constitute an irrevocable and first lien (but not necessarily an
exclusive first lien)upon the Pledged Revenues.
The Series 2007 Bonds,the Series 1999 Bonds and any Additional Parity Bonds hereafter
authorized to be issued and from time-to-time Outstanding are equitably and ratably secured by a
lien on the Pledged Revenues 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 thereot it
being the intention of the Board that there shall be no priority among the Series 2007 Bonds,the
Series 1999 Bonds and any Additional Parity Bonds,regardless of the fact that they may be
actually issued and delivered at different times.
4840-2359-3985.2 29
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The creation,perfection,enforcement,and priority of the pledge of Pledged Revenues to
secure or pay the Series 2007 Bonds,the Series 1999 Bonds and any Additional Parity Bonds as
provided herein shall be governed by Section 11-57-208 of the Supplemental Act and this
Ordinance.Pledged Revenues pledged for the payment of the Series 2007 Bonds,the Series
1999 Bonds and any Additional Parity Bonds,as received by or otherwise credited to the Town,
acting by and through the Enterprise,shall immediately be subject to the lien of such pledge
without any physical delivery,filing,or ffirther act.The lien of such pledge on the Pledged
Revenues pledged for payment of the Series 2007 Bonds,the Series 1999 Bonds and any
Additional Parity Bonds and the obligation to perform the contractual provisions made herein
shall have priority over any or all other obligations and liabilities of the Town,acting by and
through the Enterprise,and of the Town.The lien of such pledge shall be valid,binding,and
enforceable as against all persons having claims of any kind in tort,contract,or otherwise against
the Town,acting by and through the Enterprise,and against the Town irrespective of whether
such persons have notice of such liens.
Section 18.Issuance of Additional Parity Bonds.Nothing herein,except the
limitations stated in Section 22 hereof;prevents the issuance by the Town,acting by and through
the Enterprise,of Additional Parity Bonds payable from the Pledged Rcvenues and constituting a
lien on the Pledged Revenues on a parity with,but not prior or superior to,the lien thereon of the
Series 2007 Bonds and the Series 1999 Bonds;but before any such Additional Parity Bonds are
authorized or actually issued the Town,acting by and through the Enterprise,shall satis&the
following conditions:
(a)Absence of Default.At the time of the adoption of the supplemental
ordinance or other instrument authorizing the issuance of the Additional Parity Bonds as
provided in Section 22 hereof;the Town,acting by and through the Enterprise,shall not
be in default in making any payments required by Section 12 hereof
(b)Historic Revenues Tests.
(i)Except as hereinafter provided in the case of Additional Parity
Bonds issued for the purpose of refunding less than all of the Series 2007 Bonds,
the Series 1999 Bonds and other Additional Parity Bonds then Outstanding,the
Pledged Revenues for the last complete Fiscal Year prior to the issuance of the
proposed Additional Parity Bonds,as certified by the Finance Officer,must have
been equal to at least 150%of the Combined Maximum Annual Debt Service
Requirements of the Series 2007 Bonds,the Series 1999 Bonds and other
Additional Parity Bonds then Outstanding,and the Additional Parity Bonds
proposed to be issued,plus 100%of any Policy Costs attributable to the Series
1999 Bonds and the Series 2007 Bonds.
(ii)If any adjustment in rates,fees,tolls or charges is made by the
Town,acting by and through the Enterprise,during such Fiscal Year,the Finance
Officer shall adjust the calculation of the Pledged Revenues to reflect the amount
thereof that would have been received if such adjustment had been in effect
throughout such Fiscal Year.
4840-2359-3985.2 30
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(iii)For purposes of this Section 18(b),when computing the Maximum
Annual Debt Service Requirements for any issue of securities bearing interest at a
variable,adjustable,convertible or other similar rate which is not fixed for the
entire term thereof;it shall be assumed that any such securities Outstanding at the
time of the computation will bear interest during any period,if the interest rate for
such periods shall not have been determined,at a fixed rate equal to the higher of
6%per annum or the highest interest rate borne during the preceding 24 months
by outstanding securities of the Town bearing interest at a variable,adjustable,
convertible or other similar rate or,if no such securities of the Town are
Outstanding at the time of the computation,by any similar securities for which the
interest rate is determined by reference to an index comparable to that to be
utilized in connection with the securities proposed to be issued,or if the interest
rate for such period has been determined and is not subject to variation,
adjustment or conversion prior to the expiration of such period,at the rate so
determined.It shall further be assumed that any such securities which maybe
tendered prior to maturity for purchase at the option of the owner thereof will
mature on their stated maturity or mandatory redemption dates.Further,the
Town shall obtain the written consent of any Bond Insurer before issuing
Additional Parity Bonds bearing interest at a variable,adjustable,convertible or
other similar rate which is not fixed for the entire term thereof
(iv)In the case of Additional Parity Bonds issued for the purpose of
refunding less than all of the Series 2007 Bonds,the Series 1999 Bonds and other
Additional Parity Bonds then Outstanding,compliance with this Section 18(b)
shall not be required so long as the Debt Service Requirements payable as to all
Series 2007 Bonds,Series 1999 Bonds and other Additional Parity Bonds
Outstanding after the issuance of such Additional Parity Bonds on each Interest
Payment Date do not exceed the Debt Service Requirements payable on all Series
2007 Bonds,Series 1999 Bonds and other Additional Parity Bonds Outstanding
prior to the issuance of such Additional Parity Bonds on such Interest Payment
Date.
(c)Adequate Reserves.The proceedings under which any such Additional
Parity Bonds are issued must provide for the deposit of moneys to a reserve account
(other than the Series 2007 Debt Service Reserve Account or the Series 1999 Debt
Service Reserve Account)established and maintained solely for such Additional Parity
Bonds on substantially the same terms as provided in Section 12(e)hereof and contain a
covenant by the Town,acting by and through the Enterprise,to maintain such reserve
fund or account in an amount equal to the lesser of (i)10%of the stated principal amount
(or,in certain cases,the issue price)of the Additional Parity Bonds,(ii)the Maximum
Annual Debt Service Requirements of such Additional Parity Bonds coming due in any
Bond Year,or (iii)125%of the average annual principal and interest payments on such
Additional Parity Bonds except as may be necessary to comply with any statute or
regulation governing the exemption from federal income taxes of interest on such
Additional Parity Bonds.Any such reserve account shall have a claim to the Pledged
Revenues equal to and on a parity with that of the Series 2007 Debt Service Reserve
Account and the Series 1999 Debt Service Reserve Account.
