principal amount remains
Outstanding; its Water Refunding Revenue Bonds, Series 1996A, in the original
principal amount of $45,550,000.00 of which $38,165,000.00 principal amount
remains Outstanding; its Water Revenue Bonds, Series 1996B, in the original principal
amount of $28,000,000.00 of which $25,305,000.00 principal amount remains
Outstanding; its Water Refunding Revenue Bonds, Series 1998A in the original
principal amount of $38,260,000.00 of which $38,260,000.00 remains Outstanding,
and its Water Revenue Bonds, Series 1998B in the original principal amount of
$14,410,000.00 of which $13,970,000.00 principal amount remains Outstanding;
and
WHEREAS, it is
hereby found and determined that it is necessary and advisable in the best
interests of the City and of its inhabitants at this time to authorize the
issuance and delivery of $25,000,000.00 principal amount of Water Revenue Bonds
to provide funds for the purpose of extending and improving the waterworks
system of the City, as 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 the words and terms otherwise
defined herein, unless the context shall clearly indicate some other meaning,
the words and terms as used in this Ordinance shall have the following
meanings:
"Additional
Bonds" means any bonds on a parity with the Bonds issued pursuant to and
in accordance with Section 902 of the Ordinance.
"Arbitrage
Instructions" means the Arbitrage Instructions attached as Exhibit A to
the Citys Arbitrage Certificate, as the same may be amended or supplemented in
accordance with the provisions thereof.
"Bond
Counsel" means the Hardwick Law Firm LLC and McDowell, Rice, Smith &
Gaar, a Professional Corporation, or other attorney or firm of attorneys with a
nationally recognized standing in the field of municipal bond financing.
"Bond
Payment Date" means any date on which principal of or interest on any Bond
is payable at Maturity or any Interest Payment Date.
"Bond
Register" means the books for registration, transfer and exchange of Bonds
kept at the office of the Paying Agent as bond registrar.
"Bond
Reserve Account" means, with respect to each Series of Bonds, the account
established for deposit and maintenance of the bond reserve requirement, if
any, with respect to such Series of Bonds.
"Bond
Reserve Requirement" means the amount on the date of original issuance and
delivery of the Bonds equal to the least of (a) ten percent (10%) of the stated
principal amount of the Bonds, (b) the maximum Debt Service Requirements for
the Bonds during any fiscal year or (c) 125% of the average annual Debt Service
Requirements for the Bonds over the term of the Bonds. If the aggregate initial
offering price of the Bonds to the public is less than 98% or more than 102% of
par, such offering price shall be used in clause (a) in lieu of the stated
principal amount.
"Bondowner"
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 Water Revenue Bonds, Series 2000A of the City, in the aggregate
principal amount of $25,000,000.00 authorized and issued 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.
"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.
"Council"
means the City Council of the City.
"Debt
Service Requirements" means the aggregate principal payments (whether at
maturity or pursuant to scheduled mandatory sinking fund redemption
requirements) and interest payments on all Water Revenue Bonds for the period
of time for which calculated; provided, however, that for purposes of
calculating such amount, principal and interest shall be excluded from the
determination of Debt Service Requirements to the extent that such principal or
interest is payable from amounts deposit in trust, escrowed or otherwise set
aside for the payment thereof with the Paying Agent or other commercial bank or
trust company located in the State and having full trust powers.
"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 call 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 serving as security for the 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 serving as security for the
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 Moody's Investors
Service, Inc. (presently "Aaa") or Standard & Poor's Ratings
Group (presently "AAA").
"Depository"
means DTC.
"Director"
means the Director or any Deputy Director of the Department of Water Services
of the City.
"DTC"
means The Depository Trust Company.
"Fiscal
Year" means the City's fiscal year then in effect.
"Global Bond
Certificate" means one or more Bond certificates of the City, representing
the entire principal amount of a particular Series due on a particular Stated
Maturity, immobilized from general circulation in the Depository.
"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 call for optional or mandatory redemption or
otherwise.
"Maximum
Annual Debt Service" means the maximum amount of Debt Service Requirement
as computed for the then current or any future Fiscal Year.
"Ordinance"
means this Ordinance as from time to time amended.
"Outstanding"
means, when used with reference to Bonds, as of any particular date, all Bonds
theretofore issued and delivered hereunder, except the following Bonds:
(a) Bonds
theretofore canceled 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 1101; and
(c) Bonds
in exchange for or in lieu of which other Bonds have been registered and
delivered.
"Parity
Bonds" means the Series C Bonds, the Series D Bonds, the Series 1996A
Bonds, the Series 1996B Bonds, the Series 1998A Bonds and the Series 1998B
Bonds Outstanding on the date of the issuance and delivery of the Bonds.
"Parity
Ordinances" means the ordinances heretofore adopted by the City under
which the outstanding Parity Bonds have been issued, and the ordinances under
which any additional Parity Bonds are hereafter issued pursuant to section 902
of the Ordinance.
"Participants"
means those financial institutions for whom the Depository effects book_entry
transfers and pledges of securities deposited with the Depository.
"Paying
Agent" means the paying agent selected from time to time by the Director
of Finance.
"Permitted
Investments" means any of the following securities and obligations, if and
to the extent the same are at the time legal for investment of the Citys
moneys held in the funds and accounts referred to in Article V:
1. United
States Treasury Securities (Treasury Notes, Bills, Strips and Bonds). The City
may invest in 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.
2. United
States Agency Securities. The City may invest in obligations issued or
guaranteed by any agency of the United States Government which have a liquid
market and a readily determinable market value that are described as follows:
a. U.S. Government Agency Coupon and Zero
Coupon Securities. Bullet coupon bonds with no embedded options.
b. U.S. Government Agency Discount Notes.
Purchased at a discount with maximum maturities of one (1) year.
c. U.S. Government Agency Callable Securities.
Restricted to securities callable at par only with final maturities of three
(3) years.
d. 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 term. Restricted to securities with final
maturities of three (3) years.
e. U.S. Government Agency Floating Rate
Securities The coupon rate floats off one index. Restricted to coupons with
no interim caps that reset at least quarterly.
f. U.S. Government Mortgage Backed
Securities. Restricted to securities with final maturities of three years (3)
years.
3. Repurchase
Agreements. The City may invest in contractual agreements between the City and
commercial banks or primary government securities dealers. The Bond Market
Associations guidelines for the Master Repurchase Agreement will be used.
4. Bankers
Acceptances. The City may invest in bankers acceptances issued by domestic
commercial banks possessing the highest rating issued by Moodys Investor
Services, Inc. or Standard and Poors Corporation.
5. Commercial
Paper. The City may invest in 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. ($500,000,000.00)
6. Any
full faith and credit obligations of the State of Missouri.
7. Any
full faith and credit obligations of any county in which the City is located.
8. Any
full faith and credit obligations of any school district in Kansas City,
Missouri.
9. Any
full faith and credit obligations or revenue bonds of the City of Kansas City,
Missouri.
"Person"
means any natural person, corporation, partnership, joint venture, association,
joint_stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof or other public body.
"Project"
means the extensions and improvements of the City's waterworks system, as
approved by the voters of the City at the election held on August 6, 1996.
"Project
Fund" means the fund by that name created by Section 502 of this
Ordinance.
"Purchaser"
means the original purchaser of the Bonds.
"Rebate
Fund" means the account by that name created pursuant to Section 502 of
this Ordinance.
"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 redemption pursuant to the 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 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) hereof.
"Revenues"
means all income and revenues derived and accrued by the City from the
ownership and operation of the System, including interest received on moneys
and securities held pursuant to the Ordinance that is paid and credited to the
Waterworks Revenue Fund pursuant to Section 501 of the Ordinance and any
amounts held in escrow in connection with the construction of extensions and
improvements to the System to be applied during the period of determination to
pay interest on water system revenue bonds.
"Securities
Depository" means initially, The Depository Trust Company, New York, New
York, and its successors and assigns.
"Series"
and "Series of Bonds" means any series of Additional Bonds.
"Series C
Bonds" means the Water Revenue Bonds, 7th Issue, Series C, of the City
authorized by Committee Substitute for Ordinance No. 911538.
"Series D
Bonds" means the Water Revenue Bonds, 7th Issue, Series D, of the City
authorized by Committee Substitute for Ordinance No. 941459.
"Series
1996A Bonds" means the Water Refunding Revenue Bonds, Series 1996A, of the
City authorized by Committee Substitute for Ordinance No. 960924.
"Series
1996B Bonds" means the Water Revenue Bonds, Series 1996B, of the City
authorized by Committee Substitute for Ordinance No. 961462.
"Series
1998A Bonds" means the Water Refunding Revenue Bonds, Series 1998A, of the
City authorized by Committee Substitute for Ordinance No. 980278.
"Series
1998B Bonds" means the Water Revenue Bonds, Series 1998B, of the City
authorized by Committee Substitute for Ordinance No. 980296.
"Special
Record Date" for the date fixed by the Paying Agent pursuant to Section
204 for the payment of any Defaulted Interest.
"Stated
Maturity" when used with respect to any Bond or any installment of
interest thereon means the date specified in the Ordinance as the fixed date on
which the principal of such Bond or such installment of interest is due and
payable.
"Surety
Bond" means any surety bond or debt service reserve fund policy issued by
a Surety Provider guaranteeing or insuring certain payments into the 2000A Bond
Reserve Account with respect to the Bonds as provided therein and subject to
the limitations set forth therein.
"Surety
Provider" shall mean Financial Guaranty Insurance Corporation.
"Surplus
Account" means the account by that name created pursuant to Section 502 of
the Ordinance.
"System"
means the entire waterworks plant and system owned and operated by the City for
the production, storage, treatment and distribution of water, to serve the
needs of the City and its inhabitants and others, including all appurtenances
and facilities connected therewith or relating thereto, together with all
extensions, improvements, additions and enlargements thereto hereafter made or
acquired by the City. At the discretion of the City there may be excluded from
the System facilities which are hereafter constructed or acquired, connected or
separate from the System, which are not financed with the proceeds of revenue
bonds payable from the revenues of the System, and for which the City maintains
separate and distinct operations, facilities and records, and which if connected
to the System are billed for System use as a customer of the System in
accordance with the ordinances and regulations of the City.
"2000A
Bonds" means the Water Revenue Bonds, Series 2000A, of the City,
authorized by the Ordinance.
"2000A Bond
Reserve Account" means the "Water Revenue Bonds, Series 2000A,
Reserve Account" created pursuant to Section 502 of the Ordinance.
