KC Skyline

City Clerk Web Search

Search the Ordinances:

Legislation #: 970284 Introduction Date: 3/13/1997
Type: Ordinance Effective Date: 4/6/1997
Sponsor: None
Title: Authorizing the issuance of not to exceed $5,732,000.00 principal amount of General Obligation Refunding Bonds (State Revolving Fund Program) Series 1997A, of the City of Kansas City, Missouri, for the purpose of refunding certain general obligation bonds of the City issued to provide for the extension and improvement of the City's sewerage system; prescribing the form and details of said Bonds and the covenants and agreements made by the City to facilitate and protect the payment thereof; authorizing a non-interest bearing loan from The Water and Wastewater Loan Fund of the State of Missouri and prescribing other related matters.

Legislation History
DateMinutesDescription
3/13/1997

Prepare to Introduce

3/13/1997

Referred Finance & Administration Committee

3/19/1997

Do Pass as a Committee Substitute

3/20/1997

Assigned to Third Read Calendar

3/27/1997

Passed as Substituted


View Attachments
FileTypeSizeDescription
No attachment(s) found

Printer Friendly Version

 

COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 970284

 

Authorizing the issuance of not to exceed $5,732,000.00 principal amount of General Obligation Refunding Bonds (State Revolving Fund Program) Series 1997A, of the City of Kansas City, Missouri, for the purpose of refunding certain general obligation bonds of the City issued to provide for the extension and improvement of the City's sewerage system; prescribing the form and details of said Bonds and the covenants and agreements made by the City to facilitate and protect the payment thereof; authorizing a non-interest bearing loan from The Water and Wastewater Loan Fund of the State of Missouri and prescribing other related matters.

 

WHEREAS, the City of Kansas City, Missouri (the "City"), is a constitutional charter city, organized and existing under the constitution and laws of the State of Missouri; and

 

WHEREAS, the City now owns and operates a revenue producing sewerage system serving the City, its inhabitants and others within its service area, including connected and related appurtenances and facilities and extensions, improvements, additions and enlargements made or acquired by the City after the date of this Ordinance (the "System"); and

 

WHEREAS, the City desires to make extensions and improvements to the System to be financed or refinanced in whole or in part by the issuance, pursuant to this Ordinance, of its General Obligation Refunding Bonds (State Revolving Fund Program) Series 1997A (the "Bonds") in the Original Principal Amount as set forth in Exhibit A; and

 

WHEREAS, to provide the most cost effective financing of the extensions and improvements to the System the City desires to participate in the Missouri Leveraged State Water Pollution Control Revolving Fund Program (the "SRF Program") of the Missouri Department of Natural Resources ("DNR") and the State Environmental Improvement and Energy Resources Authority (the "Authority"); and

 

WHEREAS, the Council (the "Governing Body") of the City has caused plans and specifications for extensions and improvements to the System and a cost estimate to be made by the Consulting Engineer (as defined below); and

 

WHEREAS, the plans and specifications and the cost estimate are accepted and approved and are on file in the office of the City Clerk, the amount of the estimated cost being not less than the Original Principal Amount; and

 

WHEREAS, the City has issued its Various Purpose General Obligation Bonds, Series 1991, dated March 1, 1991, in the original principal amount of $50,900,000, of which $40,520,000.00 remains outstanding as of the date of approval of this Ordinance (the "Series 1991 Bonds"), authorized by Committee Substitute for Ordinance No. 910095 passed and approved on February 7, 1991 (the "Series 1991 Ordinance"); and WHEREAS, the City has issued its General Obligation Sewer Special Assessment Bonds Series 1996A, dated April 1, 1996, in the original principal amount of $8,000,000.00, of which $8,000,000.00 remains outstanding as of the date of approval of this Ordinance (the "Series 1996 Bonds"), authorized by Committee Substitute for Ordinance No. 960223 passed and approved on March 21, 1996 (the "Series 1996 Ordinance"); and

 

WHEREAS, the City desires to refund the Series 1991 Bonds maturing on the dates and in the principal amounts set forth in Exhibit C (the "Series 1991 Refunded Bonds") and the Series 1996 Bonds maturing on the dates and in the principal amounts set forth in Exhibit C (the "Series 1996 Refunded Bonds", collectively with the Series 1991 Refunded Bonds, the "Refunded Bonds"); and

 

WHEREAS, the City finds and determines that it is necessary and advisable and in the best interest of the City and of its inhabitants to issue the Bonds in the Original Principal Amount; and

 

WHEREAS, the City is authorized under the provisions of Article VI, Section 28 of the Constitution of Missouri, 1945, as amended, and Section 108.140 of the Revised Statutes of Missouri, as amended (the "Refunding Bond Law"), to refund, extend and unify the whole or part of its valid general obligation indebtedness; and

 

WHEREAS, the Refunding Bond Law authorizes the issuance of general obligation refunding bonds in an amount not to exceed the principal amount of the Refunded Bonds and the accrued interest on the Refunded Bonds to the date of the Bonds, which amount aggregates $2,343,541.88 for the Series 1991 Refunded Bonds and $3,389,837.28 for the Series 1996 Refunded Bonds; and

 

WHEREAS, it is hereby found and determined that it is necessary and advisable and in the best interest of the City and its inhabitants that general obligation refunding bonds be issued and secured in the form and manner provided in this Ordinance; NOW, THEREFORE,

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

ARTICLE I

DEFINITIONS

 

Section 101. Definitions of Words and Terms. Capitalized words and terms not otherwise defined in this Ordinance have the meanings set forth in the Purchase Agreement (defined below). In addition to the foregoing and words and terms defined in the Recitals and elsewhere in this Ordinance, capitalized words and terms have the following meanings in this Ordinance:

 

"Administrative Fee" means the fee payable to DNR equal to 0.714% of the outstanding principal amount of the Revolving Fund Loan on the Administrative Fee Calculation Date in Exhibit A.