4840.2359-3985.2 31
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Section 19.Effect of Certification of Revenues.Where certifications of revenues are
required by this Ordinance,the specified and required written certifications of the Finance
Officer to the effect that revenues are sufficient to pay the required amounts shall be
conclusively presumed to be accurate in determining the right of the Town,acting by and
through the Enterprise,to authorize,issue,sell and deliver Additional Parity Bonds.
Section 20.Subordinate Securities Permitted.Nothing herein,except the limitations
stated in Section 22 hereof;prevents the Town,acting by and through the Enterprise,from
issuing Subordinate Securities for any lawffil purpose.
Section 21.Superior Securities Prohibited.Nothing herein permits the Town,acting
by and through the Enterprise,to issue Superior Bonds or Superior Securities.
Section 22.Supplemental Ordinances.Additional Parity Bonds or Subordinate
Securities shall be issued only after authorization thereof by ordinance,supplemental ordinance
or legislative measure adopted by the Board,in substantially the same form as this Ordinance,
stating the purpose or purposes of the issuance of such Additional Parity Bonds or Subordinate
Securities,directing the application of the proceeds thereof to such purpose or purposes,
directing the execution thereof;and fixing and determining the date,series designation,principal
amount,maturity or maturities,maximum rate or rates of intcrest and prior redemption privileges
of the Town,acting by and through the Enterprise,with respect thereto,and providing for
payments to and from the Light and Power Enterprise Fund in accordance with this Ordinance
and the Series 1999 Bond Ordinance.All Additional Parity Bonds or Subordinate Securities
shalt bear such date,shall be payable as to principal and interest on the same semiannual dates as
the Series 2007 Bonds and shall be subject to redemption prior to maturity on such terms and
conditions as may be provided,and shall bear interest at such rate or rates as may be fixed by
ordinance of the Board.Nothing herein shall be construed to prohibit the issuance of Additional
Parity Bonds or Subordinate Securities payable from the Pledged Revenues,the principal of
which is payable more frequently than annually or the interest on which is payable more
frequently than semiannually.
Section 23.Rate Maintenance Covenant.The Town,acting by and through the
Enterprise,shall prescribe,revise and collect rates,fees and charges for use of the Light and
Power Facilities which shall produce Income sufficient,together with any other moneys legally
available therefor and credited to the Light and Power Enterprise Fund,to make the payments
and accumulations required by this Ordinance and the Series 1999 Bond Ordinance,and which
shall produce Income sufficient,afler payment of Operation and Maintenance Expenses,to pay
an amount at least equal to 125%of the combined annual Debt Service Requirements for the
Outstanding Series 2007 Bonds,the Outstanding Series 1999 Bonds and every other issue of
Outstanding Additional Parity Bonds.Such Income remaining after payment of Operation and
Maintenance Expenses and the Debt Service Requirements of the Outstanding Series 2007
Bonds,the Outstanding Series 1999 Bonds and the Outstanding Additional Parity Bonds also
shall be sufficient to pay 100%of the combined annual Debt Service Requirements of all
Outstanding Subordinate Securities,plus any amounts required to meet then existing deficiencies
pertaining to any fund or account relating to the Pledged Revenues or any securities payable
therefrom,plus any Policy Costs attributable to the Series 1999 Bonds or the Series 2007 Bonds.
The Board will increase rates,fees and charges in such manner and to such extent as to
4840.2359-3985.2 32
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reasonably insure the payments and accumulations required by the provisions of this Ordinance
and the Series 1999 Bond Ordinance.
Section 24.Collection of Charges.The Town,acting by and through the Enterprise,
shall cause all rates,fees and charges to be billed promptly and collected as soon as reasonable,
and shall prescribe and enforce rules and regulations or impose contractual obligations for the
payment thereot to the end that the Pledged Revenues shall be adequate to meet the
requirements of this Ordinance and the Series 1999 Bond Ordinance and any other ordinance or
instrument supplemental thereto.The rates,fees and charges shall be collected in any lawful
manner.
Section 25.Competent Management.The Town shall employ experienced and
competent management personnel for each component of the Light and Power Facilities.If the
Town,acting by and through the Enterprise,shall fail to pay the Debt Service Requirements of
the Series 2007 Bonds promptly as the same become due,or if the Town,acting by and through
the Enterprise,shall fail to keep any of the covenants herein contained and if such default shall
continue for a period of 60 days,or if in any Fiscal Year the Pledged Revenues,together with
any other moneys legally available therefor and credited to the Light and Power Enterprise Fund,
should fail to equal at least the amount of the Debt Service Requirements of the Series 2007
Bonds and other obligations payable from the Pledged Revenues due in the Comparable Bond
Year,the Town shall retain a firm of competent management Persons skilled and knowledgeable
in the operation of light and power facilities and services to assist in the management of the
Light and Power Facilities so long as such default or deficiency continues.
Section 26.Performance of Duties.The Town,acting by and through the Enterprise,
or otherwise,shall faithfully and punctually perform,or cause to be performed,all duties with
respect to the Income and the Light and Power Facilities required by the constitution and laws of
the State and the ordinances and contracts of the Town and the Enterprise,including without
limitation the proper segregation of the proceeds of the Series 2007 Bonds,and the Income and
their application from time-to-time to the respective funds provided therefor.
Section 27.Costs of Bond Issue and of Performance.Except as otherwise specifically
provided herein,all costs and expenses incurred in connection with the issuance of the Series
2007 Bonds,payment of the Debt Service Requirements,or the performance of or compliance
with any covenant or agreement contained in this Ordinance shall be paid exclusively (but only
from the appropriate special fund or account in the manner authorized herein)from the proceeds
of the Series 2007 Bonds,the Pledged Revenues,or other legally available moneys,and in no
event shall any of such costs or expenses be required to be paid out of or charged to the general
fund of the Town.
Section 28.Contractual Obligations.The Town,acting by and through the Enterprise,
will perform all contractual obligations undertaken by it hereunder and any other agreements
relating to the Series 2007 Bonds,the Income or the Light and Power Facilities.
Section 29.Further Assurances.At any and all times the Town,acting by and through
the Enterprise,shall,so far as it may be authorized by law,pass,make,duly execute,
acknowledge,deliver and file or record all and every such further instrument,act,deed,
4840-2359-3985,2 33
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conveyance,assignment,transfer,other document,and assurance 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 hereby pledged or assigned,or intended so to
be,or which the Town,acting by and through the Enterprise,may hereafter become bound to
pledge or assign,or as may be reasonable and required to carry out the purposes of this
Ordinance.The Town,acting by and through the Enterprise and 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 rights of every
Owner of any of the Series 2007 Bonds against all claims and demands of all Persons.