"2000A Water
Debt Fund" means the "Water Revenue Bonds, Series 2000A, Principal
and Interest Sinking Fund" created pursuant to Section 502 of the
Ordinance.
"Terms
Ordinance" means an ordinance of the City adopted prior to the issuance of
the Bonds, which, among other matters, establishes the maturities, interest
rates and sinking fund redemption provisions for the Bonds.
"United States
Government Obligations" means bonds, notes, 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), or
securities which represent an undivided interest in such obligations, which
obligations are rated in the highest rating category by a nationally recognized
rating service, and such obligations are held in a custodial or trust account for
the benefit of the City.
"Water
Revenue Bonds" means collectively the Bonds, the Parity Bonds and all
other revenue bonds which are payable out of, or secured by an interest in, the
income and Revenues derived from the operation of the System.
"Waterworks
Revenue Fund" means the fund created pursuant to Section 15 of the
Committee Substitute for Ordinance No. 63168 and referred to in Section 501 of
this Ordinance.
ARTICLE II
AUTHORIZATION OF BONDS
Section 201.
Authorization of the Bonds. The Council hereby authorizes and directs the
issuance of the Water Revenue Bonds, Series 2000A, of the City in the principal
amount of $25,000,000.00, for the purpose of providing funds to pay part of
the cost of the Project, as provided in this Ordinance.
Section 202.
Description of the Bonds. The Bond shall consist of fully registered bonds
without coupons, numbered from 1 upward, in the denomination of $5,000 or any
integral multiple thereof and not exceeding the principal amount of Bonds
maturing in the year in which such Bond becomes due, as may be specified by the
Owner of such Bond. The Bonds, as originally issued or issued upon transfer,
exchange or substitution, shall be substantially in the form set forth in
Section 401 to this Ordinance, with appropriate insertions and deletions as are
approved by the Director of Finance, which approval will be conclusively
evidenced by the Director of Finance's signature on the Bonds. The Bonds shall
be subject to registration, transfer and exchange as provided in Section 205 of
this Ordinance. The Bonds shall be dated February 15, 2000, shall become due in
the amounts on the Stated Maturities as provided in below (subject to optional
and mandatory redemption prior to their Stated Maturities as provided in Article
III hereof), and shall bear interest at the rates per annum to be determined
upon the sale of the Bonds as set forth in the Terms Ordinance.
Stated Maturity Principal Stated
Maturity Principal
December 1 Amount
December 1 Amount
2000 $
590,000.00 2010 $1,125,000.00
2001
735,000.00 2011
1,185,000.00
2002
765,000.00 2012
1,245,000.00
2003
800,000.00 2013
1,315,000.00
2004
835,000.00 2014
1,385,000.00
2005
875,000.00 2015
1,465,000.00
2006
920,000.00 2016
1,550,000.00
2007
965,000.00 2017
1,640,000.00
2008
1,015,000.00 2018
1,735,000.00
2009
1,070,000.00 2019
1,840,000.00
2020
1,945,000.00
At the election
of the original purchasers of the Bonds, term Bonds maturing in the year 2020
may be issued in lieu of serial Bonds with Stated Maturities as in this section
provided and such term Bonds shall be subject to mandatory redemption in the
annual amounts and on the dates set forth in this section as the Stated
Maturities for such serial Bonds.
The Bonds shall
bear interest (computed on the basis of a 360_day year of twelve 30_day months)
from the most recent Interest Payment Date to which interest has been paid in
full or, if no interest has been paid, from February 15, 2000. Interest on the
Bonds shall be payable semiannually on June 1 and December 1 in each year,
commencing June 1, 2000, and at their Stated Maturity.
Section 203.
Designation of Paying Agent and Bond Registrar. The Director of Finance shall
designate the Paying Agent for the payment of principal of and interest on the
Bonds and Bond Registrar with respect to the registration, transfer and
exchange of Bonds.
The City will at
all time 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 by (1) filing with the bank or trust company
then performing such function a certified copy of the proceedings giving notice
of the termination of such bank or trust company and appointing a successor,
and (2) causing notice 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 the Paying Agent.
Every Paying
Agent appointed shall at all times be a corporation with trust powers
authorized to do business in the State of Missouri and organized under the
banking laws of the United States or the State of Missouri and have a reported
capital, surplus, and undivided profits or be wholly owned by an entity having
a reported capital, surplus, and undivided profits of at least $25,000,000.00.
The Paying Agent
shall be paid the usual fees and expenses for its services in connection
therewith, which fees and expenses shall be paid as other Expenses are paid.
Section 204.
Method and Place of Payment of Bonds. The principal or Redemption Price of 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 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
Maturity thereof, upon presentation and surrender of such Bond at the principal
corporate trust 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 (a) by check or draft mailed to
the Registered Owner at the address as it appears in the Bond Register or (b)
at the option of Registered Owner of such Bonds in the aggregate principal
amount of not less than $1,000,000.00 by wire transfer to an account designated
by such Registered Owner, upon written notice given to the Paying Agent by such
Registered Owner not later than 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
any of the foregoing provisions of this Section to the contrary, any interest
on the Bonds which is payable, but is not punctually paid on any Interest
Payment Date (herein called "Defaulted Interest"), shall be payable
to the Persons in whose names the Bonds are registered at the close of business
on a Special Record Date. The Special Record Date shall be fixed in the
following manner: (a) the City shall notify the Bond Registrar and the
Depository in writing of the amount of Defaulted Interest proposed to be paid
on the Bonds and the date of the proposed payment, which proposed payment date
shall be at least thirty (30) days after receipt of the Bond Registrar of such
notice from the City; (b) at the same time the City shall deposit with the
Paying Agent an amount of money equal to the aggregate amount 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;
and (c) thereupon, the Bond Registrar shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be fifteen (15) calendar days
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 shall at least annually 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 principal office of the Paying Agent for registration, transfer and
exchange of Bonds as herein provided. Each Bond when issued shall be registered
in the name of the Registered Owner as to both principal and interest in the
Bond Register.
Bonds may be
transferred in the Bond Register only on the Bond Register as provided in this
Section. Upon surrender of any Bond at the principal corporate trust office of
the Paying Agent, the Paying Agent shall transfer or exchange such bond for a
new Bond or Bonds in any authorized denominations 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 Owner's 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 given or during the period beginning at the opening of business fifteen
(15) days preceding the date of mailing of a notice of redemption for Bonds
selected for 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 this Ordinance.
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 any Bond and for all other
purposes. All payments so made to any such Registered Owner or upon the
Registered Owner's order shall be valid and effectual 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 (or a
designated representative thereof) of 10% or more in principal amount of the
Bonds then Outstanding or any designated representative of such Registered
Owners to be evidenced to the satisfaction of the Paying Agent.
Section 206.
Execution, Authentication and Delivery of the Bonds. Each of the Bonds,
including any Bonds issued in exchange or as substitute for Bonds initially
delivered, shall be executed on behalf of the City by the manual or facsimile
signature of its Mayor and attested by the manual or facsimile certificate of
its City Clerk and countersigned by the manual signature of the Director of
Finance of the City, and shall have the seal of the City affixed thereto or
imprinted thereon. In the event any officer whose signature or facsimile
thereof appears on any Bond shall cease to be such officer before the delivery
of such Bond, such signature or facsimile thereof shall nevertheless be valid
and sufficient for all purposes, the same as if such person had remained in office
until delivery. Any Bond may be executed by such persons as at the actual time
of the execution of such Bond shall be the proper officers to sign such Bond
although at the original 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 as herein specified, and when duly executed, to
deliver the Bonds to the Paying Agent for authentication. The Director of
Finance is hereby authorized and directed to deliver the Bonds to the original
purchasers thereof upon the payment of the purchase price of the principal
amount of the Bonds plus premium, if any, and accrued interest to the date of
payment and delivery.
The Bonds shall have
endorsed thereon a Certificate of Authentication substantially in the form
hereinafter set forth which shall have the registration date inserted and shall
be manually executed by 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 shall be valid or
obligatory for any purpose unless and until such Certificate of Authentication
shall have been duly executed by the Paying Agent by manual signature. Such
executed Certificate of Authentication upon any Bond shall be conclusive
evidence that such Bond has been duly authenticated and delivered under this
Ordinance and that such Owner has been entered on record in the Bond Register
kept by the Bond Registrar. The Certificate of Authentication shall be deemed
to have been duly executed if the Registration Date has been inserted and if it
has been signed and dated by an authorized officer or employee of the Paying
Agent.
Section 207.
Mutilated, Lost, Stolen or Destroyed Bonds. In the event any Global Bond
Certificate or replacement Bond shall become mutilated, or be lost, stolen or
destroyed, the City shall execute and the Bond Registrar shall authenticate and
shall deliver a new Bond of like date and tenor as the Bond mutilated, lost,
stolen or destroyed, provided that, in the case of any mutilated Bond, such
mutilated Bond shall first be surrendered to the Bond Registrar, and in the
case of any lost, stolen or destroyed Bond, there shall be first furnished to
the City and the Bond Registrar evidence of such loss, theft or destruction
satisfactory to the City and the Bond Registrar, together with indemnity
satisfactory to them to save each of them harmless, and provided further that
any applicable statutory requirements pertaining to mutilated, lost, stolen or
destroyed Bonds are met. In the event any such Bond shall have matured, instead
of issuing a replacement Bond the City may pay or authorize the payment of the
same without surrender thereof. Upon the issuance of any replacement Bond, the
City and the Bond Registrar may require the payment of any amount sufficient to
reimburse the City and the Bond Registrar for any tax or other governmental
charge that may be imposed with respect thereto and any other reasonable fees
and expenses incurred in connection therewith. The provisions of this Section
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, lost, stolen
or destroyed Bonds.
Section 208.
Cancellation and Destruction of Bonds Upon Payment. All Bonds surrendered for
payment, redemption, transfer or exchange shall be delivered to the Bond
Registrar and, if not already canceled, the Bond Registrar shall cancel such
Bonds and record such cancellation in the Bond Register. The Bond Registrar
shall file a certificate describing the Bonds so cancelled with the City.
Section 209.
Preliminary and Final Official Statement. The Preliminary Official Statement,
in the form on file in the office of the Director of Finance, 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 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 judgement
deem necessary to enable the Purchaser to comply with such 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 Only System.