 

"Authority Bonds" means the Water Pollution Control Revenue Bonds (State Revolving Fund Program - City of Kansas City Project) Series 1997B of the Authority.

 

"Authorized Representative" means the representative of the City designated by the City in accordance with the Regulations.

 

"Bondowner" means the Authority or its assigns.

 

"Bond Register" means the books for the registration, transfer and exchange of Bonds kept at the office of the Paying Agent.

 

"Consulting Engineer" means each independent engineer or engineering firm with experience in designing and constructing wastewater treatment, sanitary sewerage or water pollution control facilities and retained by the City.

 

"Defeasance Securities" means:

 

(a) Federal Securities;

 

(b) obligations of the Resolution Funding Corporation or any successor, but only

if the use of the obligations to pay and discharge Bonds pursuant to Article XI will cause the discharged Bonds to be rated in the highest long-term rating category by the Rating Agency; or

 

(c) obligations of any state of the United States of America or of any agency,

instrumentality or local governmental unit of any state that:

 

(i) are not callable at the option of the obligor prior to maturity or for

which irrevocable instructions have been given by the obligor to call on the date

specified in the instructions, and

 

(ii) are fully secured as to principal, redemption premium and interest by

a fund, consisting of cash or Federal Securities, that:

 

(A) may be applied only to the payment of principal, redemption

premium and interest on the obligations, and

 

(B) is sufficient, as verified by a nationally recognized

independent certified public accountant, to pay the principal, redemption

premium and interest on the obligations.

 

"Escrow Agent" means State Street Bank and Trust Company of Missouri, N.A., in the City of St. Louis, Missouri, and any successors or assigns.

 

"Escrow Agreement" means the Escrow Trust Agreement dated as of April 1, 1997, between the City and the Escrow Agent.

 

"Escrow Fund" means the fund by that name referred to in Section 501.

 

"Escrow Securities" means the direct, non-callable obligations of the United States of America, as described in the Escrow Agreement.

 

"Federal Securities" means any direct obligation of, or obligation the timely payment of the principal of and interest on which is unconditionally guaranteed by, the United States of America and backed by its full faith and credit.

 

"General Debt and Interest Fund" means the fund ratified and confirmed by Section 401.

 

"Interest Payment Date" means each January 1 and July 1, commencing January 1, 1998.

 

"Ordinance" means this Ordinance as from time to time amended in accordance with its terms.

 

"Outstanding" means, as of the date of determination, all Bonds issued and delivered under this Ordinance, except:

 

(1) Bonds cancelled by the Paying Agent or delivered to the Paying Agent for

cancellation;

 

(2) Bonds for the payment of the principal or redemption price of and interest on

which money or Defeasance Securities are held under Section 1001;

 

(3) Bonds in exchange for which, or in lieu of which, other Bonds have been

registered and delivered pursuant to this Ordinance; and

 

(4) Bonds allegedly mutilated, destroyed, lost, or stolen and paid under Section

208.

 

"Owner" means the Bondowner or any other owner of the Bonds.

 

"Purchase Agreement" means the Purchase Agreement dated as of April 1, 1997, by and among the City, the Authority and DNR.

 

"Record Date" means the 15th day (whether or not a Business Day) of the calendar month next preceding the applicable Interest Payment Date.

 

"Revolving Fund Loan" means the no-interest loan to the City by DNR from the Wastewater Loan Fund under the Revolving Fund Agreement.

 

"Revolving Fund Agreement" means the Revolving Fund Agreement dated as of April 1, 1997, by and among the City, the Authority and DNR.

 

"Sewer Special Assessment Fund" means the fund ratified and confirmed by Section 401.

 

"State" means the State of Missouri.

 

"Terms Certificate" means the Terms Certificate of the City, dated the date of adoption of this Ordinance, related to a purchase contract for the Authority Bonds.

 

"Terms Ordinance" means an ordinance of the City adopted prior to the issuance of the Bonds, which establishes the maturities, interest rates and sinking fund redemption provisions for the Bonds.

 

"Trustee" means the trustee acting at any time as Trustee under the Indenture.

 

Section 102. Additional Provisions. Additional provisions are set forth in Exhibit A.

 

 

ARTICLE II

AUTHORIZATION OF BONDS

 

Section 201. Authorization of Bonds. The Bonds are authorized and directed to be issued in the Original Principal Amount for the purposes of this Ordinance.

