HomeMy WebLinkAbout2013-02-19-Resolutions 13-037_Bonds - Sewer Revenue CLN Series 2013A - IssuanceRESOLUTION 13-037
A RESOLUTION APPROVING AND AUTHORIZING A
FORM OF LOAN AGREEMENT AND AUTHORIZING
AND PROVIDING FOR THE ISSUANCE AND SECURING
THE PAYMENT OF $1,185,000 SEWER REVENUE
CAPITAL LOAN NOTES,SERIES 2013A,OF THE CITY
OF WAUKEE,STATE OF IOWA,UNDER THE
PROVISIONS OF THE CITY CODE OF IOWA,AND
PROVIDING FOR A METHOD OF PAYMENT OF THE
NOTES
WHEREAS,the City Council of the City of Waukee,State ofIowa,sometimes
hereinafter referred to as the "Issuer",has heretofore established charges,rates and rentals
for services which are and will continue to be collected as system revenues ofthe
Municipal Sewer Utility,sometimes hereinafter referred to as the "System",and the
revenues have not been pledged and are available for the payment of Sewer Revenue
Capital Loan Notes,Series 2013A,subject to the following premises;and
WHEREAS,Issuer proposes to issue its Sewer Revenue Capital Loan Notes,
Series 2013A,to the extent of $1,185,000,for the purpose of defraying the costs of the
project as set forth in Section 3 of this Resolution;and,it is deemed necessary and
advisable and in the best interests of the City that a form of Loan Agreement be approved
and authorized;and
WHEREAS,there have been heretofore issued certain sewer revenue bonds,notes
or other obligations,part of which remain outstanding and are a lien on the net revenues
of the System (defmed herein as the "Outstanding Obligations");and
WHEREAS,in the Prior Bond Resolution authorizing the issuance of the
Outstanding Obligations it is provided that additional Revenue Notes or Bonds may be
issued on a parity with the Outstanding Obligations,for the costs of future improvements
and extensions to the System or refunding outstanding obligations,provided that there
has been procured and placed on file with the Clerk,a statement complying with the
conditions and limitations therein imposed upon the issuance of Parity Obligations;and
WHEREAS,a statement of Public Financial Management,an independent
financial advisor not in the regular employ of Issuer,has been placed on file in the office
of the Clerk,showing the conditions and limitations of the Prior Bond Resolution with
regard to the sufficiency of the Net Revenues of the System to permit the issuance of
additional Revenue Notes or Bonds ranking on a parity with the Outstanding Obligations
to have been met and satisfied as required;and
WHEREAS,the notice of intention of Issuer to take action for the issuance of
$1,185,000 Sewer Revenue Capital Loan Notes,Series 2013A,has heretofore been duly
published and no objections to such proposed action have been filed;and the Issuer
desires to proceed with the issuance of $1,185,000 Sewer Revenue Capital Loan Notes:
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WAUKEE,IN THE COUNTY OF DALLAS,STATE OF IOWA:
Section 1.Definitions.The following terms shall have the following meanings in
this Resolution unless the text expressly or by necessary implication requires otherwise:
D "Additional Obligations"shall mean any sewer revenue notes or bonds
issued on a parity with the Notes in accordance with the provisions of this
Resolution.
D "Authorized Denominations"shall mean $5,000 or any integral multiple
thereof.
D "Beneficial Owner"shall mean the person in whose name such Note is
recorded as the beneficial owner of a Note by a Participant on the records of such
Participant or such person's subrogee.
D "Cede &Co."shall mean Cede &Co.,the nominee ofDTC,and any
successor nominee ofDTC with respect to the Notes.
D "Clerk"shall mean the City Clerk,or such other officer of the successor
Governing Body as shall be charged with substantially the same duties and
responsibilities.
D "Continuing Disclosure Certificate"shall mean that certain Continuing
Disclosure Certificate executed by the Issuer and dated the date of issuance and
delivery of the Notes,as originally executed and as it may be amended from time
to time in accordance with the tenus thereof.
D "Depository Notes"shall mean the Notes as issued in the form of one
global certificate for each maturity,registered in the Registration Books
maintained by the Registrar in the name ofDTC or its nominee.
D "DTC"shall mean The Depository Trust Company,New York,New York,
a limited pUl'j)ose trust company,or any successor book-entry securities depository
appointed for the Notes.
o "Fiscal Year"shall mean the twelve-month period beginning on July 1 of
each year and ending on the last day of June of the following year,or any other
consecutive twelve-month period adopted by the Governing Body or by law as the
official accounting period of the System.Requirements of a Fiscal Year as
expressed in this Resolution shall exclude any payment of principal or interest
falling due on the first day of the Fiscal Year and include any payment of principal
or interest falling due on the first day of the succeeding Fiscal Year,except to the
extent of any conflict with the terms of the Outstanding Bonds while the same
remain outstanding.
o "Governing Body"shall mean the City Council of the City,or its successor
in function with respect to the operation and control of the System.
o "Independent Auditor"shall mean an independent firm of Certified Public
Accountants or the Auditor of State.
o "Issuer"and "City"shall mean the City of Waukee,State ofIowa.
o "Loan Agreement"shall mean a Loan Agreement between the Issuer and a
lender or lenders in substantially the Iorm attached to and approved by this
Resolution.
o "Net Revenues"shall mean gross earnings of the System after deduction of
current expenses;"Current Expenses"shall mean and include the reasonable and
necessary cost of operating,maintaining,repairing and insuring the System,
including purchases at wholesale,if any,salaries,wages,and costs of materials
and supplies but excluding depreciation and principal of and interest on the Notes
and any Parity Obligations or payments to the various funds established herein;
capital costs,depreciation and interest or principal payments are not System
expenses.
o "Notes"shall mean $1,185,000 Sewer Revenue Capital Loan Notes,Series
20l3A,authorized to be issued by this Resolution.
o "Original Purchaser"shall mean the purchaser of the Notes from Issuer at
the time of their original issuance.
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Fund Revenue Bonds,Series 1998A dated October 8,1998,of which $178,000 is
currently outstanding;the $945,252 Iowa State Revolving Fund Revenue Bonds,
Series I998B dated October 8,1998,of which $369,000 is currently outstanding;
the $1,178,000 Iowa State Revolving Fund Revenue Bonds,Series 1998C dated
October 8,1998,of which $447,000 is currently outstanding.In addition,the City
has entered into a contractual agreement with the Des Moines Metropolitan
Wastewater Reclamation Authority ("WRA").The following are WRA payment
obligations for the City's proportionate allocated share of debt obligations issued
by the WRA:the $1,947,851 Sewer Revenue Bonds,Series 2004B dated
November 17,2004,of which $1,735,304 is currently outstanding;the $1,190,655
Sewer Revenue Bonds,Series 2006 dated December 21,2006,of which
$1,068,775 is currently outstanding;the $477,428 Sewer Revenue Capital Loan
Notes,Series 2008A dated June 4,2008,of which $424,586 is currently
outstanding;the $312,970 Sewer Revenue Capital Loan Notes,Series 2008B dated
June 4,2008,of which $294,987 is currently outstanding;the $126,140 Sewer
Revenue Capital Loan Notes,Series 2008D dated June 4,2008,of which $109,369
is currently outstanding;the $388,920 Sewer Revenue Capital Loan Notes,Series
2009B dated March 18,2009,of which $377,531 is currently outstanding;the
$425,960 Sewer Revenue Capital Loan Notes,Series 2009C dated July 1,2009,of
which $413,471 is currently outstanding;the $233,750 Sewer Revenue Capital
Loan Notes,Series 2010A dated May 12,2010,of which $223,837 is currently
outstanding;the $324,100 Sewer Revenue Capital Loan Notes,Series 2010B dated
May 12,2010,of which $321,813 is currently outstanding;the $37,200 Sewer
Revenue Capital Loan Notes,Series 2010C-1 dated June 30,2010,of which
$33,740 is currently outstanding;the $389,150 Sewer Revenue Capital Loan
Notes,Series 201OC-2 dated June 30,2010,of which $362,705 is currently
outstanding;the $739,461 Sewer Revenue Capital Loan Notes,Series 2011B dated
March 23,2011,of which $751,633 is currently outstanding,the $1,046,925
Sewer Revenue Capital Loan Notes,Series 2011A dated May 25,2011,of which
$1,012,200 is currently outstanding;the $259,564 Sewer Revenue Capital Loan
Notes,Series 2011C dated May 25,2011,of which $258,309 is currently
outstanding,and the $378,144 Sewer Revenue Capital Loan Notes,Series 2011D
dated December 21,2011,of which $387,504 is currently outstanding,the
$130,229 Sewer Revenue Capital Loan Notes,Series 2012B dated May 16,2012,
of which $130,229 is currently outstanding;the $303,660 Sewer Revenue Capital
Loan Notes,Series 2012C dated May 162012,of which $303,660 is currently
outstanding;the $118,090 Sewer Revenue Capital Loan Notes,Series 2012D dated
May 16,2012,of which $118,090 is currently outstanding,the $577,854 Sewer
Revenue Capital Loan Notes,Series 2012E dated November 16,2012,of which
$577,854 is currently outstanding;the $67,087 Sewer Revenue Capital Loan
Notes,Series 2012F dated November 16,2012,of which $67,087 is currently
outstanding,and the $592,020 Sewer Revenue Capital Loan Notes,Series 2012G
dated November 16,2012,of which $592,020 is currently outstanding.