(a) Notwithstanding
any other provision hereof, upon initial issuance of the Bonds, the Bonds shall
be registered in the name of Cede & Co., as nominee of DTC. Except as
provided in this Section 210, all of the outstanding Bonds shall be registered
in the name of Cede & Co., as nominee of DTC. The definitive Bonds shall be
initially issued in the form of one typewritten certificate for each stated
maturity of the Bonds.
(b) With
respect to the Bonds registered in the name of Cede & Co., as nominee of
DTC, the City and the Paying Agent shall have no responsibility or obligation
to any DTC Participant or to any person on behalf of whom such a DTC
Participant holds an interest in the Bonds, without limiting the immediately
preceding sentence, the City and the Paying Agent shall have no responsibility
or obligation with respect to (i) the accuracy of the records of DTC, Cede
& Co. or any DTC Participant with respect to any ownership interest in the
Bonds, (ii) the delivery to any DTC Participant or any other person, other than
a registered Owner, as shown on the registration books of the City maintained
by the Paying Agent, of any notice with respect to the Bonds, including any
notice of redemption, or (iii) the payment to any DTC Participant or any other
person, other than a registered Owner, as shown in the registration books of
the City maintained by the Paying Agent, of the principal, interest and
premium, if any, with respect to the Bonds. Notwithstanding any other provision
of this Ordinance to the contrary, the City and the Paying Agent shall be
entitled to treat and consider the person in whose name each Bond is registered
in the Bond Register as the absolute owner of such Bond for the purpose of
payment of the principal, interest and premium, if any, with respect to the
Bonds, for the purpose of registering transfer with respect to such Bond, and
for all other purposes whatsoever. The Paying Agent shall pay the principal,
interest and premium, if any, with respect to the Bonds only to or upon the
order of the respective Owners, as shown in the registration books of the City
maintained by the Paying Agent, as provided in this Ordinance, or their
representative duly authorized in writing, and all such payments shall be valid
and effective to fully satisfy and discharge the City's obligations with
respect to payment of the principal, interest and premium, if any, on the Bonds
to the extent of the sum or sums so paid. No person other than a registered
Owner shall receive a Bond certificate evidencing the obligation of the City to
make payments of amounts due pursuant to this Ordinance. Upon delivery by DTC
to the Paying Agent of written notice to the effect that DTC has determined to
substitute a new nominee in place of Cede & Co., the phrase "Cede
& Co" in this Ordinance shall refer to such new nominee of DTC.
(c) Successor
Securities Depository: Transfer Outside Book_Entry Only System. In the event
that (i) the City (or DTC Participants owning at least fifty percent (50%) of
the Bonds based on current DTC records) determines that DTC is incapable of
discharging its responsibilities described herein and in any representation
letter ("Letter of Representations") of the City and the Paying Agent
to DTC, (ii) the agreement among the City, the Paying Agent and DTC evidenced
by any such Letter of Representations, or (iii) the City (or DTC Participants
owning at least fifty percent (50%) of the Bonds based on current DTC records)
determines that it is in the best interest of the Beneficial Owners of the
Bonds that they be able to obtain certificated Bonds, the City shall (A)
appoint a successor securities depository, qualified to act as such under
Section 17(a) of the Securities and Exchange Act of 1934, as amended, notify
DTC and DTC Participants of the appointment of such successor securities
depository and transfer one or more Bonds to such successor securities
depository, in which event the Bonds shall be registered in the name of the
successor securities depository or its nominee, or (B) notify DTC and DTC
Participants of the availability through DTC of certificated Bonds and transfer
one or more separate Bonds to DTC Participants having Bonds credited to their
DTC accounts, in which event the Bonds shall be registered in whatever name or
names registered Owners transferring or exchanging Bonds shall designate, in
accordance with the provisions of this Ordinance. In connection therewith, the
Paying Agent may rely conclusively upon information provided by DTC with respect
to the identity and interests of the DTC Participants and upon information
provided by said DTC Participants with respect to the Beneficial Owners of the
Bonds. The City under such circumstances agrees to provide to the Paying Agent
a sufficient supply of Bond certificates to meet the Paying Agent's
requirements, including without limitation Bond certificates for use in the
case of transfers and exchanges of Bonds.
(d) Payments
to Cede & Co. Notwithstanding any other provision of this Ordinance to the
contrary, so long as any Bonds are registered in the name of Cede & Co., as
nominee of DTC, all payments of the principal, interest and premium, if any,
with respect to such Bonds, and all notices with respect to such Bonds, shall
be made and given, respectively, in the manner provided in the Letter of
Representations of the City and the Paying Agent to DTC.
Section 211.
Persons Deemed Owners of Bonds. The Person in whose name any Bond shall be
registered in the Bond Register shall be deemed and regarded by the City, the
Bond Registrar and the Paying Agent as the absolute owner thereof, whether such
Bond shall be overdue or not, for the purpose of receiving payment therefor or
on account thereof and for all purposes, and neither the City, the Bond Registrar
nor the Paying Agent shall be affected by notice to the contrary. Payment of or
on account of the principal of, premium, if any, and interest on any Bond shall
be made only to or upon the order of the Owner thereof or agent duly authorized
in writing. All such payments shall be valid and effectual to satisfy and
discharge the liability upon such Bond, including the interest thereon, to the
extent of the sum or sums so paid.
ARTICLE III
REDEMPTION OF BONDS
Section 301.
Redemption of Bonds. The Bonds shall be subject to redemption and payment
prior to their Stated Maturities as follows:
(a) Mandatory
Redemption. In the event term Bonds are issued are issued as provided in
Section 202 of this Ordinance, 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
Dates, without premium. The City shall redeem on such dates the principal
amounts set forth as serial maturities by this ordinance and the remaining
principal amount of Bonds maturing on December 1, 2020, shall be paid at their
Stated Maturity.
The Paying Agent
shall each year in which Bonds maturing on December 1, 2020, are to be redeemed
pursuant to this subsection make timely selection of such Bonds or portion of
such Bonds to be so redeemed and shall gave notice thereof as hereinafter
provided. Upon instructions duly given by the City, moneys deposited in the
hereinafter referred to "2000A Water Debt Fund" may be used at any
time after December 1, in the year next preceding the first of such mandatory
redemption to purchase Bonds maturing on December 1, 2020, in the open market
at a price not in excess of their principal amount and moneys deposited in the
2000A Water Debt Fund may be used for the purpose of paying interest on the
Bonds so purchased at the rate specified thereon to the date of purchase. Each
bond so purchased shall be credited at 100% of the principal amount thereof on
the obligation of the City to redeem Bonds on the next mandatory redemption
date applicable to Bonds of such Stated Maturity, and the principal amount of
Bonds of such Stated Maturity to be redeemed by operation of the preceding
paragraph shall be reduced accordingly.
(b) Optional
Redemption. The Bonds maturing on December 1, 2011, and thereafter shall be
subject to redemption and payment prior to their Stated Maturities at the
option of the City on and after December 1, 2010, at any time as a whole or in
part on any Interest Payment Date from maturities selected by the City (Bonds
of less than a full maturity to be selected in multiples of $5,000.00 principal
amount by the Paying Agent in such equitable manner as it shall designate), at
the redemption price equal to the principal amount thereof, plus accrued
interest to the Redemption Date.
Section 302.
Selection of Bonds to be Redeemed. The Paying Agent shall call Bonds for
redemption and payment as herein provided upon receipt at least forty-five (45)
days prior to the Redemption Date of a written request of the City; provided,
however, that no such request shall be required for mandatory redemption of
Bonds pursuant to section 301(a). Such request shall specify the principal
amount of the Bonds to be called for redemption, the Redemption Price or
Price(s) and the Redemption Date.
Bonds shall be redeemed
in the principal amount of $5,000.00 or an integral multiple thereof. In the
case of a partial redemption of Bonds of the same Stated Maturity, the Bonds to
be redeemed shall be selected by the Paying Agent from the Outstanding Bonds of
that Stated Maturity by such methods as the Paying Agent shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal of Outstanding Bonds of that Stated Maturity that have been
issued in a denomination larger than $5,000.00. The portions of the principal
of Outstanding Bonds so selected for partial redemption shall be equal to
$5,000.00 or integral multiples thereof. Any Bond which is to be redeemed only
in part shall be submitted to the Paying Agent and delivered to the Bond
Registrar, who shall authenticate and deliver to the Owner of such Bond,
without service charge, a new Bond or Bonds, of any authorized denomination as
requested by such Owner in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Bond so surrendered. If the
Owner of any such Bond of a denomination greater than $5,000.00 shall fail 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 principal amount of such Bond called for redemption (and to
that extent only).
Section 303.
Notice and Effect of Call for Redemption. The Paying Agent shall give written
notice in the name of the City of its intention to redeem and pay Bonds at the
principal corporate trust office of the Paying Agent or such other office as
the Paying Agent may designate. Notice of redemption shall be given by first
class mail, postage prepaid, mailed not less than thirty (30) days prior to the
Redemption Date, to each Owner of Bonds to be redeemed, at such Owner's address
appearing in the Bond Register. All notices of redemption shall state:
(a) The
Redemption Date;
(b) The
Redemption Price;
(c) 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;
(d) That
on the Redemption Date, the Redemption Price will become due and payable upon
each such Bond, and that interest thereon shall cease to accrue from and after
said date;
(e) The
place where such Bonds are to be surrendered for payment of the Redemption
Price; and
(f) The
Bond Number and CUSIP number, if any.
The failure of
the Owner of any Bond to be redeemed to receive written notice mailed as
hereinabove provided shall not affect or invalidate the redemption of said
Bond. If any Bond is called for redemption and payment as aforesaid, all
interest on such Bond shall cease from and after the date for which such call
is made, provided funds are made available to the Paying Agent for its payment
on the Redemption Date at the Redemption Price.
The Paying Agent
is also directed to comply with any mandatory or voluntary standards then in
effect for processing redemptions of municipal securities established by the
Securities and Exchange Commission. Failure to comply with such standards shall
not affect or invalidate the redemption of any Bond to be redeemed.
ARTICLE IV
FORM OF BONDS; SECURITY FOR BONDS
Section 401.
Form of Bonds. The Series 2000A 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 Series 2000A Bonds.
