HomeMy WebLinkAboutOrdinance #1720
ORDINANCE NO. ~~U
AN ORDINANCE authorizing and providing for the issue of
$1,150,000 General Obligation Refunding Bonds (Alternate
Revenue Source), Series 2002, of the City of Canton, Fulton
County, Illinois, for the purpose of refunding the outstanding
alternate bonds of said City, prescribing the details of said bonds,
and providing for the imposition of taxes to pay the same, and for
the collection, segregation and application of the waterworks and
sewerage system revenues to pay said Bonds.
TABLE OF CONTENTS
SECTION
HEADING
PAGE
PREAMBLES ....................................................................................................1
Section 1. Definitions ......................................................................... ..
2
Section 2. Incorporation of Preambles ..................................................... . .
6
Section 3. Determination To Issue Bonds ................................................. ..
6
Section 4. Bond Details ...................................................................... ..
6
Section 5. Redemption ....................................................................... ..
7
Section 6. Execution; Authentication ....................................................... ..7
Section 7. Registration of Bonds; Persons Treated as Owners .......................... .. 8
Section 8. Form of Bonds .................................................................... ..9
Section 9. Sale of the Bonds ................................................................. 18
Section 10. Treatment of Bonds As Debt ................................................... 18
Section 11. Continuation of Waterworks and Sewerage Fund and
Accounts Thereof ............................................................ 19
Section 12. Flow of Funds ..................................................................... 19
Section 13. Account Excesses ................................................................ 22
Section 14. Pledged Taxes; Tax Levy ....................................................... 22
Section 15. Filing with County Clerk ........................................................ 23
Section 16. Abatement of Pledged Taxes ................................................... 24
Section 17. Pledged Revenues; General Covenants ........................................ 24
Section 18. Future Revenue Bonds, Additional Bonds and Subordinate
Bonds .......................................................................... 26
Section 19. Provisions a Contract ............................................................ 27
Section 20. Use of Proceeds ................................................................... 27
Section 21. Non-Arbitrage and Tax-Exemption ............................................ 28
Section 22. Bond Registrar Covenants ...................................................... 47
Section 23. Continuing Disclosure Undertaking ........................................... 47
Section 24. Call of the Refunded Bonds ..................................................... 48
Section 25. Severability ........................................................................ 48
Section 26. Repealer ........................................................................... 48
This Table of Contents is for convenience only and
is not a part of the ordinance.
-i-
;~ z
ORDINANCE NO.
AN ORDINANCE authorizing and providing for the issue of
$1,150,000 General Obligation Refunding Bonds (Alternate
Revenue Source), Series 2002, of the City of Canton, Fulton
County, Illinois, for the purpose of refunding the outstanding
alternate bonds of said City, prescribing the details of said bonds,
and providing for the imposition of taxes to pay the same, and for
the collection, segregation and application of the waterworks and
sewerage system revenues to pay said Bonds.
WHEREAS the City of Canton, Fulton County, Illinois (the "City', is a duly organized
and existing municipality incorporated and existing under the provisions of the laws of the State
of Illinois, is now operating under the provisions of the Illinois Municipal Code, as amended (the
"Code "), and for many years has owned and operated amunicipally-owned waterworks and
sewerage system as a combined utility (the "System's as set forth in Division 139 of Article 11
of the Code; and
WHEREAS the City Council of the City (the "Corporate Authorities' has determined
that it is advisable, necessary and in the best interests of the public health, safety and welfare to
refund for debt service savings all of the City's outstanding General Obligation Waterworks and
Sewerage Bonds (Alternate Revenue Source), Series 1995 maturing on and after December 15,
2002 (the "Refunded Bonds "); and
WHEREAS the Local Government Debt Reform Act of the State of Illinois, as amended
(the "Debt Reform Act "), provides that alternate bonds may be issued to refund or advance
refund alternate bonds without meeting any of the conditions set forth in Section 15 of the Debt
Reform Act, provided that the term of the refunding bonds shall not be longer than the term of
the refunded bonds and that the debt service payable in any year on the refunding bonds shall not
exceed the debt service payable in such year on the refunded bonds; and
WHEREAS the City has determined that the refunding conditions set forth in the previous
preamble have been met; and
{
WHEREAS the estimated cost of refunding the Refunded Bonds (the "Refunding "),
including legal, financial, bond discount, capitalized interest, printing and publication costs and
other expenses is not less than $1,150,000 and there are insufficient funds on hand and lawfully
available to pay such costs; and
WHEREAS the refunding of the Refunded Bonds constitutes a lawful corporate purpose
within the meaning of the Debt Reform Act; and
WHEREAS the Bonds to be issued (the "Bonds' will be payable from the Pledged
Revenues and, on a secondary basis, from the Pledged Taxes, both as hereinafter defined; and
WHEREAS the Corporate Authorities are now authorized to issue the Bonds to the amount
of $1,150,000 in accordance with the provisions of the Debt Reform Act, and the Corporate
Authorities hereby determine that it is necessary and advisable that there be issued at this time
$1,150,000 of the Bonds so authorized; and
WHEREAS in accordance with the terms of the Refunded Bonds, the Refunded Bonds
may be called for redemption in advance of their maturity, and it is necessary and desirable to
make such call for the redemption of all of the outstanding Refunded Bonds on March 15, 2002,
and provide for the giving of proper notice to the holders and owners of the Refunded Bonds;
NOW THEREFORE Be It Ordained by the City Council of the City of Canton, Fulton
County, Illinois, as follows:
Section 1. Definitions. The following words and terms used in this Ordinance shall
have the following meanings unless the context or use clearly indicates another or different
meaning is intended:
"Act" or "Debt Reform Act" means the Local Government Debt Reform Act of the State
of Illinois, as amended.
-2-
=. 1
"Additional Bonds "means any alternate bonds issued in the future in accordance with
the provisions of the Debt Reform Act on a parity with and sharing ratably and equally in the
Pledged Revenues with the Bonds.
"Alternate Bond and Interest Subaccount" means the Alternate Bond and Interest
Subaccount maintained hereunder and further described by Section 12 of this Ordinance.
"Bond " or "Bonds " means one or more, as applicable, of the $1,150,000 General
Obligation Refunding Bonds (Alternate Revenue Source), Series 2002, authorized to be issued
by this Ordinance.
"Bond Fund " means the Series 2002 Alternate Bond Fund established hereunder and
further described by Section 15 of this Ordinance.
"Bond Register" means the books of the City kept by the Bond Registrar to evidence the
registration and transfer of the Bonds.
"Bond Registrar" means MidAmerica National Bank, Canton, Illinois, or successor
thereto or designated hereunder, in its respective capacities as bond registrar and paying agent.
"City" means the City of Canton, Fulton County, Illinois.
"Code "means the Illinois Municipal Code, as supplemented and amended.
"Corporate Authorities "means the City Council of the City.
"County Clerk" means the County Clerk of The County of Fulton, Illinois.
"Expense Fund " means the fund established hereunder and further described by
Section 21 of this Ordinance.
"Fiscal Year" means that twelve-calendar month period beginning on May 1 of the
calendar year and ending on the next succeeding April 30.
-3-
~ r
r~ t
"Future Bond Ordinances " means the ordinances of the City authorizing the issuance of
bonds payable from the Revenues, but not including this Ordinance or any other ordinance
authorizing the issuance of Additional Bonds.
"IRC"means the Internal Revenue Code of 1986, as amended.
"Operation and Maintenance Costs " means all costs of operating, maintaining and
routine repair of the System, including wages, salaries, costs of materials and supplies, power,
fuel, insurance, taxes, including rebate of excess arbitrage profits to the U.S. government, and
purchase of water or sewage treatment services (including all payments by the City pursuant to
long-term contracts for such services); but excluding debt service, depreciation, capital
improvements or replacements (including meter replacements) or engineering expenses in
anticipation thereof or in connection therewith, or any reserve requirements; and otherwise
determined in accordance with generally accepted accounting principles for municipal enterprise
funds.
"Ordinance "means this Ordinance as originally adopted and as the same may from time
to time be amended or supplemented in accordance with terms hereof.
"Outstanding" means Bonds and Additional Bonds which are outstanding and unpaid;
provided, however, such term shall not include any of the Bonds or Additional Bonds (i) which
have matured and for which moneys are on deposit with proper paying agents or are otherwise
sufficiently available to pay all principal thereof and interest thereon or (ii) the provision for
payment of which has been made by the City by the deposit in an irrevocable trust or escrow of
funds or direct, full faith and credit obligations of the United States of America, the principal of
and interest on which will be sufficient to pay at maturity or as called for redemption all the
principal of and interest on such Bonds or Additional Bonds.
"Pledged Moneys "means, collectively, the Pledged Revenues and the Pledged Taxes.
-4-
~,
"Pledged Revenues " means (i) moneys to the credit of the Alternate Bond and Interest
Subaccount within the Surplus Account of the Waterworks and Sewerage Fund, said Surplus
Account consisting of the funds remaining in the Waterworks and Sewerage Fund after the
required monthly deposits and credits have been made to the Operation and Maintenance
Account, the Depreciation Account and any other accounts as may be created in the future, of
said Waterworks and Sewerage Fund.
"Pledged Taxes "means the ad valorem taxes levied against all of the taxable property in
the City without limitation as to rate or amount, pledged hereunder by the City as security for the
Bonds.
"Refunded Bonds " means the alternate bonds of the City as set forth in the preambles
hereto.
"Revenues "means all income from whatever source derived from the System, including
(i) investment income; (ii) connection, permit and inspection fees and the like; (iii) penalties and
delinquency charges; (iv) capital development, reimbursement, or recovery charges and the like;
(v) annexation or pre-annexation charges insofar as designated by the Corporate Authorities as
paid for System connection or service; but excluding expressly (a) non-recurring income from
the sale of property of the System; (b) governmental or other grants; (c) advances or grants made
from the City; and as otherwise determined in accordance with generally accepted accounting
principles for municipal enterprise funds.
"System "refers to all property, real, personal or otherwise owned or to be owned by the
City or under the control of the City, and used for waterworks and sewerage purposes, including
any and all further extensions, improvements and additions to the System.
"Tax-exempt" means, with respect to the Bonds, the status of interest paid and received
thereon as not includible in the gross income of the owners thereof under the IRC for federal
-5-
,_
income tax purposes except to the extent that such interest will be taken into account in
computing an adjustment used in determining the alternative minimum tax for certain
corporations.
"Waterworks and Sewerage Fund " means the Waterworks and Sewerage Fund of the
City created hereunder and further described in Section 11 of this Ordinance.
Section 2. Incorporation of Preambles. The Corporate Authorities hereby find that the
recitals contained in the preambles to this Ordinance are true, correct and do hereby incorporate
them into this Ordinance by this reference.
Section 3. Determination To Issue Bonds. It is necessary and in the best interests of
the City for the City to undertake the Refunding for the public health, safety and welfare, in
accordance with the estimate of costs therefor as described, and to issue the Bonds to enable the
City to pay the costs thereof.
