WHEREAS, the
votes cast at the 2004 Election were duly canvassed as provided by law, and it
was found and declared that not less than four-sevenths of the qualified voters
of the City voting at the 2004 Election on said question voted in favor of the
issuance of said bonds, the vote on said question having been 29,789 votes for
the issuance of said bonds and 13,896 votes against the issuance of said bonds;
and
WHEREAS, the City
desires to issue its general obligation bonds so authorized at the 2004 Election
in the principal amount not to exceed $10,000,000.00 for the purpose of
financing a portion of the Zoo Project; and
WHEREAS, pursuant
to such authority, the 2004 Election was held on the question of whether to
issue the general obligation bonds of the City in an amount not to exceed
$250,000,000.00 for the purpose of paying for deferred maintenance and basic
capital infrastructure such as streets, bridges, catch basins and other
projects; and
WHEREAS, the
votes cast at the 2004 Election were duly canvassed as provided by law, and it
was found and declared that not less than four-sevenths of the qualified voters
of the City voting at the 2004 Election on said question voted in favor of the
issuance of said bonds, the vote on said question having been 31,195 votes for
the issuance of said bonds and 13,065 votes against the issuance of said bonds;
and
WHEREAS, the City
desires to issue its general obligation bonds so authorized at the 2004
Election in the principal amount not to exceed $60,000,000.00 for the purpose
of financing a portion of the Basic Infrastructure Project; and
WHEREAS, pursuant
to such authority, an election was duly held in the City at the primary
election on August 6, 1996 (the 1996 Election), on the question of whether to
issue the general obligation bonds of the City in an amount not to exceed
$10,800,000.00 for the purpose of designing and constructing a replacement
Chouteau Bridge, including acquiring any necessary right-of-way; and
WHEREAS, the
votes cast at the 1996 Election were duly canvassed as provided by law, and it
was found and declared that not less than four-sevenths of the qualified voters
of the City voting at the 1996 Election on said question voted in favor of the
issuance of said bonds, the vote on said question having been 28,991 votes for
the issuance of said bonds and 7,621 votes against the issuance of said bonds;
and
WHEREAS, the City
has heretofore issued its General Obligation Bonds (Chouteau Bridge Project)
Series 1996B in the original principal amount of $10,100,000.00 of which
$700,000.00 principal amount remains Outstanding; and
WHEREAS, the City
desires to issue a second series of bonds so authorized at the 1996 Election in
the principal amount not to exceed $700,000.00 for the purpose of financing a
portion of the Chouteau Bridge Project; 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 at this time to authorize the issuance
and delivery of said bonds for the purpose aforesaid; NOW, THEREFORE,
BE IT ORDAINED BY
THE COUNCIL OF KANSAS CITY:
ARTICLE I
DEFINITIONS
Section 101. Definitions
of Words and Terms. In addition to words and terms defined elsewhere
herein, the following words and terms as used in this Ordinance shall have the
following meanings:
Arbitrage
Instructions means the Arbitrage Instructions attached as Exhibit A to
the Citys Arbitrage Certificate relating to the Bonds, as the same may be
amended or supplemented in accordance with the provisions thereof.
Basic
Infrastructure Project means, without limitation, the construction,
acquisition, renovation equipping and furnishing of the costs for basic capital
infrastructure such as streets, bridges, catch basins and other projects.
Bond Counsel
means Gilmore & Bell, P.C., Kansas City, Missouri, The Martinez Law Firm,
LLC, Kansas City, Missouri, or other attorneys or firm of attorneys with a
nationally recognized standing in the field of municipal bond financing
selected by the City.
Bond Payment
Date means any date on which principal of or interest on any Bond is payable.
Bond Register
means the books for the registration, transfer and exchange of Bonds kept at
the office of the Paying Agent.
Bondowner, Owner
or Registered Owner when used with respect to any Bond means the Person in
whose name such Bond is registered on the Bond Register.
Bonds means the
General Obligation Bonds, Series 2004F, authorized and issued by the City
pursuant to this Ordinance.
Business Day
means a day other than a Saturday, Sunday or holiday on which the Paying Agent
is scheduled in the normal course of its operations to be open to the public
for conduct of its banking operations.
Cede & Co.
means Cede & Co., as nominee name of The Depository Trust Company, New
York, New York.
Chouteau Bridge
Project means designing and constructing a replacement Chouteau Bridge,
including acquiring any necessary right-of-way.
City means the
City of Kansas City, Missouri, and any successors or assigns.
Code means the
Internal Revenue Code of 1986, as amended, and the applicable regulations of
the Treasury Department proposed or promulgated thereunder.
Debt Service
Fund means the Series 2004F Debt Service Fund created in Section 501.
Defaulted
Interest means interest on any Bond which is payable but not paid on any
Interest Payment Date.
Defeasance
Obligations means any of the following obligations:
(a) United
States Government Obligations that are not subject to redemption in advance of
their maturity dates; or
(b) obligations
of any state or political subdivision of any state, the interest on which is
excluded from gross income for federal income tax purposes and which meet the
following conditions:
(1) the obligations are (i) not subject to
redemption prior to maturity or (ii) the trustee for such obligations has been
given irrevocable instructions concerning their calling and redemption and the
issuer of such obligations has covenanted not to redeem such obligations other
than as set forth in such instructions;
(2) the obligations are secured by cash or
United States Government Obligations that may be applied only to principal of,
premium, if any, and interest payments on such obligations;
(3) such cash and the principal of and interest
on such United States Government Obligations (plus any cash in the escrow fund)
are sufficient to meet the liabilities of the obligations;
(4) such cash and United States Government
Obligations serving as security for the obligations are held in an escrow fund
by an escrow agent or a trustee irrevocably in trust;
(5) such cash and United States Government
Obligations are not available to satisfy any other claims, including those against
the trustee or escrow agent; and
(6) the obligations are rated in the highest
rating category by Moodys (presently Aaa) or Standard & Poors Ratings
Group (presently AAA).
Director of
Finance means the Director or any Acting Director of the Department of Finance
of the City.
Downtown/Neighborhoods
Project means the construction, acquisition, renovation, equipping and
furnishing of strategic public improvements and capital maintenance, including streets,
sidewalks, curbs, storm and sanitary sewer and waterworks systems, bridges,
parks, parking facilities and other public improvements, with 45% of the
proceeds of the Bonds to be used for downtown Kansas City and 55% for other
neighborhoods.
Interest Payment
Date means the Stated Maturity of an installment of interest on any Bond.
Maturity when
used with respect to any Bond means the date on which the principal of such
Bond becomes due and payable as therein and herein provided, whether at the
Stated Maturity thereof or by call for redemption or otherwise.
Ordinance means
this Ordinance as from time to time amended in accordance with the terms
hereof.
Outstanding
means, when used with reference to Bonds, as of any particular date of determination,
all Bonds theretofore authenticated and delivered hereunder, except the
following Bonds:
(a) Bonds
theretofore cancelled by the Paying Agent or delivered to the Paying Agent for
cancellation;
(b) Bonds
deemed to be paid in accordance with the provisions of Section 701 hereof;
and
(c) Bonds
in exchange for or in lieu of which other Bonds have been authenticated and
delivered hereunder.
Participants
means those financial institutions for whom the Securities Depository effects
book-entry transfers and pledges of securities deposited with the Securities
Depository, as such listing of participants exists at the time of such
reference.
Paying Agent
means the paying agent designated in Section 203 hereof and any successors or
assigns thereto.
Permitted
Investments means any of the following securities, if and to the extent the
same are at the time legal for investment of the moneys held in the funds and
accounts listed in Section 501 hereof:
(a) United
States Treasury Securities (Bills, Notes, Bonds and Strips) Obligations of
the United States government for which the full faith and credit of the United
States are pledged for the payment of principal and interest.
(b) United
States Agency Securities. Obligations issued or guaranteed by any agency,
including government sponsored enterprises of the United States Government,
which at the time of purchase have a liquid market and a readily determinable
market value that are described as follows:
(i) U.S.
Government Agency Coupon and Zero Coupon Securities. Bullet coupon bonds
with no embedded options.
(ii) U.S.
Government Agency Discount Notes. Purchased at a discount with maximum
maturities of one (1) year.
(iii) U.S.
Government Agency Callable Securities. Restricted to securities callable
at par only with maximum final
maturities of five (5) years.
(iv) U.S.
Government Agency Step-Up Securities. The coupon rate is fixed for an
initial term. At coupon date, the coupon rate rises to a new, higher fixed
interest rate. Restricted to securities with maximum final maturities of three
(3) years.
(v) U.S.
Government Agency Floating Rate Securities. The coupon rate floats off of
only one index. Restricted to coupons with no interim caps that reset at least
quarterly.
(vi) U.S.
Government Agency Mortgage Backed Securities (MBS, CMO, Pass-Thru Securities). Restricted
to securities with final maturities of three (3) years or less or have the
final projected payment no greater than three (3) years when analyzed in a +300
basis point interest rate environment. Restricted to obligations of FNMA,
FHLMC and GNMA only.