Section 30.Conditions Precedent.Upon the date of issuance of the Series 2007 Bonds,
all conditions,acts and things required by the Constitution or laws of the United States of
America,the constitution or laws of the State and this Ordinance to exist,to have happened,and
to have been performed precedent to or in the issuance of the Series 2007 Bonds shall exist,have
happened and have been performed,and the Series 2007 Bonds shall not contravene any debt or
other limitation prescribed by the Constitution or laws of the United States of America or the
constitution or laws of the State.
Section 31.Efficient Operation and Maintenance.The Town,acting by and through
the Enterprise,shall at all times operate the Light and Power Facilities properly and in a sound
and economical manner.The Town,acting by and through the Enterprise,shall maintain,
preserve and keep the Light and Power Facilities properly or cause the same so to be maintained,
preserved and kept,with the appurtenances and every part and parcel thereof in good repair,
working order and condition,and shall from time-to-time make or cause to be made all necessary
and proper repairs,replacements and renewals so that at all times the maintenance of the Light
and Power Facilities may be properly and advantageously conducted.All salaries,fees,wages
and other compensation paid by the Town,acting by and through the Enterprise,in connection
with the repair,maintenance and operation of the Light and Power Facilities shall be fair and
reasonable.
Section 32.Records and Accounts.The Town will keep proper books of record and
accounts,separate and apart from all other records and accounts,showing complete and correct
entries of all transactions relating to the funds referred to herein.
Section 33.Rules,Regulations and other Details.The Town,acting by and through
the Enterprise,shall establish and enforce reasonable rules and regulations governing the
construction,operation,care,repair,maintenance,management,control and use of the Light and
Power Facilities.The Town,acting by and through the Enterprise,shall observe and perform all
of the terms and conditions contained in this Ordinance and shall comply with all valid acts,
rules,regulations.orders and directives of any legislative,executive,administrative or judicial
body applicable to the Light and Power Facilities or the Town.
Section 34.Payment of Governmental Charges.The Town,acting by and through the
Enterprise,shall pay or cause to be paid all taxes and assessments or other municipal or
governmental charges,if any,lawfully levied or assessed upon or in respect of the Light and
Power Facilities,or upon any part thereof,or upon any portion of the Income,when the same
shall become due,and shall duly observe and comply with all valid requirements of any
4840-2359-3985.2 34
Q
municipal or governmental authority relative to the Light and Power Facilities,or any part
thereot except for any period during which the same are being contested in good faith by proper
legal proceedings.The Town,acting by and through the Enterprise,shall not create or suffer to
be created any lien or charge upon the Light and Power Facilities,or any part thereof,or upon
the Income,except the pledge and lien created by this Ordinance and the Series 1999 Bond
Ordinance for the payment of the Debt Service Requirements due in connection with the Series
2007 Bonds and the Series 999 Bonds,and except as herein otherwise permitted.The Town,
acting by and through the Enterprise,shall pay or cause to be discharged or shall malce adequate
provision to satis&and to discharge,within 90 days after the same shall become payable,all
lawftil claims and demands for labor,materials,supplies or other objects which,if unpaid,might
by law become a lien upon the Light and Power Facilities,or any part thereot or the Income,but
nothing herein requires the Town,acting by and through the Enterprise,to pay or to cause to be
discharged or to make provision for any such tax,assessment,lien or charge,so long as the
validity thereof is contested in good faith and by appropriate legal proceedings.
Section 35.Protection of Security;Enterprise Status.The Town,the Enterprise,and
its officers,agents and employees,shall not take any action in such manner or to such extent as
might prejudice the security for the payment of the Debt Service Requirements of the Series
2007 Bonds 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
Owner of any Series 2007 Bonds or other securities payable from Pledged Revenues might be
prejudicially and materially impaired or diminished.The Town has established,and will use its
best efforts to continue to operate and maintain,the Light and Power Facilities as an enterprise
for purposes of Article X,Section 20 of the Colorado Constitution.
Section 36.Accumulation of Interest Claims.In order to prevent any accumulation of
claims for interest after maturity,the Town,acting by and through the Enterprise,shall not
directly or indirectly extend or assent to the extension of the time for the payment of any claim
for interest on any of the Series 2007 Bonds or any other securities payable from the Pledged
Revenues;and the Town,acting by and through the Enterprise,shall not directly or indirectly be
a party to or approve any arrangements for any such extension or for the purpose of keeping
alive any of such claims for interest.If the time for the payment of any such installment of
interest is extended in contravention of the foregoing provisions,such 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 fbU of the
principal of all of the Series 2007 Bonds and any securities payable from the Pledged Revenues
the payment of which has not been extended.
Section 37.Prompt Payment of Bonds.The Town,acting by and through the
Enterprise,shall promptly pay the Debt Service Requirements of every Series 2007 Bond at the
places,on the dates,and in the manner specified herein and in the Series 2007 Bonds according
to the true intent and meaning hereof.
Section 38.Additional Securities.The Town shall not hereafter issue any bonds or
securities relating to the Light and Power Facilities and payable from the Pledged Revenues,
other than the Series 2007 Bonds and the Series 1999 Bonds,without compliance with the
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requirements with respect to the issuance of Additional Parity Bonds or Subordinate Securities
set forth herein and in the Series 1999 Bond Ordinance to the extent applicable.
Section 39.Other Liens.At the time of issuance of the Series 2007 Bonds,there shall
be no liens or encumbrances of any nature whatsoever on or against the Light and Power
Facilities or any part thereof or on or against the Pledged Revenues,except the Series 1999
Bonds.
Section 40.Surety Bonds.Each official or other person having custody of the Income
or responsible for its handling,shall be bonded at all times.The cost of each such bond shall be
considered an Operation and Maintenance Expense,unless otherwise provided by law.
Section 41.Federal Income Tax Covenants.The Town,acting by and through the
Enterprise,covenants to and for the benefit of the Owners of the Series 2007 Bonds as follows:
(a)Arbitrage.The Town,acting by and through the Enterprise,will not
directly or indirectly use or permit the use of proceeds of the Series 2007 Bonds or of any
moneys treated as proceeds of the Series 2007 Bonds,or any other finds of the Town
from whatever source derived,to acquire any investment,or take or permit to be taken
any other action,which would cause the Series 2007 Bonds to be characterized as
arbitrage bonds within the meaning of Section 148 of the Code,or to make,or permit to
be made,any use of the proceeds of the Series 2007 Bonds or of any moneys treated as
proceeds of the Series 2007 Bonds within the meaning of the Code which would
otherwise cause the interest on the Series 2007 Bonds to be includable in gross income
for federal income tax purposes.In the event that at any time the Town is of the opinion
that,for purposes of this paragraph,it is necessary to restrict or limit the yield on the
investment of any moneys held by the Town,acting by and through the Enterprise,under
this Ordinance,the Town,acting by and through the Enterprise,shall take such action as
may be necessary.