Section 4. Bond Details. For the purpose of providing for the payment of costs of the
Refunding, there shall be issued and sold the Bonds in the aggregate principal amount of
$1,150,000. The Bonds shall each be designated "General Obligation Refunding Bond
(Alternate Revenue Source), Series 2002," and be dated February 1, 2002, and shall also bear the
date of authentication thereof. The Bonds shall be in fully registered form, shall be in
denominations of $5,000 or authorized integral multiples thereof (but no single Bond shall
represent principal maturing on more than one date), shall be numbered in such reasonable
fashion as may be selected by the Bond Registrar, and shall mature serially on December 1 of the
years, in the amounts and bearing interest at the rates percent per annum as follows:
-6-
!_
YEAR OF PRINCIPAL INTEREST
MATURITY AMOUNT RATE
2002 $115,000 8.90%
2003 120,000 8.90%
2004 130,000 8.90%
2005 140,000 6.10%
2006 145,000 3.70%
2007 155,000 4.05%
2008 165,000 4.25%
2009 180,000 4.45%
Each Bond shall bear interest from the later of its Dated Date as hereinabove provided or
from the most recent interest payment date to which interest has been paid or duly provided for
until the principal amount of such Bond is paid or duly provided for, such interest (computed
upon the basis of a 360-day year of twelve 30-day months) being payable on December 1, 2002,
and semiannually thereafter on June 1 and December 1 of each year. Interest on each Bond shall
be paid by check or draft of the Bond Registrar, payable upon presentation thereof in lawful
money of the United States of America, to the person in whose name such Bond is registered at
the close of business on the 15th day of the month next preceding the interest payment date. The
principal of the Bonds shall be payable in lawful money of the United States of America upon
presentation thereof at the principal office of the Bond Registrar.
Section S. Redemption. The Bonds are not subject to redemption and payment prior to
their maturity.
Section 6. Execution; Authentication. The Bonds shall be executed on behalf of the
City with the manual or facsimile signature of the Mayor and attested with the manual or
facsimile signature of the City Clerk or duly authorized City Clerk, as they may determine, and
shall have impressed or imprinted thereon the corporate seal or facsimile thereof of the City. In
case any officer whose signature shall appear on any Bond shall cease to be such officer before
-7-
the delivery of such Bond, such signature shall nevertheless be valid and sufficient for all
purposes, the same as if such officer had remained in office until delivery.
All Bonds shall have thereon a certificate of authentication substantially in the form
hereinafter set forth duly executed by the Bond Registrar as authenticating agent of the City and
showing the date of authentication. No Bond shall be valid or obligatory for any purpose or be
entitled to any security or benefit under this Ordinance unless and until such certificate of
authentication shall have been duly executed by the Bond Registrar by manual signature, and
such certificate of authentication upon any such Bond shall be conclusive evidence that such
Bond has been authenticated and delivered under this Ordinance. The certificate of
authentication on any Bond shall be deemed to have been executed by it if signed by an
authorized officer of the Bond Registrar, but it shall not be necessary that the same officer sign
the certificate of authentication on all of the Bonds issued hereunder.
Section 7. Registration of Bonds; Persons Treated as Owners. The City shall cause
books (the "Bond Register's for the registration and for the transfer of the Bonds as provided in
this Ordinance to be kept at the principal office of the Bond Registrar, which is hereby
constituted and appointed the registrar of the City. The City is authorized to prepare, and the
Bond Registrar shall keep custody of, multiple Bond blanks executed by the City for use in the
transfer and exchange of Bonds.
Upon surrender for transfer of any Bond at the principal office of the Bond Registrar,
duly endorsed by, or accompanied by a written instrument or instruments of transfer in form
satisfactory to the Bond Registrar and duly executed by, the registered owner or his or her
attorney duly authorized in writing, the City shall execute and the Bond Registrar shall
authenticate, date and deliver in the name of the transferee or transferees a new fully registered
Bond or Bonds of the same maturity of authorized denominations, for a like aggregate principal
-8-
C
amount. Any fully registered Bond or Bonds may be exchanged at said principal office of the
Bond Registrar for a like aggregate principal amount of Bond or Bonds of the same maturity of
other authorized denominations. The execution by the City of any fully registered Bond shall
constitute full and due authorization of such Bond and the Bond Registrar shall thereby be
authorized to authenticate, date and deliver such Bond, provided, however, the principal amount
of outstanding Bonds of each maturity authenticated by the Bond Registrar shall not exceed the
authorized principal amount of Bonds for such maturity less previous retirements.
The Bond Registrar shall not be required to transfer or exchange any Bond during the
period beginning at the close of business on the 15th day of the month next preceding any
interest payment date on such Bond and ending at the opening of business on such interest
payment date.
The person in whose name any Bond shall be registered shall be deemed and regarded as
the absolute owner thereof for all purposes, and payment of the principal of or interest on any
Bond shall be made only to or upon the order of the registered owner thereof or his or her legal
representative. All such payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond to the extent of the sum or sums so paid.
No service charge shall be made for any transfer or exchange of Bonds, but the City or
the Bond Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or exchange of Bonds.
Section 8. Form of Bonds. The Bonds shall be in substantially the form hereinafter set
forth; provided, however, that if the text of the Bonds is to be printed in its entirety on the front
side of the Bonds, then the second paragraph on the front side and the legend "See Reverse Side
for Additional Provisions" shall be omitted and the text of paragraphs set forth for the reverse
side shall be inserted immediately after the first paragraph.
-9-
[Form of Bond -Front Side]
REGISTERED REGISTERED
No. $
UNITED STATES OF AMERICA
STATE OF ILLINOIS
COUNTY OF FULTON
CITY OF CANTON
GENERAL OBLIGATION REFUNDING BOND
(ALTERNATE REVENUE SOURCE)
SERIES 2002
See Reverse Side for
Additional Provisions
Interest Maturity Dated
Rate: % Date: December 1, 20_ Date: February 1, 2002 CUSIP: _
Registered Owner:
Principal Amount: Dollars
KNOW ALL PERSONS BY THESE PRESENTS that the City of Canton, Fulton County,
Illinois, a municipality and political subdivision of the State of Illinois (the "City "), hereby
acknowledges itself to owe and for value received promises to pay to the Registered Owner
identified above, or registered assigns as hereinafter provided, on the Maturity Date identified
above, the Principal Amount identified above and to pay interest (computed on the basis of a
360-day year of twelve 30-day months) on such Principal Amount from the Dated Date of this
Bond identified above or from the most recent interest payment date to which interest has been
paid or duly provided for at the Interest Rate per annum identified above, such interest to be
payable on December 1, 2002, and semiannually thereafter on June 1 and December 1 of each
year until the Principal Amount is paid or duly provided for. The Principal Amount of this Bond
-10-
is payable in lawful money of the United States of America upon presentation at the principal
office of MidAmerica National Bank, Canton, Illinois, as paying agent and bond registrar (the
"Bond Registrar'. Payment of interest shall be made to the Registered Owner hereof as
appearing on the Bond Register of the City maintained by the Bond Registrar at the close of
business on the 15th day of the month next preceding the interest payment date and shall be paid
by check or draft of the Bond Registrar, payable upon presentation in lawful money of the
United States of America, mailed to the address of such Registered Owner as it appears on such
registration books or at such other address furnished in writing by such Registered Owner to the
Bond Registrar.
Reference is hereby made to the further provisions of this Bond set forth on the reverse
hereof, and such further provisions shall for all purposes have the same effect as if set forth at
this place.
It is hereby certified and recited that all acts, conditions and things required to be done
precedent to and in the issuance of this Bond have been done and have happened and have been
performed in regular and due form of law; that the indebtedness of the City, including the issue
of Bonds of which this is one, does not exceed any limitation imposed by law; that provision has
been made for the collection of the Pledged Revenues, the levy and collection of the Pledged
Taxes, and the segregation of all Pledged Moneys to pay the interest hereon as it falls due and
also to pay and discharge the principal hereof at maturity; and that the City hereby covenants and
agrees that it will properly account for said Pledged Moneys and will comply with all the
covenants of and maintain the funds and accounts as provided by the Ordinance.
FOR THE PROMPT PAYMENT OF THIS BOND, BOTH PRINCIPAL AND INTEREST AT
MATURITY, THE FULL FAITH ,CREDIT AND RESOURCES OF THE CITY ARE HEREBY IRREVOCABLY
PLEDGED.
-11-
This Bond shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Bond Registrar.
IN WITNESS WHEREOF the City of Canton, Fulton County, Illinois, by its City Council,
has caused this Bond to be executed with the manual or duly authorized facsimile signature of its
Mayor and attested by the manual or duly authorized facsimile signature of its City Clerk and its
corporate seal or a facsimile thereof to be impressed or reproduced hereon, all as appearing
hereon and as of the Dated Date identified above.
Mayor
ATTEST
City Clerk
[SEAL]
Date of Authentication: ,
CERTIFICATE
OF
AUTHENTICATION
This Bond is one of the Bonds described
in the within-mentioned Ordinance and is one
of the General Obligation Refunding Bonds
(Alternate Revenue Source), Series 2002, of
the City of Canton, Fulton County, Illinois.
MidAmerica National Bank,
as Bond Registrar
By
Authorized Officer
Bond Registrar and Bond Registrar:
MidAmerica National Bank,
Canton, Illinois
-12-
[Form of Bond -Reverse Side]
CITY OF CANTON
FULTON COUNTY, ILLINOIS
GENERAL OBLIGATION REFUNDING BOND
(ALTERNATE REVENUE SOURCE)
SERIES 2002
This bond and the bonds of the series of which it forms a part ("Bond " and "Bonds ",
respectively) are of an authorized issue of One Million One Hundred Fifty Thousand Dollars
($1,150,000) Bonds of like dated date and tenor except as to maturity and rate of interest and are
issued pursuant to the Local Government Debt Reform Act of the State of Illinois, as amended
(the "Act's. The Bonds are also issued pursuant to Division 139 of Article 11 of the Illinois
Municipal Code, as supplemented and amended (the "Code "), for the purpose of paying the
costs of refunding the outstanding alternate bonds of the City. The Bonds are issued pursuant to
a bond ordinance passed by the City Council of the City (the "Corporate Authorities ") on the
5th day of February, 2002 (the "Ordinance "), to which reference is hereby expressly made for
further definitions and terms and to all the provisions of which the Registered Owner by the
acceptance of this Bond assents.
Under the Code and the Ordinance, the Revenues, as defined, from the operation of the
waterworks and sewerage system of the City (the "System's shall be deposited into the
Waterworks and Sewerage Fund of the City which shall be used only and has been pledged for
paying Operation and Maintenance Expenses, paying the principal of and interest on all bonds of
the City that are payable by their terms from the revenues of the System, providing an adequate
depreciation fund, and in making all payments required to maintain the accounts established
under the Ordinance. The City may issue future waterworks and sewerage revenue bonds, which
-13-
bonds may have a prior lien on the Revenues, or additional alternate bonds on a parity with the
Bonds, in each case pursuant to the terms of the Bond Ordinance.
The Bonds are payable from (i) moneys to the credit of the Alternate Bond and Interest
Subaccount within the Surplus Account of the Waterworks and Sewerage Fund, said Surplus
Account consisting of the funds remaining in the Waterworks and Sewerage Fund after the
required monthly deposits and credits have been made under the Ordinance or future revenue
bond ordinances to the various accounts of the Waterworks and Sewerage Fund (the "Pledged
Revenues "), and (ii) ad valorem taxes levied against all of the taxable property in the City
without limitation as to rate or amount (the "Pledged Tazes ") (the Pledged Revenues and the
Pledged Taxes being collectively called the "Pledged Moneys "), all in accordance with the
provisions of the Act and the Code.
