07-29-2014 City Council Special Meeting Packet
City of Grand Island
Tuesday, July 29, 2014
Special Meeting/Study Session Packet
City Council:
Linna Dee Donaldson
John Gericke
Peg Gilbert
Chuck Haase
Julie Hehnke
Kent Mann
Vaughn Minton
Mitchell Nickerson
Mike Paulick
Mark Stelk
Mayor:
Jay Vavricek
City Administrator:
Mary Lou Brown
City Clerk:
RaNae Edwards
7:00 PM
Council Chambers - City Hall
100 East 1st Street
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City of Grand Island Tuesday, July 29, 2014
Call to Order
This is an open meeting of the Grand Island City Council. The City of Grand Island abides by the Open
Meetings Act in conducting business. A copy of the Open Meetings Act is displayed in the back of this room
as required by state law.
The City Council may vote to go into Closed Session on any agenda item as allowed by state law.
Invocation
Pledge of Allegiance
Roll Call
A - SUBMITTAL OF REQUESTS FOR FUTURE ITEMS
Individuals who have appropriate items for City Council consideration should complete the Request for
Future Agenda Items form located at the Information Booth. If the issue can be handled administratively
without Council action, notification will be provided. If the item is scheduled for a meeting or study
session, notification of the date will be given.
B - RESERVE TIME TO SPEAK ON AGENDA ITEMS
This is an opportunity for individuals wishing to provide input on any of tonight's agenda items to reserve
time to speak. Please come forward, state your name and address, and the Agenda topic on which you will
be speaking.
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City of Grand Island
Tuesday, July 29, 2014
Special Meeting/Study Session
Item F1
#9493 - Consideration of Authorizing Clean Water State Revolving
Fund Loan (Second and Final Reading)
Staff Contact: Jaye Monter, Finance Director
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Council Agenda Memo
From:Jaye Monter, City Finance Director
Meeting:July 29, 2014
Subject:Consideration of Authorizing Clean Water State
Revolving Fund (CWSRF) Loans
(Second and Final Reading)
Item #’s:F-1
Presenter(s):Jaye Monter, Finance Director
Michael Rogers, Gilmore & Bell, P.C.
Background
On June 10, 2014, a public hearing was held and resolution 2014-162 was approved by
Council in support of receiving up to $40,000,000 in Clean Water State Revolving Fund
(CWSRF) loans administered by the Nebraska Department of Environmental Quality
(NDEQ) to continue Sanitary Sewer Collection System and Wastewater Treatment Plant
Improvement.
As presented at the public hearing, CWSRF loan terms will provide repayment of
principal and interest beginning 3 years following the award of each loan or at initiation
of each project, whichever is sooner. Interest rates will range from 2 ¼% -2 1/2% which
include a 1% administration fee. Projects classified as “Green” receive a ¼% lower
interest rate.
Public Works Staff has been working with Black and Veatch and Olsson Associations to
develop and implement a 5 Year Wastewater Capital Plan for the City of Grand Island
based on the following:
The comprehensive plan in CH2M Hill’s “Wastewater Collection and Treatment
Systems Comprehensive Plan Update”
Black and Veatch’s “Wastewater Treatment Plant and Collection System
Improvements – Draft Technical Memorandum #2 Hydraulic Model Validation
and Analysis”
Wastewater Projects intended to accommodate growth
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Examples of Wastewater Projects included in the 5 Year Wastewater Capital
Improvement Plan are:
Plant – Headworks
Sanitary Sewer Collection System Rehabilitation
o South and West Interceptor Rehabilitation
o 4th and 5th Eddy to Vine Rehabilitation
o North Interceptor Phase I
o North Interceptor Phase II
Growth – 281 Sanitary Sewer Improvements (District 530T)
As discussed at the meeting on June 10, 2014, it is possible to advance the project
schedule to complete projects sooner than originally expected with the financing plan
presented. Lift Stations are high cost items that increase the creation of damaging
chemicals such as hydrogen sulfide (the chemical primarily responsible for shortening the
life of the Northeast Interceptor by more than 30%). The new Headworks and Phases 1
and 2 of the North Interceptor allow 8 lift stations to be abandoned. Accelerating
construction will allow an additional 3 lift stations to be abandoned, saving operating
costs and extending the life of the new infrastructure.
Discussion
The CWSRF loan with NDEQ will be a parity obligation with the City’s outstanding
2013 Sewer Revenue Bonds issued on September 17, 2013 in the principal amount of
$35,430,000, which is currently the only outstanding debt payable from revenues of the
City’s wastewater system. The City will maintain the ability to issue additional bonds
under this Ordinance in the same manner as the ordinance governing the 2013 Sewer
Revenue Bonds. Also, the debt service coverage requirements will remain the same as
under the ordinance governing the 2013 Sewer Revenue Bonds at 1.1 times ongoing
coverage, and 1.25 times for the issuance of Additional Bonds.
The Ordinance gives formal approval to the NDEQ borrowing in a principal amount of
up to $40,000,000. Subsequently, each loan document with NDEQ will be presented and
approved by Council resolution.
This additional financing will be within the constraints of the rate study provided by
Black and Veatch in September of 2013 approved by Council.
Alternatives
Council has the following alternatives concerning the issue at hand. The Council may:
1.Move to approve
2.Refer the issue to a Committee
3.Postpone the issue to future date
4.Take no action on the issue
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Recommendation
City Administration recommends that the Council pass the ordinance authorizing up to
$40,000,000 in financing from the CWSRF Loan Program administered by NDEQ.
Sample Motion
Move to approve the ordinance authorizing up to $40,000,000 in financing from the
CWSRF Loan Program administered by NDEQ on second and final reading.
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______________________________________________________________________________________
LOAN CONTRACT
(Governmental Borrower)
Between
NEBRASKA DEPARTMENT OF ENVIRONMENTAL QUALITY
and
CITY OF GRAND ISLAND, NEBRASKA
NDEQ Project No. _______
DATED AS OF ______________________, 20__
______________________________________________________________________________________
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LOAN CONTRACT
BETWEEN THE NEBRASKA DEPARTMENT OF ENVIRONMENTAL QUALITY AND THE CITY OF GRAND ISLAND, NEBRASKA PROJECT NO. ________
This Loan Contract No. ___________ (hereinafter "Loan Contract"), is entered into by and between the State of Nebraska, acting by and through the Nebraska Department of Environmental Quality (hereinafter "NDEQ") and the City of Grand Island, Nebraska, (hereinafter "Municipality").
WITNESSETH THAT
WHEREAS, the Federal Water Quality Act of 1987 (hereinafter "Federal Act") established a state revolving fund program; and
WHEREAS, to fund the state revolving fund program, the Environmental Protection Agency (hereinafter
"EPA") will make annual capitalization grants to the states under CFDA #66.458 (Capitalization Grants for State Revolving Fund), on the condition that each state provide an appropriate match for such state's revolving fund; and
WHEREAS, Neb. Rev. Stat. §81-15,153 empowers the NDEQ to loan available funds in the Wastewater
Treatment Facilities Construction Loan Fund (hereinafter "Fund") to municipalities pursuant to the Wastewater Treatment Facilities Construction Assistance Act (hereinafter "Act") and rules and regulations adopted under such Act; and
WHEREAS, under the Act, the Director of NDEQ is given the responsibility for administration and
management of the Fund; and WHEREAS, the Director of NDEQ and the Nebraska Investment Finance Authority (hereinafter "NIFA")
have entered into a Memorandum of Understanding effective November 1, 2000 (hereinafter "MOU"), to define the cooperative relationship between NDEQ and NIFA to jointly administer certain provisions of the Act; and
WHEREAS, the NIFA is authorized under Neb. Rev. Stat. §58-201 et. seq. and the Act to issue revenue bonds for the purpose of providing funds for NDEQ to loan to Municipalities within the State of Nebraska for the
acquisition, construction, improvement, repair, rehabilitation, or extension of municipal wastewater treatment projects (as defined in the Act), in order to provide the state match requirements of the Federal Act; and
WHEREAS, pursuant to such authorization, NIFA proposes to issue its Wastewater Treatment Facilities Construction Loan Fund revenue bonds for the purpose of providing funds to NDEQ to loan to Nebraska
Municipalities to pay those eligible portions of the costs of acquiring, constructing, improving, repairing, rehabilitating or extending municipal wastewater treatment projects (as defined in the Act), in order to provide the
state match requirements of the Federal Act; and WHEREAS, NDEQ intends to enter into a pledge agreement with NIFA (the “Pledge Agreement”), pursuant
to which NDEQ will pledge the interest portion of Loan Repayments (as defined herein) and certain other revenues to NIFA for the payment of the principal of, redemption premium, if any, and interest on Clean Water State
Revolving Fund Revenue Bonds which may be issued by NIFA from time to time; and WHEREAS, the City of Grand Island, Nebraska is a "Municipality" as defined in Neb. Rev. Stat. §81-15,149(7); and
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WHEREAS, the project (hereinafter “Project”) to be financed under this Loan Contract, includes the
construction of sanitary sewer collection system improvements. Specifically [phase II of the North Interceptor
renovation, extension of the Husker Highway sewer, a new gravity sewer to replace the existing lift station and force main serving the Rainbow Lakes area, replacement of Lift Station No. 20 force main and a new gravity sewer to replace existing Lift Station No. 6 and Lift Station No. 14. These projects may allow the City to abandon as
many as 10 lift stations.]