(c) Repurchase
Agreements. Contractual agreements between the City and commercial banks or
primary government securities dealers, organized under the laws of the United
States or any state, which contractual agreements are continuously and fully
secured by any one or more of the securities described in paragraphs (a) and
(b) above and which have a market value, exclusive of accrued interest, at all
times at least equal to the principal amount of such repurchase agreements.
Securities acquired pursuant to repurchase agreements shall be valued at the
lower of the current market value or the repurchase price thereof set forth in
the repurchase agreement. The Bond Market Associations guidelines for the
Master Repurchase Agreement will be used and will govern all repurchase
agreement transactions. All repurchase agreements shall result in transfer of
legal title to identified securities that are segregated in a custodial or
trust account for the benefit of the Trustee or delivered to the Trustee.
Repurchase agreement transactions will be either physical delivery or
tri-party.
(d) Bankers
Acceptances. Bankers acceptances issued by domestic commercial banks
possessing the highest rating issued by Moodys Investor Services, Inc. (Moodys)
or Standard and Poors Ratings Group (Standard and Poors).
(e) Commercial
Paper. Commercial paper issued by domestic corporations, which has
received the highest rating issued by Moodys Investor Services, Inc. or
Standard and Poors Corporation. Eligible paper is further limited to issuing
corporations that have total assets in excess of five hundred million dollars
($500,000,000) and are not listed on Credit Watch with negative implications by
any nationally recognized rating agency at the time of purchase.
(f) Any
full faith and credit obligations of the State of Missouri rated at least A or
A2 by Standard and Poors or Moodys.
(g) Any
full faith and credit obligations of any county in which the city is located
rated AA or Aa2 by Standard and Poors or Moodys.
(h) Any
full faith and credit obligations of any school district in Kansas City,
Missouri rated AA or Aa2 by Standard and Poors or Moodys.
(i) Any
full faith and credit obligations or revenue bonds of the City of Kansas City,
Missouri rated AA or Aa2 by Standard and Poors
or Moodys.
(j) Any
municipal obligation as defined in (f), (g), (h) or (i) that is not rated but
either pre-refunded or escrowed to maturity with U.S. Treasury Securities as to
both principal and interest.
(k) Money
market mutual funds registered under the Federal Investment Company Act of
1940, whose shares are registered under the Federal Securities Act of 1933,
rated in either of the two highest categories by Moodys and Standard &
Poors (in either case without regard to any modifier).
(l) Such
other investments not described above that are allowed pursuant to Missouri
law.
References to particular
ratings and rating categories in this definition are applicable only at the
time of purchase of the Permitted Investment.
Person means
any natural person, corporation, partnership, joint venture, association, firm,
joint-stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof or other public body.
Project Fund
means the Series 2004F Project Fund created in Section 501.
Purchaser means
the manager of the underwriting group that originally purchases the Bonds.
Rebate Fund
means the fund by that name referred to in Section 501.
Record Date for
the interest payable on any Interest Payment Date means the 15th day (whether
or not a Business Day) of the calendar month next preceding such Interest
Payment Date.
Redemption Date
when used with respect to any Bond to be redeemed means the date fixed for such
redemption pursuant to the terms of this Ordinance.
Redemption Price
when used with respect to any Bond to be redeemed means the price at which such
Bond is to be redeemed pursuant to the terms of this Ordinance, including the
applicable redemption premium, if any, but excluding installments of interest
whose Stated Maturity is on or before the Redemption Date.
Replacement
Bonds means Bonds issued to the beneficial owners of the Bonds in accordance
with Section 210(b).
Securities
Depository means, initially, The Depository Trust Company, New York, New York,
and its successors and assigns.
Special Record
Date means the date fixed by the Paying Agent pursuant to Section 204
hereof for the payment of Defaulted Interest.
Stated Maturity
when used with respect to any Bond or any installment of interest thereon means
the date specified in such Bond and this Ordinance as the fixed date on which
the principal of such Bond or such installment of interest is due and payable.
United States
Government Obligations means bonds, notes, certificates of indebtedness,
treasury bills or other securities constituting direct obligations of, or
obligations the principal of and interest on which are fully and
unconditionally guaranteed as to full and timely payment by the United States
of America, including evidences of a direct ownership interest in future
interest or principal payments on obligations issued or guaranteed by the
United States of America (including the interest component of obligations of
the Resolution Funding Corporation).
World War I
Museum Project means, without limitation, the construction, acquisition,
renovation, equipping and furnishing of the costs for the museum, exhibits,
library and educational facilities of the World War I Museum Project at Liberty
Memorial.
Zoo Project
means, without limitation, the construction, acquisition, renovation, equipping
and furnishing of the costs of basic capital infrastructure and improvements
for the Kansas City Zoological Garden.
ARTICLE II
AUTHORIZATION OF BONDS
Section 201. Authorization
of Bonds. There shall be issued and hereby are authorized and directed to
be issued the General Obligation Bonds, Series 2004F, of the City in the
principal amount not to exceed $95,700,000 (the Bonds), for the purpose of
paying (a) a portion of the costs of the Downtown/Neighborhoods Project, (b) a
portion of the costs of the World War I Museum Project, (c) a portion of the
costs of the Zoo Project, (d) a portion of the costs of the Basic
Infrastructure Project, (e) a portion of the costs of the Chouteau Bridge Project
and (f) the costs of issuing the Bonds.
Section 202. Description
of Bonds. The Bonds shall consist of fully registered bonds without
coupons, numbered from R-1 upward in denominations of $5,000 or any integral
multiple thereof. The Bonds shall be substantially in the form set forth in
Section 202A hereto, and shall be subject to registration, transfer and
exchange as provided in Section 205. The Bonds shall be dated September
1, 2004, shall become due in the amounts on the Stated Maturities set forth
therein, subject to redemption and payment prior to their Stated Maturities as
provided in Article III, and shall bear interest at the rates per annum to
be determined upon the sale of the Bonds as set forth in a separate ordinance.
At the election of
the Purchaser, term Bonds may be issued in lieu of all or a portion of serial
Bonds with Stated Maturities with mandatory sinking fund redemption payments
and final payments at maturity in the amounts set forth, subject to the
following conditions: all Bonds selected as a term Bond shall bear the same
rate of interest; and not less than all Bonds of the same Stated Maturity shall
be converted to a term Bond with mandatory redemption requirements.
The Bonds shall
bear interest (computed on the basis of a 360-day year of twelve 30-day months)
from the dated date thereof or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable semiannually on
February 1 and August 1 in each year, beginning on February 1, 2005.
Section 202A.
Form of Bond. The Bonds will be in substantially the following form, with
appropriate insertions and deletions as are approved by the Director of
Finance, which approval will be conclusively evidenced by the Director of
Finances signature on the Bond:
FORM OF BOND
EXCEPT AS OTHERWISE PROVIDED IN THE ORDINANCE
(DESCRIBED HEREIN), THIS GLOBAL BOND MAY BE TRANSFERRED, IN WHOLE BUT NOT IN
PART, ONLY TO ANOTHER NOMINEE OF THE SECURITIES DEPOSITORY (DESCRIBED HEREIN)
OR TO A SUCCESSOR SECURITIES DEPOSITORY OR TO A NOMINEE OF A SUCCESSOR
SECURITIES DEPOSITORY.
UNITED STATES OF AMERICA
STATE OF MISSOURI
Registered Registered
No. ______ $_______
CITY OF KANSAS CITY, MISSOURI
GENERAL OBLIGATION BOND
SERIES 2004F
Interest
Rate Maturity Date Dated Date CUSIP
Number
2024 September
1, 2004
REGISTERED
OWNER: CEDE & CO.
PRINCIPAL AMOUNT: DOLLARS
THE CITY OF
KANSAS CITY, MISSOURI, for value
received, hereby acknowledges itself to be indebted and promises to pay to the
Registered Owner shown above, or registered assigns, the Principal Amount shown
above on the Maturity Date shown above, unless called for redemption prior to
said Maturity Date, and to pay interest thereon at the Interest Rate per annum
shown above (computed on the basis of a 360-day year of twelve 30-day months)
from the Dated Date shown above or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, payable semiannually on
February 1 and August 1 in each year, beginning on February 1,
2005, until said Principal Amount has been paid.
The Principal
Amount or Redemption Price of this Bond shall be paid at Maturity or upon
earlier redemption by check or draft to the Person in whose name this Bond is
registered at the Maturity or Redemption Date thereof, upon presentation and
surrender of this Bond at the payment office of Wells Fargo Bank, N.A., in
Kansas City, Missouri (the Paying Agent). The interest payable on this Bond
on any Interest Payment Date shall be paid to the Person in whose name this
Bond is registered on the Bond Register maintained by the Paying Agent at the
close of business on the Record Date for such interest by check or draft mailed
by the Paying Agent to the address of such Registered Owner shown on the Bond
Register or, in the case of an interest payment to any Registered Owner of
$500,000 or more in aggregate principal amount of Bonds, by electronic transfer
to such Registered Owner upon written notice given to the Paying Agent by such
Owner not less than 15 days prior to the Record Date for such interest,
containing the electronic transfer instructions including the bank (which shall
be in the continental United States), ABA routing number and account number to
which such Registered Owner wishes to have such transfer directed.
