06/10/2008 Ordinances 9172Whereupon, the Mayor declazed said Ordinance duly passed as foAows:
THE CITY OF GRAND ISLAND, STATE OF NEBRASKA
ORDINANCE N0. 9172
AN ORDINANCE AUTHORIZING THE SALE AND THE ISSUANCE OF UP TO
SEVEN MILLION DOLLARS {$7,000,Q00) OF THE CITY OF GRAND ISLAND,
NEBRASKA (THE "CITY"} ORIGINAL, AGGREGATE PRINCII'AL AMOUNT OF SOLID
WASTE DISPOSAL FACILITIES REVENUE BONDS (MICROGY GRAND ISLAND, LLC
PROJECT} SERIES-2008, FOR THE PURPOSE OF FINANCING THE ACQUISITION,
CONSTRUCTION, IMPROVING AND EQUIPPING .OF CERTAIN INDUSTRIAL SOLID
WASTE DISPOSAL FACILITIES LOCATED WITHIN THE CORPORATE BOUNDARIES
OF -THE CITY (WHICH FACILITIES ARE HEREINAFTER REFERRED TO AS THE
"PROJECT"), WHICH BONDS AND THE INTEREST THEREON SHALL BE PAYABLE
SOLELY FROM THE AMOUNTS TO BE PAID TO THE CITY UNDER A LEASE
AGREEMENT BETWEEN THE CITY AND MICROGY GRAND ISLAND, LLC AND
WHICH AMOUNTS ARE PLEDGED TO THE PAYMENT OF SAID BONDS; APPROVING
AND AUTHORIZING EXECUTION OF A TRUST INDENTURE WITH RESPECT TO THE
BONDS; APPROVING AND AUTHORIZING EXECUTION OF A LEASE AGREEMENT
WITH MICROGY GRAND ISLAND, LLC WITH RESPECT TO THE PROJECT
CONTAINING CERTAIN OPTIONS AND COVENANTS TO PURCHASE SAID PROJECT;
APPROVING AND. AUTHORIZING A TAX REGULATORY AGREEMENT WITH
RESPECT TO -THE BONDS; APPROVING THE USE OF A LIMITED OFFERING
MEMORANDUM TO BE USED IN CONNECTION WITH THE SALE OF SAID BONDS;
MAKING FINDINGS AND DETERMINATIONS WITH REFERENCE TO THE PROJECT
AND THE BONDS; APPROVING AND AUTHORIZING EXECUTION OF A BOND
PURCHASE AGREEMENT WITH RESPECT TO SAID BONDS AND THE SALE OF SAID
BONDS; .DETERMINING THAT SAID BONDS SHALL NOT CONSTITUTE A
PECUNIARY LIABILITY OF THE CITY NOR A CHARGE AGAINST ITS GENERAL
CREDIT OR TAXING POWERS; PROVIDING. THAT THE. INVALIDITY OF ANY PART
OF THIS ORDINANCE SHALL NOT AFFECT THE REMAINDER; INCORPORATING
WITHIN THIS ORDINANCE THE PROVISIONS. OF SECTION 2 OF ARTICLE XIII OF
THE NEBRASKA CONSTITUTION AND SECTION 13-1101 ET SEQ., AS AMENDED, OF
THE, NEBRASKA STATUTES, AS AMENDED; .AUTHORIZING THE EXECUTION AND
DELIVERY OF RELATED DOCUMENTS; EXPRESSING PUBLIC APPROVAL WITHIN
THE MEANING OF SECTION 147(f) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED; AND REPEALING ALL ORDINANCES AND PARTS OF ORDINANCES IN
CONFLICT HEREWITH AND PROVIDING FOR THE DATE OF EFFECT OF THIS
ORDINANCE.