 

Section 202. Security for Bonds. The Bonds are general obligations of the City payable from ad valorem taxes which may be levied without limitation as to rate or amount upon all taxable tangible property, real and personal, within the territorial limits of the City. The full faith, credit and resources of the City are irrevocably pledged for the prompt payment of the Bonds.

 

Section 203. Description of Bonds. The Bonds consist of fully registered bonds without coupons, numbered from R-1 consecutively upward, in the denomination of $1,000.00 or any integral multiple of $1,000.00. The Bonds will be issued in substantially the form of Exhibit B and will be registered, transferred and exchanged as provided in Section 206. The Bonds are dated the Dated Date as set forth on the Bonds. The Bonds become due on the dates and in the principal amounts (subject to optional and mandatory redemption prior to maturity as provided in Article III) and bear interest at the annual rates established by the Terms Ordinance. Interest is computed on the basis of a 360-day year of twelve 30-day months from the Dated Date or from the most recent Interest Payment Date to which interest has been paid or provided for and is payable on each Interest Payment Date.

 

Section 204. Designation of Paying Agent. The Trustee is designated as the City's paying agent for the payment of the Bonds and bond registrar for the registration, transfer and exchange of Bonds (the "Paying Agent"). The Paying Agent will not be paid any additional fees for its services under this Ordinance.

 

Section 205. Method and Place of Payment of Bonds.

 

(a) Payment of the Bonds will be made with any coin or currency that is legal tender for the payment of debts due the United States of America on the payment date.

 

(b) The principal of and redemption premium, if any, payable on each Bond will be made at maturity or upon earlier redemption to the Owner shown in the Bond Register at the maturity or optional redemption date of each Bond, upon presentation and surrender of the Bond at the principal office of the Paying Agent. The interest payable on each Bond on any Interest Payment Date will be made by check or draft mailed by the Paying Agent to the address of the Owner shown in the Bond Register. The principal of and redemption premium, if any, and interest on the Bonds is payable by electronic transfer in immediately available federal funds to a bank in the continental United States of America pursuant to instructions from any Owner received by the Paying Agent prior to the Record Date.

 

(c) The Paying Agent will keep a record of payment of principal of, redemption premium, if any, and interest on all Bonds and, at least annually at the request of the City, will forward a copy or summary of the record of payments to the City.

 

Section 206. Registration, Transfer and Exchange of Bonds.

 

(a) The City will cause the Paying Agent to keep the Bond Register. Each Bond when issued will be registered in the name of the Owner on the Bond Register. Bonds will be transferred and exchanged only upon the Bond Register.

 

(b) Upon surrender of any Bond at the principal office of the Paying Agent, the Paying Agent will transfer or exchange the Bond for a new Bond or Bonds in any authorized denomination of the same maturity and in the same aggregate principal amount as the Bond which was presented for transfer or exchange. All Bonds presented for transfer or exchange must be accompanied by a written instrument of transfer or authorization for exchange, in a form and with guarantee of signature satisfactory to the Paying Agent, duly executed by the Owner or by the Owner's authorized agent. All Bonds presented for transfer or exchange must be surrendered to the Paying Agent for cancellation.

 

(c) For every exchange or transfer of Bonds the City or the Paying Agent may levy a charge sufficient to reimburse it for any tax, fee or other governmental charge required to be paid for the exchange or transfer. The charge must be paid by the person requesting the exchange or transfer. Payment of the charge is a condition precedent to the exchange or transfer.

 

(d) The City and the Paying Agent will treat the person in whose name any Bond is registered as the absolute owner of the Bond, whether or not payment of the Bond is overdue, for the purpose of receiving payment of the principal of, redemption premium, if any, and interest on the Bond and for all other purposes. All payments made to any Owner or upon the Owner's order will be valid and effectual to satisfy and discharge the City's liability for payment of the Bond to the extent of the sum or sums paid. Neither the City nor the Paying Agent will be affected by any notice to the contrary.

 

(e) At reasonable times and under reasonable rules established by the Paying Agent, the Owners of 25% or more in principal amount of the Outstanding Bonds, or their representative designated in a manner satisfactory to the Paying Agent, may inspect and copy the Bond Register.

 

Section 207. Execution, Authentication and Delivery of Bonds.

 

(a) Each Bond must be signed by the manual or facsimile signature of the Mayor and attested by the manual or facsimile signature of the City Clerk, and have the official seal of the City affixed or imprinted. If any officer whose manual or facsimile signature appears on any Bond ceases to be an officer before the delivery of any Bond signed by the officer, the manual or facsimile signature on the Bond will be valid and sufficient for all purposes of this Ordinance.

 

(b) The Mayor and the City Clerk are directed to prepare and execute the Bonds as specified in this Article, and when executed, to deliver the Bonds to the Paying Agent for authentication. Upon authentication, the Paying Agent will deliver the Bonds to the Bondowner, upon payment of the purchase price for the Bonds.

 

(c) Each Bond will be authenticated by any authorized officer or employee of the Paying Agent. No Bond is entitled to any security or benefit under this Ordinance or be valid or obligatory for any purpose until authenticated by the Paying Agent.

 

 

Section 208. Mutilated, Destroyed, Lost and Stolen Bonds.