D "Parity Obligations"shall mean sewer revenue notes,bonds or other
obligations payable solely from the Net Revenues of the System on an equal basis
with the Notes herein authorized to be issued,and shall include Additional
Obligations as authorized to be issued under the terms of this Resolution and the
Outstanding Obligations.
D "Participants"shall mean those broker-dealers,banks and other fmancial
institutions for which DTC holds Notes as securities depository.
D "Paying Agent"shall mean Bankers Trust Company,or such successor as
may be approved by Issuer as provided herein and who shall carry out the duties
prescribed herein as Issuer's agent to provide for the payment of principal of and
interest on the Notes as the same shall become due.
D "Permitted Investments"shall mean any investments permitted in Iowa
Code chapter I2B or section I2C.9.All interim investments must mature before
the date on which the moneys are required for payment of principal and interest on
the Notes or proj ect costs.
D "Prior Bond Resolution"shall mean Resolution No.98-42,dated August
17,1998,authorizing the Outstanding Obligations.
LJ "Project Fund"shall mean the fund required to be established by this
Resolution for the deposit of the proceeds of the Notes.
D "Registrar"shall mean Bankers Trust Company of Des Moines,Iowa,or
such successor as may be approved by Issuer as provided herein and who shall
carry out the duties prescribed herein with respect to maintaining a register of the
owners of the Notes.Unless otherwise specified,the Registrar shall also act as
Transfer Agent for the Notes.
D "Representation Letter"shall mean the Blanket Issuer Letter of
Representations executed and delivered by the Issuer to DTC on file with DTC.
D "Reserve Fund Requirement"shall mean an amount equal to the lesser of
(a)the maximum annual amount of the principal and interest coming due on the
Notes and Additional Obligations requiring a reserve;(b)10 %of the stated
principal amount of the Notes and Additional Obligations requiting a reserve or (c)
125%of the average annual principal and interest coming due on the Notes and
Additional Obligations requiring a reserve.For purposes of this definition:(1)
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original issue discount or original issue premium of more than a de minimus
amount and (2)stated principal amount shall not include any portion of an issue
refunded or advance refunded by a subsequent issue.
D "Resolution"shall mean this resolution authorizing the issuance of the
Notes.
D "System"shall mean the Municipal Sewer Utility of the Issuer and all
properties of every nature hereinafter owned by the Issuer comprising part of or
used as a part of the System,including all improvements and extensions made by
Issuer while any of the Notes or Parity Obligations remain outstanding;all real
and personal property;and all appurtenances,contracts,leases,franchises and
other intangibles.
D "Tax Exemption Certificate"shall mean the Tax Exemption Certificate
executed by the Treasurer and delivered at the time of issuance and delivery of the
Notes.
D "Treasurer"shall mean the Director of Finance or such other officer as shall
succeed to the same duties and responsibilities with respect to the recording and
payment of the Notes issued hereunder.
D "Yield Restricted"shall mean required to be invested at a yield that is not
materially higher than the yield on the Notes under section 148 (a)of the Internal
Revenue Code or regulations issued thereunder.
Section 2.Authority.The Loan Agreement and the Notes authorized by this
Resolution shall be issued pursuant to Sections 384.24A and 384.83,of the City Code of
Iowa,and in compliance with all applicable provisions of the Constitution and laws of the
State ofIowa.The Loan Agreement shall be substantially in the form attached to this
Resolution and is authorized to be executed and issued on behalf of the Issuer by the
Mayor and attested by the City Clerk.
Section 3.Authorization and Purpose.There are hereby authorized to be issued,
negotiable,serial,fully registered Revenue Notes of the City of Waukee,in the County of
Dallas,State ofIowa,in the aggregate amount of $1,185,000,for the purpose of paying
costs of improvements and extensions to the Municipal Sewer System,including the
Little Walnut Creek Regional Lift Station project.
Section 4.Source of Payment.The Notes herein authorized and Parity Notes and
Parity Obligations and the interest thereon shall be payable solely and only out of the net
earnings of the Svstem and shall be a first lien on the future Net Revenues ofthe Svstem.
--JTheNotesshallnotbegeneralobligationsoftheIssuernorshalltheybepayablein any
manner by taxation and the Issuer shall be in no manner liable by reason of the failure of
the net revenues to be sufficient for the payment of the Notes.
Section 5.Note Details.Sewer Revenue Capital Loan Notes,Series 2013A,of the
City in the amount of $1,185,000,shall be issued to evidence the obligations of the Issuer
under the Loan Agreement pursuant to the provisions of Sections 384.24A and 384.83 of
the City Code ofIowa for the aforesaid purpose.The Notes shall be designated
"$1,185,000 SEWER REVENUE CAPITAL LOAN NOTES,SERIES 2013A",be dated
March 1,2013,and bear interest from the date thereof,until payment thereof,at the
office of the Paying Agent,such interest payable on December 1,2013,and semiannually
thereafter on the 1st day of June and December in each year until maturity at the rates
hereinafter provided.
The Notes shall be executed by the manual or facsimile signature of the Mayor
and attested by the manual or facsimile signature ofthe City Clerk,and impressed or
printed with the seal of the City and shall be fully registered as to both principal and
interest as provided in this Resolution;principal,interest and premium,if any,shall be
payable at the office of the Paying Agent by mailing of a check to the registered owner of
the Note.The Notes shall be in the denomination of $5,000 or multiples thereof.The
Notes shall mature and bear interest as follows:
Principal Interest Maturity
Amount Rate June 1st
$100,000 2.000%2014
$100,000 2.000%2015
$100,000 2.000%2016
$100,000 2.000%2017
$100,000 2.000%2018
$110,000 2.000%2019
$110,000 2.000%2020
$110,000 2.000%2021
$115,000 2.125%2022
$120,000 2.250%2023
$120,000 2.500%2024
Section 6.Redemption.Notes maturing after June 1,2021,may be called for
redemption by the Issuer and paid before maturity on such date or any date thereafter,
from any funds regardless of source,in whole or from time to time in part,in any order of
maturity and within an annual maturity by lot.The terms of redemption shall be par,plus
accmed interest to date of call.