WHEREAS, The City of Grand Island, Nebraska (the "City") now proposes at the
request of Microgy Grand Island, LLC, a Nebraska limited liability company (the "Company"),
to sell. its Solid Waste Disposal Facilities Revenue Bonds (Microgy Grand Island, LLC Project)
Series 2008 in the aggregate principal amount of up to $7,000,000 (the "Bonds', to finance all
or a portion of the cost of financing the acquisition, construction, improving and equipping of an
industrial development solid waste disposal project located within the City at the JBS Swift &
Co. beef processing plant, 555 South Stuhr Road, Grand Island, Nebraska, all in accordance with
the provisions of the Section 2 of Article XIII of the Nebraska Constitution and the Nebraska
4$43-6323A426.4 2
. Industrial Development Act, Sections 13-1101 et seq., Reissue Revised Statutes of Nebraska,
1997, as amended (the "Act"); and
~ WHEREAS; the Mayor and the City Council fmd and determine that in furtherance of the
issuance of the Bonds and the financing of the Project,, it is necessary and advisable and in the
best interest of the City to accept the interests in real estate and personal property conveyed by
the Company to the City pursuant to. a sublease or warranty deed and a bill of sale, respectively;
and
WHEREAS, .the Mayor. and the City Council of the City find and determine that in
furtherance of the purposes and' pursuant to the provisions of Section 2 of Article XIII of the
Nebraska Constitution and the Act, it is necessary and advisable and in the best interest of the
City to proceed with the issuance of the Bonds and the provision of the proceeds thereof to the
Company in order to finance the costs of the Project; and
WHEREAS, pursuant to a Notice of Public Hearing, duly published in T'he Grand Island
Independent on May 13, 2008, the City Council conducted on May 27, 2008 a public hearing
(the "Hearing."), pursuant to and in compliance with the requirements of Section 1470 of the
Internal Revenue Code of 1986, as amended (the "Code"), at which all interested parties were
given an opportunity to express their views. orally or in writing for or against the proposed Bonds
and related Project, and the City Council deems it necessary and advisable to give public
approval to the proposed issuance by the City of not to .exceed $7,000,000 aggregate principal
amount of the Bonds, for the. aforesaid purposes; and
WHEREAS, there have been presented to this meeting the following documents; which
the City proposes to enter into or which are integral to the contemplated transaction:
1. The form of Lease Agreement dated as of June 1, 2008 {the "Agreement")
between the City, as lessor, and the Company, as lessee;
2. The form of Txust Indenture dated as of June 1, 2008 (the "Indenture"}
between the City and Wells Fargo Bank, National Association, as trustee thereunder {the
"Trustee"), setting forth the terms of the Bonds (including, without limitation, the
maturity date of not later than dune I, 2038; the rate or rates of interest not to exceed
8.25% per annum and redemption provisions) and the. conditions and security for the
Bonds;
3. The form of Sublease Agreement dated as of June 1, 2008 (the
"Sublease"} between the Company, as sublessor, and the City, as sublessee;
4. The form of Guaranty Agreement dated as of June 1, 2008 {the
"Guaranty"} to be executed and delivered by Microgy Grand Island, LLC, as guarantor
(the "Guarantor"), to the Trustee;
5. The form of Tax Regulatory Agreement. dated as of June 1, 2008 (the- "Tax
Regulatory Agreement") between the City and the Company;
6. The form of Bond Purchase Agreement (the "Purchase Agreement")
among the City, the Company and Ziegler Capital Markets (the "Underwriter") to be used
in connection with the sale of the Bonds;
4843-6323-9426.4 3
7. The form of the Bonds as set forth in the Indenture; and
8. The form of the Preliminary Limited Offering Memorandum (the
"Preliminary Limited Offering Memorandum") to be used in connection with the sale of
the Bonds; and
WHEREAS, it appears that each of the instruments above referred to, which are now
before the Mayor and each of the Members of the City Council, is in appropriate form and is an
appropriate instrument for the purposes intended;
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY
COUNCIL OF THE CITY OF GRAND ISLAND, NEBRASKA, AS FOLLOWS:
Section 1. That the City finance the Project, but only from the proceeds of the sale of the
Bonds, by issuing the Bonds and providing the proceeds from the sale of the Bands to the
Company.
Section 2. That, in order to finance the Project, the issuance of the Bands in the principal
amount of up to $7,000,000 in substantially the form and- content set forth in the Indenture now
before this meeting, subject to appropriate insertion and revision in order to comply with
provisions of the Indenture, is in all respects authorized, approved and confirmed, subject to the
satisfaction of the preconditions to such issuance set forth in the Indenture, and the form and
content of the Bonds set forth in the Indenture now before this meeting are in all respects
authorized,. approved and confirmed, and the Mayor or the Mayor pro tem and the City Clerk or
Deputy -City Clerk are authorized, empowered and directed to execute, and attest to the
execution, either by manual or facsimile signatures, seal with the official seal of the City and
deliver for and on behalf of the City the Bonds to the Trustee for authentication, and the Trustee
is hereby .authorized and directed to authenticate the Bonds, and the provisions of the Indenture
with respect to the Bonds {including, without limitation, the aggregate principal amount not to
exceed $2,000,000, the maturity date of not later than June 1, 2038, the rate or rates of interest
not .to exceed 8.25% per annum and redemption provisions) are authorized, approved and
confirmed and are incorporated herein by reference,
Section 3. That the,City provide the proceeds of the Bonds to the Company to finance
fine Project pursuant to the Agreement, and the form .and content of the Agreement are in all
respects authorized, approved and confirmed; and the Mayor or the Mayor pro tem and the City
Clerk or Deputy City Clerk are authorized, empowered and directed to execute, attest to the
execution of, seal with the official seal of the City and deliver the Agreement prior to or
simultaneously with the issuance of .the Bonds for and on behalf of the City, including necessary
counterparts in substantially the form and content now before this meeting, but with such
changes, modifications, additions or deletions therein as shall to them seem necessary, desirable
or appropriate, their execution thereof to constitute conclusive evidence of their approval of any
and all changes, modifications, additions or deletions therein from and the form and content of
the Agreement now. before this meeting, and that, from and after the execution; attestation,
sealing and delivery of the Agreement, the Mayor or the Mayor pro tem and the City Clerk or
Deputy. City Clerk are hereby. authorized, empowered and directed to do all such acts and things
and to execute all such documents as may he necessary to carry out and comply with the
provisions of the Agreement as executed.