WHEREAS, the Project Cost is based upon estimates of the Municipality and at times during or at completion of construction the loan amount may be adjusted by the NDEQ pursuant to Section 2.01; and
WHEREAS, the Project is included in the NDEQ Intended Use Plan; and
WHEREAS, the NDEQ has approved the Municipality's application for a Loan from federal funds and the state match requirement if and when received by and made available to NDEQ pursuant to the Federal Act and the Act to finance Project Costs;
NOW, THEREFORE, for and in consideration of the award of the Loan Contract by NDEQ, the Municipality
agrees to complete its Project and to perform under this Loan Contract in accordance with the conditions, covenants and procedures set forth below:
ARTICLE I
DEFINITIONS Definitions. The following terms as used in this Loan Contract shall, unless the context clearly requires
otherwise, have the following meanings:
"Act" means the Wastewater Treatment Facilities Construction Assistance Act, Neb. Rev. Stat. §81-15,147 et seq., as amended.
"Authorized Representative" means the person or persons authorized pursuant to a resolution or ordinance of the governing body of the Municipality to perform any act or execute any document relating to this Loan
Contract. "Cut-off Date" means the date established by NDEQ at the Project's final inspection prior to which the
Municipality will make the final disbursement request for eligible Project Costs.
"Due Date" means the dates specified for payment of principal and interest on the Loan as specified in Section 2.05.
"Event of Default" means any occurrence or event specified in Article V.
"Fund" means the Wastewater Treatment Facilities Construction Loan Fund. "Initiation of Operation" means the date on which the Municipality places the Project in operation or the
Project is capable of being placed in operation for the purposes for which it was planned, designed, and built.
"Late Payment" means any payment that is not received within fifteen days of the due date. "Loan" means the loan made by NDEQ to the Municipality to finance or refinance a portion of the Costs of
the Project pursuant to this Loan Contract.
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"Loan Amount" means the amount specified in Section 2.01 hereof which NDEQ has agreed to disburse to
the Municipality subject to the terms, provisions, and conditions of this Loan Contract and the availability of State and Federal Funds. "Loan Contract" means this Loan Contract, including the Exhibits attached hereto, as it may be properly supplemented, modified or amended.
"Loan Repayments" means the payments payable by the Municipality pursuant to Section 2.05 of this Loan
Contract. "Loan Terms" means the terms of this Loan Contract provided in Article II of this Loan Contract.
"Municipality" means the Nebraska municipality that is a party to and is described in the first paragraph of
this Loan Contract, and its successors and assigns. "NDEQ" means the Nebraska Department of Environmental Quality established pursuant to Neb. Rev. Stat.
§81-1501 et. seq., as amended.
"NIFA" means the Nebraska Investment Finance Authority, a public body politic and corporate and an instrumentality of the State, and its successors and assigns established pursuant to Neb. Rev. Stat. §58-201 et. seq., as amended.
"Project" means the acquisition, construction, improvement, repair, rehabilitation or extension of
Wastewater Treatment Works and/or Sanitary Sewer Collection Systems of the Municipality described herein, which constitutes a project for which NDEQ is making a Loan to the Municipality pursuant to this Loan Contract.
"Project Costs" means eligible costs associated with secondary or tertiary treatment and appurtenances; infiltration and inflow correction, major sewer system rehabilitation; new collector sewers and appurtenances; new
interceptors and appurtenances; land integral to the treatment process; correction of combined sewer overflows; Sanitary Sewer Collection System; and other costs eligible under the Federal Act including capitalized interest. Project Costs do not include the costs of water rights and for land which is not integral to the treatment process,
easements and rights-of-way, legal costs, fiscal agents fees, operation and maintenance costs and municipal administrative costs. Project Costs are described in Attachment B.
"Regulations" means Title 131, Nebraska Department of Environmental Quality, and any amendments thereto promulgated by NDEQ pursuant to the Act.
"Retainage" means construction costs held back by the municipality from the payments due to the
contractor to assure satisfactory completion of the construction contract. "State" means the State of Nebraska acting, unless otherwise specifically indicated, by and through NDEQ
and its successors and assigns.
"Trustee" means the trustee under any trust indenture with respect to the revenue bonds the proceeds of which are deposited in the Loan Fund.
"User Charge System" means the methodology used to assess user charge fee(s) for the users of the Wastewater Treatment Works within the Municipality's jurisdiction.
"Wastewater Treatment Works" means the structures, equipment and processes required to collect, transport and treat domestic or industrial wastes and to dispose of the effluent and sludges. "Wastewater User Charge" means the revenues derived by the Municipality from the fees and charges for
the use and services furnished by or through the Municipality's Wastewater Treatment Works.
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ARTICLE II LOAN CONDITIONS AND TERMS Section 2.01. Amount of the Loan. Subject to all of the terms, provisions and conditions of this Loan
Contract, and subject to the availability of State and Federal funds, NDEQ will loan _______________ dollars ($_____________) to the Municipality to pay a portion of the Project Costs described in Attachment B hereto. The final actual amount of the Loan may be reduced without revision of any other terms, provisions or conditions of this Loan Contract, other than adjustment by NDEQ to the Repayment Schedule in Attachment A hereto, to reflect reductions in the estimated or actual total Project Costs as impacted by opening of bids for construction, change
orders, final actual costs, and prepayments. The Municipality must make provision for the payment of all eligible costs exceeding the Loan Amount. The NDEQ may provide supplemental loan funds through a separate loan
contract amendment. Receipt of any supplemental loan funds is dependent on availability of unobligated funds in the Fund and any obligation of additional funds to this Project is at the sole discretion of NDEQ with such revised or additional terms, conditions, and covenants as NDEQ may require.
Section 2.02. Term of the Loan. The Municipality agrees to fully repay the Loan with interest on the date of Initiation of Operation or to begin repayment of principal and interest on the Loan within one (1) year from the date
of Initiation of Operation but no later than three (3) years from the date of the Loan, and to repay such Loan in full no later than twenty (20) years from Initiation of Operation and to pay all principal, interest, administrative fees and
penalty fees when due. The municipality shall provide NDEQ 60 days written notice of its intent to repay the Loan all or in part on the date of the Initiation of Operation.
Section 2.03. Interest Rate. The interest rate on this loan is determined by the NDEQ pursuant to Regulations and the Intended Use Plan. The interest rate on this loan during construction is ____ percent and
after the date of Initiation of Operation is the interest rate of ______ percent per annum (calculated on the basis of a year equaling 360 days made up of 12 months of 30 days each) to be paid as set out in Attachment A. For the purposes of this paragraph "construction" shall mean the period between the date of this Loan and the date of Initiation of Operation.
Section 2.04. Disbursement Of Loan. Upon receipt of a disbursement request for work completed and certification by the Municipality, the NDEQ agrees to disburse the principal amount of the loan set out in Section 2.01 of this Article during the progress of the Project for Project Costs. The Municipality may obtain a copy of the disbursement record upon request to NDEQ. Each disbursement shall be upon ACH by the State of Nebraska and shall be equal to that portion of the unobligated principal amount incurred to the date of the request for
disbursement from the Municipality. Submitted requests for disbursement must be supported by proper invoices for Project Costs, a certificate of the Authorized Representative to the effect that all representations made in this
Loan remain true as of the date of the request and that no adverse developments affecting the financial condition of the Municipality or its ability to complete the Project or to repay the Loan have occurred since the date of this Loan, or of the previous disbursement, and other documentation acceptable to and approved by the NDEQ. All
disbursement requests must be made prior to the Cut-off Date established at the Project's final inspection by NDEQ.
The Municipality may request disbursement for eligible Project Costs, when such Project Costs have been incurred and are due and payable to project contractors. Retainage withheld by the municipality on contracts will
be withheld by the NDEQ until such Retainage is either reduced or released to the contractor by the Municipality. However, actual payment of such Project Costs by the Municipality is not required as a condition of a payment
request. The Municipality shall submit a draft of the operation and maintenance manual for the Project to the NDEQ
before disbursements exceed 75% of the Project Costs. The Municipality shall submit a final operation and maintenance manual to the NDEQ and receive approval before disbursements exceed 95% of the Project Costs
or final disbursement whichever occurs first.
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Section 2.05. Loan Payments. (a) Principal and Interest Payments. The Municipality shall pay to the NDEQ, or at the direction of NDEQ,
to NIFA or the Trustee on or before the due dates specified below, but only from the sources specified in Section 3.02 hereof, appropriate installments of principal and interest until all principal and interest due on the Loan to the
NDEQ has been paid in full. Installments of principal and interest (total Loan service) shall be paid semiannually on December 15 and June 15 of each year in accordance with the Loan Repayment Schedule in Attachment A.
The NDEQ will send the Municipality an invoice 30 days prior to the due date. When a loan disbursement occurs after invoices are mailed, the NDEQ will include adjustments for interest and fee charges on the next
semiannual invoice.
Section 2.05(b) Prepayment of the Loan. The Municipality may prepay the Loan, together with any accrued interest in whole or in part, at any time without penalty upon giving 60 days written notice to NDEQ of its
intent to prepay. The Municipality may make a partial prepayment of the Loan only if the prepayment amount is greater than the lesser of 10% of the outstanding amount of the Loan or $50,000. A new Attachment A will be prepared by NDEQ following receipt of any partial prepayment of the Loan.
Section 2.06. Administrative Fee. The Municipality shall pay to the NDEQ, or at the direction of NDEQ, to
NIFA or the Trustee, an annual administrative fee of 1% per annum of the Loan Amount to be paid in semiannual installments of 0.5% of the Loan Amount outstanding on the date invoices are mailed in accordance with the Loan Repayment Schedule in Attachment A. The fee is waived for the first year of the Loan.