Thirty days'notice of redemption shall be given by regular mail to the registered
owner of the Note.Failure to give such notice by mail to any registered owner of the
Notes or any defect therein shall not affect the validity of any proceedings for the
redemption of the Notes.All Notes or portions thereof called for redemption will cease to
bear interest after the specified redemption date,provided funds for their redemption are
on deposit at the place of payment.
If selection by lot within a maturity is required,the Registrar shall designate the
Notes to be redeemed by random selection of the names of the registered owners of the
entire annual maturity until the total amount of Notes to be called has been reached.
Section 7.Issuance of Notes in Book-Entry Form;Replacement Notes.
(a)Notwithstanding the other provisions of this Resolution regarding
registration,ownership,transfer,payment and exchange of the Notes,unless the Issuer
determines to permit the exchange of Depository Notes for Notes in the Authorized
Denominations,the Notes shall be issued as Depository Notes in denominations of the
entire principal amount of each maturity of Notes (or,if a portion of the principal amount
is prepaid,the principal amount less the prepaid amount);and such Depository Notes
shall be registered in the name of Cede &Co.,as nominee of DTC.Payment of semi-
annual interest for any Depository Note shall be made by wire transfer or New York
Clearing House or equivalent next day funds to the account of Cede &Co.on the interest
payment date for the Notes at the address indicated in or pursuant to the Representation
Letter.
(b)With respect to Depository Notes,neither the Issuer nor the Paying Agent
shall have any responsibility or obligation to any Participant or to any Beneficial Owner.
Without limiting the immediately preceding sentence,neither the Issuer nor the Paying
Agent shall have any responsibility or obligation with respect to (i)the accuracy of the
records ofDTC or its nominee or of any Participant with respect to any ownership
interest in the Notes,(ii)the delivery to any Participant,any Beneficial Owner or any
other person,other than DTC or its nominee,of any notice with respect to the Notes,(iii)
the payment to any Participant,any Beneficial Owner or any other person,other than
DTC or its nominee,of any amount with respect to the principal of,premium,if any,or
interest on the Notes,or (iv)the failure ofDTC to provide any information or notification
on behalf of any Participant or Beneficial Owner.
The Issuer and the Paying Agent may treat DTC or its nominee as,and deem DTC
or its nominee to be,the absolute owner of each Note for the purpose of payment of the
principal of,premium,if any,and interest on such Note,for the purpose of all other
matters with respect to such Note,for the purpose of registering transfers with respect to
such Notes,and for all other purposes whatsoever (except for the giving of certain
Noteholder consents,in accordance with the practices and procedures ofDTC as may be
applicable thereto).The Paying Agent shall pay all principal of,premium,if any,and
interest on the Notes only to or upon the order of the noteholders as shown on the
Registration Books,and all such payments shall be valid and effective to fully satisfy and
discharge the Issuer's obligations with respect to the principal of,premium,if any,and
interest on the Notes to the extent so paid.Notwithstanding the provisions of this
Resolution to the contrary (including without limitation those provisions relating to the
surrender of Notes,registration thereof,and issuance in Authorized Denominations),as
long as the Notes are Depository Notes,full effect shall be given to the Representation
Letter and the procedures and practices ofDTC thereunder,and the Paying Agent shall
comply therewith.
(c)Upon (i)a determination by the Issuer that DTC is no longer able to carry
out its functions or is otherwise determined unsatisfactory,or (ii)a determination by DTC
that the Notes are no longer eligible for its depository services or (iii)a determination by
the Paying Agent that DTC has resigned or discontinued its services for the Notes,if such
substitution is authorized by law,the Issuer shall (A)designate a satisfactory substitute
depository as set forth below or,if a satisfactory substitute is not found,(B)provide for
the exchange of Depository Notes for replacement Notes in Authorized Denominations.
(d)To the extent authorized by law,if the Issuer determines to provide for the
exchange of Depository Notes for Notes in Authorized Denominations,the Issuer shall so
notify the Paying Agent and shall provide the Registrar with a supply of executed
unauthenticated Notes to be so exchanged.The Registrar shall thereupon notify the
owners of the Notes and provide for such exchange,and to the extent that the Beneficial
Owners are designated as the transferee by the owners,the Notes will be delivered in
appropriate form,content and Authorized Denominations to the Beneficial Owners,as
their interests appear.
(e)Any substitute depository shall be designated in writing by the Issuer to the
Paying Agent.Any such substitute depository shall be a qualified and registered "clearing
agency"as provided in Section l7A of the Securities Exchange Act of 1934,as amended.
The substitute depository shall provide for (i)immobilization of the Depository Notes,
(ii)registration and transfer of interests in Depository Notes by book entries made on
records of the depository or its nominee and (iii)payment of principal of,premium,if
any,and interest on the Notes in accordance with and as such interests may appear with
respect to such book entries.
Section 8.RegistTation of Notes;Appointment of Registrar;Transfer;Ownership;
DeliveIy;and Cancellation.
(a)Registration.The ownership of Notes may be transferred only by the
making of an entry upon the books kept for the registration and transfer of
ownership of the Notes,and in no other way.Bankers Trust Company is hereby
appointed as Note Registrar under the terms of this Resolution and under the
provisions of a separate agreement with the Issuer filed herewith which is made a
part hereof by this reference.Registrar shall maintain the books of the Issuer for
the registration of ownership of the Notes for the payment of principal of and
interest on the Notes as provided in this Resolution.All Notes shall be negotiable
as provided in Article 8 of the Uniform Commercial Code subject to the
provisions for registration and transfer contained in the Notes and in this
Resolution.
(b)Transfer.The ownership of any Note may be transferred only upon the
Registration Books kept for the registration and transfer of Notes and only upon
surrender thereof at the office of the Registrar together with an assigmnent duly
executed by the holder or his duly authorized attomey in fact in such form as shall
be satisfactory to the Registrar,along with the address and social security number
or federal employer identification number of such transferee (or,if registration is
to be made in the name of multiple individuals,of all such transferees).In the
event that the address of the registered owner of a Note (other than a registered
owner which is the nominee of the broker or dealer in question)is that of a broker
or dealer,there must be disclosed on the Registration Books the information
pertaining to the registered owner required above.Upon the transfer of any such
Note,a new fully registered Note,of any denomination or denominations
permitted by this Resolution in aggregate principal amount equal to the unmatured
and unredeemed principal amount of such transferred fully registered Note,and
bearing interest at the same rate and maturing on the same date or dates shall be
delivered by the Registrar.
(c)Registration of Transferred Notes.In all cases of the transfer of the Notes,
the Registrar shall register,at the earliest practicable time,on the Registration
Books,the Notes,in accordance with the provisions of this Resolution.
(d)Ownership.As to any Note,the person in whose name the ownership of the
same shall be registered on the Registration Books of the Registrar shall be
deemed and regarded as the absolute owner thereof for all purposes,and payment
of or on account of the principal of any such Notes and the premium,if any,and
interest thereon shall be made only to or upon the order of the registered owner
thereof or his legal representative.All such payments shall be valid and effectual
to satisfy and discharge the liability upon such Note,including the interest thereon,
to the extent of the sum or sums so paid.
(e)Cancellation.All Notes which have been redeemed shall not be reissued but
shall be cancelled by the Registrar.All Notes which are cancelled by the Registrar
shall be destroyed and a Certificate of the destruction thereof shall be furnished
promptly to the Issuer;provided that if the Issuer shall so direct,the Registrar shall
forward the cancelled Notes to the Issuer.
(f)Non-Presentment of Notes.In the event any payment check representing
payment of principal of or interest on the Notes is returned to the Paying Agent or
if any note is not presented for payment of principal at the maturity or redemption
date,if funds sufficient to pay such principal of or interest on Notes shall have
been made available to the Paying Agent for the benefit of the owner thereof,all
liability of the Issuer to the owner thereof for such interest or payment of such
Notes shall forthwith cease,terminate 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 owner of such Notes who shall
thereafter be restricted exclusively to such funds for any claim of whatever nature
on his part under this Resolution or on,or with respect to,such interest or Notes.