4843-6323-9426.4
Section 4. That Wells Fargo Bank, National Association is hereby appointed Trustee
under the Indenture, and that the form and content of the Indenture, and the assignment of the
City's interest in the Agreement, are in ail respects authorized, approved and confirmed, and the
Mayor or the Mayor pro tem and the City Clerk or Deputy City Clerk are authorized, empowered
and directed to execute, attest to the execution of, seal with the official seal of the City and
deliver the Indenture for and on behalf of the City to the Trustee for the security of the Bonds
and, the interest thereon, including necessary counterparts in substantially the form and content
now before this meeting, but with such changes, modifications; additions and deletions therein as
shall to them seem. necessary, desirable or appropriate, their execution thereof to constitute
conclusive evidence of their approval of any and all changes, modifications, additions- or
deletions therein from and the form .and content of the Indenture now before this meeting, and
that, from and after the execution, attestation, sealing and delivery of the Indentuxe, the Mayor or
the Mayor pro tem and the City Clerk or Deputy City Clerk 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 Indenture as executed.
.Section 5. That the-form and content of the Tax Regulatory Agreement are in all respects
authorized, approved and confirmed, and the Mayor or the Mayor pro tem and the City Clerk or
Deputy City Clerk are authorized, empowered and directed to execute, attest to the execution of,
seal with the official -seal of the City and deliver the Tax Regulatory Agreement prior to or
simultaneously with the issuance of the Bonds for and on behalf of the City, including necessary
counterparts in substantially the form and content now before this meeting, but with such
changes, modifications, additions or deletions there as shall to them seem necessary, desirable or
appropriate, their execution thereof to constitute conclusive evidence of their approval of any and
all .changes; modifications, additions or deletions therein from, and the form and content of the
Tax Regulatory Agreement now before this meeting, and that, from and after the execution,
attestation, sealing and delivery. of the Tax Regulatory Agreement, the Mayor or the Mayor
pro. tem and the City Clerk or Deputy City Clerk are hereby authorized, empowered and directed
to do all such acts and things anti.to execute atl such documents as may be necessary to carry out
and comply. with the provisions of the Tax Regulatory Agreement as executed.
Section 6. That the form and content of the Sublease are in all respects authorized,
approved and confirmed, and the Mayor or the Mayor pro tem and the City Clerk or Deputy City
Clerk are authorized, empowered and directed to execute, attest to the execution of, seal with the
official seal of the City and deliver the Sublease prior to or simultaneously with the issuance of
the Bonds far and on behalf of the Ciry, including necessary counterparts. in substantially the
form. and content now before this meeting, but with such changes, modifications, additions or
deletions there as shall to them seem necessary, desirable or appropriate, their execution thereof
to constitute ,conclusive evidence of their approval of any and a1I changes, modifications,
additions or deletions therein froze and the form and content of the Sublease now before this
meeting, and that, from and after the execution,. attestation, sealing and delivery of the Sublease,
the Mayor or the Mayor pro tem and. the .City Clerk or Deputy City Clerk 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 Sublease as executed.
Section 7. That the Guaranty is hereby approved in substantially the form and content
.now before this meeting, but with such changes, modifications, additions and deletions therein as
shall seem necessary, desirable or appropriate to the Mayor or the Mayor pro tem and the City
Clerk or Deputy City Clerk, and which Guaranty the Trustee is authorized to accept.
4843-6323-9426.4 5
Section 8. That the sale of the Bonds to the Underwriter at a purchase price of not less
than 98 percent of the aggregate principal amount of the Bonds on the date of delivery is hereby
.authorized and approved, and the Mayor or the Mayor pro tem and the City Clerk or Deputy City
Clerk be and they hereby are authorized, empowered and directed to do all such acts and things
and to execute all such documents as may be necessary to effectuate -and confirm the sale of the
Bonds.
Section 9. That the form and content of the Purchase Agreement are in all respects
authorized, approved and confirmed, and the Mayor or the Mayor pro tem be and he hereby is
authorized, empowered and directed to accept the Purchase Agreement for and on behalf' of the
City; in substantially the form and content now before this meeting, but with such changes,
modifications, additions or .deletions therein as shall to him seem necessary, desirable or
appropriate, his acceptance thereof to constitute conclusive evidence of his approval of any and
all changes, .modifications, additions or deletions therein from the form and content of the
Purchase Agreement now before this meeting, and, that from and after the execution and delivery
of the Purchase Agreement, the Mayor or the Mayor pro tem and the City Clerk or Deputy City
Clerk 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 Purchase Agreement, as executed.