 

(a) If (i) any mutilated Bond is surrendered to the Paying Agent, or the City and the Paying Agent receive evidence to their satisfaction of the mutilation, destruction, loss or theft of any Bond, and (ii) there is delivered to the City and the Paying Agent security or indemnity as required by them, in the absence of notice to the City or the Paying Agent that the Bond has been acquired by a bona fide purchaser, the City will execute and the Paying Agent will register and deliver, in exchange for or in lieu of any mutilated, destroyed, lost or stolen Bond, a new Bond of the same maturity and of like tenor and principal amount. If the Bond has become or is about to become due, the City may pay the Bond instead of issuing a new Bond.

 

(b) Upon the issuance of any new Bond under this Section, the City may require the payment by the Owner of a sum sufficient to cover any tax or other governmental charge imposed and any other expenses (including the fees and expenses of the Paying Agent) connected with the issuance of the Bond.

 

(c) Every new Bond issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Bond will constitute a replacement of the prior obligation of the City, whether or not the mutilated, destroyed, lost or stolen Bond is enforceable by anyone at any time, and will be entitled to all the benefits of this Ordinance equally and ratably with all other Outstanding Bonds.

 

Section 209. Cancellation and Destruction of Bonds Upon Payment. All Bonds which have been paid or redeemed or which have otherwise been surrendered to the Paying Agent, either at or before maturity, will be cancelled immediately upon the payment or redemption and the Paying Agent's receipt of the Bonds. Cancelled Bonds will be periodically destroyed by the Paying Agent. The Paying Agent will execute a certificate in duplicate describing the destroyed Bonds and file an executed counterpart of the certificate with the City.

 

Section 210. Sale of the Bonds; Authorization and Execution of Documents.

 

(a) The sale of the Bonds in accordance with the terms of the Notice of Bond Sale dated March 20, 1997 is approved. The Director of Finance is authorized to approve the award of the Bonds for the best bid received in accordance with the Notice of Bond Sale.

 

(b) The City is authorized to enter into the Purchase Agreement and the Revolving Fund Agreement, in substantially the forms presented to the Governing Body. The Director of Finance is authorized to execute the Purchase Agreement, the Revolving Fund Agreement and the Terms Certificate for and on behalf of and as the act and deed of the City, with changes approved by the Director of Finance, which approval will be conclusively evidenced by the Director of Finance's signature. The Mayor and the Director of Finance are further authorized and directed to execute other documents, certificates and instruments that are necessary or desirable to carry out the intent of this Ordinance. The City Clerk is authorized and directed to attest the execution of the Purchase Agreement and the Revolving Fund Agreement and any other documents, certificates and instruments that are necessary or desirable to carry out the intent of this Ordinance, the Terms Ordinance and the Terms Certificate.

 

Section 211. Administrative Fee and Other Fees; Revolving Fund Loan.

 

(a) The City will pay to the Trustee for deposit in the Administrative Expense Fund, within 30 days after receipt of a statement from the Trustee (i) the Administrative Fee, (ii) the Master Trustee's Disclosure Fee, and (iii) the Trustee's Fee.

 

(b) The City is authorized to receive the Revolving Fund Loan under the terms of the Revolving Fund Agreement. By this Ordinance, the City assigns the proceeds of the Revolving Fund Loan, as and when received, to the Authority.

 

 

ARTICLE III

REDEMPTION OF BONDS

 

Section 301. Mandatory Sinking Fund Redemption. The Term Bonds defined in the Terms Ordinance will be redeemed in part on the dates and in the principal amounts in the Terms Ordinance at a redemption price equal to 100% of the principal amount redeemed plus accrued interest to the redemption date.

 

Section 302. Optional Redemption. The Bonds are not subject to optional redemption and payment prior to maturity.

 

Section 303. Selection of Bonds to Be Redeemed. If all Outstanding Bonds are held by the Bondowner, the redemption of the Bonds in part will be reflected in the records maintained by the Paying Agent. If the Bonds are held by any Owner other than the Bondowner, the City, with the prior written consent of the Paying Agent and the Owners, will establish procedures for the selection of Bonds upon partial redemption.

 

Section 304. Notice and Effect of Call for Redemption.

 

(a) If all Outstanding Bonds are held by the Bondowner, no notice of the mandatory sinking fund redemption of Bonds is required to be given. If the Bonds are held by any Owner other than the Bondowner or if Bonds are being optionally redeemed, notice of redemption will be given in the manner described below. The Paying Agent, on behalf of the City, will give notice by mailing a redemption notice by registered or certified mail, at least 45 days prior to the date fixed for redemption, to the each Owner of Bonds to be redeemed at the address shown on the Bond Register.

 

(b) All redemption notices will be dated and include the following information:

 

(1) the redemption date,

 

(2) the redemption price, consisting of the principal amount, redemption

premium, if any, and interest to the redemption date,

 

(3) if less than all Outstanding Bonds are to be redeemed, the identification (and,

in the case of partial redemption, the respective principal amounts) of the Bonds to be redeemed,

 

(4) a statement that on the redemption date the redemption price will become due

and payable upon each Bond or portion of a Bond called for redemption, and that interest ceases to accrue on the redeemed amount from and after the redemption date, and

 

(5) the address of the principal office of the Paying Agent where the Bonds must

be surrendered for payment of the redemption price.