Under the Act and the Ordinance, the Pledged Revenues shall be deposited into and
segregated in the Alternate Bond and Interest Subaccount of the Surplus Account, and the
Pledged Taxes shall be deposited into and segregated in the Series 2002 Alternate Bond Fund,
each as created by the Ordinance. Moneys on deposit in said Subaccount and said Fund shall be
used first and are pledged for paying the principal of and interest on the Bonds and then for any
further purposes as provided by the terms of the Ordinance.
This Bond does not and will not constitute an indebtedness of the City within the
meaning of any constitutional or statutory provision or limitation, unless the Pledged Taxes shall
be extended pursuant to the general obligation, full faith and credit promise supporting the
Bonds, in which case the amount of the Bonds then Outstanding shall be included in the
computation of indebtedness of the City for purposes of all statutory provisions or limitations
until such time as an audit of the City shall show that the Bonds shall have been paid from the
Pledged Revenues for a complete City fiscal year.
-14-
Any Bond may be transferred or exchanged, but only in the manner, subject to the
limitations, and upon payment of the charges as set forth in the Ordinance. Upon surrender for
transfer or exchange of any Bond at the principal office of the Bond Registrar, duly endorsed by
or accompanied by a written instrument or instruments of transfer or exchange in form
satisfactory to the Bond Registrar and duly executed by the Registered Owner or an attorney for
such owner duly authorized in writing, the City shall execute and the Bond Registrar shall
authenticate, date and deliver in the name of the transferee or transferees or, in the case of an
exchange, the Registered Owner, a new fully registered Bond or Bonds of like tenor, of the same
maturity, bearing the same interest rate, of authorized denominations, for a like aggregate
principal amount.
The Bond Registrar shall not be required to transfer or exchange any Bond during the
period from the close of business on the 15th day of the calendar month next preceding an
interest payment date on the Bonds to the opening of business on such interest payment date.
The City and the Bond Registrar may deem and treat the Registered Owner hereof as the
absolute owner hereof for the purpose of receiving payment of or on account of principal hereof,
premium, if any, hereon and interest due hereon and for all other purposes; and neither the City
nor the Bond Registrar shall be affected by any notice to the contrary.
-15-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint
as attorney to transfer the said Bond on the books kept for registration thereof with full power of
substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature to this assignment must correspond with the name of the registered
owner as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatever.
-16-
Section 9. Sale of the Bonds. The Bonds hereby authorized shall be executed as in this
Ordinance provided as soon after the passage hereof as may be, and thereupon be deposited with
the Treasurer of the City, and be by said Treasurer delivered to First Midstate Inc., Bloomington,
Illinois (the "Purchaser', upon receipt of the purchase price therefor, the same being par, plus
accrued interest to date of delivery; the contract for the sale of the Bonds heretofore entered into
(the "Purchase Contract') is in all respects ratified, approved and confirmed, it being hereby
found and determined that the Bonds have been sold at such price and bear interest at such rates
that neither the true interest cost (yield) nor the net interest rate received upon such sale exceed
the maximum rate otherwise authorized by Illinois law and that the Purchase Contract is in the
best interests of the City and that no person holding any office of the City, either by election or
appointment, is in any manner fmancially interested directly in his or her own name or indirectly
in the name of any other person, association, trust or corporation, in the Purchase Contract.
The use by the Purchaser of any Preliminary Offering Circular and any final Offering
Circular relating to the Bonds and before the Board at the time of the adoption hereof is hereby
ratified, approved and authorized; the execution and delivery of said final Offering Circular is
hereby authorized; and the officers of the Board are hereby authorized to take any action as may
be required on the part of the City to consummate the transactions contemplated by the Purchase
Contract, this Ordinance, said Preliminary Offering Circular, said final Offering Circular and the
Bonds.
Section 10. Treatment of Bonds As Debt. The Bonds shall be payable from the Pledged
Moneys and do not and shall not constitute an indebtedness of the City within the meaning of
any constitutional or statutory limitation, unless the Pledged Taxes shall be extended pursuant to
the general obligation, full faith and credit promise supporting the Bonds, as set forth in
Section 14 hereof, in which case the amount of the Bonds then Outstanding shall be included in
-17-
the computation of indebtedness of the City for purposes of all statutory provisions or limitations
until such time as an audit of the City shall show that the Bonds have been paid from the Pledged
Revenues for a complete Fiscal Year in accordance with the Act.
Section 11. Continuation of Waterworks and Sewerage Fund and Accounts Thereof.
Upon the issuance of any of the Bonds, the System shall continue to be operated on a Fiscal Year
basis. All of the Revenues shall be set aside as collected and be deposited in a separate fund and
in an account in a bank to be designated by the Corporate Authorities, which fund is hereby
created and is designated as the "Waterworks and Sewerage Fund" (the "Fund ") of the City,
which shall constitute a trust fund for the sole purpose of carrying out the covenants, terms, and
conditions of this Ordinance and any Future Bond Ordinances, and shall be used only in paying
Operation and Maintenance Expenses, providing an adequate depreciation fund, paying the
principal of and interest on all bonds of the City which by their terms are payable from the
revenues derived from .the System, and providing for the establishment of and expenditure from
the respective accounts as hereinafter described.
Section 12. Flow of Funds. There shall be and there are hereby continued separate
accounts in the Waterworks and Sewerage Fund to be known as the "Waterworks Operation and
Maintenance Account," such other accounts as may be established under any Future Bond
Ordinances, the "Waterworks Depreciation and Contingencies Account" (the "Depreciation
Account "), and the "Surplus Account," to which there shall be credited on or before the first day
of each month by the financial officer of the City, without any further official action or direction,
in the order in which said accounts are hereinafter mentioned, all moneys held in the Fund, in
accordance with the following provisions:
(a) Operation and Maintenance Account:
There shall be credited to or retained in the Operation and Maintenance Account
an amount sufficient, when added to the amount then on deposit in said Account,
-18-
to establish or maintain a balance to an amount not less than the amount
considered necessary to pay Operation and Maintenance Expenses for the then
current month.
(b) Accounts Created Pursuant to Future Bond Ordinances:
Future Bond Ordinances may create additional accounts in the Fund for the
payment and security of waterworks and sewerage revenue bonds that hereafter
may be issued by the City. Amounts in the Fund shall be credited to and
transferred from said accounts in accordance with the terms of the Future Bond
Ordinances.
(c) Depreciation Account:
Beginning the month after the delivery of the Bonds, there shall be credited to the
Depreciation Account and held, in cash and investments, such sum as the City
Council may deem necessary in order to provide an adequate depreciation fund
for the System. In future bond ordinances, the City may covenant to make
specific monthly deposits to said Depreciation Account and to accumulate funds
therein.
Amounts to the credit of said Depreciation Account shall be used for (i) the
payment of the cost of extraordinary maintenance, necessary repairs and
replacements, or contingencies, the payment for which no other funds are
available, in order that the System may at all times be able to render efficient
service, (ii) for the purpose of acquiring or constructing improvements and
extensions to the System, and (iii) the payment of principal of or interest and
applicable premium on any Outstanding Bonds at any time when there are no
other funds available for that purpose in order to prevent a default. Future Bond
Ordinances may provide for additional deposits to said Depreciation Account and
additional uses and transfers of the funds on deposit in said Depreciation Account.
(d) Surplus Account:
All moneys remaining in the Fund, after crediting the required amounts to the
respective accounts hereinabove provided for, and after making up any deficiency
in said accounts, shall be credited to the Surplus Account. Funds in the Surplus
Account shall first be used to make up any subsequent deficiencies in any of said
accounts and then shall be deposited to a separate and segregated account hereby
created and designated the "Alternate Bond and Interest Subaccount of the
Surplus Account" (the "Alternate Bond and Interest Subaccount "), as follows:
A. There shall be paid into the Alternate Bond and Interest Subaccount in each
month after the required payments have been made into the Accounts above described, a
fractional amount of the interest becoming due on the next succeeding interest payment
date on all Outstanding Bonds and a fractional amount of the principal becoming due on
-19-
the next succeeding principal maturity date of all Outstanding Bonds until there shall
have been accumulated in the Alternate Bond and Interest Subaccount on or before the
month preceding such maturity date of interest or principal, an amount sufficient to pay
such principal or interest, or both, of all Outstanding Bonds.
B. In computing the fractional amount to be set aside each month in said
Alternate Bond and Interest Subaccount, the fraction shall be so computed that sufficient
funds will be set aside in said Subaccount and will be available for the prompt payment
of such principal of and interest on all Outstanding Bonds as the same will become due
and shall be not less than one-fifth of the interest becoming due on the next succeeding
interest payment date and not less than one-tenth of the principal becoming due on the
next succeeding principal payment date on all Outstanding Bonds until there is sufficient
money in said Subaccount to pay such principal or interest or both.
C. Credits to the Alternate Bond and Interest Subaccount may be suspended in
any Fiscal Year at such time as there shall be a sufficient sum, held in cash and
investments, in said Subaccount to meet principal and interest requirements in said
Subaccount for the balance of such Fiscal Year, but such credits shall be resumed at the
beginning of the next Fiscal Year.
D. All moneys in said Subaccount shall be used only for the purpose of paying
interest on and principal of Outstanding Bonds.
E. Any funds remaining in the Surplus Account after making the aforesaid
deposits to the credit of the Alternate Bond and Interest Subaccount, at the discretion of
the Corporate Authorities, shall be used, first, to make up any subsequent deficiencies in
any of the accounts hereinabove named; and then, for the remainder of all surplus
Revenues, at the discretion of the Corporate Authorities, for one or more of the following
purposes without any priority among them:
1. For the purpose of constructing or acquiring repairs, replacements,
improvements or extensions to the System; or
2. For making transfers to the Fund generally to be applied and treated
as Revenues when transferred; or
3. For the purpose of calling and redeeming Outstanding Bonds payable
from the System which are callable at the time; or
4. For the purpose of purchasing Outstanding Bonds payable from the
System; or
5. For the purpose of paying principal of and interest on any subordinate
bonds or obligations issued for the purpose of acquiring or constructing repairs,
replacements, improvements or extensions to the System; or
-20-
6. For any purpose enumerated in any Future Bond Ordinance; or
7. For any other lawful System purpose.
Money to the credit of the Fund may be invested pursuant to any authorization
granted to municipal corporations by Illinois statute or court decision.
F. Upon the refunding of the Refunded Bonds, all moneys remaining in the
special accounts established and maintained by the ordinance authorizing the Refunded
Bonds may at the discretion of the Corporate Authorities first be used as may be
necessary for the Refunding and second be used for any lawful System purpose.
Section 13. Account Excesses. Any amounts to the credit of the Accounts in excess of
the then current requirements therefor may be transferred at any time by the Corporate
Authorities to such other Account or Accounts of the Fund as it may in its sole discretion
designate.