Section 2.07. Schedule Of Compliance. The Municipality agrees to perform steps of the Project in
accordance with the following schedule of milestone dates. (a). ________, 20__ Loan date
(b). ________, 20__ Construction start
(c). ________, 20__ Initiation of Operation
(d). ________, 20__ Substantial completion of construction
Section 2.08. Disadvantaged Business Enterprises (Small Business Enterprise/Minority Business Enterprise/Women's Business Enterprise/Small Business Rural Area), including Historically Black Colleges and Universities (hereinafter "DBE/HBCU"). The Municipality agrees that ten percent of the Loan Amount shall be the
objective for proposed DBE, HBCU subagreement work under this Loan Contract. The Municipality shall take affirmative steps to assure that small, minority, and women's businesses pursuant to 40 CFR 31.36(e) and small
businesses rural areas pursuant to 13 CFR 121.2 are used when possible as sources of supplies, construction and services. Affirmative steps shall include the following:
(a) Placing disadvantaged business enterprises, including minority, women's, small businesses and small businesses in a rural area and historically black colleges and universities on solicitation lists;
(b) Assuring that disadvantaged business enterprises, historically black colleges and universities are solicited whenever they are potential sources;
(c) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit
maximum participation by disadvantaged business enterprises; (d) Establishing delivery schedules, where the requirement permits, which encourages participation
by disadvantaged business enterprises;
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(e) Using the services and assistance of the Small Business Administration and Minority Business Development Agency of the U. S. Department of Commerce; and (f) Requiring the prime contractor to take the affirmative steps listed above.
In addition, the Municipality agrees to submit to the NDEQ a completed SF 334 form within 15 days after the end of each federal fiscal quarter during which the Municipality or its contractors award any subagreements to
a disadvantaged business enterprise for building and building-related services and supplies. Section 2.09. Sewer Use Ordinances/User Charge Systems. The Municipality agrees to obtain approval
from the NDEQ of its sewer use ordinance/User Charge System, and to adopt and implement any necessary changes before the Project is placed in operation. The Municipality agrees that it shall not modify or amend, or make additions to or deletions from its sewer use ordinance/User Charge System without the consent of NDEQ during the term of the Loan Contract.
Section 2.10. Other Conditions and Terms. (a) Engineering Services. The Municipality shall provide and maintain competent and adequate
engineering supervision and resident inspection during construction.
(b) Construction Contract Award. The Municipality shall obtain NDEQ concurrence and authorization prior to award of the construction contract.
(c) Initiation of Operation. The Municipality shall provide written notification to the NDEQ of the date of Initiation of Operation of the Project.
(d) Construction Completion. The Municipality shall provide written notification to the NDEQ of the construction completion date of the Project.
(e) Contractor’s Security. The Municipality agrees to require any contractor of the Project to post
separate performance and payment bonds or other security approved by NDEQ in the amount of the bid. (f) Certified Operator. The Municipality agrees to provide a certified operator pursuant to Title 197 -
Rules and Regulations for the Certification of Wastewater Treatment Facility Operators in Nebraska.
(g) Site Title and Easements. The Municipality must certify that site title for all easements and rights-of-way necessary to allow construction of the Project have been obtained prior to award of the construction contract (i.e., all real property has been acquired, bonafide options have been taken or formal condemnation proceedings have been initiated for necessary real property).
(h) Contractors Payments. The Municipality agrees to make prompt payment to its contractor(s) of sums due for construction and to retain only such amounts as may be justified by specific circumstances and provisions of the construction contract. (i) Bid Solicitation. The Municipality agrees that all bid solicitations will include the following
statement: "The prospective participants must certify by submittal of EPA Form 5700-49 "Certification Regarding Debarment, Suspension and Other Responsibility Matters" that, to the best of its knowledge and belief, it and its principals are not presently debarred, suspended, proposed for
debarment, declared ineligible or voluntarily excluded from covered transactions by any federal department or agency."
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(j) Debarment Suspension. The Municipality acknowledges that doing business with any party
appearing in the "List of Parties Excluded from Federal Procurement or Non Procurement Programs" may result in disallowance of federal funds under this Loan Contract and may also result in suspension or debarment under 40 CFR Part 32. (k) Other Federal Requirements. The Municipality agrees to comply with other applicable Federal
Requirements in Attachment D hereto. (l) Project Sign. The Municipality agrees to display the project sign provided by NDEQ. The sign will
remain the property of NDEQ and will be retrieved about one year after project completion. The Municipality will remove the sign for NDEQ when requested.
(m) Employment under Public Contracts, LB 403. The Borrower agrees to comply with the provisions of LB403, approved by the Governor April 8, 2009. The following language is required and will
be included in all contracts made with contractors and is a pass through requirement for his or her subcontractors.
“The Contractor is required and hereby agrees to use a federal immigration verification system to determine the work eligibility status of new employees physically performing services within the State of Nebraska. A federal immigration verification system means the electronic verification of the work authorization program authorized by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, 8 U.S.C. 1324a, known as the E-Verify Program, or an equivalent federal program designated by the United States Department of Homeland Security or other federal agency
authorized to verify the work eligibility status of a newly hired employee. If the Contractor is an individual or sole proprietorship, the following applies: 1. The Contractor must complete the United States Citizenship Attestation Form, available on the Department of Administrative Services website
at www.das.state.ne.us; 2. If the Contractor indicates on such attestation form that he or she is a qualified alien, the Contractor agrees to provide the US Citizenship and Immigration Services documentation required to verify the Contractor’s lawful presence in the United States using the Systematic Alien Verification for Entitlements (SAVE) Program; and, 3. The Contractor understands and agrees that lawful presence in the United States is required and the Contractor may be
disqualified or the contract terminated if such lawful presence cannot be verified as required by Neb. Rev. Stat. §4-108”
(n) Prevailing Wage. All laborers and mechanics employed by contractors and sub contractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant
to the Public Law 111-88 shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code. With respect to the labor standards specified in this section, the Secretary of Labor shall have the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (64 Stat. 1267; 5 U.S.C.App.) and section 3145 of title 40, United States Code.
The Borrower is responsible to insure compliance with the prevailing wage requirements and will include the following information in the contract documents: Contractors and subcontractors on USEPA federally assisted construction projects are required to pay
their laborers and mechanics not less than those established by the U.S. Department of Labor. A current wage decision containing the appropriate building and/or heavy type rates shall be included in the
specifications. In addition, labor standard provisions, Davis Bacon and Related Acts, for federally assisted contracts shall be placed in the federal assurances of project specifications.
If an areawide decision or classification does not exist for the type of work to be performed, building or heavy, a decision or request for authorization of additional classification and rate must be requested from
the Labor Department using the Standard Form 1444, Request for Authorization of Additional Classification
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and Rate available on the web and can be completed on line at: http://www.wdol.gov/docs/sf1444.pdf.
These types of decisions or classifications are project specific, i.e. they are applicable only to the project for which they are requested and may not be used on any other project. Project decisions generally have an expiration date of 180 days after the date of issuance. Modifications or reissued decisions are applicable to a project if received by NDEQ not less than 10 days prior to bid opening. Modifications to classification and wage rates after bid opening shall be paid to all workers performing work in the new or modified
classification from the first day on which work is performed in the additional classification as approved by the Administrator of the Wage and Hour Division, Employment Standards Administration, US Department
of Labor. Weekly Payrolls shall be submitted by the contractor to the Borrower or the Borrower’s representative
utilizing the Department of Labor Form WH-347. A webform which can be completed on-line is found at http://www.dol.gov/whd/forms/wh347.pdf, instructions are also found on-line. The Borrower may also be required to submit copies of the Weekly Payrolls to NDEQ. As to each payroll copy received, the Borrower
shall provide written confirmation on a form supplied by NDEQ indicating whether or not the project is in compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent payroll copies for the
specified week. The Borrower or the Borrower’s representative shall periodically interview a sufficient number of the contractor’s or subcontractor’s employees entitled to Davis Bacon prevailing wages to verify
that contractors or subcontractors are paying the appropriate wage rates. As provided in 29 CFR 5.6(a)(6), all interviews must be conducted in confidence. The Borrower must use Standard Form 1445 or equivalent documentation to memorialize the interviews. Copies of the SF 1445 form are available at
http://www.gsa.gov. At a minimum, the Borrower or the Borrower’s representative should conduct interviews with a representative group of covered employees within two weeks of each contractor or subcontractor’s submission of its initial weekly payroll data and two weeks prior to the estimated completion date for the contract or subcontract. EPA has issued a waiver from the two week interview interval requirements by a November 16, 2012, EPA Memorandum, Class Deviation – Prevailing Wage Interview
Interval Requirement in Clean Water and Drinking Water State Revolving Funds (CWSRF and DWSRF) Capitalization Grants. The provision for two week interview intervals is not a regulatory or statutory requirement and has been superseded by the class deviation. The Borrower or Borrower’s representative should conduct such interviews if and when the Borrower or Borrower’s representative finds it necessary to ensure that contractors are complying with the prevailing wage requirements.
(o) Human Trafficking. Under the requirements of Section 106 of the Trafficking Victims Protection Act of 2000, as amended, the following provisions apply to this award:
“The Municipality, its employees, sub-recipients under this award, and sub-recipients’ employees
may not engage in severe forms of trafficking in persons during the period of time that the award is in effect; procure a commercial sex act during the period of time that the award is in effect; or use forced labor in the performance of the award or sub-awards under the award.” (p) Buy American Iron and Steel Products. Section 436(a)(1) of H.R. 3547, “Consolidated
Appropriations Act, 2014,” requires that none of the appropriated funds for the Clean Water State Revolving Fund and Drinking Water State Revolving Fund may be used for the construction, alteration, maintenance, or repair of a public water system or treatment works unless all of the iron and steel products used in the project are produced in the United States. These Buy American requirements apply for the entirety of the construction activities financed by the Loan Contract unless (a) a waiver is provided to the
Assistance Recipient by EPA or (b) compliance would be inconsistent with United States obligations under international agreements. In order to receive a waiver, the Assistance Recipient must send a written
request to the EPA Administrator. A decision will be made based on the following criteria: (1) The requirement is inconsistent with the public interest for purposes of the project for which a
waiver has been requested,
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(2) Iron and steel products are not produced in the United States in sufficient and reasonably
available quantities and of a satisfactory quality, or (3) Inclusion of iron and steel products produced in the United States will increase the overall cost of the project by more than 25 percent.