 

(c) If notice of redemption has been given or waived, the Bonds or portions to be redeemed will become due and payable on the redemption date at the redemption price specified in the notice. From and after the redemption date (unless the City defaults in the payment of the redemption price), the called Bonds will cease to bear interest. Upon the surrender of Bonds for payment of the redemption price in accordance with the notice, the Paying Agent will pay the redemption price to the applicable Owners. Upon the Paying Agent's receipt of any Bond being partially redeemed, the Paying Agent will prepare a new Bond or Bonds of the same maturity in the amount of the unpaid principal.

 

 

ARTICLE IV

RATIFICATION OF FUNDS AND ACCOUNTS

 

Section 401. Ratification of Funds and Accounts. The separate funds and accounts created in, or ratified and confirmed by, the Series 1991 Ordinance and the Series 1996 Ordinance known respectively as the:

 

(1) General Debt and Interest Fund; and

 

(2) Sewer Special Assessment Fund

 

are ratified and confirmed. The Director of Finance will establish accounts within the General Debt and Interest Fund and the Sewer Special Assessment Fund as may be appropriate for the purpose of accounting for moneys to be applied to the payment of the Bonds.

 

Section 402. Administration of Funds and Accounts. The funds and accounts described in Section 401 will be maintained and administered by the City while any of Bonds remain Outstanding and unpaid.

 

Section 403. Acknowledgment of Funds and Accounts.

 

(a) The City acknowledges the creation of the following funds and accounts held by the Trustee under the Indenture:

 

(1) Construction Loan Fund consisting of the Sewer System Project Account and

the Public Works Project Account;

 

(2) Reserve Fund consisting of the Sewer System Reserve Account and the Public

Works Reserve Account;

 

(3) Debt Service Fund consisting of the Sewer System Debt Service Account and

the Public Works Debt Service Account;

 

(4) Repayment Fund consisting of the Sewer System Principal Account, the

Sewer System Interest Account, the Public Works Principal Account and the Public Works Interest Account.

 

(b) The City further acknowledges that certain amounts will be transferred to the Costs of Issuance Fund and the Administrative Expense Fund under the Indenture in satisfaction of certain obligations of the City under this Ordinance, the Purchase Agreement and the Revolving Fund Agreement.

 

 

ARTICLE V

APPLICATION OF BOND PROCEEDS AND OTHER MONEYS

 

Section 501. Application of Bond Proceeds and Other Moneys. The proceeds received from the sale of the Bonds, including any premium and accrued interest, and moneys transferred from the Series 1991 Ordinance and the Series 1996 Ordinance will be deposited simultaneously with the delivery of the Bonds as follows:

 

(1) Into the Costs of Issuance Fund an amount not to exceed the Costs of Issuance

in Exhibit A as approved by the Director of Finance;

 

(2) Into the Public Works Interest Account the accrued interest on the Bonds, if

any;

 

(3) Into the Escrow Fund the remaining proceeds of the Bonds; and

 

(4) Into the Public Works Project Account of the Construction Loan Fund, from

the Sewer Improvement Fund, Series 1996A created by the Series 1996 Ordinance, the amount set forth in the Terms Ordinance.

 

Section 502. Application of Moneys in the Public Works Project Account.

 

(a) Moneys in the Public Works Project Account will be disbursed to the City for the sole purpose of paying the cost of extending and improving the System in accordance with the plans and specifications prepared by the Consulting Engineer, previously approved by the Governing Body and DNR and on file in the office of the City Clerk, including any alterations in or amendments to the plans and specifications deemed advisable by the Consulting Engineer and approved by the Director of Public Works of the City and DNR.

 

(b) Requisitions will be submitted for withdrawals from the Public Works Project Account in accordance with Article III of the Purchase Agreement.

 

Section 503. Application of Moneys in Escrow Fund. Under the Escrow Agreement, the Escrow Agent will apply moneys in the Escrow Fund to purchase the Escrow Securities and to establish an initial cash balance in accordance with the Escrow Agreement. The cash and Escrow Securities held in the Escrow Fund will be applied by the Escrow Agent solely to the payment of the principal of and redemption premium, if any, and interest on the Refunded Bonds. All moneys deposited with the Escrow Agent will be held by the Escrow Agent in accordance with the provisions of the Series 1991 Ordinance, the Series 1996 Ordinance and the Escrow Agreement.

 

Section 504. Verification of Certified Public Accountant; Discharge of Refunded Bonds. Prior to or concurrently with the issuance and delivery of the Bonds and the funding of the Escrow Fund, the City will obtain the certification of an independent certified public accountant that the accountant has verified the accuracy of the calculations that demonstrate that the money and obligations to be deposited with the Escrow Agent under Section 503 and the Escrow Agreement, together with the earnings to accrue on the Escrow Fund, will be sufficient for the timely payment of the principal of and redemption premium, if any, and interest on the Refunded Bonds. The certification will be addressed to the City, the Bondowner and DNR.