FORM OF BOND
Unless this certificate is
presented by an authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), to the City or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
REGISTERED REGISTERED
NUMBER R ________ $
________________
UNITED STATES OF AMERICA
STATE OF MISSOURI
CITY OF KANSAS CITY
WATER REVENUE BOND
SERIES 2000A
Interest Maturity Dated
CUSIP
Rate Date
Date Number
December 1, _____ February 15, 2000
REGISTERED
OWNER:_______________________________________________________
PRINCIPAL AMOUNT: _____________________________________
DOLLARS
THE
CITY OF KANSAS CITY, MISSOURI, a constitutional charter city and a political
subdivision of the State of Missouri (the "City"), for value
received, promises to pay to the Registered Owner identified above, or
registered assigns, but only from the source and in the manner hereinafter
specified, on the Maturity Date identified above, unless called for redemption
prior to maturity, the Principal Amount identified above and to pay interest
thereon from said sources at the Interest Rate per annum specified above from
the most recent interest payment date to which interest have been paid in full
or, if no interest has been paid, from February 15, 2000, said interest being
payable semiannually on June 1 and December 1 in each year, commencing June 1,
2000, until such principal amount has been paid.
The
Principal Amount of, redemption premium, if any, and interest (computed on the
basis of a 360-day year of twelve 30-day months) on this Bond are payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts. Interest will be
paid by check or draft mailed or wire transfer to the person in whose name this
Bond (or one or more predecessor Bonds) is registered in the Bond Register
maintained by the Bond Registrar at the close of business on the fifteenth day
of the month next preceding each interest payment date (the Record Date).
Interest not punctually paid will be paid as otherwise provided in the
hereinafter referred to ordinance authorizing this Bond. The Principal Amount
and redemption premium, if any, are payable by check or draft mailed or wire
transfer to the Registered Owner on presentation and surrender hereof at the
principal corporate trust office of the Paying Agent, State Street Bank and
Trust Company of Missouri, N.A., St. Louis, Missouri, or such other officer as
the Paying Agent may designate.
THIS
BOND is one of a duly authorized issue of fully registered bonds of the City
designated "Water Revenue Bonds, Series 2000A" aggregating the
principal amount of $25,000,000.00 (the "Bonds"), issued for the purpose
of paying part of the cost of extending and improving the waterworks system of
the City including (1) the completion of the water main transmission system to
all parts of the City, (2) replacement of small water mains, (3) replacement
and additions to the water treatment plant and major pump stations, and (4)
automation of the system (the waterworks system together with all future
improvements and extensions thereto hereafter constructed or acquired by the
City, being herein called the "System") under the authority of and in
full compliance with the Constitution and laws of the State of Missouri, and
pursuant to an election held in the City at which a majority of the qualified
voters of the City voting on the question voted in favor of the issuance of $150,000,000.00
principal amount of waterworks revenue bonds and pursuant to ordinances duly
adopted by the Council of the City authorizing the issuance and delivery of the
Bonds (the "Ordinance"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Ordinance.
THE
BONDS are special obligations of the City payable solely from, and secured as
to the payment of principal and interest by a pledge of, the Net Revenues
derived by the City from the operation of its waterworks system, including
revenues derived from extensions and improvements to said waterworks system
hereafter constructed or acquired by the City, after paying the operating
expenses of said waterworks system, maintenance and repair charges, and costs
due to obsolescence, and the taxing power of the City is not pledged to the
payment of the Bonds with as to principal or interest. The Bonds shall not be
or constitute a general obligation of the City, nor shall they constitute an
indebtedness of the City within the meaning of any constitutional or statutory
provision, limitation or restriction.
THE
BONDS stand on a parity and are equally and ratably secured as to the payment
of principal, premium, if any, and interest with the City's Water Revenue
Bonds, 7th Issue, Series C, dated March 1, 1992, of which Bonds in the
principal amount of $1,805,000.00 remain Outstanding; its Water Revenue Bonds,
7th Issue, Series D, dated December 1, 1994, of which Bonds in the principal
amount of $8,720,000.00 remain Outstanding; its Water Refunding Revenue Bonds,
Series 1996A, dated September 1, 1996, of which Bonds in the principal amount
of $38,165,000.00 remain Outstanding; its Water Revenue Bonds, Series 1996B,
dated December 1, 1996, of which Bonds in the principal amount of
$25,305,000.00 remain Outstanding; its Water Refunding Revenue Bonds, Series
1998A, dated May 1, 1998, of which Bonds in the principal amount of
$38,260,000.00 remain Outstanding, and its Water Revenue Bonds, Series 1998B,
dated May 1, 1998, of which Bonds in the principal amount of $13,970,000.00
remain Outstanding. Under the terms of the Ordinance, the City has the right to
issue additional parity bonds payable from the same source and secured by the
same revenues as this Bond and the series of which it is a part, provided,
however, such additional bonds may be so issued only in accordance with and
subject to the covenants, conditions and restrictions relating thereto set
forth in the Ordinance. Reference is made to the Ordinance for a description of
the covenants of the City with respect to the collection, segregation and
application of the revenues of the waterworks system of the City, the nature
and extent of the security of the Bonds, the rights, duties and obligation of
the City with respect thereto and the rights of the Owners thereof.
(The following paragraph is to be completed if Term
Bonds are issued.)
THE BONDS maturing
on December 1, 2020, are subject to mandatory redemption and payment prior to
maturity in the following principal amounts pursuant to the mandatory
redemption requirements of the Ordinance on December 1, _________, and on each
December 1 thereafter to and including December 1, _____, at the principal
amount thereof plus accrued interest to the redemption date, without premium.
AT THE OPTION of
the City, the Bonds maturing on December 1, 2011, and thereafter are subject to
redemption and payment prior to maturity on and after December 1, 2010, as
whole at any time or in part on any Interest Payment Date at a redemption
prices equal to principal amount thereof, plus accrued interest thereon to the
Redemption Date. Bonds to be redeemed and paid pursuant to the provisions
described above shall be selected by the Bond Registrar in such manner as it
shall deem fair and appropriate.
WHEN BONDS are
called for redemption as aforesaid, written notice thereof will be given by
first class mail mailed not less than thirty (30) days prior to the redemption
date to each Registered Owner of Bonds to be redeemed. All Bonds so called for
redemption will cease to bear interest on the specified redemption date
provided funds or certain securities in such funds are invested for their
redemption are on deposit with the Paying Agent on such redemption date, and
will no longer be secured by the Ordinance and will not be deemed to be
outstanding under the provisions of the Ordinance. The failure of the
Registered Owner of any Bond called for redemption to receive written notice
mailed pursuant to the above provisions or any defect in such notice will not
invalidate or affect the redemption of such Bond.
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 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.
Transfer 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 the Bond, as the Owner of the Bond for all purposes,
including (i) payments of principal of, and redemption premium, if any, and
interest on this Bond (ii) notices, and (iii) voting. 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, the Bond
Registrar and the Paying Agent will not be responsible or liable for such
transfers of payments or for the 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 provisions 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.
EXCEPT AS
OTHERWISE PROVIDED IN THE GLOBAL BOND MAY BE TRANSFERRED, IN WHOLE BUT NOT IN
PART, ONLY TO ANOTHER NOMINEE OF THE SECURITIES DEPOSITORY OR TO A SUCCESSOR
SECURITIES DEPOSITORY OR TO A NOMINEE OF A SUCCESSOR SECURITIES DEPOSITORY.
THE CITY hereby
covenants with the Registered Owner of this Bond that it will keep and perform
all covenants and agreements contained in the Ordinance, and will fix,
establish, maintain and collect such rates, fees and charges for the use and
services furnished by or through the System, as will produce revenues
sufficient to pay the costs of operation and maintenance of the System, pay the
principal of and interest on the Bonds as and when the same become due and
provide reasonable and adequate reserve funds. Reference is made to the
Ordinance for a description of the covenants and agreements made by the City
with respect to the collection, segregation and application of the revenues of
the System, the nature and extent of the security for the Bonds, the rights,
duties and obligations of the City with respect thereto, and the rights of the
Registered Owners thereof.
THIS BOND is
transferable, as provided in the Ordinance, only in the Bond Register upon
surrender of this Bond duly endorsed or accompanied by a written instrument of
transfer satisfactory to the Bond Registrar duly executed by the Registered
Owner hereof or his duly authorized attorney or legal representative, and
thereupon a new Bond or Bonds in the same aggregate principal amount shall be
issued to the transferee in exchange therefor subject to the conditions
provided in the Ordinance. The Bonds for each maturity are issuable only in the
form of fully registered Bond without coupons in denomination of $5,000 or any
integral multiple thereof. The Registered Owner of any Bond or Bonds may
surrender the same in exchange for an equal aggregate principal amount of Bonds
of any authorized denomination in the manner and subject to the conditions
provided in the Ordinance. No service charge will be made for any such transfer
or exchange, but the Bond Registrar or City may require payment of any tax or
governmental charge in connection therewith. The City, the Bond Registrar and
the Paying Agent may deem and treat the person in whose name this Bond is
registered as the absolute owner hereof for the purpose of receiving payment
of, or on account of, the Principal Amount 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 shall have been dated and authenticated by the Bond Registrar.
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,
and that before the issuance of the bonds, provisions have been made for the
collection and segregation of the revenues of the System and the application of
the same as provided in the Ordinance.
IN WITNESS
WHEREOF, THE CITY OF KANSAS CITY, MISSOURI, has executed this Bond by causing
it to be signed by the manual or facsimile signature of its Mayor, attested by
the manual or facsimile signature of its City Clerk and countersigned by the
manual or facsimile signature of its Director of Finance, has caused its
corporate seal to be affixed hereto or printed hereon, and has caused this Bond
to be dated as of its registration date.
CITY
OF KANSAS CITY, MISSOURI
By:_________________________
Mayor
ATTEST:
COUNTERSIGNED:
________________________
_______________________ Director
of Finance
City Clerk
CERTIFICATE OF AUTHENTICATION
This Bond is one
of the Bonds described in the within mentioned Ordinance.
REGISTRATION DATE:
___________________________
[PAYING
AGENT]
KANSAS
CITY, MISSOURI
As
Bond Registrar and Paying Agent
By:___________________________
ASSIGNMENT
FOR VALUE RECEIVED
the undersigned hereby sell(s), assigns(s) and transfer(s) unto
______________________________________________________________________________
(Social Security or other
identifying number of Transferee)
______________________________________________________________________________
(Please Print or Typewrite
Name and Address of Transferee)
______________________________________________________________________________
the within Bond and all
rights thereunder, and hereby irrevocably constitutes and appoints
______________________________________________________________________________
as agent to transfer with the
within Bond on the Bond Register kept by the Bond Registrar with full power and
substitution in the premises.
DATE: _________________
_________________________________________
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Bond in every
particular, without alteration or enlargement or any change whatever.