If the Administrator receives a request for a waiver, the Administrator shall make available to the public on an informal basis a copy of the request and information available to the Administrator concerning
the request and shall allow for informal public input on the request for at least 15 days prior to making a finding based on the request. The Administrator shall make the request and accompanying information available by electronic means, including on the official public Internet Web site of the Environmental
Protection Agency. EPA will provide additional guidance on this provision as it becomes available.
The term “iron and steel products” means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials.”
Iron and steel products that are not 100% compliant with the above requirements should be identified
early in the planning and design process and the appropriate justification prepared and waiver process followed to meet the requirement before the project goes to construction.
Buy American Iron and Steel (AIS) requirements are waived if a project has submitted plans and specifications for approval to a State agency, prior to enactment of the Appropriations Act or January 17,
2014 in accordance with the EPA nationwide plans and specifications waiver signed April 15, 2014. In addition, EPA has granted a nationwide waiver for de minimis incidental components for eligible
CWSRF or DWSRF projects, signed April 15, 2014. This action permits the use of products when they occur in de minimis incidental components for such projects funded by the Act that may otherwise be
prohibited under section 436(a). Example of incidental components could include small washers, screws, fasteners, (i.e., nuts and bolts), miscellaneous wire, corner bead, ancillary tube, etc. Examples of items that are clearly not incidental include significant process fittings (i.e., tees, elbows, flanges, and brackets),
distribution system fittings and valves, force main valves, pipes for sewer collection and/or water distribution, treatment and storage tanks, large structural support structures, etc. Funds used for such de
minimis incidental non-AIS compliant components cumulatively may comprise no more than a total of 5 percent of the total cost of the materials used in and incorporated into a project. The cost of an individual non-AIS compliant item may not exceed 1 percent of the total cost of the materials used in and
incorporated into a project. EPA has provided additional guidance on these AIS provisions which can be found on EPA’s website
at http://water.epa.gov/grants_funding/aisrequirement.cfm
ARTICLE III REPRESENTATIONS AND COVENANTS OF MUNICIPALITY Section 3.01. Representations of the Municipality. The Municipality represents as follows:
(a) Organization and Authority.
(1) The Municipality is a city, town, village, district, association, or other public body created by or pursuant to the constitution and statutes of the State of Nebraska.
(2) The Municipality has full legal right and authority and all necessary licenses and permits required
as of the date hereof to own, operate and maintain its Wastewater Treatment Works, to carry on its
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activities relating thereto, to execute and deliver this Loan Contract, to undertake and complete the Project,
and to carry out and consummate all transactions contemplated by this Loan. (3) The proceedings of the Municipality's governing body approving this Loan Contract and authorizing its execution, issuance and delivery on behalf of the Municipality, and authorizing the Municipality to undertake and complete the Project have been duly and lawfully adopted.
(4) This Loan Contract has been duly authorized, executed and delivered on behalf of the
Municipality, and constitutes the legal, valid and binding obligation of the Municipality enforceable in accordance with its terms.
(b) Full Disclosure. To the best knowledge of the Municipality, after due investigation, there is no fact that the Municipality has not disclosed to NDEQ in writing on the Municipality's application for the Loan or otherwise anything that materially adversely affects or that will materially adversely affect the properties, activities of its Wastewater Treatment Works and Sanitary Sewer Collection System, or the ability of the Municipality to make all Loan Repayments and otherwise observe and perform its duties, covenants, obligations and agreement under this
Loan Contract. (c) Non-Litigation. There is no controversy, suit or other proceeding of any kind pending or threatened
questioning, disputing or affecting in any way the legal organization of the Municipality or its boundaries, or the right or title of any of its officers to their respective offices, or the legality of any official act taken in connection with
obtaining the Loan, or the constitutionality or validity of the indebtedness represented by the Loan Contract, or any of the proceedings had in relation to the authorization or execution or the pledging of the revenues of the Municipality's Wastewater Treatment Works, or the ability of the Municipality to make all Loan Repayments or otherwise observe and perform its duties, covenants, obligations and agreements under this Loan Contract.
(d) Compliance with Existing Laws and Agreements. The authorization, execution and delivery of this Loan Contract by the Municipality, and the performance by the Municipality of its duties, covenants, obligations and agreements there under will not result in any breach of any existing law or agreement to which the Municipality is a party.
(e) No Defaults. No event has occurred and no condition exists that would constitute an Event of Default. The Municipality is not in violation of any agreement, which would materially adversely affect the ability of the Municipality to make all Loan Repayments or otherwise observe and perform its duties, covenants, obligations and agreements under this Loan Contract.
(f) Governmental Consent. The Municipality has obtained all permits and approvals required to date under this Loan Contract or for the undertaking or completion of the Project and the financing or refinancing thereof. The Municipality has complied with all applicable provisions of law requiring any notification, with any governmental body or officer in connection with this Loan Contract or with the undertaking or completion of the Project and the financing or refinancing thereof.
(g) Compliance with Law. The Municipality:
(1) is in compliance with all laws, ordinances, governmental rules and regulations to which it is subject, including, without limitation, any public hearing or public notice requirements or environmental
review requirements contained in the Regulations, with which the failure to comply would materially adversely affect the ability of the Municipality to conduct its activities, enter into this Loan Contract or
undertake or complete the Project; and (2) has obtained all licenses, permits, franchises or other governmental authorizations presently
necessary for the ownership of its property which, if not obtained, would materially adversely affect the ability of the Municipality to complete the Project.
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(h) Use of Loan Proceeds. The Municipality will apply the proceeds of the Loan as described in Article II:
(1) to finance or refinance a portion of the Project Costs; and (2) where applicable, to reimburse the Municipality for a portion of the Project Costs, which portion was paid or incurred in anticipation of reimbursement by NDEQ and is eligible for such reimbursement pursuant to the Regulations. All of such costs constitute Project Costs for which NDEQ is authorized to make Loans to the Municipality pursuant to the Act and the Regulations.
(i) Project Costs. The Municipality certifies that the Project Costs, as listed in Attachment B, are reasonable and accurate estimations and, upon direction of NDEQ, will supply the same with a certificate from its engineer stating that such costs are reasonable and accurate estimations, taking into account investment income, if any, to be realized during the course of construction of the Project and other money that would, absent the Loan, have been used to pay the Project Costs.
Section 3.02. Particular Covenants of the Municipality.
(a) Dedicated Source of Revenue for Repayment of the Loan. The Municipality hereby pledges the Wastewater User Charge as the dedicated source of revenue for the repayment of the Loan. The pledge herein
provided for is made in accordance with and under the terms of Ordinance No. ____ and is on an equal basis with the pledges made under the ordinances described below in this Subsection 3.02(a). The Municipality shall fix, establish, maintain and collect such rates, fees and charges for the use and services furnished by or through the Municipality's Wastewater Treatment Works and Sanitary Sewer Collection System, including all improvements and additions hereafter constructed or acquired by the Municipality, as will provide revenues sufficient to (i) pay the
cost of the operation and maintenance, and replacement of the Wastewater Treatment Works and Sanitary Sewer Collection System, (ii) pay at least 110% of the principal of and interest on the Loan as and when the same
become due, and (iii) pay all other amounts due at any time under this Loan Contract, provided, however, the lien of NDEQ on the revenues of the Municipality's Wastewater Treatment Works and Sanitary Sewer Collection System shall be on a parity with the lien on such revenues of the Municipality's outstanding Sewer System
Revenue and Refunding Bonds issued pursuant to and referred to in Ordinance No. 9434 of the City of Grand Island, Nebraska, any Sewer System Revenue Bonds now outstanding and any additional Sewer System revenue
bonds hereafter issued on parity with such outstanding revenue bonds. These revenues shall be set aside as collected and deposited in a separate fund with at least two separate accounts, one for the operation and maintenance costs and the other for principal and interest payments on the Loan. The Municipality shall deposit
monthly, in the Loan payment account, an amount equal to at least one-sixth of the anticipated amount due on the next Loan payment date. The Municipality agrees to develop the User Charge System based on actual or
estimated use of wastewater treatment services, providing that each user or user class pay its proportionate share of operation and maintenance (including replacement) costs within the Municipality's service area, based on the user's proportionate contribution to the total wastewater loading from all users or user classes and to conduct at
least a biennial review of user charge rates to review the adequacy of the user charge rates. The Municipality agrees the initial financial analysis performed by NDEQ in Attachment C is a reasonable estimate of the Project
Costs, of the financial situation of the Municipality in relation to this Project, and of the user charges necessary at the time of initiation of operation of the Project. The NDEQ may review this information annually to insure the Municipality's compliance with the Loan conditions and update Attachment C to reflect any changes.
(b) Performance Under Loan Contract. The Municipality covenants and agrees:
(1) to comply with all applicable State and Federal laws, rules and regulations (including, but not limited to the Federal crosscutting issues listed in Appendix F of the EPA's Initial Guidance for State
Revolving Funds and set forth on Attachment D hereto and NDEQ Regulations), in the performance of this Loan Contract; and
(2) to cooperate with NDEQ in the observance and performance of the respective duties, covenants, obligations and agreements of the Municipality and NDEQ under this Loan Contract.
(c) Completion of Project and Provision of Moneys Therefore. The Municipality covenants and agrees:
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(1) to exercise its best efforts in accordance with prudent wastewater treatment utility practice to
complete the Project and to so accomplish such completion on or before the estimated Project completion date set forth in Article II hereto; and (2) to provide from its own financial resources all moneys, in excess of the total amount of proceeds it receives under the Loan, required to complete the Project.