 

Section 505. Redemption of Refunded Bonds. The Series 1991 Refunded Bonds are called for redemption and payment prior to maturity on March 1, 2001. The Series 1996 Refunded Bonds are called for redemption and payment prior to maturity on May 15, 2006. The Refunded Bonds will be redeemed at the offices of the paying agents for the Refunded Bonds, as applicable. In accordance with the requirements of the Series 1991 Ordinance and the Series 1996 Ordinance, the Director of Finance is irrevocably directed to cause notice of the call for redemption and payment of the Refunded Bonds to be given in the manner provided in the Series 1991 Ordinance and the Series 1996 Ordinance. The officers of the City and the paying agents for the Refunded Bonds are authorized and directed to take any other actions necessary to effect the redemption and payment of the Refunded Bonds.

 

 

ARTICLE VI

APPLICATION OF MONEYS

 

Section 601. General Debt and Interest Fund and Sewer Special Assessment Fund. The City covenants and agrees that all special assessments on property benefited by the Project paid and credited to the Sewer Special Assessment Fund and all amounts paid and credited to the General Debt and Interest Fund (for application to the payment of the principal of and interest on the Bonds) will be expended and used by the City for the sole purpose of paying the principal of and interest on the Bonds as and when the same become due.

 

Section 602. Application of Moneys in Funds and Accounts. The City will apply moneys in the General Debt and Interest Fund and the Sewer Special Assessment Fund on the dates, in the amounts and in the order as follows:

 

(1) On the 25th day of each month, the following amounts to the Trustee for

credit to the Public Works Interest Account and the Public Works Principal Account:

 

(A) on May 25, 1997 to and including December 25, 1997, to the Public

Works Interest Account 1/8 of the amount of interest on the Bonds due on January

1, 1998 less accrued interest deposited to the Public Works Interest Account; and on

January 25, 1998 and thereafter 1/6 of the amount of interest due on the Bonds on the

next Interest Payment Date, with these monthly payments to be reduced as follows:

 

(I) the balance in the Public Works Debt Service Account on an

Interest Payment Date after the payment of the principal of and interest due

on the Authority Bonds on the Interest Payment Date will be credited against

the next succeeding monthly payment or payments; and

 

(II) the projected investment earnings on the Public Works

Reserve Account for the current Interest Period and actual investment

earnings for the prior Calendar Quarter reduced by estimated earnings on the

Public Works Reserve Account for the preceding Interest Period that were

previously credited, as set forth in the Trustee's quarterly and semiannual

notices to the City, will be credited in equal installments against the monthly

payments due prior to the next Interest Payment Date; and

 

(B) On May 25, 1997 to and including December 25, 1997, to the Public

Works Principal Account 1/8 of the amount of principal on the Bonds due on January

1, 1998, and on January 25, 1998 and thereafter, to the Public Works Principal

Account 1/12 of the principal due on the Bonds on the next succeeding principal

payment date, whether at maturity or upon mandatory sinking fund redemption. If

the Initiation of Operation specified in the certificate delivered by the City under

Section 3.5 of the Purchase Agreement is earlier than the expected Initiation of

Operation as defined in the Purchase Agreement, the first monthly installment of

principal will be paid no later than the monthly payment date which is not more than

12 months after the Initiation of Operation; and

 

(2) On the dates required by Section 211(a), to the Trustee, for deposit to the

Administrative Expense Fund, the amount required to pay the Administrative Fee, the Trustee's Fee and the Master Trustee's Disclosure Fee.

 

Section 603. Transfer of Funds to Paying Agent. The Director of Finance is authorized and directed to make the payments to the Public Works Principal Account and the Public Works Interest Account as provided in Section 602, sums sufficient to pay the principal of, premium, if any, and interest on the Bonds when due, and to forward amounts to the Paying Agent in a manner which ensures the Paying Agent will have sufficient available funds on or before the second Business Day immediately preceding the dates when payments on the Bonds are due. Upon the payment of all principal and interest on the Bonds, the Paying Agent will return any excess funds to the City. Except as otherwise provided in the Indenture, all moneys deposited by the City with the Paying Agent are subject to the provisions of this Ordinance.

 

 

ARTICLE VII

DEPOSIT AND INVESTMENT OF MONEYS

 

Section 701. Investment of Moneys. Moneys in the Public Works Interest Account, the Public Works Principal Account, the Public Works Debt Service Account and the Public Works Reserve Account are assigned by the City to the Authority to secure the City's obligations under this Ordinance and the City acknowledges that moneys in the Public Works Interest Account, the Public Works Principal Account, the Public Works Debt Service Account and the Public Works Reserve Account will be invested by the Authority, subject to the Arbitrage Instructions, in Investment Securities in accordance with Section 4.9 of the Indenture. Moneys in the Public Works Project Account will be invested by the Trustee at the written direction of the City, subject to the Arbitrage Instructions, in Investment Securities in accordance with Section 4.9 of the Indenture. Moneys in each of the other funds and accounts created or ratified and confirmed by this Ordinance may be invested by the City in obligations as may be permitted by law, but no investment will be made for a period extending longer than the date when the moneys invested may be needed. All earnings on any investments held in any fund or account will accrue to the applicable fund or account. In determining the amount held in any fund or account under this Ordinance, obligations will be valued at the lower of cost or market value.

 

 

ARTICLE VIII

PARTICULAR COVENANTS OF THE CITY

 

Section 801. Levy and Collection of Special Assessments and Annual Tax.