This Bond is one
of an authorized series of bonds of the City designated General Obligation
Bonds, Series 2004F, aggregating the principal amount of $95,700,000 (the Bonds),
issued by the City for the purpose of paying (a) a portion of the costs of the
Downtown/Neighborhoods Project, (b) a portion of the costs of the World War I
Museum Project, (c) a portion of the costs of the Zoo Project, (d) a portion of
the costs of the Basic Infrastructure Project, (e) a portion of the costs of
the Chouteau Bridge Project and (f) the costs of issuing the Bonds, under the
authority of and in full compliance with the Constitution and laws of the State
of Missouri, and pursuant to elections duly held in the City and an Ordinance
duly passed (the Ordinance) and proceedings duly and legally had by the
Council of the City. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Ordinance.
At the option of
the City, Bonds or portions thereof maturing on February 1, 2015, and
thereafter may be called for redemption and payment prior to their Stated
Maturity on February 1, 2014, and thereafter in whole at any time or in
part on any Interest Payment Date in such amounts for each Stated Maturity as
shall be determined by the City at a Redemption Price equal to 100% of the
principal amount, plus accrued interest thereon to the Redemption Date.
[Bonds maturing
on February 1, 20___, are subject to mandatory redemption and payment
prior to maturity pursuant to the mandatory redemption requirements of the
Ordinance on February 1, _____, and on each February 1 thereafter
prior to maturity, at a redemption price equal to 100% of the Principal Amount
thereof plus accrued interest to the Redemption Date.]
Notice of
redemption, unless waived, is to be given by the Paying Agent by mailing an
official redemption notice by first class mail at least 30 days prior to the
Redemption Date to the State Auditor of Missouri, the original purchaser of the
Bonds and to each Registered Owner of each of the Bonds to be redeemed at the
address shown on the Bond Register maintained by the Paying Agent. Notice of
redemption having been given as aforesaid, the Bonds or portions of Bonds to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
City defaults in the payment of the Redemption Price) such Bonds or portions of
Bonds shall cease to bear interest.
The Bonds are
being issued by means of a book-entry system with no physical distribution of
bond certificates to be made except as provided in the Ordinance. One Bond
certificate with respect to each date on which the Bonds are stated to mature,
registered in the nominee name of the Securities Depository, is being issued
and required to be deposited with the Securities Depository and immobilized in
its custody. The book-entry system will evidence positions held in the Bonds by
the Securities Depositorys participants, beneficial ownership of the Bonds in
authorized denominations being evidenced in the records of such participants.
Transfers of ownership shall be effected on the records of the Securities
Depository and its participants pursuant to rules and procedures established by
the Securities Depository and its participants. The City, the Bond Registrar
and the Paying Agent will recognize the Securities Depository nominee, while
the registered owner of this Bond, as the owner of this Bond for all purposes,
including (i) payments of principal of, and redemption premium, if any, and
interest on, this Bond, (ii) notice, and (iii) voting. Transfers of principal,
interest and any redemption premium payments to participants of the Securities
Depository, and transfers of principal, interest and any redemption premium
payments to beneficial owners of the bonds by participants of the Securities
Depository will be the responsibility of such participants and other nominees
of such beneficial owners. The City and the Paying Agent will not be
responsible or liable for such transfers of payments or for maintaining,
supervising or reviewing the records maintained by the Securities Depository,
the Securities Depository nominee, its participants or persons acting through
such participants. While the Securities Depository nominee is the owner of
this bond, notwithstanding the provision hereinabove contained, payments of
principal of and interest on this Bond shall be made in accordance with existing
arrangements among the City, the Paying Agent and the Securities Depository.
The Bonds
constitute general obligations of the City payable as to both principal and
interest from ad valorem taxes which may be levied without limitation as to
rate or amount upon all the 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
principal of and interest on the Bonds as the same become due.
This Bond may be
transferred or exchanged, as provided in the Ordinance, only on the Bond
Register kept for that purpose at the principal payment office of the Paying
Agent, upon surrender of this Bond together with a written instrument of
transfer or authorization for exchange satisfactory to the Paying Agent duly
executed by the Registered Owner or the Registered Owners duly authorized
agent, and thereupon a new Bond or Bonds in any authorized denomination having
the same Maturity Date and in the same aggregate principal amount shall be
issued to the transferee in exchange therefor as provided in the Ordinance and
upon payment of the charges therein prescribed. The City and the Paying Agent
may deem and treat the person in whose name this Bond is registered on the Bond
Register as the absolute owner hereof for the purpose of receiving payment of,
or on account of, the principal or Redemption Price hereof and interest due
hereon and for all other purposes.
This Bond shall
not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Ordinance until the Certificate of Authentication
hereon has been executed by the Paying Agent.
IT IS HEREBY
CERTIFIED AND DECLARED that all acts, conditions and things required to exist,
happen and be performed precedent to and in the issuance of the Bonds have
existed, happened and been performed in due time, form and manner as required
by law; that a direct annual tax upon all taxable tangible property situated in
the City has been levied for the purpose of paying the principal of and
interest on the Bonds when due; and that the total indebtedness of the City,
including this Bond and the series of which it is one, does not exceed any
constitutional or statutory limitation.
IN WITNESS
WHEREOF, THE CITY OF KANSAS CITY, MISSOURI, has caused this Bond to be executed
by the manual or facsimile signature of its Mayor and attested by the manual or
facsimile signature of its City Clerk and countersigned by the manual or
facsimile signature of its Director of Finance and its official seal to be
affixed or imprinted hereon.
CERTIFICATE OF
AUTHENTICATION CITY OF KANSAS CITY, MISSOURI
This Bond is one of the Bonds
of the issue
described in the
within-mentioned Ordinance.
By:
__________________________________
Mayor
Registration Date:
_______________________
(SEAL)
WELLS FARGO BANK, N.A.
Paying Agent ATTEST:
By _______________________________ ____________________________________
Authorized
Officer or Signatory City Clerk
COUNTERSIGNED:
_______________________________________
Director
of Finance
ASSIGNMENT
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________________________________________________________________
Print or Type Name, Address and Social Security Number
or other Taxpayer Identification Number of Transferee
the
within Bond and all rights thereunder, and hereby irrevocably constitutes and
appoints ________________________________ agent to transfer the within Bond on
the Bond Register kept by the Paying Agent for the registration thereof, with
full power of substitution in the premises.
Dated:
_______________________ ______________________________________
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.
Signature
Guaranteed By:
______________________________________
(Name of Eligible Guarantor Institution
as defined by SEC Rule 17 Ad-15 (17 CFR 240.17 Ad-15))
By
__________________________________
Title:
Section
203. Designation of Paying Agent.
The City shall designate from time to time by a certificate of the Director of
Finance a paying agent for the payment of principal of and interest on the
Bonds and as bond registrar with respect to the registration, transfer and
exchange of Bonds (the Paying Agent).
The
City will at all times maintain a Paying Agent meeting the qualifications
herein described for the performance of the duties hereunder. The City
reserves the right to appoint a successor Paying Agent for any Paying Agent
hereafter appointed by the Director of Finance by (1) filing with the Paying
Agent then performing such function a certified copy of the proceedings giving
notice of the termination of such Paying Agent and appointing a successor, and
(2) causing notice of the appointment of the successor Paying Agent to be given
by first class mail to each Bondowner. No resignation or removal of the Paying
Agent shall become effective until a successor has been appointed and has
accepted the duties of Paying Agent.
Every
Paying Agent appointed hereunder shall at all times be (1) a commercial banking
association or corporation or trust company located in the State of Missouri
organized and in good standing and doing business under the laws of the United
States of America or of the State of Missouri and subject to supervision or
examination by federal or state regulatory authority and (2) shall have a
reported capital (exclusive of borrowed capital) plus surplus of not less than
$100,000,000 or, consideration may be given by the City to a bank not meeting
this amount if the bank submits an acceptable form of guarantee for its
financial obligations to the City. If such institution publishes reports of
conditions at least annually pursuant to law or regulation, then for the
purposes of this Section the capital and surplus of such institution shall be
deemed to be its capital and surplus as set forth in its most recent report of
condition so published.
The
Paying Agent shall be paid fees and expenses for its services in connection
therewith.
Section
204. Method and Place of Payment of Bonds. The principal of or Redemption Price and interest on the Bonds shall
be payable in any coin or currency of the United States of America that, on the
respective dates of payment thereof, is legal tender for the payment of public
and private debts.
The
principal of or Redemption Price of each Bond shall be paid at Maturity by
check or draft to the Person in whose name such Bond is registered on the Bond
Register at the Maturity thereof, upon presentation and surrender of such Bond
at the principal payment office of the Paying Agent.