Section 14. Pledged Taxes; Tax Levy. For the purpose of providing additional funds to
pay the principal of and interest on the Bonds, and as provided in Section 15 of the Debt Reform
Act, there is hereby levied upon all of the taxable property within the City, in the years for which
any of the Bonds are Outstanding, a direct annual tax in amounts sufficient for that purpose, and
there be and there hereby is levied upon all of the taxable property in the City the following
direct annual taxes (the "Pledged Taxes "):
FOR THE YEAR A TAX SUFFICIENT TO PRODUCE THE SUM OF
2002 $172,115.00 for principal and interest
2003 $170,990.00 for principal and interest
2004 $170,935.00 for principal and interest
2005 $168,982.50 for principal and interest
2006 $173,161.25 for principal and interest
2007 $176,516.25 for principal and interest
2008 $184,005.00 for principal and interest
Following any extension of Pledged Taxes, interest or principal coming due at any time when
there are insufficient funds on hand from the Pledged Taxes to pay the same shall be paid
promptly when due from current funds on hand in advance of the collection of the Pledged Taxes
-21-
herein levied; and when the Pledged Taxes shall have been collected, reimbursement shall be
made to said funds in the amount so advanced.
Section 1 S. Filing with County Clerk. After this Ordinance becomes effective, a copy
hereof, certified by the City Clerk, shall be filed with the County Clerk. The County Clerk shall
in and for each of the years required ascertain the rate percent required to produce the aggregate
Pledged Taxes hereinbefore provided to be levied in each of said years; and the County Clerk
shall extend the same for collection on the tax books in connection with other taxes levied in said
years in and by the City for general corporate purposes of the City; and the County Clerk, or
other appropriate officer or designee, shall remit the Pledged Taxes for deposit to the credit of a
special fund to be designated the "Series 2002 Alternate Bond Fund" (the "Bond Fund "), and in
said years the Pledged Taxes shall be levied and collected by and for and on behalf of the City in
like manner as taxes for general municipal purposes of the City for said years are levied and
collected, and in addition to and in excess of all other taxes. The Pledged Taxes are hereby
irrevocably pledged to and shall be used only for the purpose of paying principal of and interest
on the Bonds. It is hereby expressly provided that in the event there shall be moneys both to the
credit of the Alternate Bond and Interest Subaccount and the Bond Fund, the Bond Fund shall be
fully depleted before moneys to the credit of the Alternate Bond and Interest Subaccount shall be
used to pay principal of and interest on the Bonds.
Section 16. Abatement of Pledged Taxes. As provided in the Act, whenever the Pledged
Revenues shall have been determined by the City Treasurer to provide in any calendar year an
amount not less than 1.00 times debt service of all outstanding Bonds in the next succeeding
Bond Year (December 1 and June 1) the City Treasurer shall, prior to the time the Pledged Taxes
levied in such calendar year are extended, direct the abatement of the Pledged Taxes, and proper
notification of such abatement shall be filed with the County Clerk in a timely manner to effect
-22-
such abatement. To ensure that such moneys are available to abate the Pledged Taxes, the City
covenants to deposit monthly into the Bond Fund an amount equal to one-sixth (1/6) of the next
scheduled interest payment and one-twelfth (1/12) of the next scheduled principal payment, as
set forth in Section 14.
The City covenants and agrees that it will not direct the County Clerk to abate any other
taxes levied for general corporate purposes in a calendar year until sufficient Pledged Revenues
have been deposited in the Bond Fund and the abatement of the Pledged Taxes for such calendar
year has been filed with the County Clerk.
Section 17. Pledged Revenues; General Covenants. The City covenants and agrees
with the registered owners of the Bonds that, so long as any Bonds remain Outstanding:
A. The City hereby pledges the Pledged Revenues to the payment of the Bonds,
and the Corporate Authorities covenant and agree to provide for, collect and apply the
Pledged Revenues to the payment of the Bonds, all in accordance with Section 15 of the
Act.
B. The City will punctually pay or cause to be paid from the Alternate Bond
and Interest Subaccount and from the Bond Fund the principal of and the interest on the
Bonds in strict conformity with the terms of the Bonds and this Ordinance, and it will
faithfully observe and perform all of the conditions, covenants and requirements thereof
and hereof.
C. The City will pay and discharge, or cause to be paid and discharged, from
the Alternate Bond and Interest Subaccount and the Bond Fund any and all lawful claims
which, if unpaid, might become a lien or charge upon the Pledged Moneys, or any part
thereof, or upon any funds in the hands of the Bond Registrar, or which might impair the
security of the Bonds. Nothing herein contained shall require the City to make any such
payment so long as the City in good faith shall contest the validity of said claims.
D. The City will keep, or cause to be kept, proper books of record and
accounts, separate from all other records and accounts of the City, in which complete and
correct entries shall be made of all transactions relating to the Pledged Moneys, the
Alternate Bond and Interest Subaccount and the Bond Fund. Such books of record and
accounts shall at all times during business hours be subject to the inspection of the
registered owners of not less than ten per cent (10%) of the principal amount of the
Outstanding Bonds or their representatives authorized in writing.
-23-
E. The City will preserve and protect the security of the Bonds and the rights of
the registered owners of the Bonds and will warrant and defend their rights against all
claims and demands of all persons. From and after the sale and delivery of any of the
Bonds by the City, the Bonds shall be incontestable by the City.
F. The City will adopt, make, execute and deliver any and all such further ordi-
nances, resolutions, instruments and assurances as may be reasonably necessary or proper
to carry out the intention of, or to facilitate the performance of, this Ordinance, and for
the better assuring and confirming unto the registered owners of the Bonds of the rights
and benefits provided in this Ordinance.
G. As long as any Bonds are Outstanding, the City will continue to deposit the
Pledged Revenues to the Alternate Bond and Interest Subaccount and, if applicable, the
Pledged Taxes to the Bond Fund. The City covenants and agrees with the purchasers of
the Bonds and with the registered owners thereof that so long as any Bonds remain
Outstanding, the City will take no action or fail to take any action which in any way
would adversely affect the ability of the City to collect the Pledged Taxes and to collect
and to segregate the Pledged Moneys. The City and its officers will comply with all pre-
sent and future applicable laws in order to assure that the Pledged Taxes can be extended
and that the Pledged Revenues and the Pledged Taxes may be collected and deposited to
the Alternate Bond and Interest Subaccount and the Bond Fund, respectively, as provided
herein.
H. Once issued, the Bonds shall be and forever remain until paid or defeased
the general obligation of the City, for the payment of which its full faith and credit are
pledged, and shall be payable, in addition to the Pledged Revenues, from the levy of the
Pledged Taxes as provided in the Act.
I. The City will maintain the System in good repair and working order, will
operate the same efficiently and faithfully and will punctually perform all duties with
respect thereto required by the Constitution and laws of the State of Illinois and Federal
law.
J. The City will establish and maintain at all times reasonable fees, charges,
and rates for the use and service of the System and will provide for the collection thereof
and the segregation and application of the Revenues in the manner provided by this
Ordinance, sufficient at all times to pay Operation and Maintenance Expenses, to provide
an adequate depreciation fund, to pay the principal of and interest on all bonds of the City
which by their terms are payable from the revenues of the System, and to provide for the
creation and maintenance and funding of the respective accounts as provided in Section
12 of this Ordinance; it is hereby expressly provided that the pledge and establishment of
rates or charges for use of the System shall constitute a continuing obligation of the City
with respect to such establishment and a continuing appropriation of the amounts
received.
-24-
K. There shall be charged against all users of the System, including the City,
such rates and amounts for water and sewerage services as shall be adequate to meet the
requirements of this section. Charges for services rendered the City shall be made
against the City, and payment for the same shall be made monthly from the corporate
funds into the Fund as revenues derived from the operation of the System; provided,
however, that the City need not charge itself for such services if in the previous Fiscal
Year Revenues not including any payments made by the City shall have met the
requirements of this Ordinance.
L. Within six months following the close of each Fiscal Year, the City will
cause the books and accounts of the System to be audited by independent certified public
accountants in accordance with appropriate audit standards. Said audit will be available
for inspection by the registered owners of any of the Bonds.
Section 18. Future Revenue Bonds, Additional Bonds and Subordinate Bonds. The City
reserves the right to issue without limit bonds payable solely and only from the Revenues, which
bonds may have a lien on the Revenues prior to the lien on the Revenues that secures the
Outstanding Bonds, provided that upon the issuance of such bonds, the City shall be able to
demonstrate that the requirements of the Act for the issuance of alternate bonds payable from the
Revenues shall have been met on such date for all Outstanding Bonds.
The City also reserves the right to issue Additional Bonds from time to time payable from
the Pledged Revenues, and any such Additional Bonds shall share ratably and equally in the
Pledged Revenues with the Bonds; provided, however, that no Additional Bonds shall be issued
except in accordance with the provisions of the Act as the Act is written at this time.
The City also reserves the right to issue revenue bonds from time to time payable from
the Revenues that are subordinate to the Bonds or Additional Bonds and are payable from the
money remaining in the Surplus Account created hereunder after making required deposits into
the Alternate Bond and Interest Subaccount.
Section 19. Provisions a Contract. The provisions of this Ordinance shall constitute a
contract between the City and the owners of the Outstanding Bonds and no changes, additions, or
-25-
alterations of any kind shall be made hereto, except as herein provided, so long as there are any
Outstanding Bonds.
Section 20. Use of Proceeds. The proceeds derived from the sale of the Bonds shall be
used as follows:
A. Accrued interest shall be credited to the Alternate Bond and Interest
Subaccount and applied to pay first interest due on the Bonds.
B. The amount necessary of the proceeds of the Bonds shall be deposited into a
separate fund, hereby created, designated the "Expense Fund," to be used to pay expenses
of issuance of the Bonds. Disbursements from such fund shall be made from time to time
upon the direction of the City Treasurer. Any excess in said fund shall be deposited into
the Alternate Bond and Interest Subaccount after six months from the date of issuance of
the Bonds.
C. The balance of the principal proceeds derived from the sale of the Bonds,
together with such money in the debt service funds for the Refunded Bonds as may be
advisable for the purpose, shall be used to provide for the refunding of the Refunded
Bonds.
Section 21. Non-Arbitrage and Tax-Exemption. One purpose of this Section is to set
forth various facts regarding the Bonds and to establish the expectations of the Corporate
Authorities and the City as to future events regarding the Bonds and the use of Bond proceeds.
The certifications, covenants and representations contained herein and at the time of the Closing
are made on behalf of the City for the benefit of the owners from time to time of the Bonds. In
addition to providing the certifications, covenants and representations contained herein, the City
hereby covenants that it will not take any action, omit to take any action or permit the taking or
omission of any action within its control (including, without limitation, making or permitting any
-26-
use of the proceeds of the Bonds) if taking, permitting or omitting to take such action would
cause any of the Bonds to be an arbitrage bond or a private activity bond within the meaning of
the Code or would otherwise cause the interest on the Bonds to be included in the gross income
of the recipients thereof for federal income tax purposes. The City acknowledges that, in the
event of an examination by the Internal Revenue Service of the exemption from Federal income
taxation for interest paid on the Bonds, under present rules, the City is treated as the "taxpayer"
in such examination and agrees that it will respond in a commercially reasonable manner to any
inquiries from the Internal Revenue Service in connection with such an examination. The
Corporate Authorities and the City certify, covenant and represent as follows:
1.1. Definitions. In addition to such other words and terms used and defined in
this Ordinance, the following words and terms used in this Section shall have the
following meanings unless, in either case, the context or use clearly indicates another or
different meaning is intended:
"Bond Counsel " means Chapman and Cutler or any other nationally recognized
firm of attorneys experienced in the field of municipal bonds whose opinions are
generally accepted by purchasers of municipal bonds.