The Paying Agent's obligation to hold such funds shall continue for a period equal
to two years and six months following the date on which such interest or principal
became due,whether at maturity,or at the date fixed for redemption thereof,or
otherwise,at which time the Paying Agent,shall surrender any remaining funds so
held to the Issuer,whereupon any claim under this Resolution by the Owners of
such interest or Notes of whatever nature shall be made upon the Issuer.
(g)Registration and Transfer Fees.The Registrar may furnish to each owner,at
the Issuer's expense,one note for each annual maturity.The Registrar shall furnish
additional Notes in lesser denominations (but not less than the minimum
denomination)to an owner who so requests.
Section 9.Reissuance of Mutilated,Destroyed,Stolen or Lost Notes.In case any
outstanding Note shall become mutilated or be destroyed,stolen or lost,the Issuer shall at
the request of Registrar authenticate and deliver a new Note oflike tenor and amount as
the Note so mutilated,destroyed,stolen or lost,in exchange and substitution for such
mutilated Note to Registrar,upon surrender of such mutilated Note,or in lieu of and
substitution for the Note destroyed,stolen or lost,upon filing with the Registrar evidence
satisfactory to the Registrar and Issuer that such Note has been destroyed,stolen or lost
and proof of ownership thereof,and upon furnishing the Registrar and Issuer with
satisfactory indemnity and complying with such other reasonable regulations as the Issuer
or its agent may prescribe and paying such expenses as the Issuer may incur in
connection therewith.
Section 10.Record Date.Payments of principal and interest,otherwise than upon
full redemption,made in respect of any Notes,shall be made to the registered holder
thereof or to their designated Agent as the same appear on the books of the Registrar on
the 15th day of the month preceding the payment date.All such payments shall fully
discharge the obligations of the Issuer in respect of such Notes to the extent of the
payments so made.Payment of principal shall only be made upon surrender of the Notes
to the Paying Agent.
Section 11.Execution,Authentication and Delivery ohhe Notes.Upon the
adoption of this Resolution,the Mayor and Clerk shall execute and deliver the Notes to
the Registrar,who shall authenticate the Notes and deliver the same to or upon order of
the Original Purchaser.No Note shall be valid or obligatory for any purpose or shall be
entitled to any right or benefit hereunder unless the Registrar shall duly endorse and
execute on such Note a Certificate of Authentication substantially in the form of the
Certificate herein set forth.Such Certificate upon any Note executed on behalf of the
Issuer shall be conclusive evidence that the Note so authenticated has been duly issued
under this Resolution and that the holder thereof is entitled to the benefits of this
Resolution.
No Notes shall be authenticated and delivered by the Registrar,unless and until
there shall have been provided the following:
•A certified copy of the resolution of Issuer approving the execution of a Loan
Agreement and a copy of the Loan Agreement;
•A written order of Issuer signed by the Treasurer directing the authentication
and delivery of the Notes to or upon the order of the Original Purchaser upon
payment of the purchase price as set forth therein;
•The approving opinion of Ahlers &Cooney,P.c.,Bond Counsel,concerning
the validity and legality of all the Notes proposed to be issued.
Section 12.Right to Name Substitute Paying Agent or Registrar.Issuer reserves
the light to name a substitute,successor Registrar or Paying Agent upon giving prompt
written notice to each registered Noteholder.
Section 13.Fonn of Note.Notes shall be printed in substantial compliance with
standards proposed by the American Standards Institute substantially in the form as
follows:
(6)(6)
(7)(8)
(1)
(2)(3)(4)(5)
(9)
(9a)
(10)
(Continued on the back of this Note)
(11)(12)(13)(14)(15)
FIGURE 1
(Front)
(16)(10)
(Continued)
FIGURE 2
(Back)
The text of the Notes to be located thereon at the item numbers shown shall be as
follows:
Item 1,figure 1=
Item 2,figure 1 =
Item 3,figure 1 =
Item 4,figure 1 =
Item 5,figure 1 =
Item 6,figure 1 =
Item 7,figure 1 =
Item 8,figure I =
"STATE OF IOWA"
"COUNTY OF DALLAS"
"CITY OF WAUKEE"
"SEWER REVENUE CAPITAL LOAN NOTE"
"SERIES 2013A"
Rate:_
Maturity:-:-c:----:-,------::--:-c--
Note Date:March 1,2013
CUSIP No.:._
"Registered"
Note No._
Principal Amount:$._
Item 9,figure 1=The City of Waukee,State ofIowa,a municipal corporation
organized and existing under and by virtue of the Constitution and laws of the State of
Iowa (the "Issuer"),for value received,promises to pay from the source and as
hereinafter provided,on the maturity date indicated above,to
Item 9A,figure 1 =(Registration panel to be completed by Registrar or Printer
with name of Registered Owner).
Item 10,figure 1 =or registered assigns,the principal sum of
______THOUSAND DOLLARS in lawful money of the United States of
America,on the maturity date shown above,only upon presentation and surrender hereof
at the office of Bankers Trust Company,Paying Agent of this issue,or its successor,with
interest on such sum from the date hereof until paid at the rate per annum specified
above,payable on December 1,2013,and semiannually thereafter on the 1st day of June
and December in each year.
Interest and principal shall be paid to the registered holder of the Note as shown
on the records of ownership maintained by the Registrar as of the 15th day of the month
preceding such interest payment date.
This Note is issued pursuant to the provisions of Sections 384.24A and 384.83 of
the City Code ofIowa,for the purpose of paying costs of improvements and extensions to
the Municipal Sewer System,including the Little Walnut Creek Regional Lift Station
project,and in order to evidence the obligations of the Issuer under a certain Loan
Agreement dated the date hereof,in conformity to a Resolution of the City Council of the
City duly passed and approved.For a complete statement of the revenues and funds from
which and the conditions under which this Note is payable,a statement of the conditions
under which additional Notes or Bonds of equal standing may be issued,and the general
covenants and provisions pursuant to which this Note is issued,reference is made to the
above described Loan Agreement and Resolution.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company,a limited purpose trust company ("DTC"),to the Issuer or its
agent for registration of transfer,exchange or payment,and any certificate issued is
registered in the name of Cede &Co.or such other name as requested by an authorized
representative ofDTC (and any payment is made to Cede &Co.or to such other Issuer as
is requested by an authorized representative ofDTC),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.
Notes maturing after June 1,2021,may be called for redemption by the Issuer and
paid before maturity on such date or any date thereafter,from any funds regardless of
source,in whole or from time to time in part,in any order of maturity and within an
annual maturity by lot.The terms of redemption shall be par,plus accrued interest to date
of call.
Thirty days'notice of redemption shall be given by regular mail to the registered
owner of the Note.Failure to give such notice by mail to any registered owner of the
Notes or any defect therein shall not affect the validity of any proceedings for the
redemption of the Notes.All Notes or portions thereof called for redemption will cease to
bear interest after the specified redemption date,provided funds for their redemption are
on deposit at the place of payment.
If selection by lot within a maturity is required,the Registrar shall desiguate the
Notes to be redeemed by random selection of the names of the registered owners of the
entire annual maturity until the total amount of Notes to be called has been reached.
Ownership of this Note may be transferred only by transfer upon the books kept
for such purpose by Bankers Trust Company,the Registrar.Such transfer on the books
shall occur only upon presentation and surrender of this Note at the office of the Registrar
as designated below,together with an assignment duly executed by the owner hereof or
his duly authorized attomey in the form as shall be satisfactory to the Registrar.Issuer
res elves the right to substitute the Registrar and Paying Agent but shall,however,
promptly give notice to registered Noteholders of such change.All Notes shall be
negotiable as provided in Article 8 of the Uniform Commercial Code and subject to the
provisions for registration and transfer contained in the Note Resolution.