 

(a) For the purpose of providing for the payment of the principal of and interest on the Bonds when due, there is levied annually, no later than the beginning of the fiscal year prior to the year in which each payment of principal of and interest on the Bonds is due, special assessments upon all property benefited by the Project in accordance with the Charter of the City. To the extent the amounts produced by the special assessments or from other sources is not sufficient to pay the principal of and interest on the Bonds when due, there is levied upon all of the taxable tangible property within the City a direct annual tax sufficient to produce the additional amounts necessary for the payment of the principal of and interest on the Bonds when due and payable in each year.

 

(b) Proceeds of the special assessments will be deposited in the Sewer Special Assessment Fund, kept separate from all other funds of the City and used solely for the payment of the principal of and interest on the Bonds when due and the other amounts payable under Section 602. The taxes referred to in paragraph (a) will be extended upon the tax rolls in each of the several years, respectively, and will be levied and collected at the same time and in the same manner as the other ad valorem taxes of the City are levied and collected. The proceeds derived from the taxes will be deposited in the General Debt and Interest Fund, kept separate and apart from all other funds of the City and used solely for the payment of the principal of and interest on the Bonds when due and the other amounts payable under Section 602.

 

(c) If at any time the taxes are not collected in time to pay the principal of or interest on the Bonds when due, the Director of Finance is directed to pay said principal or interest out of the general funds of the City and to reimburse said general funds for money so expended when said taxes are collected.

 

Section 802. Annual Audit.

 

(a) Promptly after the end of each Fiscal Year, the City will cause an audit of the funds and accounts of the City for the preceding Fiscal Year to be made by a certified public accountant or firm of certified public accountants employed for that purpose.

 

(b) Within 180 days after the end of the City's Fiscal Year, a copy of the annual audit will be filed in the office of the City Clerk, and a duplicate copy of the audit will be mailed to the Bondowner and the Trustee. The annual audit will be open to examination and inspection during normal business hours by any taxpayer, any user of the services of the System, any Owner of the Bonds, or anyone acting for or on behalf of the taxpayer, user or Owner.

 

(c) As soon as possible after the completion of the annual audit, the Governing Body will review the annual audit, and if the annual audit reveals any breach of this Ordinance, the City agrees to promptly cure the breach.

 

Section 803. Performance of Duties. The City will faithfully and punctually perform all duties and obligations with respect to the operation of the System now or hereafter imposed upon the City by the Constitution and laws of the State and the provisions of this Ordinance.

 

Section 804. Tax Covenants.

 

(a) The City will comply with all applicable provisions of the Code, including Sections 103 and 141 through 150, necessary to maintain the exclusion of interest on the Authority Bonds from gross income for federal income tax purposes. The City will not use or permit the use of any proceeds of the Bonds or any other funds of the City, nor take or permit any other action, or fail to take any action, which would adversely affect the exclusion of interest on the Authority Bonds from gross income for federal income tax purposes. The City will adopt ordinances or resolutions and take other actions necessary to comply with the Code and with other applicable future law, in order to ensure that the interest on the Authority Bonds will remain excluded from federal gross income.

 

(b) The City (1) will use the proceeds of the Bonds as soon as practicable for the purposes for which the Bonds are issued, and (2) will not invest or directly or indirectly use or permit the use of any proceeds of the Bonds or any other funds of the City in any manner, or take or omit to take any action, that would cause the Authority Bonds to be "arbitrage bonds" within the meaning of Section 148(a) of the Code.

 

(c) The City expects that more than 75% of the proceeds of the Bonds will be expended for "construction" as that term is used in Section 148(f)(4)(C)(iv) of the Code.

 

(d) The City will not use any portion of the proceeds of the Bonds, including any investment income earned on the proceeds, directly or indirectly, (1) in a manner that would cause any Bond to be a "private activity bond" within the meaning of Section 141(a) of the Code, or (2) to make or finance a loan to any person.

 

(e) The City will pay to the Trustee, for deposit to the Public Works Interest Account and subsequent transfer as provided in the Indenture, an amount equal to arbitrage rebate and the costs incurred in connection with determining arbitrage rebate, at the times required by the Arbitrage Instructions. The provisions of this paragraph will survive the payment in full or defeasance of the Bonds.

 

 

ARTICLE IX

DEFAULT AND REMEDIES

 

Section 901. Event of Default. If (i) the City defaults in the payment of the principal of or interest on any of the Bonds, or (ii) the City or its Governing Body or any of its officers, agents or employees fails or refuses to comply with any provision of this Ordinance, the Constitution or statutes of the State, the Purchase Agreement or the Revolving Fund Agreement and default continues for a period of 60 days after written notice specifying the non-payment default has been given to the City by the Trustee, the Authority, DNR or the Owner of any Bond then Outstanding, at any time thereafter and while the default continues, the City shall pay to DNR the penalties assessed by DNR in accordance with the Regulations. The penalties will be assessed as a reduction in the credit provided in Section 602(1)(A).

 

Section 902. Remedies.