"Closing" means the first date on which the City is receiving the purchase price
for the Bonds.
"Code "means the Internal Revenue Code of 1986.
"Commingled Fund "means any fund or account containing both Gross Proceeds
and an amount in excess of $25,000 that are not Gross Proceeds if the amounts in the
fund or account are invested and accounted for, collectively, without regard to the source
of funds deposited in the fund or account. An open-ended regulated investment company
under Section 851 of the Code is not a commingled fund.
"Control "means the possession, directly or indirectly through others, of either of
the following discretionary and non-ministerial rights or powers over another entity:
(a) to approve and to remove without cause a controlling portion of the
governing body of a Controlled Entity; or
(b) to require the use of funds or assets of a Controlled Entity for any
purpose.
-27-
"Controlled Entity" means any entity or one of a group of entities that is subject
to Control by a Controlling Entity or group of Controlling Entities.
"Controlled Group" means a group of entities directly or indirectly subject to
Control by the same entity or group of entities, including the entity that has the Control of
the other entities.
"Controlling Entity " means any entity or one of a group of entities directly or
indirectly having Control of any entities or group of entities.
"Costs of Issuance "means the costs of issuing the Bonds, including underwriters'
discount and legal fees.
"De minimis Amount of Original Issue Discount or Premium " means (a) any
original issue discount or premium that does not exceed two percent of the stated
redemption price at maturity of the Bonds plus (b) any original issue premium that is
attributable exclusively to reasonable underwriter's compensation.
"External Commingled Fund " means a Commingled Fund in which the City and
all members of the same Controlled Group as the City own, in the aggregate, not more
than ten percent of the beneficial interests.
"GIC" means (a) any investment that has specifically negotiated withdrawal or
reinvestment provisions and a specifically negotiated interest rate and (b) any agreement
to supply investments on two or more future dates (e.g., a forward supply contract).
"Gross Proceeds "means amounts in the Bond Fund.
"Net Sale Proceeds "means amounts actually or constructively received from the
sale of the Bonds reduced by any such amounts that are deposited in a reasonably
required reserve or replacement fund for the Bonds.
"Person " means any entity with standing to be sued or to sue, including any
natural person, corporation, body politic, governmental unit, agency, authority,
partnership, trust, estate, association, company, or group of any of the above.
"Placed-in-Service " means the date on which, based on all facts and
circumstances (a) a facility has reached a degree of completion that would permit its
operation at substantially its design level and (b) the facility is, in fact, in operation at
such level.
"Prior Bond Fund "means the fund or funds established in connection with the
issuance of the Prior Bonds to pay the debt service on the Prior Bonds.
"Prior Bond Proceeds "means amounts actually or constructively received from
the sale of the Refunded Bonds, including (a) amounts used to pay underwriters' discount
-28-
or compensation and accrued interest, other than accrued interest for a period not greater
than one year before the Refunded Bonds were issued but only if it is to be paid within
one year after the Refunded Bonds were issued and (b) amounts derived from the sale of
any right that is part of the terms of a Refunded Bond or is otherwise associated with a
Refunded Bond (e.g., a redemption right).
"Prior Bonds "means the City's outstanding issues being refunded by the Bonds,
as more particularly described in the preambles hereof.
"Prior Project" means the facilities financed, directly or indirectly with the
proceeds of the Prior Bonds.
"Private Business Use" means any use of the Prior Project by any Person other
than a state or local government unit, including as a result of (i) ownership, (ii) actual or
beneficial use pursuant to a lease or a management, service, incentive payment, research
or output contract or (iii) any other similar arrangement, agreement or understanding,
whether written or oral, except for use of the Prior Project on the same basis as the
general public. Private Business Use includes any formal or informal arrangement with
any person other than a state or local governmental unit that conveys special legal
entitlements to any portion of the Prior Project that is available for use by the general
public or that conveys to any person other than a state or local governmental unit any
special economic benefit with respect to any portion of the Prior Project that is not
available for use by the general public.
"Qualified Administrative Costs of Investments " means (a) reasonable, direct
administrative costs (other than carrying costs) such as separately stated brokerage or
selling commissions (other than a broker's commission paid on behalf of either the City
or the provider of a GIC to the extent such commission exceeds the present value of
annual payments equal to 0.05 percent of the weighted average amount reasonably
expected to be invested each year of the term of the GIC; for this purpose, present value
is computed using the taxable discount rate used to compute the commission or, if not
readily ascertainable, a reasonable taxable discount rate), but not legal and accounting
fees, recordkeeping, custody and similar costs; (b) all administrative costs, direct or
indirect, incurred by a publicly offered regulated investment company or an External
Commingled Fund; or (c) in the case of purpose investments, costs or expenses paid
directly to purchase, carry, sell or retire the investment and costs of issuing, carrying, or
repaying the Bonds, and any placement agent fee or underwriter's discount.
"Qualified Tax Exempt Obligations " means (a) any obligation described in
Section 103(a) of the Code, the interest on which is excludable from gross income of the
owner thereof for federal income tax purposes and is not an item of tax preference for
purposes of the alternative minimum tax imposed by Section 55 of the Code; (b) an
interest in a regulated investment company to the extent that at least ninety-five percent
of the income to the holder of the interest is interest which is excludable from gross
income under Section 103 of the Code of any owner thereof for federal income tax
purposes and is not an item of tax preference for purposes of the alternative minimum tax
-29-
imposed by Section 55 of the Code; and (c) a certificate of indebtedness issued by the
United States Treasury pursuant to the Demand Deposit State and Local Government
Series program described in 31 C.F.R. part 344.
"Rebate Fund " means the fund, if any, identified and defined in paragraph 4.1
herein.
"Rebate Provisions "means the rebate requirements contained in Section 148(f)
of the Code and in the Regulations.
"Refunded Bonds "means those certain Prior Bonds being refunded by the Bonds.
"Regulations " means United States Treasury Regulations dealing with the tax-
exempt bond provisions of the Code.
"Reimbursed Expenditures " means amounts, if any, used from Sale Proceeds and
investment earnings thereon to reimburse the City for an expenditure paid prior to
Closing.
"Sale Proceeds " means amounts actually or constructively received from the sale
of the Bonds, including (a) amounts used to pay underwriters' discount or compensation
and accrued interest, other than accrued interest for a period not greater than one year
before Closing but only if it is to be paid within one year after Closing and (b) amounts
derived from the sale of any right that is part of the terms of a Bond or is otherwise
associated with a Bond (e.g., a redemption right).
"Sale Proceeds Funds " means the funds containing amounts derived by the sale
of the Bonds or investment earnings thereon.
"Transferred Proceeds " means Prior Bond Proceeds, plus investment earnings
thereon, which have not been spent prior to the date principal on the Refunded Bonds is
discharged by the Refunding Portion of the Bonds.
"Yield "means that discount rate which when used in computing the present value
of all payments of principal and interest paid and to be paid on an obligation (using
semiannual compounding on the basis of a 360-day year) produces an amount equal to
the obligation's purchase price (or in the case of the Bonds, the issue price as established
in paragraph 5.1 hereof), including accrued interest.
"Yield Reduction Payment" means a rebate payment or any other amount paid to
the United States in the same manner as rebate amounts are required to be paid or at such
other time or in such manner as the Internal Revenue Service may prescribe that will be
treated as a reduction in Yield of an investment under the Regulations.
2.1. Purpose of the Bonds. The Bonds are being issued to refund the Refunded
Bonds within 90 days of the date of Closing in a prudent manner consistent with the
-30-
revenue needs of the City. A breakdown of the sources and uses of funds is set forth in
the preceding Section of this Ordinance.
2.2. Bond Fund Investment. The investment earnings on the Bond Fund will be
spent to pay interest on the Bonds, or to the extent permitted by law, investment earnings
on amounts in the Bond Fund will be commingled with substantial revenues from the
governmental operations of the City, and the earnings are reasonably expected to be spent
for governmental purposes within six months of the date earned. Except to pay the
Refunded Bonds, no proceeds of the Bonds will be used more than 30 days after the date
of issue of the Bonds for the purpose of paying any principal or interest on any issue of
bonds, notes, certificates or warrants or on any installment contract or other obligation of
the City or for the purpose of replacing any funds of the City used for such purpose.
2.3. Reimbursement. None of the Sale Proceeds or investment earnings thereon
will be used for Reimbursed Expenditures.
2.4. Working Capital. All Sale Proceeds and investment earnings thereon will
be used, directly or indirectly, to pay principal of, interest on and redemption premium on
(if any) of the Refunded Bonds, other than the following:
(a) payments of interest on the Bonds for the period commencing at
Closing and ending on the date one year after the date on which the Prior Project
is Placed-in-Service;
(b) Costs of Issuance and Qualified Administrative Costs of Investments;
(c) payments of rebate or Yield Reduction Payments made to the United
States under the Regulations;
(d) principal of or interest on the Bonds paid from unexpected excess
Sale Proceeds and investment earnings thereon; and
(e) fees for a qualified guarantee within the meaning of Treas. Reg.
Section 1.148-4(f).
2.5. Consequences of Contrary Expenditure. The City acknowledges that if
amounts in the Sale Proceeds Funds and investment earnings thereon are spent other than
as permitted by paragraph 2.4 hereof, a like amount of then available funds of the City
will be treated as unspent Sale Proceeds.
2.6. Investment of Bond Proceeds. No portion of the Bonds is being issued
solely for the purpose of investing a portion of Sale Proceeds or investment earnings
thereon at a Yield higher than the Yield on the Bonds.
2.7. No Grants. None of the Sale Proceeds or investment earnings thereon will
be used to make grants to any person.
-31-
2.8. Hedges. Neither the City nor any member of the same Controlled Group as
the City has entered into or expects to enter into any hedge (e.g., an interest rate swap,
interest rate cap, futures contract, forward contract or an option) with respect to the
Bonds or the Prior Bonds. The City acknowledges that any such hedge could affect the
calculation of Bond Yield under the Regulations, and that the Internal Revenue Service
could recalculate Bond Yield if the failure to account for the hedge fails to clearly reflect
the economic substance of the transaction.
2.9. Internal Revenue Service Audits. The City represents that the Internal
Revenue Service has not contacted the City regarding the Prior Bonds or any other
obligations issued by or on behalf of the City.
2.10. Abusive Transactions. Neither the City nor any member of the same
Controlled Group as the City has employed a device or entered into any arrangements or
understandings in connection with the issuance of the Bonds or the advance refunding of
the Refunded Bonds, or in connection with any transaction or series of transactions
related to the issuance of the Bonds or the advance refunding of the Refunded Bonds, to
obtain a material financial advantage based on arbitrage. Neither the City nor any
member of the same Controlled Group as the City will realize any material financial
advantage based on arbitrage in connection with the issuance of the Bonds or the advance
refunding of the Refunded Bonds, or in connection with any transaction or series of
transactions related to the issuance of the Bonds or the advance refunding of the
Refunded Bonds. In particular, neither the City nor any member of the same Controlled
Group as the City will receive a rebate or credit resulting from any payments having been
made in connection with the issuance of the Bonds or the advance refunding of the
Refunded Bonds.
3.1. Use of Proceeds. (a) The use of the Sale Proceeds and investment earnings
thereon and the funds held under this Ordinance at the time of Closing are described in
the preceding Section of this Ordinance.