The
interest payable on each Bond on any Interest Payment Date shall be paid to the
Registered Owner of such Bond as shown on the Bond Register at the close of
business on the Record Date for such interest by check or draft mailed by the
Paying Agent to the address of such Registered Owner shown on the Bond Register
or, in the case of an interest payment to any Registered Owner of $500,000 or
more in aggregate principal amount of Bonds, by electronic transfer to such
Registered Owner upon written notice given to the Paying Agent by such
Registered Owner signed by such Registered Owner not less than 15 days prior to
the Record Date for such interest, containing the electronic transfer
instructions including the bank (which shall be in the continental United
States), ABA routing number and account number to which such Registered Owner
wishes to have such transfer directed.
Notwithstanding
the foregoing provisions of this Section, any Defaulted Interest with respect
to any Bond shall cease to be payable to the Registered Owner of such Bond on
the relevant Record Date and shall be payable to the Registered Owner in whose
name such Bond is registered at the close of business on the Special Record
Date for the payment of such Defaulted Interest, which Special Record Date
shall be fixed as hereinafter specified in this paragraph. The City shall
notify the Paying Agent in writing of the amount of Defaulted Interest proposed
to be paid on each Bond and the date of the proposed payment (which date shall
be at least 30 days after receipt of such notice by the Paying Agent) and shall
deposit with the Paying Agent at the time of such notice an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Paying Agent for such
deposit prior to the date of the proposed payment. Following receipt of such
funds the Paying Agent shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor less than 10 days prior
to the date of the proposed payment. The Paying Agent shall promptly notify
the City of such Special Record Date and, in the name and at the expense of the
City, shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, by first class mail, postage
prepaid, to each Registered Owner of a Bond entitled to such notice at the
address of such Registered Owner as it appears on the Bond Register not less
than 10 days prior to such Special Record Date.
The
Paying Agent shall keep a record of payment of principal and Redemption Price
of and interest on all Bonds and at least annually upon request shall forward a
copy or summary of such records to the City.
Section
205. Registration, Transfer and Exchange of Bonds. The City covenants that, as long as any of the
Bonds remain Outstanding, it will cause the Bond Register to be kept at the
office of the Paying Agent as herein provided. Each Bond when issued shall be
registered in the name of the owner thereof on the Bond Register.
Bonds
may be transferred and exchanged only on the Bond Register as provided in this
Section. Upon surrender of any Bond at the principal payment office of the
Paying Agent, the Paying Agent shall transfer or exchange such Bond for a new
Bond or Bonds in any authorized denomination of the same Stated Maturity and in
the same aggregate principal amount as the Bond that was presented for transfer
or exchange. Bonds presented for transfer or exchange shall be accompanied by
a written instrument or instruments of transfer or authorization for exchange,
in a form and with guarantee of signature satisfactory to the Paying Agent,
duly executed by the Registered Owner thereof or by the Registered Owners duly
authorized agent.
In
all cases in which the privilege of transferring or exchanging Bonds is
exercised, the Paying Agent shall authenticate and deliver Bonds in accordance
with the provisions of this Ordinance. The City shall pay the fees and
expenses of the Paying Agent for the registration, transfer and exchange of
Bonds provided for by this Ordinance and the cost of printing a reasonable
supply of registered bond blanks. Any additional costs or fees that might be
incurred in the secondary market, other than fees of the Paying Agent, are the
responsibility of the Registered Owners of the Bonds. In the event any Registered
Owner fails to provide a correct taxpayer identification number to the Paying
Agent, the Paying Agent may make a charge against such Registered Owner
sufficient to pay any governmental charge required to be paid as a result of
such failure. In compliance with Section 3406 of the Code, such amount may be
deducted by the Paying Agent from amounts otherwise payable to such Registered
Owner hereunder or under the Bonds.
The
City and the Paying Agent shall not be required (a) to register the transfer or
exchange of any Bond after notice calling such bond or portion thereof for
redemption has been mailed by the Paying Agent pursuant to Section 303 and
during the period of 15 days next preceding the date of mailing of such notice
of redemption; or (b) to register the transfer or exchange of any Bond during a
period beginning at the opening of business on the day after receiving written
notice from the City of its intent to pay Defaulted Interest and ending at the
close of business on the date fixed for the payment of Defaulted Interest
pursuant to Section 204.
The
City and the Paying Agent may deem and treat the Person in whose name any Bond
is registered on the Bond Register as the absolute owner of such Bond, whether
such Bond is overdue or not, for the purpose of receiving payment of, or on
account of, the principal or Redemption Price of and interest on said Bond and
for all other purposes. All payments so made to any such Registered Owner or
upon the Registered Owners order shall be valid and effective to satisfy and
discharge the liability upon such Bond to the extent of the sum or sums so
paid, and neither the City nor the Paying Agent shall be affected by any notice
to the contrary.
At
reasonable times and under reasonable regulations established by the Paying
Agent, the Bond Register may be inspected and copied by the Registered Owners
of 10% or more in principal amount of the Bonds then Outstanding or any
designated representative of such Registered Owners whose authority is
evidenced to the satisfaction of the Paying Agent.
Section
206. Execution, Registration, Authentication and Delivery of Bonds. Each of the Bonds, including any Bonds issued in
exchange or as substitutions for the Bonds initially delivered, shall be signed
by the manual or facsimile signature of the Mayor and attested by the manual or
facsimile signature of the City Clerk and countersigned by the manual or
facsimile signature of the Director of Finance of the City and shall have the
official seal of the City affixed thereto or imprinted thereon. In case any
officer whose signature appears on any Bond ceases to be such officer before
the delivery of such Bond, such signature shall nevertheless be valid and
sufficient for all purposes, as if such person had remained in office until
delivery. Any Bond may be signed by such persons who at the actual time of the
execution of such Bond are the proper officers to sign such Bond although at
the date of such Bond such persons may not have been such officers.
The
Mayor, the City Clerk and the Director of Finance are hereby authorized and
directed to prepare and execute the Bonds in the manner herein specified and,
when duly executed, to deliver the Bonds to the Paying Agent for
authentication.
The
Bonds shall have endorsed thereon a certificate of authentication substantially
in the form set forth in Exhibit A attached hereto, which shall be
manually executed by an authorized officer or employee of the Paying Agent, but
it shall not be necessary that the same officer or employee sign the
certificate of authentication on all of the Bonds that may be issued hereunder
at any one time. No Bond shall be entitled to any security or benefit under
this Ordinance or be valid or obligatory for any purpose unless and until such
certificate of authentication has been duly executed by the Paying Agent. Such
executed certificate of authentication upon any Bond shall be conclusive
evidence that such Bond has been duly authenticated and delivered under this
Ordinance. Upon authentication, the Paying Agent shall deliver the Bonds to
the Purchaser upon payment of the purchase price for the Bonds to the City.
Section
207. Mutilated, Destroyed, Lost and Stolen Bonds. If (a) any mutilated Bond is surrendered to the
Paying Agent or the Paying Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Bond, and (b) there is delivered to the City
and the Paying Agent such security or indemnity as may be required by the
Paying Agent, then, in the absence of notice to the City or the Paying Agent
that such Bond has been acquired by a bona fide purchaser, the City shall
execute and, upon the Citys request, the Paying Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Bond, a new Bond of the same Stated Maturity and of like tenor and
principal amount.
If
any such mutilated, destroyed, lost or stolen Bond has become or is about to
become due and payable, the City, in its discretion, may pay such Bond instead
of issuing a new Bond.
Upon
the issuance of any new Bond under this Section, the City and the Paying Agent
may require the payment by the Registered Owner of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Paying Agent)
connected therewith.
Every
new Bond issued pursuant to this Section shall constitute a replacement of the
prior obligation of the City, and shall be entitled to all the benefits of this
Ordinance equally and ratably with all other Outstanding Bonds.
Section
208. Cancellation and Destruction of Bonds Upon Payment. All Bonds that have been paid or redeemed or that otherwise
have been surrendered to the Paying Agent, either at or before Maturity, shall
be cancelled by the Paying Agent immediately upon the payment, redemption and
surrender thereof to the Paying Agent and subsequently destroyed in accordance
with the customary practices of the Paying Agent and applicable retention
laws.
Section
209. Preliminary and Final Official Statement. The use and public
distribution of the Preliminary Official Statement dated the date thereof in
connection with the public sale of the Bonds is hereby ratified and approved,
and the final Official Statement is hereby authorized and approved by
supplementing, amending and completing the Preliminary Official Statement, with
such changes and additions thereto as are necessary to conform to and describe
the transaction. The Director of Finance is hereby authorized to execute the
final Official Statement as so supplemented, amended and completed, and the use
and public distribution of the final Official Statement by the Purchaser in connection
with the reoffering of the Bonds is hereby authorized. The proper officials of
the City are hereby authorized to execute and deliver a certificate pertaining
to such Official Statement as prescribed therein, dated as of the date of
payment for and delivery of the Bonds.