(d) Delivery of Documents. Concurrently with the delivery of this Loan Contract (as previously authorized and executed) at the Loan Closing, the Municipality will cause to be delivered to NDEQ each of the following items:
(1) Counterparts of this Loan Contract (as previously executed by parties hereto);
(2) copies of the ordinances and/or resolutions of the governing body of the Municipality authorizing the execution and delivery of this Loan Contract certified by an Authorized Representative; (3) an Opinion of Municipality's Counsel substantially in the form of Attachment E hereto;
(4) an executed Note (or other evidence of indebtedness) evidencing the Municipality's obligations
under this Loan Contract in the form of Attachment F; and (5) such other certificates, documents, opinions and information as NDEQ may require.
(e) Operation and Maintenance of Wastewater Treatment System and Sanitary Sewer Collection System. The Municipality covenants and agrees that it shall, in accordance with prudent and Sanitary Sewer Collection
System wastewater treatment utility practice:
(1) at all times operate the properties of its Wastewater Treatment Works and Sanitary Sewer Collection System in an efficient manner; and (2) maintain its Wastewater Treatment Works and Sanitary Sewer Collection System, making all necessary and proper repairs, renewals, replacements, additions, betterments and improvements
necessary to maintain its system in good repair, working order and operating condition. (f) Disposition of Wastewater Treatment Works and Sanitary Sewer Collection System. The Municipality
covenants that it intends to own and operate the Project at all times during the term of the Loan. The Municipality does not know of any reason why the Project will not be so used in the absence of (i) supervening circumstances
not anticipated by the Municipality at the time of the Loan, (ii) adverse circumstances beyond the control of the Municipality or (iii) obsolescence of such insubstantial parts or portions of the Project as may occur as a result of normal use thereof. The Municipality shall not sell, lease, abandon or otherwise dispose of all or substantially all of its
Wastewater Treatment Works and Sanitary Sewer Collection System except on ninety (90) days' prior written notice to NDEQ and, in any event, shall not sell, lease, abandon or otherwise dispose of the same unless the Municipality shall in accordance with Section 4.02 hereof assign this Loan Contract and its rights and interests hereunder to the purchaser or lessee of the Wastewater Treatment Works and Sanitary Sewer Collection System and such purchaser or lessee shall assume all duties, covenants, obligations and agreements of the Municipality
under this Loan Contract. In no event shall the Municipality sell, lease, abandon or otherwise dispose of the Wastewater Treatment Works and Sanitary Sewer Collection System to any person or entity other than a
municipal corporation or other political subdivision of the State of Nebraska or any combination thereof, that has legal responsibility to treat wastewater.
Before any proposed disposition of the Wastewater Treatment Works and Sanitary Sewer Collection System can be made, the Municipality shall provide NDEQ with an opinion of a nationally recognized bond counsel
that such proposed disposition is permitted by the provisions of this subparagraph, and further, that such
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disposition shall not endanger the exclusion from gross income for federal income tax purposes of the interest on
any bonds issued to fund deposits into the Fund, nor shall it relieve the Municipality of its duties, covenants, obligations and agreements under this Loan Contract. (g) Records and Accounts.
(i) The Municipality shall keep accurate records and accounts for its Wastewater Treatment System (the “System Records”), which shall be separate and distinct from its other records and accounts (the “General Accounts”). The System Records and General Accounts shall be made available for inspection upon request by NDEQ at any reasonable time. The Municipality shall, upon written request by NDEQ during the term of the Loan, perform and provide NDEQ a written audit of its System Records and/or General
Accounts, provided such audit shall not be due to NDEQ sooner than 210 days following the close of the fiscal year, or years, identified in the request for audit. In the event that during the period in which the Project financed
by this agreement is under construction, and the Municipality expends, for any purpose, total federal funds in excess of $500,000 during the Municipality’s fiscal year, then the Municipality shall, irrespective of any request from NDEQ, provide NDEQ a copy of the single agency audit made on the Municipality’s General Accounts
performed by an independent registered municipal accountant required in such cases by the Federal Single Audit Act Amendments of 1996, OMB Circular No. A-133, Audits of States, Local Governments, and Non-Profit
Organizations. In the sole discretion of NDEQ, any requirement herein to perform and/or provide an audit at the request of NDEQ may be waived by NDEQ on the basis of the Municipality’s receipt of an audit waiver received from some other government agency and accurately acknowledging the Municipality’s obligation to NDEQ under
this Loan or for any other reason acceptable to NDEQ.
(ii) The Municipality shall maintain its accounts in accordance with generally accepted government accounting standards defined in the Government Accounting, Auditing, and Financial Reporting Manual (1994 Ed.), or any other more current edition thereafter, issued by the Government Finance Officers
Association. The Municipality’s Basic Financial Statements shall comply with the government-wide perspective model and, where applicable, the Statement of Infrastructure Assets proscribed by Government Accounting
Standards Board Statement 34. (h) Inspections; Information. The Municipality shall permit the EPA, NDEQ and any party designated by
NDEQ to examine, visit and inspect, at any and all reasonable times, the property, if any, constituting the Project, and to inspect and make copies of any accounts, books and records, including (without limitation) its records regarding receipts, disbursements, contracts, investments and any other matters relating thereto and to its financial standing, and shall supply such reports and information as the EPA and NDEQ may reasonably require in connection therewith.
(i) Insurance. The Municipality will carry and maintain such reasonable amount of all risk insurance on all properties and all operations of the Wastewater Treatment Works and Sanitary Sewer Collection System as would
be carried by similar sized municipal operators of Wastewater Treatment Works and Sanitary Sewer Collection System, insofar as the properties are of an insurable nature. The Municipality also will carry general liability
insurance in amounts not less than the maximum liability of a governmental entity for claims arising out of a single occurrence, as provided by the Nebraska Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§13-901 to 13-
926, or other similar future law. (j) Continuing Representations. The representations of the Municipality contained herein shall be true at the
time of the execution of this Loan Contract and at all times during the term of this Loan Contract. (k) Notice of Material Adverse Change. The Municipality shall promptly notify NDEQ of any material
adverse change in the activities, prospects or condition (financial or otherwise) of the Municipality's Wastewater Treatment Works and Sanitary Sewer Collection System, or in the ability of the Municipality to make all Loan
Repayments and otherwise observe and perform its duties, covenants, obligations and agreements under this Loan Contract.
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(l) Additional Covenants and Requirements. If necessary in connection with the making of the Loan,
additional covenants and requirements have been included. The Municipality agrees to observe and comply with each such additional covenant and requirement, if any.
ARTICLE IV
ASSIGNMENT Section 4.01. Assignment and Transfer by NDEQ. The Municipality hereby approves and consents to any
assignment or transfer of this Loan Contract that NDEQ deems necessary in connection with the operation and administration of the Fund. The Municipality hereby specifically approves the assignment and pledging of the
interest portion of the Loan Repayments to NIFA. Section 4.02. Assignment by the Municipality. This Loan Contract may not be assigned by the Municipality
for any reason, unless the following conditions shall be satisfied:
(a) NDEQ shall have approved said assignment in writing; (b) the assignee is a village, town, city, district, association, county or other public body created by or pursuant to State law of the State of Nebraska or any combination thereof, that has legal responsibility to treat wastewater;
(c) the assignee shall have expressly assumed in writing the full and faithful observance and
performance of the Municipality's duties, covenants, and obligations under this Loan Contract; provided, however, such assignment shall not relieve the Municipality of its duties, covenants, and obligations under this Loan Contract;
(d) the assignment will not adversely impact NDEQ's ability to meet its duties, covenants and
obligations under the Pledge Agreement nor may the assignment endanger the exclusion from gross income for federal tax purposes of the interest on any bonds issued by NIFA to fund deposits into the Fund; and
(e) the Municipality shall provide NDEQ with an opinion of a nationally recognized bond counsel that
each of the conditions set forth in subparagraphs (b), (c), and (d) hereof have been met. ARTICLE V
EVENTS OF DEFAULT AND REMEDIES Section 5.01. Events of Default and Remedies.
(a) Violation or noncompliance of any of the provisions of this Loan by the Municipality or failure of
the Municipality to complete and maintain the Project in the manner proposed by the Municipality and approved by the NDEQ may result in a cancellation of this Loan and a demand that any outstanding balance of principal and interest be paid immediately. (b) In the event that the Municipality makes a late payment pursuant to the Loan repayment schedule
in Attachment A, the NDEQ may assess a penalty. Late payments will subject the Municipality to a 5 percent administrative penalty on the delinquent amount. Penalty interest shall accrue at the rate of 1
percent per month of the amount of the late payment from and after the due date until it is paid. (c) If the Municipality fails to make any payment of principal and interest, late fee, and penalty
interest imposed pursuant to this Loan within sixty days of the due dates specified in Section 2.05, the payment shall be deducted from the amount of aid to municipalities to which the Municipality is entitled
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under Neb. Rev. Stat. §§77-27,136 to 77-27,137.01. Such amount shall be paid directly to the Wastewater
Treatment Facilities Construction Loan Fund. Section 5.02. Notice of Default. Before any action is taken under this Article, the NDEQ shall give thirty
days written notice of the NDEQ's intent to the Municipality. The Municipality shall have the thirty day time period to comply with the violated contractual term. If compliance is achieved the Loan shall revert to good standing.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Hold Harmless Agreement. The State of Nebraska and the NDEQ, and the officers, agents, and employees of each, shall have no responsibility or liability for the construction, operation and maintenance of the Project. Section 6.02. Waivers. Any waiver at any time of rights or duties under this Loan Contract shall not be
deemed to be a waiver of any subsequent right or duty under this Loan Contract. Section 6.03. Amendments, Supplements and Modifications. This Loan Contract may not be amended,
supplemented or modified without the prior written consent of NIFA; provided, however, the consent of NIFA is not required to revise Attachment B and Attachment C hereto. An executed copy of any amendment to this Loan
Contract including revision of Attachments shall be immediately provided to NIFA. Section 6.04. Notices. All notices, certificates or other communications hereunder shall be sufficiently
given and shall be deemed given when hand delivered or mailed by registered or certified mail, postage prepaid, to the Municipality, NDEQ, and NIFA at the following addresses:
(a) MUNICIPALITY
City of Grand Island 100 East First Street
PO Box 1968 Grand Island, NE 68802-1968
(b) NDEQ: Department of Environmental Quality
Suite 400 1200 "N" Street, The Atrium P.O. Box 98922 Lincoln, NE 68509-8922
(c) NIFA: Nebraska Investment Finance Authority 200 Commerce Court 1230 "O" Street
Lincoln, NE 68508
All notices given by registered or certified mail as aforesaid shall be deemed duly given as of the date they are so mailed. Any of the foregoing parties may designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent, by notice in writing given to the others.