Signature
Guaranteed:
_______________________________
(Eligible
Guarantor Institution)
By:
____________________________
Authorized
Officer
Section
402. Security for Bonds. The Bonds shall be special obligations of the City
payable solely from, and secured as to the payment of principal and interest by
a pledge of, the Net Revenues, and the City hereby pledges such Net Revenues to
the payment of the principal of and interest on the Bonds. The Bonds shall not
be or constitute a general obligation of the City, nor shall they constitute an
indebtedness of the City within the meaning of any constitutional, statutory or
charter provision, limitation or restriction, and the taxing power of the City
is not pledged to the payment of the Bonds, either as to principal or interest.
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 which 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, date of maturity and
right of prior redemption as provided in this Ordinance. The Bonds shall stand
on a parity and be equally and ratably secured with respect to the payment of
principal and interest from the Net Revenues and in all other respects with any
Parity Bonds. The Bonds shall not have any priority with respect to the payment
of principal or interest from the Net Revenues or otherwise over the Parity
Bonds and the Parity Bonds shall not have any priority with respect to the
payment of principal or interest from the Net Revenues or otherwise over the
Bonds.
As
security for the Citys repayment obligations with respect to the Surety Bond,
Surety Provider is hereby granted a security interest in the Net Revenues,
which shall be junior and subordinate to the security interest of the
Bondowners therein.
ARTICLE V
CREATION AND RATIFICATION OF FUNDS AND ACCOUNTS;
DEPOSIT AND APPLICATION OF BOND PROCEEDS
Section 501.
Waterworks Revenue Fund. So long as any of the Bonds remain outstanding and
unpaid, the City covenants and agrees that all Revenues derived and to be
derived by the City from the operation and use of the System, and the
facilities and services furnished by the System, including the Revenues of all
extensions and improvements thereto hereafter constructed or acquired, subject,
however, to any liens upon or claims against the Revenues of any such extensions
existing at the time of the acquisition thereof by the City, will be paid and
deposited into the Waterworks Revenue Fund and that said Revenues will be
segregated and kept separate and apart from the other revenues and funds of the
City.
So long as any of
the Bonds remain Outstanding, no Revenues shall be diverted to the general
governmental or municipal functions of the City.
Section 502.
Ratification and Creation of Funds and Accounts. The establishment by
Committee Substitute for Ordinance No. 911538 of the account known as the
"Water Revenue Bonds, 7th Issue, Series C, Principal and Interest Sinking
Account" and the account known as the "Reserve Account for Water
Revenue Bonds, 7th Issue, Series C"; the establishment by Committee
Substitute for Ordinance No. 941459 of the account known as the "Kansas
City Water Revenue Bonds, 7th Issue, Series D Principal and Interest Sinking
Account," "Kansas City Water Revenue Bonds, 7th Issue, Series D
Reserve Account"; the establishment by Committee Substitute for Ordinance
No. 960924 of the account known as the "Kansas City Water Revenue Bonds,
Series 1996A Principal and Interest Sinking Account," "Kansas City
Water Revenue Bonds, Series 1996A Reserve Account"; the establishment by
Committee Substitute for Ordinance No. 961462 of the account known as the
"Kansas City Water Revenue Bonds, Series 1996B Principal and Interest
Sinking Account," "Kansas City Water Revenue Bonds, Series 1996B
Reserve Account"; the establishment by Committee Substitute for Ordinance
No. 980278 of the account known as the "Kansas City Water Revenue Bonds,
Series 1998A Principal and Interest Sinking Account," "Kansas City
Water Revenue Bonds, Series 1998A Reserve Account"; the establishment by
Committee Substitute for Ordinance No. 980296 of the account known as the
"Kansas City Water Revenue Bonds, Series 1998B Principal and Interest
Sinking Account," "Kansas City Water Revenue Bonds, Series 1998B
Reserve Account" and the account heretofore designated by Ordinance 941459
as the "Water Revenue Bonds, Surplus Account" (the "Surplus
Account") are hereby ratified and confirmed; and in addition to the funds
and accounts aforesaid, there are hereby created and established in the
appropriate existing funds, five (5) separate additional funds and accounts to
be known as the:
(a) "Water
Revenue Bonds, Series 2000A, Principal and Interest Sinking Fund" (the
"2000A Water Debt Fund");
(b) "Water
Revenue Bonds, Series 2000A, Reserve Account" (the "2000A Bond
Reserve Account");
(c) "Water
Revenue Bonds, Series 2000A, Project Fund" (the "Project Fund");
(d) "Costs
of Issuance Fund"; and
(e) "Rebate
Fund for Water Revenue Bonds, Series 2000A" the "Rebate Fund").
Section 503.
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) Any
accrued interest on the Bonds shall be deposited in the 2000A Water Debt Fund
and applied in accordance with Section 601 hereof.
(b) An
amount determined by the Director of Finance shall be deposited in the Costs of
Issuance Fund and shall be disbursed by the Director of Finance to pay costs of
issuing the bonds.
(c) The
remaining balance of the proceeds of the Bonds shall be deposited in the
Project Fund and applied in accordance with Section 504.
Section 504.
Application of Moneys in Project Fund. Moneys in the Project Fund shall be
used solely for the purpose of (a) paying part of the cost of the Project as
hereinbefore provided, in accordance with the plans therefor prepared by the
Director of the Department of Water Services, heretofore approved by the
Council of the City and on file in the office of the Director of the Department
of Water Services, including any alterations in or amendments to said plans
deemed advisable by the Director of the Department of Water Services and
approved by the Council of the City, and (b) for paying the costs and expenses
incident to the issuance of the bonds upon certification thereof by the
Director of Finance.
Withdrawals from
the Project Fund shall be made only when authorized by the Council and only on
duly authorized and executed warrants or vouchers therefor accompanied by a
certificate executed by the Director or Deputy Director of the Department of
Water Services that such payment is being made for a purpose within the scope
of this Ordinance and that the amount of such payment represents only the
contract price of the property, equipment, labor, materials or service being
paid for or, if such payment is not being made pursuant to an express contract,
that such payment is not in excess of the reasonable value thereof. Nothing
hereinbefore contained shall prevent the payment out of the Project Fund of all
costs and expenses incident to the issuance of the bonds or withdrawals of sums
for investment or reinvestment purposes under the terms of this Ordinance
without a certificate from the Director or Deputy Director of the Department of
Water Services.
Upon completion of
the extensions and improvements to the System as hereinbefore provided, any
surplus moneys remaining in the Project Fund and not required for the payment
of unpaid costs thereof shall be deposited in the 2000A Water Debt Fund.
ARTICLE VI
APPLICATION OF REVENUES
Section 601.
Application of Moneys in Funds and Account. The City covenants and agrees that
so long as any of the Bonds remain Outstanding, moneys paid and deposited in
the "Waterworks Revenue Fund" by the City will be administered and
disposed of as follows:
(a) The
City, each month, shall pay or make provision for the payment from the moneys
in the Waterworks Revenue Fund of all operating expenses, all maintenance and
repair charges and all costs of the System due to obsolescence or other causes.
(b) After
paying or making provision for the payment each month of the reasonable and
proper expenses of operating and maintaining the System for the current month,
the City shall next pay and credit monthly from the Waterworks Revenue Fund to
the Water Revenue Bonds, 7th Issue Series C, Principal and Interest Account
created by Committee Substitute for Ordinance No. 911538 of the City so long as
any of the Series C Bonds remain Outstanding; to the Water Revenue Bonds, 7th
Issue Series D, Principal and Interest Sinking Fund created by Ordinance No.
941459 of the City so long as any of the Series D Bonds remain Outstanding; to
the Water Revenue Bonds, Series 1996A, Principal and Interest Account created
by Committee Substitute for Ordinance No. 960924 of the City so long as any of
the Series 1996A Bonds remain Outstanding; to the Water Revenue Bonds, Series
1996B, Principal and Interest Account created by Committee Substitute for
Ordinance No. 961462 of the City so long as any of the Series 1996B Bonds
remain Outstanding; to the Water Revenue Bonds, Series 1998A, Principal and
Interest Account created by Committee Substitute for Ordinance No. 980278 of
the City so long as any of the Series 1998A Bonds remain Outstanding, and to
the Water Revenue Bonds, Series 1998B, Principal and Interest Account created
by Committee Substitute for Ordinance No. 980296 of the City so long as any of
the Series 1998B Bonds remain Outstanding, all amounts required to be so paid
and credited by the provisions of said ordinances and, at the same time that
said payments and credits to said principal and interest sinking fund accounts
are made, and on a parity therewith, the City shall pay and credit monthly from
the Waterworks Revenue Fund to the 2000A Water Debt Fund, to the extent necessary
to meet at the Maturity thereof all interest on and principal of the Bonds, the
following sums:
(i)
Beginning on the first of said monthly deposits, and continuing on the
first day of each month thereafter to and including May 1, 2000, an equal pro
rata portion of the amount of interest becoming due on the Bonds on June 1,
2000; and thereafter, beginning on June 1, 2000, and continuing on the first
day of each month thereafter so long as any of the Bonds shall remain
Outstanding, an amount not less than 1/6 of the amount of interest that will
become due on the Bonds on the next succeeding Interest Payment Date; and
(ii)
Beginning with the first of said monthly deposits and continuing on the
first day of each month thereafter to and including November 1, 2000, an equal
pro rata portion of the amount of principal becoming due on the Bonds on
December 1, 2000; and continuing on the first day of each month thereafter, so
long as any of the Bonds shall remain Outstanding an amount not less than 1/12
of the amount of principal that will become due on the Bonds on the next
succeeding Principal Payment Date; and
(iii)
On the first day of each month in which fees, if any, of the Bond
Registrar and Paying Agent are scheduled to become due, such amounts as may be
required to pay such fees of the Bond Registrar and the Paying Agent.
All amounts paid
and credited to the 2000A Water Debt Fund shall be expended and used by the
City for the sole purpose of paying any interest on and principal of the Bonds
as and when the same become due and the fees of the Bond Registrar and the
Paying Agent for acting as Bond Registrar and Paying Agent, if any.
If at any time the
moneys in the Waterworks Revenue Fund shall be insufficient to make in full the
payments and credits at the time required to be made by the City to the
principal and interest accounts established to pay the then Outstanding Water
Revenue Bonds of the City, including only the Bonds and other Water Revenue
Bonds of the City heretofore or hereafter issued and standing on a parity with
the Bonds, the available moneys in the Waterworks Revenue Fund shall be divided
among such principal and interest sinking fund accounts in proportion to the
respective principal amounts of said series of Water Revenue Bonds of the City
at the time outstanding which are payable from the moneys in such principal and
interest sinking fund accounts.