This Note and the series of which it forms a part,other obligations ranking on a
parity therewith,and any Additional Obligations which may be hereafter issued and
outstanding from time to time on a parity with the Notes,as provided in the Note
Resolution and Loan Agreement of which notice is hereby given and which are hereby
made a part hereof,are payable from and secured by a pledge of the Net Revenues of the
Municipal Sewer Utility (the "System"),as defined and provided in the Resolution.There
has heretofore been established and the City covenants and agrees that it will maintain
just and equitable Tates or charges for the use of and service rendered by the System in
each year for the payment of the proper and reasonable expenses of operation and
maintenance of the System and for the establishment of a sufficient sinking fund to meet
the principal of and interest on this series of Notes,and other Obligations ranking on a
parity therewith,as the same become due.This Note is not payable in any manner by
taxation and nnder no circumstances shall the City be in any manner liable by reason of
the failure of the net earnings to be sufficient for the payment hereof.
And it is hereby represented and certified that all acts,conditions and things
requisite,according to the laws and Constitution of the State ofIowa,to exist,to be had,
to be done,or to be performed precedent to the lawful issue of this Note,have been
existent,had,done and performed as required by law.
IN TESTIMONY WHEREOF,the City by its City Council has caused this Note to
be signed by the manual or facsimile signature of its Mayor and attested by the manual or
facsimile signature of its Clerk,with the seal of the City printed or impressed hereon,and
authenticated by the manual signature of an authorized representative of the Registrar,
Bankers Trust Company,Des Moines,Iowa.
Item 11,figure I
Item 12,figure I
Date of Authentication:
This is one of the Notes described in the within mentioned
Resolution,as registered by Bankers Trust Company
BANKERS TRUST COMPANY,Registrar
By:--:-----:-----:-_
Authorized Signature
Item 13,figure I Registrar and Transfer Agent:Bankers Trust Company
Paying Agent:Bankers Trust Company
SEE REVERSE FOR CERTAIN DEFINITIONS
Item 14,figure 1
Item 15,figure I
(Seal)
(Signature Block)
CITY OF WAUKEE,STATE OF IOWA
Mayor
ATTEST:
(manual or facsimile signature)
City Clerk
Item 17,figure 1
Item 17,figure 2
(Statement of Insurance]
(Assignment Block)
(Information Required for Registration)
ASSIGNMENT
For value received,the undersigned hereby sells,assigns and transfers unto
______---:----,-_---:~(Social Security or Tax Identification No.
______---')the within Note and does hereby irrevocably constitute and appoint
___________attomey in fact to transfer the said Note on the books kept
for registration of the within Note,with full power of substitution in the premises.
Dated this day of "2013.
(Person (s)executing this Assignment
sign(s)here)
SIGNATURE
GUARANTEED
)
)---------------
IMPORTANT -READ CAREFULLY
The signature(s)to this Power must correspond with the name(s)as written
upon the face of the Certificate(s)or Note(s)in every particular without
alteration or enlargement or any change whatever.Signature guarantee
must be provided in accordance with the prevailing standards and
procedures of the Registrar and Transfer Agent.Such standards and
procedures may require signature to be guaranteed by certain eligible
guarantor institutions that participate in a recognized signature guarantee
program.
INFORMATION REQUIRED FOR REGISTRATION OF TRANSFER
Name of Transferee(s)
Address ofTransferee(s)_
Social Security or Tax Identification
Number of Transferee(s)_
Transferee is a(n):
Individual *
Partnership
Corporation _
Trust
*If the Note is to be registered in the names of multiple individual owners,the
names of all such owners and one address and social security number must be
provided.
The following abbreviations,when used in the inscription on the face of this Note,
shall be construed as though written out in full according to applicable laws or
regulations:
TEN COM -as tenants in common
TEN ENT -as tenants by the entireties
IT TEN -as joint tenants with rights of survivorship and not as tenants in common
IA UNIF TRANS MIN ACT -Custodian .
(Cust)(Minor)
Under Iowa Uniform Transfers to Minors Act....
(State)
ADDITIONAL ABBREVIATIONS MAY ALSO BE USED
THOUGH NOT IN THE ABOVE LIST
Section 14.Equality of Lien.The timely payment of principal of and interest on
the Notes and Parity Obligations shall be secured equally and ratably by the Net
Revenues of the System without priority by reason of number or time of sale or delivery;
and the revenues of the System are hereby irrevocably pledged to the timely payment of
both principal and interest as the same become due.
Section 15.Application of Note Proceeds -Project Fund.Proceeds of the Notes
shall be applied as follows:
•An amount equal to accrued interest shall be deposited in the Sinking Fund
for application to the first payment of interest on the Notes.
•An amount sufficient to meet the Reserve Fund Requirement shall be
deposited in the Reserve Fund.
•The balance of the proceeds shall be deposited to the Project Fund and
expended therefrom for the purposes of issuance.
The Project Fund shall be invested in accordance with Section 18 of this
Resolution.Earnings on investments of the Project Fund shall be deposited in and
expended from the Project Fund.Any amounts on hand in the Project Fund shall be
available for the payment of the principal of or interest on the Notes at any time that other
funds of the System shall be insufficient to the purpose,in which event such funds shall
be repaid to the Project Fund at the earliest opportunity.Any balance on hand in the
Project Fund and not immediately required for its purposes may be invested not
inconsistent with limitations provided by law,the Internal Revenue Code and this
Resolution.
Section 16.User Rates.There has heretofore been established and published as
required by law,just and equitable rates or charges for the use of the service rendered by
the System.The rates or charges shall be paid by the owner of each and every lot,parcel
of real estate,or building that is counected with and uses the System,by or through any
part of the System or that in any way uses or is served by the System.So long as the
Notes are outstanding and unpaid the rates or charges to consumers of services of the
System shall be sufficient in each year for the payment of the proper and reasonable
expenses of operation and maintenance of the System and for the payment of principal
and interest on the Notes and Parity Notes and obligations as the same fall due,and to
provide for the creation of reserves as hereinafter provided.-~
Any revenues paid and collected for the use of the System and its services by the
Issuer or any department,agency or instrumentality of the Issuer shall be used and
accounted for in the same manner as any other revenues derived from the operations of
the System.
Section 17.Application of Revenues.The provisions in the Prior Bond Resolution
whereby there was created and is to be maintained a Sewer Revenue Note Principal and
Interest Sinking Fund (the "Sinking Fund"),and for the monthly payment into said fund
from the future Net Revenues of the System such portion thereof as will be sufficient to
meet the principal and interest of the Outstanding Obligations,and maintaining a reserve
therefor,are hereby ratified and confirmed,and all such provisions inure to and constitute
the security for the payment of the principal and interest on Notes hereby authorized to be
issued;provided,however,that the amounts to be set aside and paid into the Sinking
Fund in equal monthly installments from the earnings shall be sufficient to pay the
principal and interest due each year,not only on the Outstanding Obligations,but also the
principal and interest of the Notes herein authorized to be issued.Except as may be
otherwise provided in the above Prior Note Resolution,proceeds of the Notes or other
funds may be invested in Permitted Investments.
Nothing in this Resolution shall be construed to impair the rights vested in the
Outstanding Obligations.The amounts herein required to be paid into the various funds
named in this Section shall be inclusive of payments required in respect to the
Outstanding Obligations.The provisions of the legislation authorizing the Outstanding
Obligations and the provisions of this Resolution are to be construed wherever possible
so that the same will not be in conflict.In the event such construction is not possible,the
provisions of the resolution first adopted shall prevail until such time as the notes or
bonds authorized by said resolution have been paid in full or otherwise satisfied as
therein provided at which time the provisions of this Resolution shall again prevail.