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Section 6.05. Severability. In the event any provision of this Loan Contract shall be held illegal, invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate, render unenforceable or otherwise affect any other provision hereof.
Section 6.06. Binding Effect. This Loan Contract shall inure to the benefit of and shall be binding upon NDEQ and the Municipality and their respective successors and assigns.
Section 6.07. Execution in Counterparts. This Loan Contract may be executed in several counterparts, each of which shall be deemed to be an original and all of which shall constitute but one and the same instrument.
Section 6.08. Governing Law and Regulations. This Loan Contract shall be governed by and construed in
accordance with the laws of the State of Nebraska, including the Act and the Regulations which Regulations are, by this reference thereto, incorporated herein as a part of this Loan Contract.
Section 6.09. Consents and Approvals. Whenever the written consent or approval of the State shall be required under the provisions of this Loan Contract, such consent or approval may only be given by NDEQ.
Section 6.10. Further Assurances. The Municipality shall, at the request of NDEQ, authorize, execute, acknowledge and deliver such further resolutions, conveyances, transfers, assurances, financing statements and
other instruments as may be necessary or desirable for better assuring, conveying, granting, assigning and confirming the rights, security interests and agreements granted or intended to be granted by this Loan Contract.
IN WITNESS THEREOF, the parties hereto have caused this Loan Contract to be executed and delivered as of the date set forth below.
CITY OF GRAND ISLAND, NEBRASKA NEBRASKA DEPARTMENT OF ENVIRONMENTAL QUALITY
By ________________________________ By ________________________________
Title ______Mayor____________________ Title ________Director________________ Date ______________________________ Date ______________________________
By ________________________________ Title ______Treasurer_________________
Date ______________________________
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INDEX OF ATTACHMENTS
Attachment A - Projected Loan Repayment Schedule Attachment B - Project Costs and Projected Outlay Schedule
Attachment C - Financial Analysis
Attachment D - List of Federal Laws and Authorities Attachment E - Municipality's Counsel's Opinion
Attachment F - Promissory Note
Attachment G - Certificate
Attachment H – Other Documents
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ATTACHMENT A
PROJECTED LOAN REPAYMENT SCHEDULE
Interest accruing before _______, 20___, which is not reflected on the following amortization schedule shall be billed and paid in accordance with NDEQ’s procedures as in effect from time to time. Interest shall accrue at the applicable rate (set forth in Section 2.03 of the Contract for Loan) as to the amount drawn and outstanding from
time to time during the payment period, with payments due on June 15 and December 15 of each year, commencing December 15, 20___. Amounts due will be billed on or about May 15 and November 15 of each year
for each six-month payment period ending on the set interest payment date. Interest accruing on any principal amounts drawn after the billing date are to be paid as an addition to the billing for the next interest payment period.
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ATTACHMENT B
PROJECT COSTS
Construction Cost
A/E Design Fees Inspection Fees
Surveying Fees Contingencies TOTAL ESTIMATED PROJECT COST $
SOURCE OF FUNDS
NDEQ CWSRF Loan $
OUTLAY SCHEDULE July 20__
August September October
November March 20__
April May June
July August
September October November
March 20__ April
May June July
August September
October November December
TOTAL $
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ATTACHMENT C FINANCIAL CAPABILITY ANALYSIS
GRAND ISLAND, NEBRASKA
CWSRF Project No. _______
Grand Island has requested CWSRF loan assistance of $37,000,000 to finance sanitary sewer
improvement projects. In order to meet coverage requirements on Grand Island’s existing sewer revenue bond separate smaller CWSRF loans will be made [insert description of amounts and dates of loans made and
expected to be made pursuant to overall authorization]. A financial analysis is presented. The documents reviewed and used to complete this analysis are:
1. Audit reports for the City of Grand Island, for the years ending September 30, 2010, 2011, 2012 and
2013. 2. Application for State and/or Federal Assistance, January 23, 2014
3. Sewer Revenue Bonds, 9/17/2013.
4. Report on Revenue Requirements, Cost of Service and Rates for Wastewater Service, dated October 1, 2013 prepared by Black & Veatch.
Table 1
Grand Island Sewer Fund Financial Summary FY 2010 – FY 2013
Fiscal Year Operating Income Operating Expense (1) Net Revenue Debt Service Debt Coverage
Ratio
2010 $9,338,088 $5,908,172 $3,429,916 $1,759,323 1.95
2011 $8,725,053 $5,376,869 $3,348,184 $1,758,191 1.90
2012 $8,374,864 $4,787,445 $3,587,419 $1,718,220 2.09
2013 $8,713,747 $5,339,743 $3,374,004 $3,125,069 1.08
(1) Depreciation & Interest Expense is not included.
In FY 2013 Grand Island paid off Sewer System Revenue and Refunding Bonds dated June 25, 2003.
The pay off included a principal balance of $3,050,000 plus accrued interest of $75,069. The City of Grand Island issued Sewer System Revenue Bonds dated September 17, 2013, by Ordinance 9434 with original issue amount of $35,430,000. Interest ranges from 0.50 to 5.375% with final maturity on September 15, 2038. The City funded
the headworks project and North Interceptor phase 1 with this revenue bond debt. Construction for the work funded by the September 17, 2013 revenue bond issue is expected to be complete in March, 2015.
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User Fee Impacts
The City of Grand Island approved current sewer rates by passing Resolution 2013-331effective October 1, 2013. A typical small residential customer who uses 500 cubic feet of water per month currently pays a sewer rate $18.64/month. The City of Grand Island hired Black & Veatch to evaluate the finances of their sewer utility and to prepare a rate study. Black and Veatch prepared a report dated October 1, 2013 and titled “Revenue
Requirements, Cost of Service and Rates for Wastewater Service.” Table B presents estimated sewer rates that should get implemented effective October 1, 2014, 2015, 2016 & 2017. The revenues from the projected sewer
rates are expected to support the operation and maintenance of the sewer utility, service the sewer revenue bond debt in the amount of $35,430,000 and to service the debt due to the proposed CWSRF debt in the amount of $37,000,000. The sewer rate for a typical customer who uses 500 cubic feet of water is estimated to be
$25.94/month in fiscal year 2017.
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Table 2 represents the estimated revenue and debt service of the Grand Island Sewer Utility in FY 2014, 2015, 2016 & 2017. This information is obtained from the Black & Veatch study for Coverage Requirements. Table 2
Estimate of Net Revenue & Annual Debt Service FY 2014 - FY 2017
Fiscal Year Starting
October 1
Ensuing Year Projected
Net Revenue
Average Annual Debt
Service
Debt Coverage
Ratio
2014 $3,742,700 $3,014,400 1.30
2015 $4,522,500 $3,485,300 1.30
2016 $5,277,500 $3,981,600 1.33
2017 $5,460,100 $4,201,400 1.30
Funds Available for State Intercept
State Aid to Cities $0
Highway Allocations, FY 2013 $3,791,667
TOTAL $3,791,667
Proposed CWSRF Loan #C317867 P&I $434,188
State intercept total is more than the annual CWSRF principal and interest loan payments.
Recommendation: The City of Grand Island’s sewer rate is 0.7% of the median household income. Since the City of Grand Island’s sewer rate is less than the 2% guideline from EPA, the City is eligible to receive the CWSRF loan. We recommend that the Department award a CWSRF Loan to the City of Grand Island.
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ATTACHMENT D
LIST OF FEDERAL LAWS AND AUTHORITIES
ENVIRONMENTAL: - Archeological and Historic Preservation Act of 1974, Pub. L. 93-291 - Clean Air Act, 42 U.S.C. 7506(c) - Coastal Barrier Resources Act, 16 U.S.C. 3501 et seq. - Coastal Zone Management Act of 1972, Pub. L. 92-583, as amended - Endangered Species Act, 16 U.S.C. 1531 et seq. - Executive Order 11593, Protection and Enhancement of Cultural Environment - Executive Order 11988, Floodplain Management - Executive Order 11990, Protection of Wetlands
- Farmland Protection Policy Act, 7 U.S.C. 4201 et seq - Fish and Wildlife Coordination Act, Pub. L. 85-624, as amended - National Historic Preservation Act of 1966, Pub. L. 89-665, as amended
- Safe Drinking Water Act, Pub. L. 92-523, as amended - Wild and Scenic Rivers Act, Pub. L. 90-542, as amended
ECONOMIC : - Demonstration Cities and Metropolitan Development Act of 1966, Pub. L. 89-754, as amended - Section 306 of the Clean Air Act and Section 508 of the Clean Water Act, including Executive Order 11738, Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans SOCIAL LEGISLATION: - Age Discrimination Act of 1975, Pub. L. 94-135 - Title VI of the Civil Rights Act of 1964, Pub. L. 88-352 - Section 13 of Pub. L. 92-500, Prohibition against sex discrimination under the Federal Water Pollution Control Act - Equal Employment Opportunity, Executive Order 11246 - Women's and Minority Business Enterprise, Executive Orders 11625 and 12138 - Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112, (including Executive Orders 11914 and 11250) MISCELLANEOUS AUTHORITY - Uniform Relocation and Real Property Acquisition Policies Act of 1970, Pub. L. 91-646 - Executive Order 12549 - Debarment and Suspension - Nebraska Clean Water State Revolving Loan Fund #CS - 310001
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ATTACHMENT E
Form of Opinion of Municipality’s Counsel
[USE MUNICIPALITY’S OR COUNSEL’S LETTERHEAD] [Date]
[NOTE: Any of the opinions given below may be given in reliance upon the opinion of another Bond Counsel, and one Bond Counsel may give some of the opinions and another Bond Counsel may give others.]