(b)Rebate.The Finance Officer shall calculate or cause to be calculated the
rebate amount for the Series 2007 Bonds,if any,on each computation date in the manner
required by Treas.Reg.§1.148-3 (or any successor provision thereto that is applicable to
the Series 2007 Bonds).For this purpose,a computation date is any date selected by the
Finance Officer,provided the first computation date is no later than the fifth anniversary
of the date of issue of the Series 2007 Bonds,a subsequent computation date is no later
than five years after the previous computation date and the final computation date is the
date that all of the Series 2007 Bonds are retired.The Finance Officer shall pay over to
the United States government,from amounts on deposit in the Excess Investment
Earnings Account or other legally available finds,an amount equal to 90%of the rebate
amount so calculated within 60 days of each computation date (other than the final
computation date),and an amount equal to 100%of the rebate amount so calculated
within 60 days of the final computation date,in the manner and at the place required by
Treas.Reg.§1.148-3 (or any successor provision thereto that is applicable to the Series
2007 Bonds).
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(c)Private Use or Loan.The Town will not take or permit to be taken any
action that would cause the Series 2007 Bonds to be characterized as private activity
bonds within the meaning of Section 141 of the Code,and it will take all actions within
its power and permitted by law which are or may be necessary to prevent the Series 2007
Bonds from being characterized as private activity bonds.To this end,the Town,acting
by and through the Enterprise,will not permit more than 10%of the proceeds of the
Series 2007 Bonds to be used (directly or indirectly)in the trade or business of non
governmental persons,and will not use (directly or indirectly)any of the proceeds of the
Series 2007 Bonds to make or finance a loan (or deemed loan)to non-governmental
persons,in a manner that could cause the Series 2007 Bonds to be characterized as
private activity bonds.For this purpose,a person uses the proceeds of the Series 2007
Bonds if (i)it owns or leases all or a portion of the Project;(ii)it has actual or beneficial
use of all or a portion of the Project pursuant to a management or incentive payment
contract,an output contract or another arrangement;or (iii)the proceeds are used to
satisf3e a primary and unconditional obligation of such person to provide the Project.A
person is not treated as using the proceeds for this purpose merely because it uses the
Project as a member of the general public;however,use will not be treated as general
public use if such person has priority rights or other preferential benefits in respect of the
Project pursuant to an arrangement with the Town.
The Town shall not make or finance (directly or indirectly)any loans from
proceeds of the Series 2007 Bonds to persons other than governmental persons without
an approving opinion of Bond Counsel.
(d)Further Actions.The Town,acting by and through the Enterprisc,will
take all actions within its power and permitted by law which are or may be necessary to
assure that interest on the Series 2007 Bonds at all times remains excludable from gross
income for federal income tax purposes,including complying with the provisions of a tax
certificate to be executed and delivered by the Town,acting by and through the
Enterprise,in connection with the issuance of the Series 2007 Bonds,the covenants set
forth herein and all requirements of the Code that must be satisfied subsequent to the
issuance of the Series 2007 Bonds for interest on the Series 2007 Bonds to be,or
continue to be,excluded from gross income for federal income tax purposes.
(e)Information Reporting.The Town will timely file Internal Revenue
Form 8038-G with respect to the Series 2007 Bonds as required by Section 149(e)of the
Code.
(0 No Federal Guarantee.The Series 2007 Bonds are not and shall not
become directly or indirectly “federally guaranteed.”A Series 2007 Bond will be
considered to be “federally guaranteed”if the payment of principal or interest with
respect to such Series 2007 Bond is guaranteed (in whole or in part)by the United States
of America (or any agency or instrumentality thereof)or if 5%or more of the proceeds of
the Series 2007 Bonds are used in making loans the payment of principal or interest with
respect to which is guaranteed (in whole or in part)by the United States of America (or
any agency or instrumentality thereof)or if invested (directly or indirectly)in federally
insured deposits or accounts.
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(g)Single Issue.The Town or the Enterprise shall not sell any other
obligations within 15 days of the sale of the Series 2007 Bonds pursuant to the same plan
of financing with the Series 2007 Bonds and payable from the same source of funds or
having substantially the same claim to the same source of funds used to pay the Series
2007 Bonds.
(h)Letter of Instructions.The Town will comply with the Letter of
Instructions delivered to it on the date of issuance of the Series 2007 Bonds,including but
not limited by the provisions of the Letter of Instructions regarding the application and
investment of proceeds of the Series 2007 Bonds,the calculations,the deposits,the
disbursements,the investments and the retention of records described in the Letter of
Instructions;provided that,in the event the original Letter of Instructions is superseded or
amended by a new Letter of Instructions drafted by,and accompanied by an opinion of
Bond Counsel stating that the use of the new Letter of Instructions will not cause the
interest on the Series 2007 Bonds to become includible in gross income for federal
income tax purposes,the Town will thereafter comply with the new Letter of
Instructions.
Notwithstanding any provision of this Section,the Town may rely conclusively on an
opinion of Bond Counsel in complying,or in any deviation from complying,with the provisions
of this Section.
Section 42.Disposal of Property.Except for the use of the Light and Power Facilities
and services pertaining thereto in the ordinary course of business,no part of the Light and Power
Facilities shall be sold,leased,mortgaged,pledged,encumbered or othenvise disposed of or
otherwise alienated,until all of the Series 2007 Bonds and the Series 1999 Bonds have been paid
in full,or unless provision has been made therefor,or until the Series 2007 Bonds and the Series
1999 Bonds have otherwise been redeemed;provided,however,that the Town,acting by and
through the Enterprise,may sell,exchange or lease at any time and from time-to-time any
property or facilities constituting part of the Light and Power Facilities and not needed in the
construction,reconstruction or operation thereof but any proceeds of any such sale or exchange
received and not used to replace such property so sold or exchanged shall be deposited in the
Light and Power Enterprise Fund,and any proceeds of any such lease received shall be deposited
by the Town,acting by and through the Enterprise,as revenues of the Light and Power Facilities.
Notwithstanding the provisions of this Section 42,the Town,acting by and through the
Enterprise,may dispose of any facility constituting a part of the Light and Power Facilities;
provided that (a)at the time of such disposition such facility has not produced Income at least
equal to the Operation and Maintenance Expenses reasonably allocable to it for a period of at
least one full fiscal year,and (b)such disposition will not,in the opinion of Bond Counsel,have
a material adverse effect upon the federal income tax treatment of interest on the Series 2007
Bonds or the Series 1999 Bonds.