(c) Simultaneously
with the issuance of the Bonds, the City shall provide for the 2000A Bond
Reserve Account to contain an amount equal to the Bond Reserve Requirement. In
lieu of a cash deposit, the Bond Reserve Requirement may be satisfied by the
Surety Bond.
The Director of
Finance is hereby authorized to execute any and all agreements with a Surety
Provider in order to effectuate the issuance of a Surety Bond, specifically
including but not limited to any agreement necessary in order to reimburse the
Surety Provider for moneys advanced under the Surety Bond. In the event moneys
are advanced by a Surety Provider, the City shall reimburse the Surety Provider
from all funds legally available to the Waterworks Revenue Fund, subject only
to the payments required by subsection (a) and (b) of this Section and the
provisions of the last paragraph to this Section.
As long as the
Surety Bond shall be in full force and effect, the City and Paying Agent agree
to comply with the following provisions:
(i)
In the event that moneys on deposit in the 2000A Water Debt Fund are
not available to pay the amount of principal and interest coming due and the
City shall so notify the Paying Agent or if such funds have not been forwarded
to the Paying Agent one business day prior to any stated Maturity on the Bonds,
then the Paying Agent shall make a demand for payment to the general counsel of
the Surety Provider as provided in the Surety Bond(the Demand for Payment),
duly executed by the Paying Agent certifying that funds are not available in
the 2000A Water Debt Fund or the 2000A Bond Reserve Account to pay both
principal of and interest on the Bonds becoming due on the next Stated
Maturity, then upon the later of (A) one (1) day after receipt by the general
counsel of the Surety Provider of a Demand for Payment or (B) the Stated
Maturity on the Bonds as specified in the Demand for Payment presented by the
Paying Agent to the general counsel of the Surety Provider, Surety Provider
will make a deposit of funds in an account with the Paying Agent, sufficient
for the payment to the Paying Agent, of amounts which are then required to pay
the principal of and interest becoming due on the Bonds on such Stated Maturity
of the Bonds (as specified in the Demand for Payment) up to but not in excess
of the Surety Bond Coverage, as defined in the Surety Bond;
(ii) if
and to the extent that cash has also been deposited in the 2000A Bond Reserve
Account, all such cash shall be used (or investments purchased with such cash
shall be liquidated and the proceeds applied as required) prior to any drawing
under the Surety Bond, and the repayment of any Policy Costs, as hereinafter
defined, shall be made prior to replenishment of any such cash amounts; and
if, in addition to the Surety Bond, any other reserve fund substitute
instrument (Additional Surety Bond) is provided, drawings under the Surety
Bond and any Additional Surety Bond, and the repayment of Policy Costs and
reimbursement of amounts due under the Additional Surety Bond, shall be made on
a pro rata basis (calculated by reference to the maximum amounts available
thereunder) after applying all available cash in the 2000A Reserve Account and
prior to the replenishment of any such cash draws, respectively;
(iii) the
City shall after submission to the Surety Provider of the Demand for Payment as
provided in (i) above, make available to the Surety Provider all records
relating to the funds and accounts maintained under this Ordinance; and
(iv) the
Paying Agent shall, upon receipt of moneys received from a Demand for Payment
under the Surety Bond, as specified in the Demand for Payment, deemed to be
credited to the 2000A Bond Reserve Account to the extent of moneys received
pursuant to such Demand for Payment and shall be paid to the Owners of the
series 2000A Bonds as provided in this Ordinance..
(d) All
moneys in any Bond Reserve Account will be used for the payment of principal of
and interest on the related Series of bonds for which funds might not otherwise
be available, or to pay a like amount of the last maturing bonds, of such
Series; provided, however, that the City shall not make a Demand for Payment
under the Surety Bond for the purpose of paying the last maturing Bonds. Should
the City expend any portion of the 2000A Bond Reserve Account and thereby
reduce the amount therein below the Bond Reserve Requirement, except for the purpose
of retiring all Outstanding Bonds, or should a valuation of the 2000A Bond
Reserve Account indicate that it is below the Bond Reserve Requirement, the
City shall, subject to the provisions of the last paragraph of this Section,
transfer monthly to such 2000A Bond Reserve Account, all available funds after
providing for the payment and transfers set forth above, until the 2000A Bond
Reserve Account shall have again attained the Bond Reserve Requirement. In no
event shall the replenishment of the Bond Reserve Requirement be accomplished
in more than one year from the date of the initial Demand for Payment under the
Surety Bond. The repayment of any draws under the Surety Bond shall include
related reasonable expenses incurred by the Surety Provider (together with
interest thereon at a rate equal to the lower of (i) the prime rate of Morgan
Guaranty Trust Company of New York in effect from time to time plus 2% per
annum and (ii) the highest rate permitted by law) (the Policy Costs). The
repayment of Policy Costs shall have the same priority as the obligation to
maintain and replenish the Bond Reserve Requirement. If the City shall fail to
repay any Policy Costs in accordance with the requirements of this paragraph,
the Surety Provider shall be entitled to exercise any and all remedies
available at law or under the Ordinance other than acceleration of the maturity
of the Series 2000A Bonds or remedies which would adversely affect the Owners
of the Series 2000A Bonds.
If at any time the
moneys in the Waterworks Revenue Fund shall be insufficient to make in full any
payments and credits at the time required to be made by the City to the Bond
Reserve Accounts established by the City to protect the payment of the
outstanding water revenue bonds of the City including the Outstanding Parity
Bonds, and Additional Bonds issued and standing on a parity with the Bonds, the
available moneys in said Waterworks Revenue Fund shall be divided among such
Bond Reserve Accounts in proportion to the respective principal amounts of said
Series of water revenue bonds of the City at the time Outstanding which are
payable from the moneys in such Bond Reserve Accounts.
(e) When
and after there shall be in the Water Revenue Fund an amount sufficient to pay
the reasonable and proper expenses of operating and maintaining the System for
the current month as provided in paragraph (a) of this Section and when and
after all amounts at the time required to be paid and credited from the Water
Revenue Fund under the provisions of paragraphs (b), (c) and (d) of this
Section shall have been paid and credited, all moneys remaining in the Water
Revenue Fund shall be credited monthly to the Surplus Account. Except as
hereinafter provided, moneys in the Surplus Account shall be used solely for
the following purposes, as determined by the Council:
(i) Paying
the cost of operation, maintenance and repair of the System to the extent that
may be necessary after the application of the moneys held in the Water Revenue
Fund under the provisions of paragraph (a) of this Section;
(ii) Anticipating
payments into or increasing the amounts of the 2000A Water Debt Fund and/or the
2000A Bond Reserve Account, referred to in paragraphs (b) and (c) of this
Section, or either of them, or establishing or increasing the amount of any
principal and interest account or bond reserve account created by the City for
the payment of any water revenue bonds of the City heretofore or hereafter
issued and standing on a parity with the Bonds;
(iii) Paying
the cost of enlarging, extending or improving the System, including the
acquisition of additional facilities by construction, purchase, or by operation
of law from other governmental agencies and the assumption of the obligations
thereof;
(iv) Paying
the principal of and interest on any general obligation bonds of the City
issued to provide funds to make enlargements, extensions or improvements of the
System, exclusive of bonds payable wholly or in part from assessments against
property benefitted;
(v) As
and when moneys accumulate in the Surplus Account of not less than One Million
Dollar ($1,000,000.00), the Director of Finance of the City may advertise for
tenders from the Owners of any Bonds which at the time are subject to
redemption from moneys in the Surplus Account. Each request for tenders shall
be published once in an official newspaper or journal in the City of New York,
New York. Said notice shall specify the date on which sealed tenders will be
received and shall be published not less than fifteen days prior to the date so
specified. A copy of said notice shall be mailed to the manager of the
underwriting group that purchased the Bonds. Purchase of Bonds shall be made
by the acceptance of the lowest price tenders received, such price not to
exceed the redemption price;
(vi)
Calling, redeeming and paying prior to their Stated Maturity the Bonds or
any other water revenue bonds of the City heretofore or hereafter issued and
standing on a parity with the Bonds; or
(vii) Paying
all costs incident to the purchase or redemption of Bonds including any
interest or premium thereon.
No moneys credited
to the Surplus Account shall ever be diverted or applied to the general
governmental or municipal functions of the City so long as any of the Bonds
remain Outstanding.
Section 602.
Transfer of Funds to Paying Agent. The Director of Finance is hereby authorized
and directed to withdraw from the 2000A Water Debt Fund and, to the extent
necessary to prevent a default in the payment of either principal of or
interest on the Bonds, from the 2000A Bond Reserve Account and the Surplus
Account as provided in Section 601, or, if funds are not available in the
2000A Water Debt Fund or the 2000A Reserve Account, make a Demand for Payment
under the Surety Bond sums sufficient to pay the principal of and interest on
the Bonds as and when the same become due on any Bond Payment Date, and to pay
the charges for services rendered by the Bond Registrar and Paying Agent (other
than the City itself) in acting as Bond Registrar and Paying Agent for the
Bonds, if any, and to forward such sums to the Paying Agent no later than one
business day prior to the dates when such principal interest and fees will
become due. The obligations of the City to reimburse Surety Provider for any
amounts paid as a result of a Demand for Payment shall be subordinate to the
payment of debt service on the Bonds. The amounts necessary to pay the charges
of the Bond Registrar and Paying Agent shall be forwarded to the Paying Agent
over and above the amount of the interest on the Bonds. The amounts held by the
Paying Agent for the payment of the interest or principal due on any date with
respect to particular Bonds shall, on and after such date and pending such
payment, be set aside on its books and held in trust by it for the Owners of
the Bonds entitled thereto.
Section 603.
Payments Due on Saturdays, Sundays and Holidays. In the case where a Bond
Payment Date is not a Business Day, then payment of principal, Redemption Price
or interest need not be made on such Bond Payment Date but may be made on the
next succeeding Business Day with the same force and effect as if made on such
Bond Payment Date, and no interest shall accrue for the period after such Bond
Payment Date.
Section 604.
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 six years following the date when such Bond
becomes due at Maturity, the Paying Agent shall repay 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 the 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 605.
Application of Moneys in the Rebate Fund.
(a) There
shall be deposited in the Rebate Fund such amounts as are required to be
deposited therein pursuant to the Arbitrage Instruction. 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 Instruction, and the City shall
make payments to the United States Government at the times and in the amounts
determined under the Arbitrage Instructions. Any funds 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 XI, 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.