So long as the Notes or Parity Obligations remain outstanding and unpaid the
same are discharged and satisfied in the manner provided in this Resolution,the entire
income and revenues of the system shall be deposited and collected in a fund to be known
as the Revenue Fund,and shall be disbursed only as follows:
(a)Operation and Maintenance Fund.Money in the Revenue Fund shall
first be disbursed to make deposits into a separate and special fund to pay current
expenses.The fund shall be known as the Sewer Revenue Operation and
Maintenance Fund (the "Operation and Maintenance Fund").There shall be
deposited in the Operation and Maintenance Fund each month an amount
sufficient to meet the current expenses of the month plus an amount equal to
1I12th of expenses payable on an annual basis such as insurance.After the first
day of the month,further deposits may be made to this account from the Revenue
Fund to the extent necessary to pay current expenses accrued and payable to the
extent that funds are not available in the Surplus Fund.
(b)Sinking Fund.Money in the Revenue Fund shall next be disbursed
to make deposits into a separate and special fund to pay the principal and interest
requirements of the Fiscal Year on the Notes and Parity Obligations.The fund
shall be known as the Sewer Revenue Note and Interest Sinking Fund (the
"Sinking Fund").The required amount to be deposited in the Sinking Fund in any
month shall be the equal monthly amount necessary to pay in full the installment
of interest coming due on the next interest payment date on the then outstanding
Notes and Parity Obligations,plus the equal monthly amount necessary to pay in
full the installment of principal coming due on such Notes on the next succeeding
principal payment date until the full amount of such installment is on hand.If for
any reason the amount on hand in the Sinking Fund exceeds the required amount,
the excess shall forthwith be withdrawn and paid into the Revenue Fund.Money
in the Sinking Fund shall be used solely for the purpose of paying principal of and
interest on the Notes and Parity Obligations as the same shall become due and
payable.
(c)Reserve Fund.Money in the Revenue Fund shall be disbursed to
maintain a debt service reserve in an amount equal to the Reserve Fund
Requirement.Such fund shall be known as the Sewer Revenue Debt Service
Reserve Fund (the "Reserve Fund").In each month there shall be deposited in the
Reserve Fund an amount equal to 25 percent of the amount required by this
Resolution to be deposited in such month in the Sinking Fund;provided,however,
that when the amount on deposit in the Reserve Fund shall be not less than the
Reserve Fund Requirement,no further deposits shall be made into the Reserve
Fund except to maintain such level,and when the amount on deposit in the
Reserve Fund is greater than the balance required above,such additional amounts
shall be withdrawn and paid into the Revenue Fund.Money in the Reserve Fund
shall be used solely for the purpose of paying principal at maturity of or interest on
the Notes and Parity Obligations for the payment of which insufficient money
shall be available in the Sinking Fund.Whenever it shall become necessary to so
use money in the Reserve Fund,the payments required above shall be continued or
resumed until it shall have been restored to the required minimum amount.
Current outstanding parity debt does not require a reserve.Notwithstanding the
foregoing,there shall be no deposit into the Sewer Reserve Fund with respect to
the outstanding SRF Loans or WRA Payment Obligations,nor shall the Sewer
Reserve Fund secure the outstanding SRF Loans or WRA Payment
Obligations.After delivery of the Notes,the Reserve Fund Requirement for the
Notes will be $118,500,which shall be funded from cash on hand.
(d)Subordinate Obligations.Money in the Revenue Fund may next be
used to pay principal of and interest on (including reasonable reserves therefor)
any other obligations which by their terms shall be payable from the revenues of
the System,but subordinate to the Notes and Parity Obligations,and which have
been issued for the purposes of extensions and improvements to the System or to
retire the Notes or Parity Obligations in advance of maturity,or to pay for
extraordinary repairs or replacements to the System.
(e)Surplus Revenue.All money thereafter remaining in the Revenue
Fund at the close of each month may be deposited in any of the funds created by
this Resolution,to pay for extraordinary repairs or replacements to the System,or
may be used to payor redeem the Notes or Parity Obligations,any of them,or for
any lawful purpose.
Money in the Revenue Fund shall be allotted and paid into the various funds and
accounts hereinbefore referred to in the order in which the funds are listed,on a
cumulative basis on the 10th day of each month,or on the next succeeding business day
when the 10th shall not be a business day;and if in any month the money in the Revenue
Fund shall be insufficient to deposit or transfer the required amount in any of the funds or
accounts,the deficiency shall be made up in the following month or months after
payments into all funds and accounts enjoying a prior claim to the revenues shall have
been met in full.The provisions of this Section shall not be construed to require the
Issuer to maintain separate bank accounts for the funds created by this Section;except the
Sinking Fund and the Reserve Fund shall be maintained in a separate account but may be
invested in conjunction with other funds of the City but designated as a trust fund on the
books and records of the City.
Section 18.Investments.All of the funds provided by this Resolution may be
invested only in Permitted Investments or deposited in financial institutions which are
members of the Federal Deposit Insurance Corporation or its equivalent successor,and
the deposits in which are insured thereby and all such deposits exceeding the maximum
amount insured from time to time by FDIC or its equivalent successor in anyone
financial institution shall be continuously secured in compliance with Chapter l2C of the
Code ofIowa,2013,as amended,or otherwise by a valid pledge of direct obligations of
the United States Government having an equivalent market value.All such interim
investments shall mature before the date on which the moneys are required for the
purposes for which the fund was created or otherwise as herein provided but in no event
maturing in more than three years in the case of the Reserve Fund.
All income derived from such investments shall be deposited in the Revenue Fund
and shall be regarded as revenues of the System.Investments shall at any time necessary
be liquidated and the proceeds thereof applied to the pUl1Jose for which the respective
fund was created.
Section 19.Covenants Regarding the Operation of the System.The Issuer hereby
covenants and agrees with each and every holder of the Notes and Parity Obligations:
(a)Maintenance and Efficiency.The Issuer will maintain the System in
good condition and operate it in an efficient manner and at reasonable cost.
(b)Sufficiency of Rates.On or before the beginning of each Fiscal Year
the Governing Body will adopt or continue in effect rates for all services rendered
by the System determined to be sufficient to produce Net Revenues for the next
succeeding Fiscal Year adequate to pay principal and interest requirements and
create reserves as provided in this Resolution but not less than 125 percent of the
principal and interest requirements of the Fiscal Year.No free use of the System
by the Issuer or any department,agency or instrumentality of the Issuer shall be
permitted except upon the determination of the Goveming Body that the rates and
charges otherwise in effect are sufficient to provide Net Revenues at least equal to
the requirements of this subsection.
(c)Insurance.That the Issuer shall maintain insurance for the benefit of
the Noteholders on the insurable portions ofthe System of a kind and in an
amount wbich normally would be carried by private companies engaged in a
similar kind of business.The proceeds of any insurance,except public liability
insurance,shall be used to repair or replace the part or parts of the System
damaged or destroyed,or if not so used shall be placed in the Revenue Fund.
(d)Accounting and Audits.The Issuer will cause to be kept proper
books and accounts adapted to the System and in accordance with generally
accepted accounting practices,and will diligently act to cause the books and
accounts to be audited annually and reported upon not later than 180 days after the
end of each Fiscal Year by an Independent Auditor and will provide copies of the
audit report to the holders of any of the Notes and Parity Obligations upon request.
The holders of any of the Notes and Parity Obligations shall have at all reasonable
times the right to inspect the System and the records,accounts and data of the
Issuer relating thereto.