For
the purpose of enabling the Purchaser to comply with the requirements of Rule
15c2-12(b)(1) of the Securities and Exchange Commission, the City hereby deems
the information regarding the City contained in the Preliminary Official
Statement to be final as of its date, except for the omission of such
information as is permitted by Rule 15c2-12(b)(1), and the appropriate officers
of the City are hereby authorized, if requested, to provide the Purchaser a
letter or certification to such effect and to take such other actions or
execute such other documents as such officers in their reasonable judgment deem
necessary to enable the Purchaser to comply with the requirement of such Rule.
The
City agrees to provide to the Purchaser within seven business days of the date
of the sale of Bonds sufficient copies of the final Official Statement to
enable the Purchaser to comply with the requirements of Rule 15c2-12(b)(4) of
the Securities and Exchange Commission and with the requirements of Rule G-32
of the Municipal Securities Rulemaking Board.
Section
210. Book-Entry Bonds; Securities Depository.
(a) The
Bonds shall initially be registered to Cede & Co., the nominee for the
Securities Depository, and no beneficial owner will receive certificates
representing their respective interests in the Bonds, except in the event the
Paying Agent issues Replacement Bonds as provided in subsection (b) hereof. It
is anticipated that during the term of the Bonds, the Securities Depository
will make book-entry transfers among its Participants and receive and transmit
payment of principal of, premium, if any, and interest on, the Bonds to the
Participants until and unless the Paying Agent authenticates and delivers
Replacement Bonds to the beneficial owners as described in subsection (b).
(b) (1)
If the City determines (A) that the Securities Depository is unable to properly
discharge its responsibilities, or (B) that the Securities Depository is no
longer qualified to act as a securities depository and registered clearing
agency under the Securities and Exchange Act of 1934, as amended, or (2) if the
Paying Agent receives written notice from Participants having interests in not
less than 50% of the Bonds Outstanding, as shown on the records of the Securities
Depository (and certified to such effect by the Securities Depository), that
the continuation of a book-entry system to the exclusion of any Bonds being
issued to any Owner other than Cede & Co. is no longer in the best
interests of the beneficial owners of the Bonds, then the Paying Agent shall
notify the Owners of such determination or such notice and of the availability
of certificates to Owners requesting the same, and the Paying Agent shall
register in the name of and authenticate and deliver Replacement Bonds to the
beneficial owners or their nominees in principal amounts representing the
interest of each, making such adjustments as it may find necessary or
appropriate as to accrued interest and previous calls for redemption; provided,
that in the case of a determination under (1)(A) or (1)(B) of this subsection
(b), the City, with the consent of the Paying Agent, may select a successor
securities depository in accordance with Section 210(c) hereof to effect
book-entry transfers. In such event, all references to the Securities
Depository herein shall relate to the period of time when the Securities
Depository has possession of at least one Bond. Upon the issuance of
Replacement Bonds, all references herein to obligations imposed upon or to be
performed by the Securities Depository shall be deemed to be imposed upon and
performed by the Paying Agent, to the extent applicable with respect to such
Replacement Bonds. If the Securities Depository resigns and the City, the
Paying Agent or Owners are unable to locate a qualified successor of the
Securities Depository in accordance with Section 210(c) hereof, then the Paying
Agent shall authenticate and cause delivery of Replacement Bonds to Owners, as
provided herein. The Paying Agent may rely on information from the Securities
Depository and its Participants as to the names of the beneficial owners of the
Bonds. The cost of printing, registration, authentication and delivery of
Replacement Bonds shall be paid for by the City.
(c) In
the event the Securities Depository resigns, is unable to properly discharge
its responsibilities, or is no longer qualified to act as a securities
depository and registered clearing agency under the Securities and Exchange Act
of 1934, as amended, the City may appoint a successor Securities Depository
provided the Paying Agent and the City receive written evidence with respect to
the ability of the successor Securities Depository to discharge its
responsibilities. Any such successor Securities Depository shall be a securities
depository which is a registered clearing agency under the Securities and
Exchange Act of 1934, as amended, or other applicable statute or regulation
that operates a securities depository upon reasonable and customary terms. The
Paying Agent upon its receipt of a Bond or Bonds for cancellation shall cause
the delivery of Bonds to the successor Securities Depository in appropriate
denominations and form as provided herein.
Section
211. Public Sale of Bonds. The public sale of the Bonds is hereby authorized
via PARITY. Notice of the public sale of the Bonds is authorized to be given
by electronic transmission and at the website address of www.springsted.com.
The electronic dissemination of the Preliminary Official Statement is hereby
approved and authorized. All bids for
the Bonds should be submitted on the PARITY website; however, telephone,
telefax or personal delivery bids will also be accepted.
ARTICLE III
REDEMPTION OF BONDS
Section 301. Optional
and Mandatory Redemption of Bonds.
(a) Optional
Redemption by City. At the option of the City, Bonds or portions thereof
maturing on February 1, 2015, and thereafter may be called for redemption and
payment prior to their Stated Maturity on February 1, 2014, and thereafter
in whole at any time or in part on any Interest Payment Date in such amounts
for each Stated Maturity as shall be determined by the City at a Redemption
Price equal to 100% of the principal amount, plus accrued interest thereon to
the Redemption Date.
(b) Mandatory
Redemption. In the event term Bonds are issued as provided in Section 202,
such Bonds shall be subject to mandatory redemption and payment prior to their
Stated Maturity pursuant to the mandatory redemption requirements of this
Section on the dates of the Stated Maturities for serial Bonds at the principal
amount thereof plus accrued interest to the Redemption Date, without premium.
The taxes levied in Article IV which are to be deposited in the Debt Service
Fund shall be sufficient to redeem any Bonds, and the City shall redeem on such
dates the principal amounts set forth in Section 202 and the remaining
principal amount of Bonds shall be paid at their Stated Maturity.
At its option, to
be exercised on or before the 45th day next preceding any mandatory Redemption
Date, the City may: (1) deliver to the Paying Agent for cancellation Term
Bonds subject to mandatory redemption on said mandatory Redemption Date, in any
aggregate principal amount desired; or (2) furnish the Paying Agent funds,
together with appropriate instructions, for the purpose of purchasing any Term
Bonds subject to mandatory redemption on said mandatory Redemption Date from
any Registered Owner thereof whereupon the Paying Agent shall, use its best
efforts, to expend such funds for such purpose to such extent as may be
practical; or (3) receive a credit with respect to the mandatory redemption
obligation of the City under this Section for any Term Bonds subject to
mandatory redemption on said mandatory Redemption Date which, prior to such date,
have been redeemed (other than through the operation of the mandatory
redemption requirements of this subsection (b)) and cancelled by the
Paying Agent and not theretofore applied as a credit against any redemption
obligation under this subsection (b). Each Term Bond so delivered or
previously purchased or redeemed shall be credited at 100% of the principal
amount thereof on the obligation of the City to redeem Term Bonds of the same
Stated Maturity on such mandatory Redemption Date, and any excess of such
amount shall be credited on future mandatory redemption obligations for Term
Bonds of the same Stated Maturity in chronological order, and the principal
amount of Term Bonds of the same Stated Maturity to be redeemed by operation of
the requirements of this Section shall be accordingly reduced. If the City
intends to exercise any option granted by the provisions of clauses (1), (2) or
(3) above, the City will, on or before the 45th day next preceding each
mandatory Redemption Date, furnish the Paying Agent a written certificate
indicating to what extent the provisions of said clauses (1), (2) and (3) are
to be complied with respect to such mandatory redemption payment and in the
event that clause (1) is to be complied with, such written certificate shall be
accompanied by the Term Bonds to be cancelled.
Section 302. Selection
of Bonds to be Redeemed.
(a) The
Paying Agent shall call Bonds for redemption and payment and shall give notice
of such redemption as herein provided upon receipt by the Paying Agent at least
45 days prior to the Redemption Date of written instructions from the City
specifying the principal amount, Stated Maturities, Redemption Date and
Redemption Prices of the Bonds to be called for redemption. If the Bonds are
refunded more than 90 days in advance of such Redemption Date, any escrow
agreement entered into by the City in connection with such refunding shall
provide that such written instructions to the Paying Agent shall be given by
the escrow agent on behalf of the City not more than 90 days prior to the
Redemption Date. The Paying Agent may in its discretion waive such notice
period so long as the notice requirements set forth in Section 303 are
met. The foregoing provisions of this paragraph shall not apply to any mandatory
redemption of Bonds hereunder, and Bonds shall be called by the Paying Agent
for redemption pursuant to such mandatory redemption requirements without the
necessity of any action by the City and whether or not the Paying Agent shall
hold in the Debt Service Fund moneys available and sufficient to effect the
required redemption.
(b) Bonds
shall be redeemed only in the principal amount of $5,000 or any integral
multiple thereof. Bonds of less than a full Stated Maturity shall be selected
by the Paying Agent in $5,000 units of principal amount in such equitable
manner as the Paying Agent may determine.