Section 43.Inspection of Records.Any Owner of any of the Series 2007 Bonds or any
other securities payable from the Pledged Revenues,or any duly authorized agent or agents of
such Owner,shall have the right at all reasonable times to inspect all records,accounts and data
relating thereto,concerning the Light and Power Facilities or the Income,to make copies of such
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records,accounts and data at the Owner’s expense,and to inspect the Light and Power Facilities
and properties comprising the Light and Power Facilities.
Section 44.Audits Required.The Town,annually following the close of each Fiscal
Year,shall order an audit for the Fiscal Year of the books and accounts pertaining to the Light
and Power Facilities to be made forthwith by an Independent Accountant as part of the Town’s
annual audit procedure.The Board shall order that the Town’s audit report show the receipts and
disbursements for each ffind or account pertaining to the Light and Power Facilities or the
Income.A pro rata portion of the expenses incurred in connection with the Town’s annual audit
procedure may be regarded and paid as an Operation and Maintenance Expense.
Section 45.Insurance and Reconstruction.Except to the extent that the Town elects
to insure itself the Town shall at all times maintain with responsible insurers all such insurance
reasonably required and obtainable within limits and at costs deemed reasonable by the Town as
is customarily maintained with respect to light and power facilities and services of like character
against loss of or damage to the Light and Power Facilities and against public and other liability
to the extent at least reasonably necessary to protect the interest of the Town and of each Owner
of Series 2007 Bonds and the Series 1999 Bonds or any other security payable from the Pledged
Revenues,except as herein otherwise provided.If any revenue generating part of the Light and
Power Facilities shall be damaged or destroyed,the Town,acting by and through the Enterprise,
shall,as expeditiously as possible,commence and diligently proceed with the repair or
replacement of the damaged or destroyed property so as to restore the same to use;provided that
no such repair or replacement shall be required if the Town shall determine in good faith that the
damaged or destroyed property was not,prior to such damage or destruction,materially
contributing to the Pledged Revenues.The proceeds of any insurance appertaining to the Light
and Power Facilities shall be payable to the Town,acting by and through the Enterprise,and
(except for proceeds of use and occupancy insurance)shall be applied to the necessary costs
involved in such repair and replacement,and to the extent not so applied shall (together with the
proceeds of any such use and occupancy insurance)be deposited in the Light and Power
Enterprise Fund as Income.Nothing herein shall be deemed to be a waiver by the Town or the
Enterprise of the protections afforded by the Colorado Governmental Immunity Act.
Section 46.Completion of Project;Estimated Life of Project.The Town,acting by
and through the Enterprise,with the proceeds derived from the sale of the Series 2007 Bonds,
and any other legally available moneys,including the proceeds derived from the issuance of
Additional Parity Bonds,if any,shall proceed promptly and with all due speed cause the Project
to be completed without delay to the best of the Town’s ability and with due diligence,as herein
provided.
The Board hereby determines that the estimated life of the Project is not less than the
maximum term of the Series 2007 Bonds permitted hereunder.
Section 47.Continuing Disclosure.The Town,acting by and through the Enterprise,
hereby covenants and awees with the Original Purchaser and the Owners of the Series 2007
Bonds that it will comply with and carry out all of the provisions of the Continuing Disclosure
Agreement.Notwithstanding any other provision of this Ordinance,failure of the Town.acting
by and through the Enterprise,to comply with the Continuing Disclosure Agreement shall not be
4840-2359-3955.2 39
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considered an Event of Default;provided that the Owners of the Series 2007 Bonds may take
such actions as may be necessary or appropriate,including seeking a mandatory injunction or
specific performance,to cause the Town,acting by and through the Enterprise,to comply with
its obligations under this Section 47.
Section 48.Defeasance.When all Debt Service Requirements of the Series 2007 Bonds
have been duly paid,the pledge and lien and all obligations hereunder shall thereby be
discharged and the Series 2007 Bonds,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,
acting by and through the Enterprise,has placed in escrow or in trust with a Trust Bank,located
within or without the State,cash or Federal Securities in an amount sufficient (including the
known minimum yield available for such purpose from Federal Securities in which such amount
wholly or in part may be initially invested)to pay all Debt Service Requirements of the Series
2007 Bonds,as the same become due at their maturity date or upon any Redemption Date as of
which the Town,acting by and through the Enterprise,shall have exercised or shall have
obligated itself to exercise its option to call Series 2007 Bonds for prior redemption.The Federal
Securities shall become due prior to the respective times at which the proceeds thereof shall be
needed,in accordance with a schedule established and agreed upon between the Town,acting by
and through the Enterprise,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 Owner thereof to assure
such availability as so needed to meet such schedule.Nothing herein shall be construed to
prohibit a partial defeasance of the Outstanding Series 2007 Bonds in accordance with the
provisions of this Section 48.
Section 49.Events of Default.Each of the following events is hereby declared to be
and to constitute an Event of Default:
(a)Nonpayment of Principal.Payment of the principal of any of the Series
2007 Bonds is not made when the same becomes due and payable,either at maturity or
by proceedings for prior redemption,or othenvise;
(b)Nonpayment of Interest.Payment of any installment of interest on the
Series 2007 Bonds is not made when the same becomes due and payable;
(c)Incapacity To Perform.The Town,acting by and through the Enterprise,
for any reason becomes incapable of ffilfi.lling its obligations hereunder;
(d)Nonperfonnance of Duties.The Town,acting by and through the
Enterprise,shall have failed to carry out and to 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 Income or to the Light and Power Facilities or
otherwise,including without limitation,this Ordinance,and such failure shall continue
for 60 days after receipt of notice from the Owners of 25%in aggregate principal amount
of the Series 2007 Bonds then Outstanding;provided that if such failure cannot be cured
within such 60 days and if during that period corrective action has commenced to remedy
such failure and subsequently is diligently pursued by the Town,acting by and through
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the Enterprise,to the completion of such performance,an Event of Default shall not be
deemed to have occurred;
(e)Failure To Reconstruct.The Town,acting by and through the Enterprise,
discontinues or unreasonably delays or fails to carry out with reasonable dispatch the
reconstruction of any essential part of the Light and Power Facilities which is
condemned,destroyed or damaged and is not promptly repaired or replaced (whether
such failure to repair the same is due to impracticality of such repair or replacement,or is
due to a lack of moneys therefor,or for other reason);
(0 Appointment of Receiver.An order or decree is entered by a court of
competent jurisdiction,with the consent or acquiescence of the Town,acting by and
through the Enterprise,appointing a receiver or receivers for the Light and Power
Facilities or for the Income and any other moneys subject to the lien to secure the
payment of the Series 2007 Bonds,or both the Light and Power Facilities and such
moneys,or if any order or decree,having been entered without the consent or
acquiescence of the Town,acting by and through the Enterprise,is not vacated or
discharged or stayed on appeal within 60 days after entry;or
(g)Default of Any Provision.The Town,acting by and through the
Enterprise,defaults in the due and punctual performance of any other of the
representations,covenants,conditions,agreements and other provisions contained in the
Series 2007 Bonds or in this Ordinance on its part to be performed,and if such default
continues for 60 days after written notice,specifying such default and requiring the same
to be remedied,is given to the Town by the Owners of 25%in aggregate principal
amount of the Series 2007 Bonds then Outstanding;provided that if such failure cannot
be cured within such 60 days and if during that period corrective action has commenced
to remedy such default and subsequently is diligently pursued to the completion of such
performance,an Event of Default shall not be deemed to have occurred.