Section 606.
Deficiency of Payments into Funds or Accounts. If at any time the Revenues
derived by the City from the operation of the System shall be insufficient to
make any payment or credit on the date or dates specified, the City shall make
good the amount of such deficiency by making payments or credits out of the
first available Revenues thereafter received by the City from the operation of
the System, such payments and credits being made and applied in the order
specified in Section 601 of this Ordinance.
ARTICLE VII
DEPOSIT AND INVESTMENT OF MONEYS
Section 701.
Investments of Moneys in Funds and Accounts. Any money held in or credited to
the Waterworks Revenue Fund, the 2000A Water Debt Fund and the Surplus Account
may be invested by the City in Permitted Investments, provided, however, that
no such investment shall be made for a period extending longer than the date
when the moneys invested may be needed for the purpose for which such fund or account
was created. Cash moneys in each of the funds and accounts created or
established in the Ordinance shall be deposited in a bank or banks in the City
of Kansas City, Missouri, which are members of the Federal Deposit Insurance
Corporation and all such bank deposits shall be secured by the banks holding
such deposits as required by the Citys Charter and Administrative Code.
The interest on
any investments held in any fund or account created by or referred to in this
Ordinance shall accrue to and become a part of the Waterworks Revenue Fund,
except that if and when the amount held in the 2000A Bond Reserve Account shall
be less than the Bond Reserve Requirement, then at all such times the interest
earned on investments or money held in the 2000A Bond Reserve Account shall be
deposited in the 2000A Bond Reserve Account. In determining the amount held in
any fund or account under any of the provisions of the Ordinance, obligations
of the United States Government shall be valued at the market value thereof.
The value of such investments shall be determined at least annually. If and
when the amount held in any fund or account shall be in excess of the amount
required by the provisions of the Ordinance, the City, by and through its
Director of Finance, may direct that such excess be paid into the Waterworks
Revenue Fund.
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801.
General Covenants. The City covenants and agrees with each of the Owners of any
of the Bonds, that so long as any of said Bonds remain Outstanding:
(a) The
City will continuously own and will operate the System in an efficient and
economical manner and will keep and maintain the same in good condition, repair
and working order. The System will be operated on the basis of the same Fiscal
Year on which the City operates.
(b) The
City will fix and maintain rates and make and collect charges for the use and
services of the System sufficient to produce Revenues to pay the cost of
maintenance and operation thereof, to pay the principal of and the interest on
the Bonds, to provide in each Fiscal Year Net Revenues not less than 110% of
the amount required to be paid in the current Fiscal Year on account of
principal of and interest on all obligations payable from the revenues of the System
at the time outstanding (taking into account any scheduled mandatory
redemptions) and to provide funds ample to meet the requirements of this
Ordinance, including Policy Costs as defined in Section 601(d) hereof, and it
will revise said rates from time to time so as fully to meet said requirements
and the requirements of the statutes of the State of Missouri.
(c) None of
the facilities or services afforded by the System will be furnished to any
water user, excepting the City itself, without a reasonable charge being made
therefor. If the Revenues derived by the City from the System shall at any time
prove insufficient to pay the cost of maintenance and operation of the System
and also to pay all principal of and interest on the Bonds as and when the same
become due, then the City will thereafter pay into the Waterworks Revenue Fund
a fair and reasonable payment for all water service and other facilities, if
any, furnished to the City or any of its departments by the System, including
any such service furnished by any extensions or improvements of the System, and
such payments will continue so long as the same may be necessary in order to
prevent any default in the payment of the principal of or interest on the water
revenue bonds of the City, or while any such default shall exist.
(d) The
City will not mortgage, pledge or otherwise encumber the System, nor will it
sell, lease or otherwise dispose of the System or any substantial part thereof;
provided, however, the City may sell at fair market value any portion of such
property which shall have been replaced by other similar property of at least
equal value, or which shall cease to be necessary for efficient operation of
the System, and in the event of sale, the City will apply the proceeds to
either (i) redemption of Outstanding Parity Bonds or water revenue bonds
hereafter issued on a parity with the Bonds in accordance with the provisions
governing prepayment of bonds in advance of maturity or (ii) replacement of the
property so disposed of by other property the revenues of which shall be
incorporated into the System as hereinbefore provided; and provided further,
however, that the City, with the written approval of the Director of the Water
Services, may dispose of any property which has become obsolete, nonproductive
or otherwise unusable to the advantage of the City.
(e) The
City will carry and maintain reasonable and adequate insurance upon all of the properties
forming a part of the System which may be of an insurable nature, such
insurance to be of the character and coverage and for such amount or amounts as
is customarily carried and maintained by other municipalities rendering service
of a similar character. In the event of loss or damage, the City will use the
proceeds of such insurance in reconstructing and replacing the property damaged
or destroyed, or if such reconstruction or replacement be unnecessary, then in
redeeming and paying the City's outstanding water revenue bonds, including only
the Bonds, the Outstanding Parity Bonds or other water revenue bonds of the
City heretofore or hereafter issued and standing on a parity with the Bonds, or
for purchasing at the market price thereof any of said bonds. The cost of all
insurance shall be paid as an operating cost out of the Revenues of the System.
Nothing in this Ordinance shall be construed as preventing the City from
satisfying the insurance requirements herein set forth through self insurance or
the City's risk retention program.
(f) The
City will maintain and keep proper books, records and accounts (separate from
all other records and accounts) in which complete and correct entries will be
made of all dealings and transactions relating to the System. Such accounts
shall show the Revenues received from the System, the application of such
Revenues, and all financial transactions in connection therewith. In accordance
with the provisions of Section 85, Article IV, of the City's Charter, the Council
will provide that an independent certified audit of the City's books and
records relating to the System 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.
The annual
financial report relating to the City's finances, required by Section 96,
Article IV, of the Charter, shall contain complete statements covering the
results of the year's operations and the financial condition of the System.
Said statements shall bear the certificate of the firm of certified public
accountants making the annual audit. A copy of each such annual report will be
filed with the City Clerk and will be open for public inspection, and a copy
will be forwarded promptly without cost to the manager of the underwriting
group purchasing the Bonds.
If such audit and
report shall disclose that proper provision has not been made for all of the
requirements of the law under which the Bonds are issued, and of this
Ordinance, the City covenants and agrees that it will promptly proceed to cause
to be charged for the services rendered by the System rates which will
adequately provide for such requirements.
(g) The
Owner or Owners of not less than ten percent (10%) in aggregate principal
amount of the Bonds at the time Outstanding, or their duly authorized
representative, shall have the right at all reasonable times to inspect the
System, and all records, accounts and data relating thereto, and such Owners or
their representative shall be furnished by the City with all such information
concerning the System and the operation thereof which may be reasonably
requested.
(h) The City
hereby represents and covenants that the Bonds directed to be issued by this
Ordinance are issued in full compliance with the restrictions and conditions
upon the issuance of additional parity bonds as set forth and contained in the
Parity Ordinances, and that the Bonds herein directed to be issued are issued
in all respects on a parity and equality with the Outstanding Parity Bonds
heretofore issued and outstanding.
(i) The
City will punctually perform all duties with respect to the operation of the
System now or thereafter imposed upon the City by the Constitution and laws of
the State, and including all other duties and obligations imposed by law, and
by the provisions of this Ordinance. The City further covenants not to issue
parity debt or subordinate debt in any manner that inhibits the issuance of
bonds or other refunding obligations.
Section 802.
Administrative Personnel. The City shall use its best efforts to employ at all
times administrative personnel experienced and well qualified to operate the
System. The City further agrees that such administrative personnel shall be
employed in sufficient numbers to ensure that the System will be operated in a
prudent and efficient manner, following procedures generally accepted within
the United States of America.
Section 803.
Parity Bond Certification. The City represents and covenants that the Bonds
directed to be issued by this Ordinance are so issued in full compliance with
the restrictions and conditions upon which the City may issue additional bonds
payable out of the revenues derived from the operation of the System and which
stand on a parity with the Parity Bonds heretofore issued and outstanding, as
set forth and contained in the Parity Ordinances under which such Parity Bonds
have been issued and that the Bonds herein directed to be issued are so issued
in all respects on a parity and equality with the Parity bonds heretofore
issued and outstanding.
Section 804. Tax
Covenants.
(a) The
City covenants 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
adopt 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 the interest on
the Bonds.
(d) The
City represents that (1) it is a governmental unit under Missouri law with
general taxing powers, (2) none of the Bonds is a private activity bond within
the meaning of Section 141 of the Code and (3) ninety-five percent (95%) or
more of the net proceeds of the Bonds will be used for local government
activity of the City.
(e) The
foregoing covenants shall remain in full force and effect notwithstanding the
defeasance of the Bonds pursuant to Article XI or any other provision of this
Ordinance until the final Stated Maturity of all Bonds Outstanding.
ARTICLE IX
ADDITIONAL BONDS AND OBLIGATIONS
Section 901.
Senior Lien Bonds. The City covenants and agrees that so long as any of the
Bonds remain Outstanding the City will not issue any additional bonds or incur
or assume any other debt obligations appearing as liabilities on the balance
sheet of the City for the payment of moneys determined in accordance with
generally accepted accounting principles consistently applied, including
capital leases as defined by generally accepted accounting principles, payable
out of the Net Revenues of the System or any part thereof which are superior to
the Bonds.
Section 902.