(b) Only the funds and accounts described in said Section will be funded at
Closing. There are no other funds or accounts created under this Ordinance.
(c) Principal of and interest on the Bonds will be paid from the Bond Fund.
(d) Any Costs of Issuance incurred in connection with the Bonds to be paid by
the City will be paid at the time of Closing.
3.2. Purpose of Bond Fund. The Bond Fund will be used primarily to achieve a
proper matching of revenues and earnings with principal and interest payments on the
Bonds in each bond year. It is expected that the Bond Fund will be depleted at least once
a year, except for a reasonable carry over amount not to exceed the greater of (a) the
earnings on the investment of moneys in the Bond Fund for the immediately preceding
bond year or (b) 1/12th of the principal and interest payments on the Bonds for the
immediately preceding bond year.
-32-
3.3. The Prior Bonds. (a) As of the earlier of (i) the time of the Closing or
(ii) the date three years after the Prior Bonds were issued, all Prior Bond Proceeds,
including investment earnings thereon, were completely spent.
(b) As of the date hereof, no Prior Bond Proceeds or money or property of any
kind (including cash) is on deposit in any fund or account, regardless of where held or the
source thereof, with respect to the Prior Bonds or any credit enhancement or liquidity
device relating to the foregoing, or is otherwise restricted to pay the City's obligations.
(c) The Prior Bond Fund was used primarily to achieve a proper matching of
revenues and earnings with principal and interest payments on the Prior Bonds in each
bond year. The Prior Bond Fund was depleted at least once a year, except for a
reasonable carry over amount not to exceed the greater of (i) the earnings on the
investment of moneys in such account for the immediately preceding bond year or
(ii) one-twelfth (1/12th) of the principal and interest payments on the Prior Bonds and the
other bonds secured by such account for the immediately preceding bond year.
(d) At the time the Prior Bonds were issued, the City reasonably expected to
spend at least 85% of the proceeds (including investment earnings) of the Prior Bonds to
be used for non-refunding purposes for such purposes within three years of the date the
Prior Bonds were issued and such proceeds were so spent. Not more than 50% of the
proceeds of the Prior Bonds to be used for non-refunding purposes was invested in
investments having a substantially guaranteed Yield for four years or more.
(e) The Refunded Bonds subject to redemption prior to maturity will be called
on the first optional redemption date of the Refunded Bonds.
(f) The Refunded Bonds will be paid within 90 days of Closing.
3.4. No Other Gross Proceeds. (a) Except for the Bond Fund and except for
investment earnings that have been commingled as described in paragraph 2.2 and any
credit enhancement or liquidity device related to the Bonds, after the issuance of the
Bonds, neither the City nor any member of the same Controlled Group as the City has or
will have any property, including cash or securities that constitutes:
(i) Sale Proceeds;
(ii) amounts in any fund and account with respect to the Bonds (other
than the Rebate Fund);
(iii) Transferred Proceeds;
(iv) amounts that have a sufficiently direct nexus to the Bonds or to the
governmental purpose of the Bonds to conclude that the amounts would have
been used for that governmental purpose if the Bonds were not used or to be used
for that governmental purpose (the mere availability or preliminary earmarking of
-33-
such amounts for a governmental purpose, however, does not itself establish such
a sufficient nexus);
(v) amounts in a debt service fund, redemption fund, reserve fund,
replacement fund or any similar fund to the extent reasonably expected to be used
directly or indirectly to pay principal of or interest on the Bonds or any amounts
for which there is provided, directly or indirectly, a reasonable assurance that the
amount will be available to pay principal of or interest on the Bonds or any
obligations under any credit enhancement or liquidity device with respect to the
Bonds, even if the City encounters financial difficulties;
(vi) any amounts held pursuant to any agreement (such as an agreement to
maintain certain levels of types of assets) made for the benefit of the Bondholders
or any credit enhancement provider, including any liquidity device or negative
pledge (any amount pledged to pay principal of or interest on an issue held under
an agreement to maintain the amount at a particular level for the direct or indirect
benefit of Bondholders or a guarantor of the bonds); or
(vii) amounts actually or constructively received from the investment and
reinvestment of the amounts described in (i) or (ii) above.
(b) No compensating balance, liquidity account, negative pledge of property
held for investment purposes required to be maintained at least at a particular level or
similar arrangement exists with respect to, in any way, the Bonds.
(c) The term of the Bonds is not longer than is reasonably necessary for the
governmental purposes of the Bonds. The average reasonably expected remaining
economic life of the Prior Project is at least 7 years. The weighted average maturity of
the Bonds does not exceed 7 years and does not exceed 120 percent of the average
reasonably expected economic life of the Prior Project.
4.1. Compliance with Rebate Provisions. The City covenants to take such
actions and make, or cause to be made, all calculations, transfers and payments that may
be necessary to comply with the Rebate Provisions applicable to the Bonds. The City
will make, or cause to be made, rebate payments with respect to the Bonds in accordance
with law.
4.2. Rebate Fund. The City is hereby authorized to create and establish a special
fund to be known as the Rebate Fund (the "Rebate Fund', which, if created, shall be
continuously held, invested, expended and accounted for in accordance with this
Ordinance. Moneys in the Rebate Fund shall not be considered moneys held for the
benefit of the Bondholders. Except as provided in the Regulations, moneys in the Rebate
Fund (including earnings and deposits therein) shall be held in trust for payment to the
United States as required by the Rebate Provisions and by the Regulations and as
contemplated under the provisions of this Ordinance.
-34-
4.3. Records. The City agrees to keep and retain or cause to be kept and retained
until six years after the Bonds are paid in full adequate records with respect to the
investment of all Gross Proceeds and amounts in the Rebate Fund. Such records shall
include: (a) purchase price; (b) purchase date; (c) type of investment; (d) accrued interest
paid; (e) interest rate; (f) principal amount; (g) maturity date; (h) interest payment date;
(i) date of liquidation; and (j) receipt upon liquidation.
If any investment becomes Gross Proceeds on a date other than the date such
investment is purchased, the records required to be kept shall include the fair market
value of such investment on the date it becomes Gross Proceeds. If any investment is
retained after the date the last Bond is retired, the records required to be kept shall
include the fair market value of such investment on the date the last Bond is retired.
Amounts or investments will be segregated whenever necessary to maintain these
records.
4.4. Fair Market Value; Certificates of Deposit and Investment Agreements. The
City will continuously invest all amounts on deposit in the Rebate Fund, together with the
amounts, if any, to be transferred to the Rebate Fund, in any investment permitted under
this Ordinance. In making investments of Gross Proceeds, the City shall take into
account prudent investment standards including the date on which moneys to be invested
may be needed. The City shall provide that all amounts which constitute Gross Proceeds
and any amounts in the Rebate Fund shall be invested at all times to the greatest extent
practicable in investments permitted under this Ordinance, and no amounts may be held
as cash or be invested in zero Yield investments other than obligations of the United
States purchased directly from the United States; provided, however, that in the event
moneys cannot be invested, other than as provided in this sentence, due to the
denomination, price or availability of investments, such amounts shall be invested in an
interest bearing deposit account of a bank with a Yield not less than that paid to the
general public or held uninvested (but uninvested amounts shall be held to the minimum
amount necessary).
Gross Proceeds and any amounts in the Rebate Fund that are invested in
certificates of deposit or in guaranteed investment contracts ("GICs'~ shall be invested
only in accordance with the following provisions:
(a) Investments in certificates of deposit of banks or savings and loan
associations that have a fixed interest rate, fixed payment schedules and
substantial penalties for early withdrawal shall be made only if either (i) the Yield
on the certificate of deposit (A) is not less than the Yield on reasonably
comparable direct obligations of the United States and (B) is not less than the
highest Yield that is published or posted by the provider to be currently available
from the provider on reasonably comparable certificates of deposit offered to the
public or (ii) the investment is an investment in a GIC and qualifies under
paragraph (b) below.
(b) Investments in GICs shall be made only if
-35-
(i) the bid specifications are in writing, include all material terms
of the bid and are timely forwarded to potential providers (a term is
material if it may directly or indirectly affect the yield on the GIC);
(ii) the terms of the bid specifications are commercially reasonable
(a term is commercially reasonable if there is a legitimate business
purpose for the term other than to reduce the yield on the GIC);
(iii) all bidders for the GIC have equal opportunity to bid so that,
for example, no bidder is given the opportunity to review others bids (a
last look) before bidding;
(iv) any agent used to conduct the bidding for the GIC does not bid
to provide the GIC;
(v) at least three of the providers solicited for bids for the GIC are
reasonably competitive providers of investments of the type purchased
(i.e., providers that have established industry reputations as competitive
providers of the type of investments being purchased);
(vi) at least three of the entities that submit a bid do not have a
financial interest in the Bonds;
(vii) at least one of the entities that provided a bid is a reasonably
competitive provider that does not have a financial interest in the Bonds;
(viii) the bid specifications include a statement notifying potential
providers that submission of a bid is a representation that the potential
provider did not consult with any other provider about its bid, that the bid
was determined without regard to any other formal or informal agreement
that the potential provider has with the City or any other person (whether
or not in connection with the Bonds) and that the bid is not being
submitted solely as a courtesy to the City or any other person for purposes
of satisfying the federal income tax requirements relating to the bidding
for the GIC;
(ix) the determination of the terms of the GIC takes into account the
reasonably expected deposit and drawdown schedule for the amounts to be
invested;
(x) the highest-yielding GIC for which a qualifying bid is made
(determined net of broker's fees) is in fact purchased; and
(xi) the obligor on the GIC certifies the administrative costs that it
is paying or expects to pay to third parties in connection with the GIC.
-36-
(c) If a GIC is purchased, the City will retain the following records with
its bond documents until three years after the Bonds are redeemed in their
entirety:
(i) a copy of the GIC;
(ii) the receipt or other record of the amount actually paid for the
GIC, including a record of any administrative costs paid, and the
certification under paragraph (b)(xi) of this Section;
(iii) for each bid that is submitted, the name of the person and entity
submitting the bid, the time and date of the bid, and the bid results; and
(iv) the bid solicitation form and, if the terms of the GIC deviated
from the bid solicitation form or a submitted bid is modified, a brief
statement explaining the deviation and stating the purpose for the
deviation.
Moneys to be rebated to the United States shall be invested to mature on or prior
to the anticipated rebate payment date. All investments made with Gross Proceeds or
amounts in the Rebate Fund shall be bought and sold at fair market value. The fair
market value of an investment is the price at which a willing buyer would purchase the
investment from a willing seller in a bona fide, arm's length transaction. Except for
investments specifically described in this Section and United States Treasury obligations
that are purchased directly from the United States Treasury, only investments that are
traded on an established securities market, within the meaning of regulations promulgated
under Section 1273 of the Code, will be purchased with Gross Proceeds. In general, an
"established securities market" includes: (i) property that is listed on a national securities
exchange, an interdealer quotation system or certain foreign exchanges; (ii) property that
is traded on a Commodities Futures Trading Commission designated board of trade or an
interbank market; (iii) property that appears on a quotation medium; and (iv) property for
which price quotations are readily available from dealers and brokers. A debt instrument
is not treated as traded on an established market solely because it is convertible into
property which is so traded.