(c) In the
case of a partial redemption of Bonds at the time outstanding in denominations
greater than $5,000, then for all purposes in connection with such redemption
each $5,000.00 of face value shall be treated as though it were a separate Bond
of the denomination of $5,000.00. If it is determined that one or more, but
not all, of the $5,000 units of face value represented by any Bond are selected
for redemption, then upon notice of intention to redeem such $5,000 unit or
units, the Registered Owner of such Bond or the Registered Owners duly
authorized agent shall present and surrender such Bond to the Paying Agent (1)
for payment of the Redemption Price and interest to the Redemption Date of such
$5,000.00 unit or units of face value called for redemption, and (2) for
exchange, without charge to the Registered Owner thereof, for a new Bond or
Bonds of the aggregate principal amount of the unredeemed portion of the
principal amount of such Bond. If the Registered Owner of any such Bond fails
to present such Bond to the Paying Agent for payment and exchange as aforesaid,
such Bond shall, nevertheless, become due and payable on the redemption date to
the extent of the $5,000.00 unit or units of face value called for redemption
(and to that extent only).
Section 303. Notice
and Effect of Call for Redemption.
Unless waived by any Registered Owner of Bonds to be redeemed, official notice
of any redemption shall be given by the Paying Agent on behalf of the City by
mailing a copy of an official redemption notice by first class mail at least 30
days prior to the Redemption Date to the State Auditor of Missouri, the
Purchaser of the Bonds and each Registered Owner of the Bond or Bonds to be
redeemed at the address shown on the Bond Register.
All official
notices of redemption shall be dated and shall contain the following
information:
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) if
less than all Outstanding Bonds of a maturity are to be redeemed, the
identification (and, in the case of partial redemption of any Bonds, the
respective principal amounts) of the Bonds to be redeemed;
(d) a
statement that on the Redemption Date the Redemption Price will become due and
payable upon each such Bond or portion thereof called for redemption and that
interest thereon shall cease to accrue from and after the Redemption Date; and
(e) the
place where such Bonds are to be surrendered for payment of the Redemption
Price, which shall be the principal payment office of the Paying Agent.
The failure of
any Registered Owner to receive notice given as heretofore provided or any
defect therein shall not invalidate any redemption.
Prior to any
Redemption Date, the City shall deposit with the Paying Agent an amount of
money sufficient to pay the Redemption Price of all the Bonds or portions of
Bonds that are to be redeemed on that date.
Official notice
of redemption having been given as aforesaid, the Bonds or portions of Bonds to
be redeemed shall become due and payable on the Redemption Date, at the
Redemption Price therein specified, and from and after the Redemption Date
(unless the City defaults in the payment of the Redemption Price) such Bonds or
portion of Bonds shall cease to bear interest. Upon surrender of such Bonds
for redemption in accordance with such notice, the Redemption Price of such
Bonds shall be paid by the Paying Agent. Installments of interest due on or
prior to the Redemption Date shall be payable as herein provided for payment of
interest. Upon surrender for any partial redemption of any Bond, there shall
be prepared for the Registered Owner a new Bond or Bonds of the same Stated
Maturity in the amount of the unpaid principal as provided herein. All Bonds
that have been surrendered for redemption shall be cancelled and destroyed by
the Paying Agent as provided herein and shall not be reissued.
The Paying Agent
is also directed to comply with any mandatory standards established by the
Securities and Exchange Commission and then in effect for processing
redemptions of municipal securities. Failure to comply with such standards
shall not affect or invalidate the redemption of any Bond.
For so long as
the Securities Depository is effecting book-entry transfers of the Bonds, the
Paying Agent shall provide the notices specified in this Section to the
Securities Depository. It is expected that the Securities Depository shall, in
turn, notify its Participants and that the Participants, in turn, will notify
or cause to be notified the beneficial owners. Any failure on the part of the
Securities Depository or a Participant, or failure on the part of a nominee of
a beneficial owner of a Bond (having been mailed notice from the Paying Agent,
the Securities Depository, a Participant or otherwise) to notify the beneficial
owner of the Bond so affected, shall not affect the validity of the redemption
of such Bond.
ARTICLE IV
SECURITY FOR AND PAYMENT OF BONDS
Section 401. Security
for the Bonds. The Bonds shall be
general obligations of the City payable as to both principal and interest from
ad valorem taxes which may be levied without limitation as to rate or amount
upon all the taxable tangible property, real and personal, within the
territorial limits of the City. The full faith, credit and resources of the
City are hereby irrevocably pledged for the prompt payment of the principal of
and interest on the Bonds as the same become due.
Section 402. Levy
and Collection of Annual Tax. For
the purpose of providing for the payment of the principal of and interest on
the Bonds as the same become due, there is hereby authorized to be levied upon
all of the taxable tangible property within the City a direct annual tax
sufficient to produce the amounts necessary for the payment of such principal
and interest as the same becomes due and payable in each year.
The taxes
referred to above shall, to the extent that other funds of the City are not
available and earmarked for the purpose of paying the principal of and interest
on the Bonds, be levied upon the tax rolls in each of the several years,
respectively, and shall 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 said taxes shall be deposited in the Debt
Service Fund, shall be kept separate and apart from all other funds of the City
and shall be used solely for the payment of the principal of and interest on
the Bonds as and when the same become due, taking into account any scheduled
mandatory redemptions, and the fees and expenses of the Paying Agent.
If at any time
said taxes are not collected in time to pay the principal of or interest on the
Bonds when due, the Director of Finance is hereby authorized and 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.
ARTICLE V
ESTABLISHMENT OF FUNDS;
DEPOSIT AND APPLICATION OF MONEYS
Section 501. Establishment
of Funds. There have been or shall
be established in the treasury of the City and shall be held and administered
by the Director of Finance of the City the following separate funds:
(a) Series
2004F Project Fund (the Project Fund), and within the Project Fund, six
separate accounts known as the "Downtown Account," the Neighborhoods
Account, the "Museum Account," the Zoo Account, the Basic
Infrastructure Account and the Chouteau Bridge Account.
(b) Series
2004F Debt Service Fund (the Debt Service Fund).
(c) Rebate
Fund.
(C) Costs
of Issuance Fund.
Section 502. Deposit
of Bond Proceeds. The net proceeds
received from the sale of the Bonds shall be deposited simultaneously with the
delivery of the Bonds as follows:
(a) All
accrued interest and all premium received from the sale of the Bonds shall be
deposited in the Debt Service Fund and applied in accordance with
Section 504.
(b) The
sum of $10,000.00 of the proceeds of the Bonds shall be deposited in the Rebate
Fund.
(c) Not
to exceed $350,000.00 shall be deposited in the Costs of Issuance Fund to pay
the costs of issuing the Bonds as authorized by the Director of Finance.
(d) The
remaining proceeds of the Bonds shall be deposited in the various subaccounts
of the Project Fund as set forth in the Rate Ordinance.
Amounts remaining
in the Costs of Issuance Fund on December 15, 2004, shall be transferred pro
rata to the Neighborhoods Account, the Downtown Account, the Museum Account,
the Zoo Account, the Basic Infrastructure Account and the Chouteau Bridge
Account. With regard to each of the World War I Museum Project and the Zoo
Project, costs and expenses of issuing such proportionate amounts of Bonds paid
from bond proceeds deposited in the Museum Account and the Zoo Account,
respectively, shall not exceed 2% of the proportionate principal amount of such
Bonds allocable to each of the World War I Museum Project and the Zoo Project,
respectively, since the portion of the proceeds of the Bonds allocable to the
World War I Museum Project and the Zoo Project are considered to be private
activity bonds with the meaning of Internal Revenue Code Sections 141 and 145
and therefore are subject to the 2% costs of issuance limitation contained in
Internal Revenue Code Section 147(g).
Section 503. Application
of Moneys in the Project Fund.
Moneys in the Project Fund shall be used by the City solely and for the purpose
of paying (a) a portion of the costs of the Downtown/Neighborhoods Project, (b)
a portion of the costs of the World War I Museum Project, (c) a portion of the
costs of the Zoo Project, (d) a portion of the costs of the Basic
Infrastructure Project and (e) a portion of the costs of the Chouteau Bridge
Project, as applicable, for which the Bonds have been voted and authorized, as
hereinbefore provided.
Upon completion
of the purpose for which the Bonds have been issued, as applicable, any surplus
remaining in any subaccount of the Project Fund, respectively, shall be
transferred to and deposited in the Debt Service Fund and applied to the next
installment of principal and/or interest due on the Bonds.
Section 504. Application
of Moneys in Debt Service Fund. All
amounts paid and credited to the Debt Service Fund shall be expended and used
by the City for the sole purpose of paying the principal or Redemption Price
of and interest on the Bonds as and when the same become due and the usual and
customary fees and expenses of the Paying Agent. The Director of Finance is
authorized and directed to withdraw from the Debt Service Fund sums sufficient
to pay both principal or Redemption Price of and interest on the Bonds and the
fees and expenses of the Paying Agent as and when the same become due, and to
forward such sums to the Paying Agent in a manner which ensures that the Paying
Agent will receive immediately available funds in such amounts on or before the
business day immediately preceding the dates when such principal, interest and
fees of the Paying Agent will become due. If, through the lapse of time or
otherwise, the Registered Owners of Bonds are no longer entitled to enforce
payment of the Bonds or the interest thereon, the Paying Agent shall return
said funds to the City. All moneys deposited with the Paying Agent shall be
deemed to be deposited in accordance with and subject to all of the provisions
contained in this Ordinance and shall be held in trust by the Paying Agent for
the benefit of the Registered Owners of the Bonds entitled to payment from such
moneys.