Section 50.Remedies for Defaults.Upon the happening and continuance of any of the
Events of Default,as provided in Section 49 hereof;then and in every case the Owner or Owners
of not less than 25%in aggregate principal amount of the Series 2007 Bonds then Outstanding,
including,without limitation,a trustee or trustees therefor,may proceed against the Town and its
agents,officers and employees to protect and to enforce the rights of any Owner of Series 2007
Bonds under this Ordinance by mandatory injunction or by other suit,action,or special
proceedings in equity or 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 or equitable remedy as such Owner or Owners may
deem most effectual to protect and to enforce the rights aforesaid,or thereby to enjoin any act or
thing which may be unlawful or in violation of any right of any Owner of any Series 2007 Bond,
or to require the Town,acting by and through the Enterprise,to act as if it were the trustee of an
express trust,or any combination of such remedies or as otherwise may be authorized by any
statute or other provision of law.All such proceedings at law or in equity shall be instituted,had
and maintained for the equal benefit of all Owners of the Series 2007 Bonds,the Series 1999
Bonds and any Additional Parity Bonds then Outstanding.Any receiver or operating trustee
appointed in any proceedings to protect the rights of such Owners hereunder may collect,receive
4840-2359-3985.2 41
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and apply all Income arising after the appointment of such receiver or operating trustee in the
same manner as the Town itself might do.The consent to any such appointment is hereby
expressly granted by the Town,acting by and through the Enterprise.
Section 51.Rights and Privileges Cumulative.The failure of any Owner of any
Outstanding Series 2007 Bond 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 to carry
out any duty,obligation or other commitment.Each right or privilege of any such Owner or
trustee therefor is in addition and is cumulative to any other right or privilege,and the exercise of
any right or privilege by or on behalf of any Owner shall not be deemed a waiver of any other
right or privilege thereof.Each Owner of any Series 2007 Bond shall be entitled to all of the
privileges,rights and remedies provided or permitted in this Ordinance and as othenvise
provided or permitted by law or in equity or by statute,subject to the applicable provisions
concerning the Income and the proceeds of the Series 2007 Bonds.Nothing herein affects or
impairs the right of any Owner of any Series 2007 Bond to enforce the payment of the Debt
Service Requirements due in connection with such Series 2007 Bond or the obligation of the
Town to pay the Debt Service Requirements of such Series 2007 Bond to the Owner thereof at
the time and the place expressed in such Series 2007 Bond.
Section 52.Duties Upon Default.Upon the happening of any of the Events of Default
as provided in Section 49 hereof,the Town,acting by and through the Enterprise,in addition,
will do and perform all proper acts on behalf of and for the Owners of the Outstanding Series
2007 Bonds to protect and to preserve the security created for the payment of their Series 2007
Bonds 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 Series 2007 Bonds,as to any
Debt Service Requirements,are Outstanding,except to the extent it may be unlawful to do so,all
Pledged Revenues shall be paid into the Principal and Interest Account on an equitable and
prorated basis,and used for the purposes therein provided.If the Town,acting by and through
the Enterprise,fails or refuses to proceed as in this Section 52 provided,the Owner or Owners of
not less than 25%in aggregate principal amount of the Series 2007 Bonds then Outstanding,
after demand in writing,may proceed to protect and to enforce the rights of the Owners of the
Series 2007 Bonds as herein above provided;and to that end any such Owners of Outstanding
Series 2007 Bonds 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 Series 2007 Bonds are Outstanding.Nothing herein requires the
Town,acting by and through the Enterprise,to proceed as provided herein if it determines in
good faith and without any abuse of its discretion that if it so proceeds it is more likely than not
to incur a net loss rather than a net gain or that such action is likely to affect materially and
prejudicially the Owners of the Outstanding Series 2007 Bonds,the Outstanding Series 1999
Bonds or any Outstanding Additional Parity Bonds.
Section 53.Amendments of Ordinance Not Requiring Consent of Bond Owners.
The Town,acting by and through the Enterprise,may,without the consent of,or notice to,the
Owners of the Series 2007 Bonds,adopt an ordinance supplemental hereto (which amendments
shall thereafter form a part hereof)for any one or more or all of the following purposes:
4840.2359-3985.2 42
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(a)to cure any ambiguity,to cure,correct or supplement any formal defect or
omission or inconsistent provision contained in this Ordinance,to make any provision
necessary or desirable due to a change in law,to make any provisions with respect to
matters arising under this Ordinance,or to make any provisions for any other purpose,if
such provisions are necessary or desirable and do not materially adversely affect the
interests of the Owners of the Series 2007 Bonds;
(b)to subject to this Ordinance or pledge to the payment of the Series 2007
Bonds additional revenues,properties or collateral;
(c)to grant or confer upon the Owners any additional rights,remedies,
powers or authority that may be lawfully granted to or conferred upon the Owners;
(d)to facilitate the designation of a substitute securities depository or to
terminate the book-entry registration system for the Series 2007 Bonds;
(e)to facilitate the issuance of Additional Parity Bonds permitted to be issued
pursuant to the section hereof entitled “Issuance of Additional Parity’Bonds;”
(0 to facilitate the funding of the Series 2007 Debt Service Reserve Account
or the substitution of one source of funding of the Series 2007 Debt Service Reserve
Account for another permitted source;
(g)to maintain the then existing or to secure a higher rating of the Series 2007
Bonds by any nationally recognized securities rating agency;or
(h)to make any other change that does not materially adversely affect the
Owners of the Series 2007 Bonds.
Section 54.Amendment of Ordinance Requiring Consent of Bond Owners.