 

(a) The provisions of this Ordinance constitute a contract between the City and the Owners of the Bonds. The Owner or Owners of not less than 10% in principal amount of the Bonds at the time Outstanding have the right for the equal benefit and protection of all Owners of Bonds similarly situated:

 

(1) by any proceeding at law or in equity to enforce the rights of the Owner or

Owners against the City and its officers, agents and employees, and to compel the performance by the City of its duties and obligations under this Ordinance, the Constitution and the laws of the State;

 

(2) by any proceeding at law or in equity to require the City, its officers, agents

and employees to account as if they were the trustees of an express trust; and

 

(3) by any proceeding at law or in equity to enjoin any act or thing which is

unlawful or in violation of the rights of the Owners of the Bonds.

 

(b) Any amounts paid on the Bonds to the Owners will be applied first to interest and second to principal, to the extent due and payable.

 

Section 903. Limitation on Rights of Bondowners. No Owner has any right in any manner whatever by the Owner's action to affect, disturb or prejudice the security granted and provided for in, or enforce any right under, this Ordinance, except in the manner provided in this Ordinance. All proceedings at law or in equity will be for the equal benefit of all Owners.

 

Section 904. Remedies Cumulative. No remedy conferred upon the Owners is intended to be exclusive of any other remedy. Each remedy is in addition to every other remedy and may be exercised without exhausting any other remedy conferred under this Ordinance. No waiver by any Owner of any default or breach of duty or contract of the City under this Ordinance will affect any subsequent default or breach of duty or contract by the City or impair any rights or remedies thereon. No delay or omission of any Owner to exercise any right or power accruing upon any default will impair any right or power or will be construed to be a waiver of any default. Every substantive right and every remedy conferred upon the Owners of the Bonds by this Ordinance may be enforced and exercised from time to time and as often as may be expedient. If any Owner discontinues any proceeding or the decision in the proceeding is against the Owner, the City and the Owners of the Bonds will be restored to their former positions and rights under this Ordinance.

 

 

ARTICLE X

DEFEASANCE

 

Section 1001. Defeasance. When all of the Bonds have been paid and discharged, the provisions of this Ordinance (other than Section 804) will terminate. Bonds will be treated as paid and discharged within the meaning of this Ordinance if the City has deposited with the Paying Agent, or other bank or trust company located in the State, having full trust powers and meeting the requirements of a successor Trustee under the Indenture, (i) moneys and non-callable Defeasance Securities which, together with interest to be earned, as evidenced by the written report of an independent certified public accountant, will be sufficient for the payment of the principal and redemption premium, if any, of and interest to accrue on the Bonds to the date of maturity or redemption, and (ii) an opinion of Bond Counsel, addressed to the Authority and the Trustee, that providing for the payment of the Bonds by depositing moneys or Defeasance Securities with the Paying Agent in accordance with this Section will not cause the interest on the Authority Bonds to be included in gross income for federal income tax purposes. If any Bonds will be redeemed prior to maturity, the City must have given irrevocable instructions to the Paying Agent to redeem the Bonds. Any moneys and obligations which at any time are deposited with the Paying Agent or other bank by or on behalf of the City, for the purpose of paying and discharging any of the Bonds, are assigned, transferred and set over in trust for the applicable Owners, and the moneys and obligations are irrevocably appropriated to the payment and discharge of the applicable Bonds.

 

 

ARTICLE XI

AMENDMENTS

 

Section 1101. Amendments.

 

(a) The provisions of this Article are not applicable to the Terms Ordinance.

 

(b) Any provision of the Bonds or of this Ordinance may be amended by an ordinance with the written consent of the Authority and the Trustee. Consent must be evidenced by an instrument executed by the Authority and the Trustee, acknowledged or proved in the manner of a deed to be recorded, and filed with the City Clerk. In addition, the prior written consent of the Bondowner and DNR is required for any amendment which would:

 

(1) extend the maturity of any payment of principal or interest on any Bond;

 

(2) reduce the amount of principal or interest payable on any Bond; or

 

(3) permit the priority of any Bond over any other Bond.

 

(c) No amendment will be effective until (i) the City has delivered to the Bondowner, the Trustee and DNR an opinion of Bond Counsel stating that the amendment is permitted by this Ordinance and the Act, complies with their respective terms, is valid and binding upon the City in accordance with its terms and does not adversely affect the exclusion of interest on the Authority Bonds from gross income for federal income tax purposes, and (ii) the City Clerk has on file a copy of the amendment and all required consents.

 

 

ARTICLE XII

MISCELLANEOUS PROVISIONS

 

Section 1201. Further Authority. The officers of the City, including the Mayor, the City Manager, the City Treasurer, the Director of Finance, the City Attorney, and the City Clerk, are authorized and directed to execute all documents and take the actions as are necessary or advisable in order to carry out and perform the purposes of this Ordinance and to make ministerial changes in the documents approved by this Ordinance which they may approve. The execution of any document or taking of any related action constitutes conclusive evidence of the necessity or advisability of the action or change.

 

Section 1202. Severability. If any section or other part of this Ordinance is for any reason held invalid, the invalidity will not affect the validity of the other provisions of this Ordinance.

 

Section 1203. Governing Law. This Ordinance is governed by and will be construed in accordance with the laws of the State.

 

Section 1204. Effective Date. This Ordinance will take effect and be in full force and effect ten days after its passage.

 

__________________________________________________________________

 

Approved as to form and legality:

 

 

_____________________________________

Assistant City Attorney