Parity Lien Bonds and Other Obligations. The City further covenants and agrees
that, except as hereinafter in this Section provided, the City will not issue
any such additional bonds or other obligations on a parity or equality with the
Bonds unless each of the following conditions are met:
(a) The
City shall not be in default in making any payment of principal of or interest
on any Bonds or any Parity Bonds at the time Outstanding or in making any
payment at the time required to be made into the respective funds and accounts
created by and referred to in this Ordinance or any Parity Ordinance (unless
such additional revenue bonds or obligations are being issued to provide funds
to cure such default); and
(b) The Net
Revenues for the Fiscal Year which ended next preceding the authorization of
additional bonds shall have been equal to at least 120% of the maximum amount
required to be paid out of said Net Revenues in any succeeding Fiscal Year on
account of both principal and interest becoming due (taking into account
scheduled mandatory redemptions, if any) including Policy Costs as defined in
Section 601(d) hereof, with respect to all water revenue obligations of the
City, including the additional revenue bonds proposed to be issued, PROVIDED,
HOWEVER, that if the City shall have made an increase in its water service
charges and such increased charges have not been in effect during the entire
Fiscal Year which ended next preceding the authorization of additional bonds,
then the City may obtain an investigation and report from an independent firm
of consulting engineers having a wide and favorable reputation for operation,
skill and experience in the construction and operation of similar municipal
utilities as to the amount of Net Revenues that the City will derive during the
ensuing year from the operation of the System on the basis of such new rates
and if said engineer or engineers shall certify:
(i) that
on the basis of such new rates the Net Revenues of the System for the ensuing
Fiscal Year will be equal to at least 120% of the maximum amount required to be
paid out of said Net Revenues in any succeeding Fiscal Year on account of both
principal and interest including Policy Costs as defined in Section 601(d)
hereof, becoming due with respect to all water revenue obligations of the City,
including the additional revenue bonds proposed to be issued, and
(ii) that
the issuance of the additional water revenue bonds proposed to be issued is
advisable and will not impair the ability of the City to pay when due the
principal of or interest on the Bonds or to meet all obligations resting upon
the City by reason of the covenants and agreements contained in this Ordinance,
then the City may issue such additional water revenue bonds.
Additional Bonds
of the City issued under the conditions hereinbefore in this Section set forth
shall stand on a parity with the Bonds and shall enjoy complete equality of
lien on and claim against the revenues of the System with the Bonds and the
City may make equal provision for paying said bonds and the interest thereon
out of the Waterworks Revenue Fund and may likewise provide for the creation of
a reasonable principal and interest account and a reasonable bond reserve
account for the payment of such Additional Bonds and the interest thereon out
of moneys in the Waterworks Revenue Fund.
Nothing in this
Section shall prohibit or restrict the right of the City to issue additional
bonds or other revenue obligations for the purpose of reconstructing, altering,
repairing, enlarging, extending or improving the System and to provide that the
principal of and interest on said revenue bonds or obligations shall be payable
out of the Revenues of the System, provided at the time of the issuance of such
additional revenue bonds or obligations the City shall not be in default in the
performance of any covenant or agreement contained in this Ordinance, and
provided further that such additional revenue bonds or obligations shall be
junior or subordinate to the Bonds so that if at any time the City shall be in
default in paying either interest on or principal of the Bonds, or if the City
shall be in default in making any payments required to be made by it under the
provisions of this Ordinance, the City shall make no payments of either
principal of or interest on said junior and subordinate revenue bonds or
obligations until said default or defaults be cured and no default shall exist
on the part of the City under the covenants, agreements and conditions
contained in this Ordinance. In the event of the issuance of any such junior
and subordinate revenue bonds or obligations, the City, subject to the
provisions aforesaid, may make provisions for paying the principal of and
interest on said revenue bonds or obligations out of moneys in the Waterworks
Revenue Fund.
Notwithstanding
any provision of this Section to the contrary, the City shall not issue any
additional bonds without the prior written consent of the Surety Provider if
any costs are past due and owing to the Surety Provider under the Surety Bond.
Section 903.
Refunding Bonds. The City shall have the right, without complying with the
provisions of Section 902, to refund any of the bonds under the provisions of
any law then available, and the refunding bonds so issued shall enjoy complete
equality of pledge with any of the Bonds which are not refunded, if any, upon
the Revenues of the System; provided, however, that if only a portion of the
bonds are refunded and if the bonds are refunded in such manner that the
refunding bonds bear a higher average rate of interest or become due on a date
earlier than that of the Bonds which are refunded, then such Bonds may be
refunded without complying with the provisions of Section 902 only by and with
the written consent of the Registered Owners of a majority in principal amount
of the Bonds not refunded.
ARTICLE X
DEFAULT AND REMEDIES
Section 1001.
Acceleration of Maturity in Event of Default. The City covenants and agrees
that if it shall default in the payment of the principal of or interest on any
of the Bonds as the same shall become due on any Bond Payment Date, or if the
City or the Council of the City or any of the officers, agents, or employees
thereof shall fail or refuse to comply with any of the provisions of this
Ordinance or of the constitution or statutes of the State, and such default
continues for a period of sixty (60) days after written notice specifying such
default has been given to the City by the Registered Owner of any Bond then
Outstanding, then, at any time thereafter and while such default continues,
the Registered Owners of twenty-five percent (25%) in principal amount of the
Bonds then Outstanding may, by written notice to the City filed in the office
of the City Clerk or delivered in person to the City Clerk, declare the
principal of all Bonds then Outstanding to be due and payable immediately, and
upon any such declaration given as aforesaid, all of the Bonds shall become and
be immediately due and payable, anything in this Ordinance or in the Bonds
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if at any time after the principal of the Outstanding
Bonds has been so declared to be due and payable, all arrears of interest upon
all Outstanding Bonds, except interest accrued but not yet due on such Bonds,
and all arrears of principal upon all of said Bonds shall have been paid in
full, and all other defaults, if any, by the City under the provisions of this
Ordinance and under the provisions of the statutes of the State shall have been
cured, then and in every such case, the Registered Owners of a majority in
principal amount of the Bonds then Outstanding, by written notice to the City
given as hereinbefore specified, may rescind and annul such declaration and its
consequences, but no such rescission or annulment shall extend to or affect any
subsequent default or impair any rights consequent thereon.
Section 1002.
Other 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 ten percent (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 proceeding at law or in equity to enforce
such Registered Owners rights against the City and its officers, agents and
employees, and to require and compel duties and obligations required by the
provisions of this Ordinance or by the constitution and laws of the State;
(b) by
suit, action or other proceeding in equity or at law to require the City, its
officers, agent and employees to account as if they were the trustees of an
express trust; and
(c) by suit,
action or other proceeding 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.
Nothing contained
in this Ordinance, however, shall be construed as imposing on the City any duty
or obligation to levy any taxes either to meet any obligation incurred herein
or to pay the principal of or interest on the Bonds.
No remedy
conferred hereby upon any Owner is intended to be exclusive of any other
remedy, but each such remedy is cumulative and in addition to every other
remedy and may be exercised without exhausting and without regard to any other
remedy conferred hereby. No waivers of any default or breach of duty or
contract by the Owner shall extend to or affect any subsequent default or
breach of duty or contract or shall impair any rights or remedies thereon. No
delay or omission of the Owner 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 Owners may be enforced from time to time and as often
as may be deemed expedient. In any suit, action or proceeding to enforce any
right or exercise any remedy shall be brought or taken and then discontinued or
abandoned, or shall be determined adversely to the Owner, then, and in every
such case, the City and the Owners shall be restored to their former positions
and rights and remedies as if no such suit, action or other proceeding had been
brought or taken.
Notwithstanding
any other provisions of this Ordinance in determining whether the rights of the
Owners will be adversely affected by an action taken pursuant to the terms and
provisions of this Ordinance, the City shall consider the effect on the Owners
as if there were no Surety Bond.
Section 1003.
Limitations on Rights of Bondowners. 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 1004.
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.
Section 1005. No
Obligation to Levy Taxes. Nothing contained in this Ordinance shall be
construed as imposing on the City any duty or obligation to levy any taxes
either to meet any obligation incurred herein or to pay the principal of or
interest on the Bonds.
ARTICLE XI
DEFEASANCE
Section 1101.
Defeasance. When any or all of the Bonds or the interest payments thereon have
been paid and discharged, then the requirements contained in this Ordinance and
the pledge of Net Revenues made hereunder and all other rights granted hereby
shall terminate with respect to the Bonds so paid and discharged. Bonds or the
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
and having full trust powers, at or prior to the Stated Maturity or Redemption
Date of such Bonds, 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 of or Redemption
Price of such Bonds, and/or interest to accrue on such Bonds to the Stated
Maturity or Redemption Date, as the case may be, or if default in such payment
shall have occurred on such date, then to the date of the tender of such
payments; provided, however, that if any such Bonds shall be redeemed prior to
the Stated Maturity thereof, (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 instruction, 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 the Bonds, and such money 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 contained in this Ordinance.
Notwithstanding
any provisions of this Article to the contrary, this Ordinance shall remain in
full force and effect until all payments due to the Surety Provider relating to
the Surety Bond
have been paid in full.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 1201.
Consent of Surety Provider. The Surety Providers consent hereunder shall be required
in addition to consent of the Owners, when required, for the following
purposes: (i) execution and delivery of any supplemental Ordinance or any
amendment hereof or thereof: (ii) removal of the Paying Agent or selection and
appointment of any successor paying agent; and (iii) initiation or approval of
any action not described in (i) or (ii) above which requires consent of the
Owners.
Section 1202.
Information to be Given to Surety Provider. While the Surety Bond is in effect,
the City shall furnish to the Surety Provider the information required by the
Terms Ordinance.
Section 1203.
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 aggregate 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 Bonds;
(b) effect
a reduction in the amount which the City is required to pay by way of principal
of or interest on any Bonds;
(c) permit
the creation of a lien on the Revenues of the System prior or equal to the lien
of the Bonds or Parity Bonds;
(d) permit
preference or priority of any Bonds over any other Bonds; or
(e) 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 Council of the City at any time in any 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 prejudicial to the interests of the Bondowners.
Every amendment or
modification of a provision 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 Council 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 the Paying Agent a copy of any amendment to the bonds or this Ordinance
made hereunder which affects the duties or obligations of the Paying Agent
under this Ordinance.
Notwithstanding
any provisions of this Section to the contrary, so long as the Surety Bond
shall remain in effect, this Ordinance shall not be modified or amended without
the prior written consent of the Surety Provider.
Section 1204.
Notices, Consents and Other Instrument by Bondowners. Any notice, consent,
request, direction, approval, objection or other instrument required by this
Ordinance 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 an 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, 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 the 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 and the amount or amounts, numbers and other
identification of such 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 1205.
Further Authority. The officers of the City, including the Mayor and the City
Clerk, shall be, and they hereby are, authorized and directed to execute all
documents and take such actions as they 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 1206.
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. The Director of Finance is authorized to
enter in a Continuing Disclosure Agreement substantially in the form on file
with the office of the Director of Finance, with such changes therein as she
deems necessary or desirable.
Section 1207.
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 other provisions of this Ordinance.
Section 1208. Governing
Law. This Ordinance shall be governed exclusively by and construed in
accordance with the applicable laws of the State.
Section 1209.
Effective Date. This Ordinance shall take effect and be in full force and
effect ten (10) days after its passage.
___________________________________________________________________
Approved
as to form and legality:
___________________________________
Assistant
City Attorney