(e)State Laws.The Issuer will faithfully and punctually perform all
duties with reference to the System required by the Constitution and laws of the
State ofIowa,including the making and collecting of reasonable and sufficient
rates for services rendered by the System as above provided,and will segregate the
revenues of the System and apply the revenues to the funds specified in this
Resolution.
(f)Property.The Issuer will not sell,lease,mortgage or in any manner
dispose of the System,or any capital pari thereof,including any and all extensions
and additions that may be made thereto,until satisfaction and discharge of all of
the Notes and Parity Obligations shall have been provided for in the manner
provided in this Resolution;provided,however,that this covenant shall not be
construed to prevent the disposal by the Issuer of property which in the judgment
of its Governing Body has become inexpedient or unprofitable to use in
connection with the System,or if it is to the advantage of the System that other
property of equal or higher value be substituted therefor,and provided further that
the proceeds of the disposition of such property shall be placed in a revolving fund
to be used in preference to other sources for capital improvements to the System.
Any such proceeds of the disposition of property acquired with the proceeds of the
Notes or Parity Obligations shall not be used to pay principal or interest on the
Notes or Parity Obligations or for payments into the Sinking or Reserve Fund.
(g)Fidelity Bond.The Issuer shall maintain fidelity bond coverage in
amounts which normally would be carried by private companies engaged in a
similar kind of business on each officer or employee having custody of funds of
the System.
(h)Additional Charges.The Issuer will require proper connecting
charges and/or other security for the payment of service charges.
(i)Budget.The Governing Body of the Issuer shall approve and
conduct operations pursuant to a system budget of revenues and current expenses
for each Fiscal Year.Such budget shall take into account revenues and current
expenses during the current and last preceding Fiscal Year.Copies of such budget
and any amendments thereto shall be provided to the holders of any of the Notes
upon request.
Section 20.Remedies of Note holders.Except as herein expressly limited the
holder or holders of the Notes and Parity Obligations shall have and possess all the rights
of action and remedies afforded by the common law,the Constitution and statutes of the
State ofIowa,and of the United States of America,for the enforcement of payment of
their Notes and interest thereon,and of the pledge of the revenues made hereunder,and
of all covenants of the Issuer hereunder.
Section 21.Prior Lien and Parity Obligations.The Issuer will issue no other notes,
bonds or obligations of any kind or nature payable from or enjoying a lien or claim on the
property or revenues of the System having priority over the Notes or Parity Obligations.
Additional Obligations may be issued on a parity and equality of rank with the
Notes and Parity Obligations with respect to the lien and claim of such Additional
Obligations to the revenues of the System and the money on deposit in the funds adopted
by this Resolution,for the following purposes and under the following conditions,but not
otherwise:
(a)For the purpose of refunding any of the Notes or Parity Obligations which
shall have matured or which shall mature not later than three months after the date
of delivery of such refunding obligation and for the payment of which there shall
be insufficient money in the Sinking Fund and the Reserve Fund;
(b)For the purpose of refunding any outstanding Notes,Parity Obligations or
general obligation notes or making extensions,additions,improvements or
replacements to the System,if all of the following conditions shall have been met:
(i)before any such Additional Obligations ranking on a
parity are issued,there will have been procured and filed with the
City Clerk,a statement of an Independent Auditor or independent
financial consultant,not a regular employee of the Issuer,reciting
the opinion based upon necessary investigations that the Net
Revenues of the System for the preceding Fiscal Year (with
adjustments as hereinafter provided)were equal to at least 1.25 times
the maximum amount that will be required in any Fiscal Year prior
to the longest maturity of any of the Notes or Parity Obligations for
both principal of and interest on all Notes and Parity Obligations
then outstanding which are payable from the net earnings of the
System and the Additional Obligations then proposed to be issued.
For the purpose of determining the Net Revenues of the System for
the preceding Fiscal Year as aforesaid,the amount of the gross
revenues for such year may be adjusted by an Independent Auditor
or independent financial consultant,not a regular employee of the
Issuer,so as to reflect any changes in the amount of such revenues
which would have resulted had any revision of the schedule of rates
or charges imposed at or prior to the time of the issuance of any such
Additional Obligations been in effect during all of such preceding
Fiscal Year.
(ii)the Additional Obligations must be payable as to
principal and as to interest on the same month and day as the Notes
herein authorized.
(iii)for the purposes of this Section,principal and interest
falling due on the first day of a Fiscal Year shall be deemed a
requirement of the immediately preceding Fiscal Year.
(iv)for the purposes of this Section,general obligation
bonds or notes shall be refunded only upon a finding of necessity by
the Governing Body and only to the extent the general obligation
bonds or notes were issued or the proceeds thereof were expended
for the System.
(v)for purposes of this Section,"preceding Fiscal Year"
shall be the most recently completed Fiscal Year for which audited
financial statements prepared by a certified public accountant are
issued and available,but in no event a Fiscal Year which ended more
than eighteen months prior to the date of issuance of Additional
Obligations.
Section 22.Disposition of Proceeds;Arbitrage Not Permitted.The Issuer
reasonably expects and covenants that no use will be made of the proceeds from the
issuance and sale of the Notes issued hereunder which will cause any of the Notes to be
classified as arbitrage bonds within the meaning of Section l48(a)and (b)of the Internal
Revenue Code of the United States,and that throughout the term of the Notes it will
comply with the requirements of such statute and regulations issued thereunder.
To the best knowledge and belief of the Issuer,there are no facts or circumstances
that would materially change the foregoing statements or the conclusion that it is not
expected that the proceeds of the Notes will be used in a manner that would cause the
Notes to be arbitrage notes.Without limiting the generality of the foregoing,the Issuer
hereby agrees to comply with the provisions of the Tax Exemption Certificate and the
provisions of the Tax Exemption Certificate are hereby incorporated by reference as part
of this Resolution.The Treasurer is hereby directed to make and insert all calculations
and determinations necessary to complete the Tax Exemption Certificate in all respects
and to execute and deliver the Tax Exemption Certificate at issuance of the Notes to
certify as to the reasonable expectations and covenants of the Issuer at that date.
The Issuer covenants that it will treat as Yield Restricted any proceeds of the
Notes remaining unexpended after three years from the issuance and any other funds
required by the Tax Exemption Certificate to be so treated.If any investments are held
with respect to the Notes and Parity Obligations,the Issuer shall treat the same for the
purpose of restricted yield as held in proportion to the original principal amounts of each
Issue.
The Issuer covenants that it will exceed any investment yield restriction provided
in this Resolution only in the event that it shall first obtain an opinion of recognized bond
counsel that the proposed investment action will not cause the Notes to be classified as
arbitrage bonds under Section l48(a)and (b)the Internal Revenue Code orregulations
issued thereunder.
The Issuer covenants that it will proceed with due diligence to spend the proceeds
of the Notes for the purpose set forth in this Resolution.The Issuer further covenants that
it will make no change in the use of the proceeds available for the construction of
facilities or change in the use of any portion of the facilities constructed therefrom by
persons other than the Issuer or the general public unless it has obtained an opinion of
bond counselor a revenue ruling that the proposed proj ect or use will not be of such
character as to cause interest on any of the Notes not to be exempt from federal income
taxes in the hands of holders other than substantial users of the proj ect,under the
provisions of Section l42(a)of the Intemal Revenue Code of the United States,related
statutes and regulations.
Section 23.Additional Covenants,Representations and Warranties of the Issuer.
The Issuer certifies and covenants with the purchasers and holders of the Notes from time
to time outstanding that the Issuer through its officers,(a)will make such further specific
covenants,representations and assurances as may be necessary or advisable;(b)comply
with all representations,covenants and assurances contained in the Tax Exemption
Certificate,which Tax Exemption Certificate shall constitute a part of the contract
between the Issuer and the owners ofthe Notes;(c)consult with bond counsel (as defined
in the Tax Exemption Certificate);(d)pay to the United States,as necessary,such sums
of money representing required rebates of excess arbitrage profits relating to the Notes;
(e)file such forms,statements and supporting documents as may be required and in a
timely manner;and (f)if deemed necessary or advisable by its officers,to employ and
pay fiscal agents,financial advisors,attomeys and other persons to assist the Issuer in
such compliance.