An investment of Gross Proceeds in an External Commingled Fund shall be made
only to the extent that such investment is made without an intent to reduce the amount to
be rebated to the United States Government or to create a smaller profit or a larger loss
than would have resulted if the transaction had been at arm's length and had the rebate or
Yield restriction requirements not been relevant to the City. An investment of Gross
Proceeds shall be made in a Commingled Fund other than an External Commingled Fund
only if the investments made by such Commingled Fund satisfy the provisions of this
paragraph.
-37-
A single investment, or multiple investments awarded to a provider based on a
single bid may not be used for funds subject to different rules relating to rebate or yield
restriction.
The foregoing provisions of this paragraph satisfy various safe harbors set forth in
the Regulations relating to the valuation of certain types of investments. The safe harbor
provisions of this paragraph are contained herein for the protection of the City, who has
covenanted not to take any action to adversely affect the tax-exempt status of the interest
on the Bonds. The City will contact Bond Counsel if it does not wish to comply with the
provisions of this paragraph and forego the protection provided by the safe harbors
provided herein.
4.5. Arbitrage Elections. The Mayor and Clerk of the Corporate Authorities and
Treasurer of the City are hereby authorized to execute one or more elections regarding
certain matters with respect to arbitrage.
4.6. Small Issuer Exception. (a) The City is a governmental unit that has the
power to impose a tax or to cause another entity to impose a tax of general applicability
that, when collected, may be used for the governmental purposes of the City. The power
to impose such tax is not contingent on approval by another governmental unit; a tax of
general applicability is one that is not limited to a small number of persons. The City is
not subject to Control by any other governmental unit or political subdivision. None of
the Bonds is or will be a "private activity bond" (as defined in Section 141 of the Code).
Ninety-five percent or more of the Sale Proceeds will be used for local governmental
activities of the City. Neither the City, any entity that issues tax-exempt bonds on behalf
of the City nor any entity subject to Control by the City will issue, during the calendar
year 2002, any tax-exempt bonds in an aggregate face amount in excess of $5,000,000.
As used herein, (a) "tax-exempt bonds " means obligations of any kind, the interest on
which is excludable from gross income of the holders or owners thereof for federal
income tax purposes pursuant to Section 103 of the Code but not including "private
activity bonds" (as defined in Section 141 of the Code) and (b) "aggregate face amount"
means, if an issue has more than a De minimis Amount of Original Issue Discount or
Premium, the issue price of the issue and otherwise means the face amount of the issue.
As of the date hereof, no tax-exempt bonds or other obligations (other than the Bonds)
have been issued by the City, any entity that issues tax-exempt bonds on behalf of the
City or any entity subject to Control by the City during the calendar year 2002. The City
does not reasonably expect that it, any entity that issues tax-exempt bonds on behalf of
the City or any entity subject to Control by the City (including but not limited to the City)
will issue any such tax-exempt bonds or other obligations within calendar year 2002.
Therefore, subject to compliance with all the terms and provisions hereof, the City is
excepted from the required rebate of arbitrage profits on the Bonds under
Section 148(f)(4)(D) of the Code and from the terms and provisions of this Ordinance
that need only be complied with if the City is subject to the arbitrage rebate requirement.
(b) The average maturity date of the Bonds is not later than the average maturity
date of the Refunded Bonds.
-38-
(c) No Bond has a maturity date which is later than the date which is 30 years
after the date on which the earliest issue of the Prior Bonds was issued.
5.1. Issue Price. For purposes of determining the Yield on the Bonds, the
purchase price of the Bonds is equal to the first offering price (including accrued interest)
at which the Purchaser sold at least ten percent of the principal amount of each maturity
of the Bonds to the public (excluding bond houses, brokers or similar persons or
organizations acting in the capacity of underwriters, placement agents or wholesalers).
All of the Bonds have been the subject of a bona fide initial offering to the public
(excluding bond houses, brokers, or similar persons or organizations acting in the
capacity of underwriters, placement agents or wholesalers) at prices equal to those set
forth in the Official Statement. Based upon prevailing market conditions, such prices are
not less than the fair market value of each Bond as of the sale date for the Bonds.
5.2. Yield Limits. (a) Except as provided in paragraph (b) or (c), all Gross
Proceeds shall be invested at market prices and at a Yield (after taking into account any
Yield Reduction Payments) not in excess of the Yield on the Bonds.
The following may be invested without Yield restriction:
(b) amounts on deposit in the Bond Fund (except for capitalized interest) that
have not been on deposit under the .Ordinance for more than 13 months, so long as the
Bond Fund continues to qualify as a bona fide debt service fund as described in
paragraph 3.2 hereof;
(c) (i) An amount not to exceed the lesser of $100,000 or five percent of the
Sale Proceeds;
(ii) amounts invested in Qualified Tax Exempt Obligations (to the extent
permitted by law and this Ordinance);
(iii) amounts in the Rebate Fund;
(iv) all amounts other than Sale Proceeds for the first 30 days after they
become Gross Proceeds; and
(v) all amounts derived from the investment of Sale Proceeds or
investment earnings thereon other than those on deposit in the Escrow Account
for a period of one year from the date received.
5.3. Yield Limits on Prior Bonds. Except for an amount not to exceed the lesser
of $100,000 or five percent of Prior Bond Proceeds, the City acknowledges that all Prior
Bond Proceeds must be invested at market prices and at a Yield not in excess of the Yield
on the Prior Bonds.
-39-
5.4. Continuing Nature of Yield Limits. Except as provided in paragraph 7.6
hereof, once moneys are subject to the Yield limits of paragraph 5.2 hereof, such moneys
remain Yield restricted until they cease to be Gross Proceeds.
S.S. Federal Guarantees. Except for investments meeting the requirements of
paragraph 5.2(b) hereof and except for investments in the Escrow Account, investments
of Gross Proceeds shall not be made in (a) investments constituting obligations of or
guaranteed, directly or indirectly, by the United States (except obligations of the United
States Treasury or investments in obligations issued pursuant to Section 21B(d)(3) of the
Federal Home Loan Bank, as amended (e.g., Refcorp Strips)); or (b) federally insured
deposits or accounts (as defined in Section 149(b)(4)(B) of the Code). Except as
otherwise permitted in the immediately prior sentence and in the Regulations, no portion
of the payment of principal or interest on the Bonds or any credit enhancement or
liquidity device relating to the foregoing is or will be guaranteed, directly or indirectly (in
whole or in part), by the United States (or any agency or instrumentality thereof),
including a lease, incentive payment, research or output contract or any similar
arrangement, agreement or understanding with the United States or any agency or
instrumentality thereof. No portion of the Gross Proceeds has been or will be used to
make loans the payment of principal or interest with respect to which is or will be
guaranteed (in whole or in part) by the United States (or any agency or instrumentality
thereof). Neither this paragraph nor paragraph 5.5 hereof applies to any guarantee by the
Federal Housing Administration, the Federal National Mortgage Association, the Federal
Home Loan Mortgage Corporation, the Government National Mortgage Association, the
Student Loan Marketing Association or the Bonneville Power Administration pursuant to
the Northwest Power Act (16 U.S.C. 839d) as in effect on the date of enactment of the
Tax Reform Act of 1984.
5.6. Investments After the Expiration of Temporary Periods, Etc. Any amounts,
other than amounts in the Escrow Account, that are subject to the yield limitation in
Section 5.2(a) because Section 5.2(b) is not applicable and amounts not subject to yield
restriction only because they are described in Section 5.2(c) cannot be invested in
(i) federally insured deposits or accounts (as defined in Section 149(b)(4)(B) of the Code
or (ii) investments constituting obligations of or guaranteed, directly or indirectly, by the
United States (except obligations of the United States Treasury or investments in
obligations issued pursuant to Section 21B(d)(3) of the Federal Home Loan Bank Act, as
amended (e.g., Refcorp Strips).
6.1. Payment and Use Tests. (a) No more than five percent of the proceeds of
each issue of the Prior Bonds and investment earnings thereon were used, directly or
indirectly, in whole or in part, in any Private Business Use. The City acknowledges that,
for purposes of the preceding sentence, Gross Proceeds used to pay costs of issuance and
other common costs (such as capitalized interest and fees paid for a qualified guarantee or
qualified hedge) or invested in a reserve or replacement fund must be ratably allocated
among all the purposes for which Gross Proceeds are being used.
-40-
(b) The payment of more than five percent of the principal of or the interest on
the Bonds or on each issue of the Prior Bonds considered separately will not be, directly
or indirectly (i) secured by any interest in (A) property used or to be used in any Private
Business Use or (B) payments in respect of such property or (ii) on a present value basis,
derived from payments (whether or not to the City or a member of the same Controlled
Group as the City) in respect of property, or borrowed money, used or to be used in any
Private Business Use.
(c) No more than the lesser of $5,000,000 or five percent of the sum of the
proceeds of each issue of the Prior Bonds and investment earnings thereon were used,
and no more than the lesser of $5,000,000 or five percent of the sum of the Sale Proceeds
and investment earnings thereon will be used, directly or indirectly, to make or finance
loans to any persons. The City acknowledges that, for purposes of the preceding
sentence, Gross Proceeds used to pay costs of issuance and other common costs (such as
capitalized interest and fees paid for a qualified guarantee or qualified hedge) or invested
in a reserve or replacement fund must be ratably allocated among all the purposes for
which Gross Proceeds are being used.
(d) No user of the Prior Project other than a state or local governmental unit will
use more than five percent of such facilities, considered separately, on any basis other
than the same basis as the general public.
(e) No more than the lesser of five percent of each issue of the Prior Bonds or
$5,000,000 of the proceeds of each issue of the Prior Bonds were used or will be used to
provide professional sports facilities. For purposes of this paragraph, the term
"professional sports facilities" (i) means real property or related improvements used for
professional sports exhibitions, games or training, regardless of whether the admission of
the public or press is allowed or paid and (ii) includes any use of a facility that generates
a direct or indirect monetary benefit (other than reimbursement for out-of-pocket
expenses) for a person who uses such facilities for professional sport exhibitions, games
or training.
6.2. I.R.S. Form 8038-G. The information contained in the Information Return
for Tax-Exempt Governmental Obligations, Form 8038-G, is true and complete. The
City will file Form 8038-G (and all other required information reporting forms) in a
timely manner.
6.3. Bank Qualification. (a) The City hereby designates each of the Bonds as a
"qualified tax-exempt obligation" for the purposes and within the meaning of
Section 265(b)(3) of the Code. In support of such designation, the City hereby certifies
that (i) none of the Bonds will be at anytime a "private activity bond" (as defined in
Section 141 of the Code) other than a "qualified 501(c)(3) bond" (as defined in
Section 145 of the Code), (ii) as of the date hereof in calendar year 2002, the City has not
issued any tax-exempt obligations of any kind other than the Bonds nor have any tax-
exempt obligations of any kind been- issued on behalf of the City and (iii) not more than
$10,000,000 of obligations of any kind (including the Bonds) issued by or on behalf of
-41-
the City during calendar year 2002 will be designated for purposes of Section 265(b)(3)
of the Code.
(b) The City is not subject to Control by any entity, and there are no entities
subject to Control by the City.