Nebraska Investment Finance Authority
200 Commerce Court 1230 O Street
Lincoln, NE 68508 Attention: Executive Director
Nebraska Department of Environmental Quality Suite 400
1200 N Street, The Atrium Post Office Box 98922 Lincoln, NE 68509-8922
Attention: Water Quality Division
Trustee: Ladies and Gentlemen:
[I/We] have acted as [Bond] Counsel in connection with the execution and delivery by [NAME OF MUNICIPALITY], a [TYPE OF ENTITY] (the “Municipality”), of a Contract for Loan No. C317867 (the “Loan Contract”) between the Municipality and the Nebraska Department of Environmental Quality (“NDEQ”) and the issuance of a promissory note (the “Note”) by the Municipality to NDEQ. All terms used in this opinion letter and
not defined shall have the meanings given to them in the Loan Contract.
In this connection, [I/we] have examined the following:
(a) Certified copies of the [DESCRIBE RESOLUTION AND/OR ORDINANCE PURSUANT TO
WHICH LOAN AGREEMENT AND NOTE ARE TO BE ENTERED INTO];
(b) An executed counterpart of the Loan Contract; (c) The executed Note; and
(d) Such other documents as [I/we] deemed relevant and necessary in rendering this opinion.
As to questions of fact material to [my/our] opinion, [I/we] have relied upon the certified proceedings and
other certifications of public officials furnished to [me/us] without undertaking to verify the same by independent
investigation.
Based upon the foregoing [I am/we are] of the opinion that:
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27
1. The Municipality is a [CITY, VILLAGE, SID OR OTHER] duly organized and validly existing under the laws of the State of Nebraska.
2. The Municipality is a governmental unit, as such term is used in Section 141(b)(6) of the Internal Revenue Code of 1986, as amended.
3. The Municipality has the power and authority to enter into the Loan Contract, to issue the Note, to
borrow the entire principal amount provided for in Section 2.01 of the Loan Contract (the “Principal Amount”) and to perform its obligations under the Loan Contract and the Note.
4. The Loan Contract and the Note have been duly authorized, executed and delivered by the Municipality and are, and would be if the entire Principal Amount were advanced to the Municipality pursuant to the
Loan Contract on the date of this opinion, valid and legally binding special obligations of the Municipality, payable solely from the sources provided therefor in the Loan Contract, enforceable in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by laws relating to bankruptcy, insolvency
or other similar laws affecting creditors’ rights generally and general principles of equity.
5. Pursuant to §18-1803 through 18-1805 the Loan Contract creates a valid lien on the funds pledged by the Municipality pursuant to Section 3.02 of the Loan Contract for the security of the Loan Contract and the Note and no other debt of the Municipality is secured by a superior lien on such funds.
6. The Municipality has obtained or made all approvals, authorizations, consents or other actions of,
and filings, registrations or qualifications with, the Municipality or any other government authority which are legally required to allow the Municipality to enter into and perform its obligations under the Loan Contract and the Note and borrow the full Principal Amount pursuant to the Loan Contract and the Note.
Very truly yours,
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ATTACHMENT F
PROMISSORY NOTE OF THE
CITY OF GRAND ISLAND, NEBRASKA
FOR VALUE RECEIVED, the undersigned (the "Municipality") promises to pay, but solely from the sources described herein, to the order of the Nebraska Department of Environmental Quality ("NDEQ"), or its successors
and assigns, the principal sum of not to exceed $___________ to the extent disbursed pursuant to Section 2.01 and Section 2.04 of the Loan Contract No. _________ ("the Loan Contract"), with interest on each such amount until paid, as provided in Section 2.01 and 2.03 of the Loan Contract between NDEQ and the Municipality. In
addition, the Municipality shall pay an Administrative Fee on the outstanding principal amount of this Note at the rate of 1.0 percent per annum as provided in the Loan Contract. The said principal and interest and Administrative
Fee shall be payable in semiannual installments each payable on December 15 and June 15 of each year in accordance with Section 2.05 of the Loan Contract. Each installment shall be in the amount set forth opposite its due date in Attachment A to the Loan Contract.
All payments under this Note shall be payable at the offices of NDEQ in Lincoln, Nebraska, and upon the
assignment of this Note to NIFA, at the principal corporate trust office of a Trustee designated by NIFA, or such other place as NDEQ may designate in writing.
This Note is issued pursuant to and is secured by the Loan Contract and Ordinance No. _____ of the City
of Grand Island, Nebraska, the terms and provisions of which are incorporated herein by reference.
All payments of principal of and interest on this Note and other payment obligations of the Municipality hereunder shall be limited obligations of the Municipality payable solely out of the Wastewater User Charge (as defined in the Loan Contract), on a parity with revenue bonds, presently outstanding or hereafter issued pursuant
to Ordinances No. 9434 of the Municipality and pursuant to the Ordinance and shall not be payable out of any other revenues of the Municipality. The obligations of the Municipality under this Note shall never constitute or
give rise to a charge against its general credit or taxing power. This note shall not be a debt of the municipality within the meaning of any constitutional statutory or charter limitation upon the creation of general obligation indebtedness of the Municipality.
If default be made in the payment of any installment due under this Note or by the occurrence of any one or
more of the Events of Default specified in Article V of the Loan Contract and if such Event of Default is not remedied as therein provided, or by failure to comply with any provision of the Ordinance, NDEQ then, or at any time thereafter, may give notice to the Municipality that all unpaid amounts of this Note then outstanding, together
with all other unpaid amounts outstanding under the Loan Contract, are due and payable immediately, and thereupon, without further notice or demand, all such amounts shall become and be immediately due and payable.
Failure to exercise this option shall not constitute a waiver of the right to exercise the same at any time in the event of any continuing or subsequent default.
The Municipality hereby waives presentment for payment, demand, protest, notice of protest and notice of dishonor.
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29
This Note and all instruments securing the same are to be construed according to the laws of the State of
Nebraska. Signed and sealed this _____ day of __________________, 20__. [SEAL] CITY OF GRAND ISLAND, NEBRASKA
Attest: By _________________________________
____________________________________ Title ________Mayor___________________
Title ____________Clerk________________ Complete this section upon assignment of this Note to NIFA. Pursuant to the Pledge Agreement dated as of _________ as amended (the “Pledge Agreement”), by and
between NDEQ and the Nebraska Investment Finance Authority (“NIFA”), and the Master Trust Indenture dated as of ___________________, as supplemented and amended, by and between NIFA
___________________________, as trustee, NDEQ hereby assigns, grants and conveys any and all of NDEQ’s rights, title and interest in this Note to NIFA, except as provided in the Pledge Agreement, and NIFA hereby assigns such rights, title and interest to the Trustee and any successor Trustee.
NEBRASKA DEPARTMENT OF
ENVIRONMENTAL QUALITY
By__________________________________ Title__________Director________________
Date________________________________
NEBRASKA INVESTMENT FINANCE AUTHORITY Attest:
By _________________________________ ____________________________________
Title________________________________ Date________________________________
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ATTACHMENT G CERTIFICATE OF THE
CITY OF GRAND ISLAND, NEBRASKA
The following certifications are made in connection with the Contract for Loan No. C317867 (the "Loan Contract") between the Nebraska Department of Environmental Quality ("NDEQ") and the City of Grand Island, Nebraska (the "Municipality") for the purpose of establishing compliance by the Municipality with requirements for
the maintenance of the tax exemption of interest on any bonds (the “Bonds”) which may be from time to time issued by the Nebraska Investment Finance Authority (“NIFA”) to provide funds for deposit in the Loan Fund (as
defined in the Loan Contract). WHEREFORE, the undersigned hereby certifies on behalf of the Municipality to NDEQ, NIFA and any
trustee for the Bonds, as follows:
1. The undersigned is authorized to make the following certifications on behalf of the Municipality. 2. The Municipality represents that it reasonably expects that the design and construction of the
Project, as defined in the Loan Contract, will commence within six months from the execution of the Loan Contract and that the design and construction of the Project will proceed with due diligence thereafter to completion.
3. The proceeds of the loan pursuant to the Loan Contract will be used to construct a facility that will be owned and operated by the Municipality. There will be no contracts for the use of the facility other than contracts on a rate scale basis. Specifically, the Municipality represents that there will be no contracts for use of the Project that will require a non-governmental unit to make payments to the Municipality without regard to actual use of the
Project.
Dated this _____ day of ______________________, 20___.
CITY OF GRAND ISLAND, NEBRASKA
_______________________________ Title: ____Mayor__________________
+
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31
ATTACHMENT H OTHER DOCUMENTS
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Approved as to Form ¤ ___________
July 25, 2014 ¤ City Attorney
ORDINANCE NO. 9493
AN ORDINANCE OF THE CITY OF GRAND ISLAND, NEBRASKA, AUTHORIZING AND
PROVIDING FOR THE ISSUANCE OF NOT TO EXCEED $40,000,000 TOTAL PRINCIPAL
AMOUNT SEWER SYSTEM REVENUE BONDS IN THE FORM OF ONE OR MORE
PROMISSORY NOTES OF THE CITY, TO PAY THE COSTS OF ACQUIRING, CONSTRUCTING,
IMPROVING, EXTENDING, EQUIPPING AND FURNISHING IMPROVEMENTS TO THE CITY’S
SANITARY SEWER DISPOSAL PLANT AND SEWER SYSTEM; APPROVING THE EXECUTION
AND DELIVERY OF ONE OR MORE LOAN CONTRACTS WITH THE NEBRASKA
DEPARTMENT OF ENVIRONMENTAL QUALITY; PRESCRIBING THE FORM AND DETAILS
OF THE BONDS AND THE COVENANTS AND AGREEMENTS TO PROVIDE FOR THE
PAYMENT AND SECURITY THEREOF; PROVIDING FOR THE PUBLICATION OF THIS
ORDINANCE IN PAMPHLET FORM; AND AUTHORIZING CERTAIN ACTIONS AND
DOCUMENTS AND PRESCRIBING OTHER MATTERS RELATING THERETO.