Any moneys or
investments remaining in the Debt Service Fund after the retirement of the
indebtedness for which the Bonds were issued and all other indebtedness of the
City shall be transferred and paid into the general fund of the City.
Section 505. Deposits
and Investment of Moneys. Moneys in
each of the funds created by and referred to in this Ordinance shall be
deposited in a bank or banks or other legally permitted financial institutions
located in the State of Missouri that are members of the Federal Deposit
Insurance Corporation. All such deposits shall be continuously and adequately
secured by the banks or financial institutions holding such deposits as
provided by the laws of the State of Missouri. All moneys held in the funds
created by this Ordinance shall be kept separate and apart from all other funds
of the City so that there shall be no commingling of such funds with any other
funds of the City.
Moneys held in
any fund referred to in this Ordinance may be invested in accordance with this
Ordinance and the Arbitrage Instructions in Permitted Investments; provided,
however, that no such investment shall be made for a period extending longer
than to the date when the moneys invested may be needed for the purpose for
which such fund was created. The interest earnings and any profit realized
from Permitted Investments in any fund or account hereunder shall be credited
to the Debt Service Fund and any loss resulting from Permitted Investments in
any fund or account shall be charged to such fund or account.
Section 506. Nonpresentment
of Bonds. If any Bond is not
presented for payment when the principal thereof becomes due at Maturity, if
funds sufficient to pay such Bond have been made available to the Paying Agent
all liability of the City to the Registered Owner thereof for the payment of
such Bond shall forthwith cease, determine and be completely discharged, and
thereupon it shall be the duty of the Paying Agent to hold such funds, without
liability for interest thereon, for the benefit of the Registered Owner of such
Bond, who shall thereafter be restricted exclusively to such funds for any
claim of whatever nature on his part under this Ordinance or on, or with
respect to, said Bond. If any Bond is not presented for payment within four
years following the date when such Bond becomes due at Maturity, the Paying
Agent shall repay to the City the funds theretofore held by it for payment of
such Bond, and such Bond shall, subject to the defense of any applicable
statute of limitation, thereafter be an unsecured obligation of the City, and
the Registered Owner thereof shall be entitled to look only to the City for
payment, and then only to the extent of the amount so repaid to it by the
Paying Agent, and the City shall not be liable for any interest thereon and
shall not be regarded as a trustee of such money.
Section 507. Application
of Moneys in the Rebate Fund.
(a) There
shall be deposited in the Rebate Fund 1) the amount required by Section
502(b) hereof and 2) such amounts as are required to be deposited therein
pursuant to the Arbitrage Instructions. Subject to the payment provisions
provided in subsection (b) and (d) below, all money in the Rebate Fund shall be
held in trust, to the extent required to satisfy the Rebate Amount (as defined
in the Arbitrage Instructions), for payment to the United States of America,
and neither the City nor the Registered Owner of any Bond shall have any rights
in or claim to such money. All amounts deposited into or on deposit in the
Rebate Fund shall be governed by this Section and the Arbitrage Instructions.
(b) The
City shall periodically determine the rebatable arbitrage under Section 148(f)
of the Code in accordance with the Arbitrage Instructions, and the City shall
make payments to the United States of America at the times and in the amounts
determined under the Arbitrage Instructions. Any moneys remaining in the
Rebate Fund after redemption and payment of all of the Bonds and the interest
thereon and payment and satisfaction of any Rebate Amount, or provision made
therefor, shall be released to the City.
(c) Notwithstanding
any other provision of this Ordinance, including in particular
Article VII, the obligation to pay rebatable arbitrage to the United
States and to comply with all other requirements of this Section and the
Arbitrage Instructions shall survive the defeasance or payment in full of the
Bonds.
(d) The
moneys deposited in the Rebate Fund pursuant to Section 502(b) hereof shall be
used by the City to pay the fees and expenses of the Rebate Analyst (as defined
in the Arbitrage Certificate). In the event that the City receives an opinion
of Bond Counsel to the effect that further computations of rebate are not
required under the Code, any unexpended portion of the moneys deposited in the
Rebate Fund pursuant to Section 502(b) hereof shall be transferred to the Debt
Service Fund.
ARTICLE VI
REMEDIES
Section 601. Remedies. The provisions of this Ordinance, including the
covenants and agreements herein contained, shall constitute a contract between
the City and the Registered Owners of the Bonds, and the Registered Owner or
Owners of not less than 10% in principal amount of the Bonds at the time
Outstanding shall have the right for the equal benefit and protection of all
Registered Owners of Bonds similarly situated:
(a) by
mandamus or other suit, action or proceedings at law or in equity to enforce
the rights of such Registered Owner or Owners against the City and its
officers, agents and employees, and to require and compel duties and
obligations required by the provisions of this Ordinance excluding Section 806
or by the constitution and laws of the State of Missouri;
(b) by
suit, action or other proceedings in equity or at law to require the City, its
officers, agents and employees to account as if they were the trustees of an
express trust; and
(c) by
suit, action or other proceedings in equity or at law to enjoin any acts or things
which may be unlawful or in violation of the rights of the Registered Owners of
the Bonds.
Section 602. Limitation
on Rights of Bondowners. The
covenants and agreements of the City contained herein and in the Bonds shall be
for the equal benefit, protection and security of the legal owners of any or
all of the Bonds. All of the Bonds shall be of equal rank and without
preference or priority of one Bond over any other Bond in the application of
the funds herein pledged to the payment of the principal of and the interest on
the Bonds, or otherwise, except as to rate of interest, or date of Maturity or
right of prior redemption as provided in this Ordinance. No one or more
Bondowners secured hereby shall have any right in any manner whatever by his or
their action to affect, disturb or prejudice the security granted and provided
for herein, or to enforce any right hereunder, except in the manner herein
provided, and all proceedings at law or in equity shall be instituted, had and
maintained for the equal benefit of all Registered Owners of such Outstanding
Bonds.
Section 603. Remedies
Cumulative. No remedy conferred
herein upon the Bondowners is intended to be exclusive of any other remedy, but
each such remedy shall be cumulative and in addition to _every other remedy and
may be exercised without exhausting and without regard to any other remedy
conferred herein. No waiver of any default or breach of duty or contract by
the Registered Owner of any Bond shall extend to or affect any subsequent default
or breach of duty or contract or shall impair any rights or remedies consequent
thereon. No delay or omission of any Bondowner to exercise any right or power
accruing upon any default shall impair any such right or power or shall be
construed to be a waiver of any such default or acquiescence therein. Every
substantive right and every remedy conferred upon the Registered Owners of the
Bonds by this Ordinance may be enforced and exercised from time to time and as
often as may be deemed expedient. If any suit, action or proceedings taken by
any Bondowner on account of any default or to enforce any right or exercise any
remedy has been discontinued or abandoned for any reason, or has been
determined adversely to such Bondowner, then, and in every such case, the City
and the Registered Owners of the Bonds shall be restored to their former
positions and rights hereunder, respectively, and all rights, remedies, powers
and duties of the Bondowners shall continue as if no such suit, action or other
proceedings had been brought or taken.
ARTICLE VII
DEFEASANCE
Section 701. Defeasance. When any or all of the Bonds or scheduled interest
payments thereon have been paid and discharged, then the requirements contained
in this Ordinance and the pledge of the Citys faith and credit hereunder and
all other rights granted hereby shall terminate with respect to the Bonds or
scheduled interest payments thereon so paid and discharged. Bonds or scheduled
interest payments thereon shall be deemed to have been paid and discharged
within the meaning of this Ordinance if there has been deposited with the
Paying Agent, or other commercial bank or trust company located in the State of
Missouri and having full trust powers, at or prior to the Stated Maturity or
Redemption Date of said Bonds or the interest payments thereon, in trust for
and irrevocably appropriated thereto, moneys and/or Defeasance Obligations
which, together with the interest to be earned thereon, will be sufficient for
the payment of the principal or Redemption Price of said Bonds and/or interest
to accrue on such Bonds to the Stated Maturity or Redemption Date, or if
default in such payment has occurred on such date, then to the date of the
tender of such payments; provided, however, that if any such Bonds are to be
redeemed prior to their Stated Maturity, (1) the City shall have elected to
redeem such Bonds, and (2) either notice of such redemption shall have been
given, or the City shall have given irrevocable instructions, or shall have
provided for an escrow agent to give irrevocable instructions, to the Paying
Agent to redeem such Bonds in compliance with Section 302(a) of this
Ordinance. Any moneys and Defeasance Obligations that at any time shall be
deposited with the Paying Agent or other commercial bank or trust company by or
on behalf of the City, for the purpose of paying and discharging any of the
Bonds or the interest payments thereon, shall be and are hereby assigned,
transferred and set over to the Paying Agent or other bank or trust company in
trust for the respective Registered Owners of such Bonds, and such moneys shall
be and are hereby irrevocably appropriated to the payment and discharge
thereof. All moneys and Defeasance Obligations deposited with the Paying Agent
or other bank or trust company shall be deemed to be deposited in accordance
with and subject to all of the provisions of this Ordinance.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 801. Tax
Covenants.