Exclusive of the amendatory ordinances covered by Section 53 hereof,this Ordinance may be
amended or modified by ordinances or other legislative measures duly adopted by the Board,
without receipt by it of any additional consideration,but with the written consent of the Owners
of 66%in aggregate principal amount of the Series 2007 Bonds then Outstanding at the time of
the adoption of such amendatory ordinance;provided that no such amendatory ordinance shall
permit:
(a)Changing paynent.A change in the maturity or in the terms of
redemption of the principal of any Outstanding Series 2007 Bond or any installment of
interest thereon;
(b)Reducing Return.A reduction in the principal amount of any Series 2007
Bond or the rate of interest thereon without the consent of the Owner of the Series 2007
Bond;
(c)Prior Lie,,.The creation of a lien upon or a pledge of revenues ranking
prior to the lien or to the pledge created by this Ordinance;
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(d)Mothving Amendment Terms.A reduction of the principal amount or
percentages of Series 2007 Bonds,or any modification otherwise affecting the
description of Series 2007 Bonds,otherwise changing the consent of the Owners of
Series 2007 Bonds,which maybe required herein for any amendment hereto;
(e)Priorities Between Bonds.The establishment of priorities as between
Series 2007 Bonds issued and Outstanding under the provisions of this Ordinance;or
(f)Partial Modification.Any modifications otherwise materially and
prejudicially affecting the rights or privileges of the Owners of less than all of the Series
2007 Bonds then Outstanding.
Whenever the Board proposes to amend or modify this Ordinance under the provisions of
this Section 54 it shall give notice of the proposed amendment by mailing such notice to the
Original Purchaser,or to any successor thereof known to the Finance Officer,and to all Owners
of Series 2007 Bonds at the addresses appearing on the registration books of the Town,acting by
and through the Enterprise.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 of the Finance Officer for public inspection.
Section 55.Time for and Consent to Amendment.Whenever at any time within one
year from the date of the completion of the notice required to be given by Section 54 hereof there
shall be filed in the office of the Finance Officer an instrument or instruments executed by the
Owners of at least 66%in aggregate principal amount of the Series 2007 Bonds then
Outstanding,which instrument or instruments shall refer to the proposed amendatory ordinance
or other instrument described in such notice and shall specifically consent to and approve the
adoption of such ordinance or other instrument,thereupon,but not otherwise,the Board may
adopt such amendatory ordinance or instrument and such ordinance or instrument shall become
effective.If the Owners of at least 66%in aggregate principal amount of the Series 2007 Bonds
then Outstanding,at the time of the adoption of such amendatory ordinance or instrument,or the
predecessors in title of such Owners,shall have consented to and approved the adoption thereof
as herein provided,no Owner of any Series 2007 Bond,whether or not such Owner 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 or provisions therein contained or to the operation thereof or to enjoin or
restrain the Town,acting by and through the Enterprise,from taking any action pursuant to the
provisions thereof.Any consent given by the Owner of a Series 2007 Bond pursuant to the
provisions hereof shall be irrevocable for a period of six months from the date of the completion
of the notice above provided for and shall be conclusive and binding upon all fi.imre Owners of
the same Series 2007 Bond during such period.Such consent may be revoked at any time after
six months from the completion of such notice,by the Owner who gave such consent or by a
successor in title,by filing notice of such revocation with the Finance Officer,but such
revocation shall not be effective if the Owners of 66%in aggregate principal amount of the
Series 2007 Bonds Outstanding as herein provided,prior to the attempted revocation,shall have
consented to and approved the amendatory instrument referred to in such revocation.
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Section 56.Unanimous Consent.Notwithstanding anything in the foregoing provisions
contained,the terms and the provisions of this Ordinance,or of any ordinance or instrument
amendatory thereof,and the rights and the obligations of the Town,acting by and through the
Enterprise.and of the Owners of the Series 2007 Bonds may be modified or amended in any
respect upon the adoption by the Town,acting by and through the Enterprise,and upon the
filling with the Finance Officer of an instrument to that effect and with the consent of the
Owners of all the then Outstanding Series 2007 Bonds,such consent to be given in the manner
provided in Section 55 hereof;and no notice to Owners of Series 2007 Bonds shall be required
as provided in Section 54 hereof,nor shall the time of consent be limited except an may be
provided in such consent.
Section 57.Exclusion of Bonds.At the time of any consent or other action taken
hereunder the Registrar shall furnish to the Finance Officer a certificate,upon which the Finance
Officer may rely,describing all Series 2007 Bonds to be excluded for the purpose of consent or
other action or any calculation of Outstanding Series 2007 Bonds provided for hereunder,and,
with respect to such excluded Series 2007 Bonds,the Town,acting by and through the
Enterprise,shall not be entitled or required with respect to such Series 2007 Bonds to give or
obtain any consent or to take any other action provided for hereunder.
Section 58.Notation on Bonds.Any of the Series 2007 Bonds delivered after the
effective date of any action taken as provided in Section 54 or Series 2007 Bonds Outstanding at
the effective date of such action,may bear a notation thereon by endorsement or otherwise in
form approved by the Board as to such action;and if any such Series 2007 Bond so executed and
delivered after such date does not bear such notation,then upon demand of the Owner of any
Series 2007 Bond Outstanding at such effective date and upcn presentation of his or hey Series
2007 Bond for such purpose at the principal office of the Town,suitable notation shall be made
on such Series 2007 Bond by the Finance Officer as to any such action.If the Board so
determines,new Series 2007 Bonds so modified as in the opinion of the Board to conform to
such action shall be prepared,executed and delivered;and upon demand of the Owner of any
Series 2007 Bond then Outstanding,shall be exchanged without cost to such Owner for Series
2007 Bonds then Outstanding upon surrender of such Outstanding Series 2007 Bonds.
Section 59.No Pledge of Property.The payment of the Series 2007 Bonds is not
secured by an encumbrance,mortgage,or other pledge of property of the Town or the Enterprise,
except for the Pledged Revenues.No property of the Town or the Enterprise,subject to such
exception,is pledged for the payment of the Series 2007 Bonds or shall be liable to be forfeited
or taken in payment of the Series 2007 Bonds.