Section 24.Reserved.
Section 25.Dischm'ge and Satisfaction of Notes.The covenants,liens and pledges
entered into,created or imposed pursuant to this Resolution may be fully discharged and
satisfied with respect to the Notes and Parity Obligations,or any of them,in anyone or
more of the following ways:
(a)By paying the Notes or Parity Obligations when the same shall become due
and payable;and
(b)By depositing in trust with the Treasurer,or with a corporate trustee
designated by the Goveming Body for the payment of the obligations and
irrevocably appropriated exclusively to that purpose an amount in cash or direct
obligations of the United States the maturities and income of which shall be
sufficient to retire at maturity,or by redemption prior to maturity on a designated
date upon which the obligations may be redeemed,an of such obligations
outstanding at the time,together with the interest thereon to maturity or to the
designated redemption date,premiums thereon,if any,that may be payable on the
redemption of the same;provided that proper notice of redemption of all such
obligations to be redeemed shall have been previously published or provisions
shall have been made for such publication.
Upon such payment or deposit of money or securities,or both,in the amount and
manner provided by this Section,all liability of the Issuer with respect to the Notes or
Parity Obligations shall cease,determine and be completely discharged,and the holders
thereof shall be entitled only to payment out of the money or securities so deposited.
Section 26.Resolution a Contract.The provisions of this Resolution shall
constitute a contract between the Issuer and the holder or holders of the Notes and Parity
Obligations,and after the issuance of any of the Notes no change,variation or alteration
of any kind in the provisions of this Resolution shall be made in any manner,except as
provided in the next succeeding Section,until such time as all of the Notes and Parity
Obligations,and interest due thereon,shall have been satisfied and discharged as
provided in this Resolution.
Section 27.Amendment of Resolution Without Consent.The Issuer may,without
the consent of or notice to any of the holders of the Notes and Parity Obligations,amend
or supplement this Resolution for anyone or more of the following purposes:
(a)to cure any ambiguity,defect,omission or inconsistent provision in this
Resolution or in the Notes or Parity Obligations;or to comply with any application
provision of law or regulation of federal or state agencies;provided,however,that
such action shall not materially adversely affect the interests of the holders of the
Notes or Parity Obligations;
(b)to change the terms or provisions of this Resolution to the extent necessary
to prevent the interest on the Notes or Parity Obligations from being includable
within the gross income of the holders thereof for federal income tax purposes;
(c)to grant to or confer upon the holders of the Notes or Parity Obligations any
additional rights,remedies,powers or authority that may lawfully be granted to or
conferred upon the holders of the Notes;
(d)to add to the covenants and agreements of the Issuer contained in this
Resolution other covenants and agreements of,or conditions or restrictions upon,
the Issuer or to surrender or eliminate any right or power reserved to or conferred
upon the Issuer in this Resolution;or
(e)to subject to the lien and pledge of this Resolution additional pledged
revenues as may be permitted by law.
Section 28.Amendment of Resolution Requiring Consent.This Resolution may be
amended from time to time if such amendment shall have been consented to by holders of
not less than two-thirds in principal amount of the Notes and Parity Obligations at any
time outstanding (not including in any case any Notes which may then be held or owned
by or for the account of the Issuer,but including such refunding obligations as may have
been issued for the purpose of refunding any of such Notes if such refunding obligations
shall not then be owned by the Issuer);but this Resolution may not be so amended in
such manner as to:
(a)Make any change in the maturity of interest rate of the Notes,or modify the
terms of payment of principal of or interest on the Notes or any ofthem or impose
any conditions with respect to such payment;
(b)Materially affect the rights of the holders ofless than all of the Notes and
Parity Obligations then outstanding;and
(c)Reduce the percentage of the principal amount of Notes,the consent of the
holders of which is required to effect a further amendment.
Whenever the Issuer shall propose to amend this Resolution under the provisions
of this Section,it shall cause notice of the proposed amendment to be filed with the
Original Purchaser and to be mailed by certified mail to each registered owner of any
Note as shown by the records of the Registrar.Such notice shall set forth the nature of the
proposed amendment and shall state that a copy of the proposed amendatory Resolution
is on file in the office of the City Clerk.
Whenever at any time within one year from the date of the mailing of the notice
there shall be filed with the City Clerk an instrument or instruments executed by the
holders of at least two-thirds in aggregate principal amount of the Notes then outstanding
as in this Section defined,which instrument or instruments shall refer to the proposed
amendatory Resolution described in the notice and shall specifically consent to and
approve the adoption thereof,thereupon,but not otherwise,the Goveming Body of the
Issuer may adopt such amendatory Resolution and such Resolution shall become
effective and binding upon the holders of all of the Notes and Parity Obligations.
Any consent given by the holder of a Note pursuant to the provisions of this
Section shall be irrevocable for a period of six months from the date of the instrument
evidencing such consent and shall be conclusive and binding upon all future holders of
the same Note during such period.Such consent may be revoked at any time after six
months from the date of such instrument by the holder who gave such consent or by a
successor in title by filing notice of such revocation with the City Clerk.
The fact and date of the execution of any instrument under the provisions of this
Section may be proved by the certificate of any officer in any jurisdiction who by the
laws thereof is authorized to take acknowledgments of deeds within such jurisdiction that
the person signing such instrument acknowledged before him the execution thereof,or
may be proved by an affidavit of a witness to such execution sworn to before such
officer.
The amount and numbers of the Notes held by any person executing such
instrument and the date of his holding the same may be proved by an affidavit by such
person or by a certificate executed by an officer of a bank or trust company showing that
on the date therein mentioned such person had on deposit with such bank or trust
company the Notes described in such certificate.
Section 29.Severability.If any section,paragraph,or provision of this Resolution
shall be held to be invalid or unenforceable for any reason,the invalidity or
unenforceability of such section,paragraph or provision shall not affect any of the....remammg provisions,
Section 30.Continuing Disclosure.The Issuer hereby covenants and agrees that it
will comply with and carry out all of the provisions of the Continuing Disclosure
Certificate,and the provisions of the Continuing Disclosure Certificate are hereby
approved and incorporated by reference as part of this Resolution and made a part hereof
and the Mayor and City Clerk aloehereby authorized to execute and deliver the same at
issuance of the Notes.Notwithstanding any other provision of this Resolution,failure of
the Issuer to comply with the Continuing Disclosure Certificate shall not be considered
an event of default under this Resolution;however,any holder of the Notes or Beneficial
Owner may take such actions as may be neceSSalY and appropriate,including seeking
specific performance by court order,to cause the Issuer to comply with its obligations
under the Continuing Disclosure Certificate.For purposes of this Section,"Beneficial
Owner"means any person which (a)has the power,directly or indirectly,to vote or
consent with respect to,or to dispose of ownership of,any Notes (including persons
holding Notes through nominees,depositories or other intermediaries),or (b)is treated as
the owner of any Notes for federal income tax purposes.
Section 31.Repeal of Conflicting Ordinances or Resolutions and Effective Date.
All other ordinances,resolutions and orders,or parts thereof,in conflict with the
provisions of this Resolution are,to the extent of such conflict,hereby repealed;and this
Resolution shall be in effect from and after its adoption.
ADOPTED AND APPROVED this 19th day of February,2013.
ATTEST:
City Clerk
ROLL CALL VOTE
Shane Blanchard
Dan Dutcher
Casey L.Harvey
Shelly Hughes
Mike Watts
AYE
X
X
X
X
NAY ABSENT
X
ABSTAIN