Section 10. That the distribution and use of the Preliminary Limited Offering
Memorandum in substantially, the form and context now before this meeting, but with such
changes, modifications, deletions or additions therein as shall to the Mayor, City Attorney or
Finance Director of the .City seem necessary, desirable or appropriate, by the Underwriter in
connection with the sale of the Bonds be and hereby are. approved, the Preliminary Limited
Offering Memorand~n is deemed final for the purposes of Rule 15c2-12 under the Securities
Exchange Act of 1934, as amended, all actions of the City and' its officers-and agents taken in
connection with the Preliminary Limited Offering Memorandum are hereby authorized,
approved, ratified and confirmed, and the distribution and use of the final Limited Offering
Memorandum by the Underwriter in substantially the form of the Preliminary Limited Offering
Memorandum but with such modifications; additions or deletions therein as shall be necessary or
desirable to reflect the final terms of the Bands and the updating of the remaining content of the
Preliminary Limited Offering Memorandum, are hereby authorized, approved, ratified and
confirmed.
Section 11. That the Mayor or the Mayor pro tem and the City Clerk or Deputy City
Clerk of the City are authorized to execute and deliver for and on behalf of the City any and all
additional certificates, documents, opinions or other papers and perform all other acts (including,
without limitation, a blanket issuer letter 'of representations to The Depository Trust Company,
New York, New York, and the filing of any financing statements or any other documents and the
recordation of any instruments to create and maintain a security interest on the properties and
revenues pledged under the Indenture) customary to the closing of bond issues as they may deem
necessary or appropriate in order to implement and carry out the intent and purposes of this
Ordinance.
4843-6323-9426.4 6
Section 12. That it is hereby determined and found that:
(a} The Company is obligated under the Agreement to make basic lease rental
payments sufficient in amount to timely pay. all principal and interest requirements on the
Bonds;
(b) The Indenture establishes a Debt Service Reserve Fund with respect to the
retirement of the Bonds;
(c) The terms of the Agreement provide that the Company shall maintain the
Project in good repair, carry all proper insurance with respect thereto and pay the taxes on
the Project; and
(d) As the basic lease rental payments to be made by the Company will be
sufficient in amount to pay all principal and interest requirements on the Bonds and the
Company covenants in the Agreement to maintain the Project in good repair, to keep it
properly insured, and to pay all taxes with respect thereto, it is not deemed advisable to
establish any reserve funds, other than the Debt Service Reserve Fund as aforesaid, in
connection with maintenance and insuring of the Project or the payment of taxes with
respect thereto.
Section 13. That the Bonds are limited obligations of the City, payable solely out of the
lease rental. payments required to be paid by the Company pursuant to and in accordance with the
Agreement and as provided in the Indenture, and are secured.as provided in the Indenture. The
Bonds and the interest thereon shall never constitute an indebtedness of the City, within the
meaning of any State constitutional provision or statutory limitation, and shall not give rise to a
pecuniary liability of the City or a charge against its general credit or taxing powers.
Section 14. That this Ordinance does hereby incorporate by reference, as though fully
set out herein, the. provisions of Section 2 of Article XIII of the Nebraska Constitution .and the
Act.
Section 15. That the City Council has considered all oral or written statements which
were made or filed for or against the proposed Bonds and the Project, and hereby determines that
the proposed issuance by the City of the Bonds; for the purpose as set forth in the Notice of
Public Hearing and descr€bed in the preamble hereof, be and the same are hereby approved for
the purpose of complying and in accordance with the public approval requirements of
Section 147(fj of the Code.
Section 16. That the provisions of this Ordinance are hereby declared to be separable,
and, if any section, phrase or .provision shall for any reason be declared to be invalid, such
declaration shall not affect the validity of the remainder of the sections, phrases or provisions.
Section 17. That the City Clerk is hereby directed to publish this Ordinance upon its
passage and approval in the legal newspaper for the City in the manner required by law.
Section 18. That this Ordinance shall become effective f 5 days following its publication
as aforesaid.
4843-6323-9426.4 7
[]
Dated this 10~' day of Jtme, 2008.
By ~0.1 l 4rL Z ~ 1.~~_
City Clerk
THE CITY OF GRAND ISLAND,
NEBRASKA
By
Mayor
~~Q ~~ ~~ _ ~ ~ _~~
~ ~w~sy
~ • • ~ C
U ~\a00RPORq~~;92
~O'Q
~-®~ :~
DES 10, tai's a
.•
M`FG' F'~,~S~P
Ci
4843-6323-9426.4
g