Section 60.Authorization To Execute Documents.The Mayor and the Town Clerk,
other officers of the Town,and the members of the Board are hereby authorized and directed to
take any and all actions necessary or appropriate to effectuate the provisions of this Ordinance,
including but not limited to:(a)the execution of the Paying Agency Agreement,the Continuing
Disclosure Agreement,and the Official Statement;and (b)the execution of such certificates and
affidavits as reasonably may be required by the Original Purchaser.The Town Clerk is hereby
authorized and directed to attest,as necessary,all signatures and acts of the Mayor or any official
of the Board or the Town in connection with the matters authorized by this Ordinance,and to
place the seal of the Town,as necessary,on the documents authorized and approved by this
4840-2359-3985.2 45
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Ordinance and all other additional certificates,documents and other papers associated with the
transactions and other matters authorized by this Ordinance.The Mayor or Mayor Pro Tern or
the Town Administrator or the Finance Officer of the Town and all other officials,employees
and agents of the Board or the Town are hereby authorized to execute and deliver for and on
behalf of the Town or the Enterprise any and all additional certificates,documents and other
papers,including,but not limited to a commitment by an insurance company to insure payment
of the Series 2007 Bonds,a guaranty or reimbursement agreement between the Town,acting by
and through the Enterprise,and any insurance company that issues a surety bond,insurance
policy or similar instrument as a reserve ftmd for the payment of Series 2007 Bonds,and any
agreement concerning the deposit and investment of ifinds in connection with the transactions
contemplated by this Ordinance,and to perform all other acts that they may deem necessary or
appropriate in order to implement and carry out the transactions and other matters authorized or
contemplated by this Ordinance.
Section 61.Ratification and Approval of Prior Actions.All actions heretofore taken
by the officers of the Town and members of the Board,consistent with the provisions of this
Ordinance,relating to the authorization,sale,issuance and delivery of the Series 2007 Bonds,are
hereby ratified,approved and confirmed.
Section 62.Approval of Official Statement.The Board hereby approves and
authorizes the distribution and use of the Preliminary Official Statement (including the Official
Notice of Sale)and authorizes the preparation of a final Official Statement containing any
updated information regarding items described in the Preliminary Official Statement which
become known to the Town,acting by and through the Enterprise,after the date of the
Preliminary Official Statement but prior to the datc of delivery of the Series 2007 Bonds.Copi.s
of the final Official Statement are hereby authorized to be distributed by the Original Purchaser
to all interested persons in connection with the sale of the Series 2007 Bonds.
Section 63.Ordinance Irrepealable.After the Series 2007 Bonds are issued,this
Ordinance shall be and remain irrepealable until the Series 2007 Bonds and the interest accrued
thereon shall have been fully paid,satisfied and discharged.
Section 64.Repealer.All acts,orders,ordinances,or parts thereof,in conflict with this
Ordinance are hereby repealed,but only to the extent of such conflict.
Section 65.Severability.If one or more sections or parts of this Ordinance shall be
adjudged unenforceable or invalid,such judgment shall not affect,impair or invalidate the
remaining provisions of this Ordinance,it being the intention that the various provisions hereof
are severable.
Section 66.Recording and Authentication.This Ordinance,immediately upon its
passage,shall be recorded in the Town book of Ordinances kept for that purpose,and shall be
authenticated by the signatures of the Mayor and of the Town Clerk.
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Section 67.Effective Date.Following its adoption,this Ordinance shall take effect and
be in force on the date that is 30 days afier its publication.
RJTRODUCED,READ BY TITLE,APPROVED AND ADOPTED on the 23”’day of
TOWN OF ESTES PARK,COLORADO,
ACTING BY AND THROUGH ITS LIGHT
AND POWER ENTERPRISEcler
I hereby certify that the above Ordinance
was introduced and read at a regular
meeting of the Board of Trustees onthe_a3’day of ccroac.,2007 and
published in a newspaper of general
circulation in the Town of Estes Park,
Colorado,on the c..”day of_pcah ,2007,all as required by
the Statutes of the State of Colorado.
—c...N e,Jac Williamson,Town Clerk
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APPENDIX A
TABLE OF CONTENTS
Page
Section 1.Definitions 3
Section 2.Construction 10
Section 3.Authorization 10
Section 4.Bond Details 10
Section 5.Book Entry 11
Section 6.Payment of Bonds;Paying Agent and Registrar 11
Section 7.Prior Redemption 12
Section 8.Form of Series 2007 Bonds 13
Section 9.Authentication 22
Section 10.Delivery of Bonds 22
Section 11.Disposition and Investment of Proceeds;Designation of Series 2007
Bonds as “Qualified Tax-Exempt Obligations 22
Section 12.Funds and Accounts 22
Section 13.Places and Times of Deposits 28
Section 14.Investment of Funds 28
Section 15.No Liability for Losses Incurred in Performing Terms of Ordinance 29
Section 16.Character of Funds 29
Section 17.First Lien on Pledged Revenues;Equality of Bonds 29
Section 18.Issuance of Additional Parity Bonds 30
Section 19.Effect of Certification of Revenues 32
Section 20.Subordinate Securities Permitted 32
Section 21.Superior Securities Prohibited 32
Section 22.Supplemental Ordinances 32
Section 23.Rate Maintenance Covenant 32
Section 24.Collection of Charges 33
Section 25.Competent Management 33
Section 26.Performance of Duties 33
Section 27.Costs of Bond Issue and of Performance 33
Section 28.Contractual Obligations 33
Section 29.Further Assurances 33
Section 30.Conditions Precedent 34
Section 31.Efficient Operation and Maintenance 34
Section 32.Records and Accounts 34
Section 33.Rules,Regulations and other Details 34
Section 34.Payment of Governmental Charges 34
Section 35.Protection of Security;Enterprise Status 35
Section 36.Accumulation of Interest Claims 35
Section 37.Prompt Payment of Bonds 35
Section 38.Additional Securities 35
Section 39.Other Liens 36
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Section 40.Surety Bonds 36
Section 41.Federal Income Tax Covenants 36
Section 42.Disposal of Property 38
Section 43.Inspection of Records 38
Section 44.Audits Required 39
Section 45.Insurance and Reconstruction 39
Section 46.Completion of Project;Estimated Life of Project 39
Section 47.Continuing Disclosure 39
Section 48.Defeasance 40
Section 49.Events of Default 40
Section 50.Remedies for Defaults 41
Section 51 *Rights and Privileges Cumulative 42
Section 52.Duties Upon Default 42
Section 53.Amendments of Ordinance Not Requiring Consent of Bond Owners 42
Section 54.Amendment of Ordinance Requiring Consent of Bond Owners 43
Section 55.Time for and Consent to Amendment 44
Section 56.Unanimous Consent 45
Section 57.Exclusion of Bonds 45
Section 58.Notation on Bonds 45
Section 59.No Pledge of Property 45
Section 60.Authorization To Execute Documents 45
Section 61.Ratification and Approval of Prior Actions 46
Section 62.Approval of Official Statement 46
Section 63.Ordinance Inepealable 46
Section 64.Repealer 46
Section 65.Severability 46
Section 66.Recording and Authentication 46
Section 67.Effective Date 47
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