(c) On the date hereof, the City does not reasonably anticipate that for calendar
year 2002 it will issue any Section 265 Tax-Exempt Obligations (other than the Bonds),
or that any Section 265 Tax-Exempt Obligations will be issued on behalf of it. "Section
265 Tax-Exempt Obligations " are obligations the interest on which is excludable from
gross income of the owners thereof under Section 103 of the Code, except for private
activity bonds other than qualified 501(c)(3) bonds, both as defined in Section 141 of the
Code. The City will not issue or permit the issuance on behalf of it or by any entity
subject to Control by the City (which may hereafter come into existence) of Section 265
Tax-Exempt Obligations (including the Bonds) that exceed the aggregate amount of
$10,000,000 during calendar year 2002 unless it first obtains an opinion of Bond Counsel
to the effect that such issuance will not adversely affect the treatment of the Bonds as
"qualified tax-exempt obligations" for the purposes and within the meaning of
Section 265(b)(3) of the Code.
7.1. Termination; Interest of City in Rebate Fund. The terms and provisions set
forth in this Section shall terminate at the later of (a) 75 days after the Bonds have been
fully paid and retired or (b) the date on which all amounts remaining on deposit in the
Rebate Fund, if any, shall have been paid to or upon the order of the United States and
any other payments required to satisfy the Rebate Provisions of the Code have been made
to the United States. Notwithstanding the foregoing, the provisions of paragraph 4.3
hereof shall not terminate until the sixth anniversary of the date the Bonds are fully paid
and retired, and the provisions of paragraph 4.4(c) hereof shall not terminate until the
third anniversary of the date the Bonds are fully paid and retired.
7.2. No Common Plan of Financing. Since a date that is 15 days prior to the
date of sale of the Bonds by the City to the Purchaser, neither the City nor any member of
the same Controlled Group as the City has sold or delivered any obligations other than
the Bonds that are reasonably expected to be paid out of substantially the same source of
funds as the Bonds. Neither the City nor any member of the same Controlled Group as
the City will sell or deliver within 15 days after the date hereof any obligations other than
the Bonds that are reasonably expected to be paid out of substantially the same source of
funds as the Bonds.
7.3. No Sale of the Prior Project. (a) Other than as provided in the next
sentence, neither the Prior Project nor any portion thereof has been, is expected to be, or
will be sold or otherwise disposed of, in whole or in part, prior to the earlier of (i) the last
date of the reasonably expected economic life to the City of the property (determined on
the date of issuance of the Bonds) or (ii) the last maturity date of the Bonds. The City
may dispose of personal property in the ordinary course of an established government
program prior to the earlier of (i) the last date of the reasonably expected economic life to
-42-
the City of the property (determined on the date of issuance of the Bonds) or (ii) the last
maturity of the Bonds, provided: (A) the weighted average maturity of the Bonds
financing the personal property is not greater than 120 percent of the reasonably expected
actual use of that property for governmental purposes; (B) the City reasonably expects on
the issue date that the fair market value of that property on the date of disposition will be
not greater than 25 percent of its cost; (C) the property is no longer suitable for its
governmental purposes on the date of disposition; and (D) the City deposits amounts
received from the disposition in a commingled fund with substantial tax or other
governmental revenues and the City reasonably expects to spend the amounts on
governmental programs within six months from the date of the commingling.
(b) The City acknowledges that if property financed with the Prior Bonds is sold
or otherwise disposed of in a manner contrary to (a) above, such sale or disposition may
constitute a "deliberate action" within the meaning of the Regulations that may require
remedial actions to prevent the Bonds from becoming private activity bonds. The City
shall promptly contact Bond Counsel if a sale or other disposition of Bond-financed
property is considered by the City.
7.4. Purchase of Bonds by City. The City will not purchase any of the Bonds
except to cancel such Bonds.
7.5. First Call Date Limitation. The period between the date of Closing and the
first call date, if any, of the Bonds is not more than 10-1/2 years.
7.6. Registered Form. The City recognizes that Section 149(a) of the Code
requires the Bonds to be issued and to remain in fully registered form in order that
interest thereon be exempt from federal income taxation under laws in force at the time
the Bonds are delivered. In this connection, the City agrees that it will not take any
action to permit the Bonds to be issued in, or converted into, bearer or coupon form.
7.7. First Amendment. The City acknowledges and agrees that it will not use, or
allow the Prior Project to be used, in a manner which is prohibited by the Establishment
of Religion Clause of the First Amendment to the Constitution of the United States of
America or by any comparable provisions of the Constitution of the State of Illinois.
7.8. Future Events. The City acknowledges that any changes in facts or
expectations from those set forth herein may result in different Yield restrictions or rebate
requirements from those set forth herein. The City shall promptly contact Bond Counsel
if such changes do occur.
7.9. Permitted Changes; Opinion of Bond Counsel. The Yield restrictions
contained in paragraph 5.2 hereof or any other restriction or covenant contained herein
need not be observed or may be changed if such nonobservance or change will not result
in the loss of any exemption for the purpose of federal income taxation to which interest
on the Bonds is otherwise entitled and the City receives an opinion of Bond Counsel to
such effect.
-43-
7.10. Excess Proceeds. Gross Proceeds of the Bonds and investment earnings
thereon and all unspent Prior Bond Proceeds as of the date of Closing and investment
earnings thereon do not exceed by more than one percent of the Sale Proceeds of the
Bonds the amount that will be used for:
(i) payment of principal of or interest or call premium on the Refunded Bonds;
(ii) payment of pre-issuance accrued interest on the Bonds and interest on the
Bonds that accrues for a period up to the completion date of any capital project for which
the prior issue was issued, plus one year;
(iii) payment of cost of issuance of the Bonds;
(iv) payment of administrative costs allocable to repaying the Refunded Bonds,
carrying and repaying the Bonds or investments of the Bonds;
(v) Prior Bond Proceeds that will be used or maintained for the governmental
purpose of the Refunded Bonds;
(vi) interest on purpose investments; and
(vii) amounts that will be used or maintained for the governmental purpose of the
Bonds.
7.11. Successors and Assigns. The terms, provisions, covenants and conditions
of this Section shall bind and inure to the benefit of the respective successors and assigns
of the City Council and the City.
7.12. Expectations. The City Council has reviewed the facts, estimates and
circumstances in existence on the date of issuance of the Bonds. Such facts, estimates
and circumstances, together with the expectations of the City as to future events, are set
forth in summary form in this Section. Such facts and estimates are true and are not
incomplete in any material respect. On the basis of the facts and estimates contained
herein, the City has adopted the expectations contained herein. On the basis of such
facts, estimates, circumstances and expectations, it is not expected that Sale Proceeds,
investment earnings thereon or any other moneys or property will be used in a manner
that will cause the Bonds to be arbitrage bonds within the meaning of the Rebate
Provisions and the Regulations. Such expectations are reasonable and there are no other
facts, estimates and circumstances that would materially change such expectations.
The City also agrees and covenants with the purchasers and holders of the Bonds from
time to time outstanding that, to the extent possible under Illinois law, it will comply with
-44-
whatever federal tax law is adopted in the future which applies to the Bonds and affects the
tax-exempt status of the Bonds.
The Corporate Authorities hereby authorize the officials of the City responsible for
issuing the Bonds, the same being the Mayor, Clerk and Treasurer of the City Council, to make
such further covenants and certifications as may be necessary to assure that the use thereof will
not cause the Bonds to be arbitrage bonds and to assure that the interest in the Bonds will be
exempt from federal income taxation. In connection therewith, the City and the Corporate
Authorities further agree: (a) through their officers, to make such further specific covenants,
representations as shall be truthful, and assurances as may be necessary or advisable; (b) to
consult with counsel approving the Bonds and to comply with such advice as may be given;
(c) to pay to the United States, as necessary, such sums of money representing required rebates
of excess arbitrage profits relating to the Bonds; (d) to file such forms, statements, and
supporting documents as may be required and in a timely manner; and (e) if deemed necessary or
advisable by their officers, to employ and pay fiscal agents, financial advisors, attorneys, and
other persons to assist the City in such compliance.
Section 22. Bond Registrar Covenants. If requested by the Bond Registrar, the Mayor
and City Clerk are authorized to execute the Bond Registrar's standard form of agreement
between the City and the Bond Registrar with respect to the obligations and duties of the Bond
Registrar hereunder. Subject to modification by the express terms of any such agreement, such
duties shall include the following:
(a) to act as bond registrar, authenticating agent, paying agent and transfer agent
as provided herein;
(b) to maintain a list of Bondholders as set forth herein and to furnish such list
to the City upon request, but otherwise to keep such list confidential to the extent
permitted by law;
-45-
(c) to cancel and/or destroy Bonds which have been paid at maturity or
submitted for exchange or transfer;
(d) to furnish the City at least annually a certificate with respect to Bonds
cancelled and/or destroyed; and
(e) to furnish the City at least annually an audit confirmation of Bonds paid,
Outstanding Bonds and payments made with respect to interest on the Bonds.
The City Clerk is hereby directed to file a certified copy of this Ordinance with the Bond
Registrar.
Section 23. Continuing Disclosure Undertaking. The Mayor or Treasurer of the City is
hereby authorized, empowered and directed to execute and deliver the Continuing Disclosure
Undertaking (the "Continuing Disclosure Undertaking's in substantially the same form as now
before the Corporate Authorities, or with such changes therein as the individual executing the
Continuing Disclosure Undertaking on behalf of the City shall approve, the official's execution
thereof to constitute conclusive evidence of the approval of such changes. When the Continuing
Disclosure Undertaking is executed and delivered on behalf of the City as herein provided, the
Continuing Disclosure Undertaking will be binding on the City and the officers, employees and
agents of the City, and the officers, employees and agents of the City are hereby authorized,
empowered and directed to do all such acts and things and to execute all such documents as may
be necessary to carry out and comply with the provisions of the Continuing Disclosure
Undertaking as executed. Notwithstanding any other provision of this Ordinance, the sole
remedies for failure to comply with the Continuing Disclosure Undertaking shall be the ability of
the beneficial owner of any Bond to seek mandamus or specific performance by court order, to
cause the City to comply with its obligations under the Continuing Disclosure Undertaking.
Section 24. Call of the Refunded Bonds. In accordance with the redemption provisions
of the ordinance authorizing the Refunded Bonds, the City by the Corporate Authorities does
hereby make provision for the payment of and does hereby call (subject only to the delivery of
-46-
•
the Bonds) the Refunded Bonds for redemption on March 15, 2002. Notice of the redemption of
the Refunded Bonds shall be given as provided in the ordinance authorizing the Refunded
Bonds.
Section 25. Severability. If any section, paragraph, clause or provision of this
Ordinance shall be held invalid, the invalidity of such section, paragraph, clause or provision
shall not affect any of the other provisions of this Ordinance.
Section 26. Repealer. All ordinances, resolutions or orders, or parts thereof, in conflict
with the provisions of this Ordinance are to the extent of such conflict hereby repealed.
-47-
~~ •
ADOPTED on the 5th day of February, 2002.
AYE: Jerry Bohler, James Hartford, Robert Molleck, Larry Sarff, Craig West, David
Nidiffer, Kevin Mn Ieade, JoAnne Shores and Mary Fillingham
NAY: ' `~ ~ ~ L'
ABSENT: ~L-~~I`YI~CIv ~AmcS ~-I~~i f=vRv, 1~~ui~ N~~I~~F-~R
Approved the 5th day of February, 2002
~.,
Mayor
RECORDED in the City Records on the 5th day of February, 2002.
ATTEST:
7
City Clerk
[SEAL]
-48-