(a) The
City covenants and agrees that (1) it will comply with all applicable
provisions of the Code, including Sections 103 and 141 through 150, necessary
to maintain the exclusion from federal gross income of the interest on the
Bonds and (2) it will not use or permit the use of any proceeds of Bonds or any
other funds of the City, nor take or permit any other action, or fail to take
any action, if any such action or failure to take action would adversely affect
the exclusion from federal gross income of the interest on the Bonds. The City
will also pass such other ordinances or resolutions and take such other actions
as may be necessary to comply with the Code and with all other applicable
future law in order to ensure that the interest on the Bonds will remain
excluded from federal gross income, to the extent any such actions can be taken
by the City.
(b) The
City covenants and agrees that (1) it will use the proceeds of the Bonds as
soon as practicable for the purposes for which the Bonds are issued, and (2) it
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 Bonds to be arbitrage bonds within the
meaning of Section 148(a) of the Code.
(c) The
City covenants that it will pay or provide for the payment from time to time of
all rebatable arbitrage to the United States pursuant to Section 148(f) of the
Code and the Arbitrage Instructions. This covenant shall survive payment in
full or defeasance of the Bonds. The Arbitrage Instructions may be amended or
replaced if, in the opinion of Bond Counsel, such amendment or replacement will
not adversely affect the exclusion from federal gross income of interest on the
Bonds.
(d) The
City covenants that it will not use any portion of the proceeds of the Bonds,
including any investment income earned on such proceeds, directly or
indirectly, in a manner that would cause any Bond to be a private activity
bond within the meaning of Section 141 of the Code.
(e) The
foregoing covenants shall remain in full force and effect notwithstanding the
defeasance of the Bonds pursuant to Article VII or any other provision of this
Ordinance, until the final Maturity of all Bonds Outstanding.
Section 802. Annual
Audit. In accordance with the provisions of Section 85, Article IV, of the
Citys Charter, the Council will provide that an independent certified audit of
the Citys books and records will be made annually by certified public
accountants, experienced and qualified in municipal and governmental
accounting. Each such audit shall be detailed in scope and said accountants
shall certify as to the correctness of the schedules contained in the audit
report. All such schedules shall be incorporated in the annual financial
report relating to the Citys finances, required by Section 96, Article IV, of
the Citys Charter. A copy of each such annual report will be filed with the
City Clerk and will be open for public inspection.
Section 803. Amendments. The rights and duties of the City and the
Bondowners, and the terms and provisions of the Bonds or of this Ordinance, may
be amended or modified at any time in any respect by Ordinance of the City with
the written consent of the Registered Owners of not less than a majority in
principal amount of the Bonds then Outstanding, such consent to be evidenced by
an instrument or instruments executed by such Registered Owners and duly
acknowledged or proved in the manner of a deed to be recorded, and such
instrument or instruments shall be filed with the City Clerk, but no such
modification or alteration shall:
(a) extend
the maturity of any payment of principal or interest due upon any Bond;
(b) effect
a reduction in the amount which the City is required to pay as principal of or
interest on any Bond;
(c) permit
preference or priority of any Bond over any other Bond; or
(d) reduce
the percentage in principal amount of Bonds required for the written consent to
any modification or alteration of the provisions of this Ordinance.
Any provision of
the Bonds or of this Ordinance may, however, be amended or modified by
Ordinance duly adopted by the governing body of the City at any time in any
legal respect with the written consent of the Registered Owners of all of the
Bonds at the time Outstanding.
Without notice to
or the consent of any Bondowners, the City may amend or supplement this
Ordinance for the purpose of curing any formal defect, omission, inconsistency
or ambiguity therein or in connection with any other change therein which is
not materially adverse to the interests of the Bondowners.
Every amendment
or modification of the provisions of the Bonds or of this Ordinance, to which
the written consent of the Bondowners is given, as above provided, shall be
expressed in an ordinance adopted by the governing body of the City amending or
supplementing the provisions of this Ordinance and shall be deemed to be a part
of this Ordinance. A certified copy of every such amendatory or supplemental
Ordinance, if any, and a certified copy of this Ordinance shall always be kept
on file in the office of the City Clerk, and shall be made available for
inspection by the Registered Owner of any Bond or a prospective purchaser or
owner of any Bond authorized by this Ordinance, and upon payment of the
reasonable cost of preparing the same, a certified copy of any such amendatory
or supplemental Ordinance or of this Ordinance will be sent by the City Clerk to
any such Bondowner or prospective Bondowner.
Any and all
modifications made in the manner hereinabove provided shall not become
effective until there has been filed with the City Clerk a copy of the
Ordinance of the City hereinabove provided for, duly certified, as well as
proof of any required consent to such modification by the Registered Owners of
the Bonds then Outstanding. It shall not be necessary to note on any of the
Outstanding Bonds any reference to such amendment or modification.
The City shall
furnish to the Paying Agent a copy of any amendment to the Bonds or this
Ordinance which affects the duties or obligations of the Paying Agent under
this Ordinance.
Section 804. Notices,
Consents and Other Instruments by Bondowners. Any notice, consent, request, direction, approval or other instrument
to be signed and executed by the Bondowners may be in any number of concurrent
writings of similar tenor and may be signed or executed by such Bondowners in
person or by agent appointed in writing. Proof of the execution of any such
instrument or of the writing appointing any such agent and of the ownership of
Bonds, other than the assignment of ownership of a Bond, if made in the
following manner, shall be sufficient for any of the purposes of this Ordinance,
and shall be conclusive in favor of the City and the Paying Agent with regard
to any action taken, suffered or omitted under any such instrument, namely:
(a) The
fact and date of the execution by any person of any such instrument may be
proved by a certificate of any officer in any jurisdiction who by law has power
to take acknowledgments within such jurisdiction that the person signing such
instrument acknowledged before such officer the execution thereof, or by
affidavit of any witness to such execution.
(b) The
fact of ownership of Bonds, the amount or amounts, numbers and other
identification of Bonds, and the date of holding the same shall be proved by
the Bond Register.
In determining
whether the Registered Owners of the requisite principal amount of Bonds
Outstanding have given any request, demand, authorization, direction, notice,
consent or waiver under this Ordinance, Bonds owned by the City shall be
disregarded and deemed not to be Outstanding under this Ordinance, except that,
in determining whether the Bondowners shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Bonds which the Bondowners know to be so owned shall be so disregarded.
Notwithstanding the foregoing, Bonds so owned which have been pledged in good
faith shall not be disregarded as aforesaid if the pledgee establishes to the
satisfaction of the Bondowners the pledgees right so to act with respect to
such Bonds and that the pledgee is not the City.
Section 805. Further
Authority. The officers of the City,
including the Mayor and City Clerk, are hereby authorized and directed to
execute all documents and take such actions as they may deem necessary or
advisable in order to carry out and perform the purposes of this Ordinance and
to make ministerial alterations, changes or additions in the foregoing
agreements, statements, instruments and other documents herein approved,
authorized and confirmed which they may approve, and the execution or taking of
such action shall be conclusive evidence of such necessity or advisability.
Section 806. Continuing
Disclosure. The City covenants and
agrees to enter into a Continuing Disclosure Agreement for the benefit of the
Bondholders or similar undertaking intended to satisfy the ongoing disclosure
requirements of Securities and Exchange Commission Rule 15c2-12 and the
Director of Finance is authorized to execute and deliver the Continuing
Disclosure Agreement.
Section 807. Severability. If any section or other part of this Ordinance,
whether large or small, is for any reason held invalid, the invalidity thereof
shall not affect the validity of the other provisions of this Ordinance.
Section 808.
Approval of Contracts. The City
hereby approves the selection of Gilmore & Bell, P.C. and The Martinez Law
Firm, LLC as co-bond counsel for the Bonds and approves the selection of
Springsted Incorporated and Valdes & Moreno, Inc. as the Citys
co-financial advisors and approves and ratifies all contracts in connection
with such selection.
Section 809. Electronic
Storage. The City agrees that the transactions described herein may be
conducted and related documents may be stored by electronic means.
Section 810. Governing
Law. This Ordinance shall be governed
exclusively by and construed in accordance with the applicable laws of the
State of Missouri.
Section 811. Effective
Date. This Ordinance shall take
effect and be in full force ten (10) days after its passage.
____________________________________________________________
Approved
as to form and legality:
_________________________________
Heather
A. Brown
Assistant
City Attorney