BE IT ORDAINED by the Mayor and Council of the City of Grand Island, Nebraska, as
follows:
Section 1. The Mayor and City Council of the City of Grand Island, Nebraska (the "City")
hereby find and determine:
(a) The City owns and operates a wastewater treatment plant and sanitary
sewer system (such plant and system, together with all additions and improvements
thereto hereafter acquired and constructed are herein referred to as the "Sewer System")
which represents a revenue-producing undertaking of the City;
(b) the Nebraska Department of Environmental Quality (“NDEQ”) has
approved construction of additions and improvements to the City’s Sewer System
(collectively, the “Project”) and has proposed to lend monies for the Project in one or
more loans (each, an “NDEQ Loan”). Each NDEQ Loan shall be governed as to terms
and conditions by a Loan Contract between the City and NDEQ, each of which shall be
in substantially the form presented herewith (each, an “NDEQ Contract”). To evidence
each NDEQ Loan and the debt obligation incurred by the City in connection with each
NDEQ Contract, NDEQ has agreed to accept a bond payable from the revenues of the
Sewer System to be evidenced by and in the form of a promissory note (each, an
“NDEQ Note” and together the “NDEQ Notes”; sometimes all of the NDEQ Notes
issued hereunder are collectively referred to herein as the “Bonds”) in substantially the
form attached to the NDEQ Contract.
(b) The City has issued and outstanding the following revenue bonds which are
a lien upon and secured by a pledge of the Revenues of the Sewer System:
Sewer System Revenue and Refunding Bonds, Series 2013, Date of
Original Issue – September 17, 2013, issued pursuant to Ordinance No.
9434 of the City, of which $36,915,000 in principal amount are presently
outstanding (the "Outstanding Parity Bonds");
(c) That it is necessary and advisable for the City to construct additions and
improvements to the Sewer System for which the estimated total cost is not less than
$40,000,000.
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ORDINANCE NO. 9493 (Cont.)
2
(d) The Outstanding Parity Bonds represent the only indebtedness of the City
for which the Revenues of the Sewer System have been pledged.
(e) Section 7 of the Ordinance authorizing the issuance of the Outstanding
Parity Bonds (the “Outstanding Parity Bonds Ordinance”) permits the issuance of
Additional Bonds which are payable on a parity with the Outstanding Parity Bonds and
equally and ratably secured therewith under the terms of the Outstanding Parity Bonds
Ordinance; provided that the City shall have received a projection made by a consulting
engineer or firm of consulting engineers, recognized as having experience and expertise
in municipal utility systems, projecting that the “Net Revenues” of the Sewer System (as
defined in the Outstanding Parity Bonds Ordinance) in each of the three full fiscal years
after the issuance of such series of Additional Bonds will be at least equal to 1.25 times
the Average Annual Debt Service Requirements of the Outstanding Parity Bonds, as
then outstanding, and of each series of Additional Bonds as then proposed to be issued,
which projections shall be made in such manner as more fully described in the
Outstanding Parity Bonds Ordinance (the “Projections”).
(f) To satisfy the funding requirements described in this Section 1, it is
necessary for the City to issue its Sewer System Revenue Bonds, in one or more series
and in the form of one or more NDEQ Note, in the aggregate total principal amount of
not to exceed $40,000,000 pursuant to Sections 18-1803 to 18-1805 R.R.S. Neb. 2012,
each of which series shall be an NDEQ Loan. In connection with each NDEQ Loan, it
is necessary and advisable for the City to approve the execution and delivery of the form
of NDEQ Contract and NDEQ Note. Upon acceptance and approval of the Projections
as provided herein for each series of bonds authorized herein, all conditions, acts and
things required by law to exist or to be done precedent to the issuance of the City's
Sewer System Revenue Bonds in the principal amount of not to exceed $40,000,000 in
one or more series, will exist and been done and performed in regular and due time and
form as required by law. Said bonds will be payable from the Revenues of the Sewer
System.
Section 2. In addition to the definitions provided in parentheses elsewhere in this Ordinance, the
following definitions of terms shall apply, unless the context shall clearly indicate otherwise:
(a) the term "Revenues" shall mean all of the rates, rentals, fees and charges,
earnings and other monies, including investment income, from any source derived by
the City of Grand Island, Nebraska, through its ownership and operation of the Sewer
System.
(b) the term "Additional Bonds" shall mean any and all bonds hereafter issued
by the City pursuant to the terms of this Ordinance which are equal in lien to the Bonds
and the Outstanding Parity Bonds, including all such bonds issued pursuant to Section 7
and refunding bonds issued pursuant to Section 8.
(c) the term "Average Annual Debt Service Requirements" shall mean that
number computed by adding all of the principal and interest due when computed to the
absolute maturity of the bonds for which such computation is required and dividing by
the number of years remaining that the longest bond of any issue for which such
computation is required has to run to maturity. In making such computation, the
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ORDINANCE NO. 9493 (Cont.)
3
principal of any bonds for which mandatory redemptions are scheduled shall be treated
as maturing in accordance with such schedule of mandatory redemptions.
(d) the term "Deposit Securities" shall mean obligations of the United States of
America, direct or unconditionally guaranteed, including any such obligations issued in
book entry form.
(e) the term "Net Revenues" shall mean the Revenues derived by the City from
the ownership or operation of the Sewer System, including investment income, but not
including any income from the sale or other disposition of any property belonging to or
forming a part of the Sewer System, less the ordinary expenses for operating and
maintaining the Sewer System payable from the Operation and Maintenance Account
described in Section 5 of this Ordinance. Operation and Maintenance expenses for
purposes of determining "Net Revenues" shall not include depreciation, amortization of
financing expenses or interest on any bonds or other indebtedness. Net Revenues for all
purposes of this Ordinance shall be shown by an audit for the fiscal year in question as
conducted by an independent certified public accountant or firm of such accountants.
(f) the term “Outstanding Parity Bonds” shall have the meaning set forth in
Section 1 hereof.
(g) the term "Paying Agent and Registrar" shall mean the Treasurer of the City,
as appointed to act as paying agent and registrar for the Bonds pursuant to Section 4
hereof, or any successor thereto.
Section 3. To provide for the payment of the costs of the Project, there is hereby approved the
issuance of the Bonds, in one or more series, each of which shall be in the form of and evidenced by a
single NDEQ Note, and which Bonds in the aggregate may be issued in an amount not to exceed Forty
Million Dollars ($40,000,000). In connection with the issuance of each NDEQ Note, the City shall enter
into an NDEQ Contract. The final terms of each NDEQ Note and NDEQ Contract shall be approved by
resolution of the City Council prior to execution and delivery thereof, with such changes as shall be
determined necessary and appropriate by the Mayor or the City Treasurer (each, an “Authorized Officer”,
and together, the “Authorized Officers”) for and on behalf of the City. Prior to the issuance of each
NDEQ Note and entering into each NDEQ Contract, the City shall have received and approved the
Projections made in connection with the delivery of each NDEQ Note. The terms of each NDEQ Note
and each NDEQ Loan Contract in substantially the form attached hereto, are hereby approved and the
Authorized Officers are each hereby authorized to execute and deliver the NDEQ Note and the NDEQ
Loan Contract with such changes from the forms presented and attached hereto as such officer shall deem
appropriate for and on behalf of the City in connection with each NDEQ Loan, provided, however, each
NDEQ Note shall provide for interest to be paid at an interest rate of not to exceed 2.50% per annum and
with an administrative fee payable to NDEQ of not to exceed 1% per annum. The Mayor and City
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ORDINANCE NO. 9493 (Cont.)
4
Treasurer and any other officer or officers of the City are hereby further authorized to take such further
actions and to execute such certificates and other documents as shall be deemed necessary or appropriate
by any of them in connection with the issuance and delivery of each NDEQ Note and the NDEQ Loan
Contract.
Section 4. The City Treasurer shall maintain a record of information with respect to the Bonds in
accordance with the requirements of Section 10-140, R.R.S. Neb. 2012, as amended, and shall cause the
same to be filed in the Office of the Auditor of Public Accounts of the State of Nebraska. The City
Treasurer is hereby appointed to serve as paying agent and registrar for the Bonds.
Section 5. The Revenues of the Sewer System are hereby pledged and hypothecated for the
payment of the Outstanding Parity Bonds, the Bonds and any Additional Bonds as authorized by this
Ordinance and interest on such Outstanding Parity Bonds, Bonds and Additional Bonds and the City does
hereby agree with the holders of the Outstanding Parity Bonds, the Bonds and Additional Bonds as
follows:
(a)GRAND ISLAND SEWER SYSTEM FUND - The entire gross
Revenues derived from the operation of the Sewer System shall be set aside as collected
and deposited in a separate fund which has been previously created and designated as the
"Grand Island Sewer System Fund." For purposes of allocating the monies in the Grand
Island Sewer System Fund, the City shall maintain the following accounts: (1) Operation
and Maintenance Account; (2) Bond Payment Account; (3) Debt Service Reserve
Account; and (4) Surplus Account.
(b)OPERATION AND MAINTENANCE ACCOUNT - Out of the Grand
Island Sewer System Fund there shall be monthly credited into the Operation and
Maintenance Account such amounts as the City shall from time to time determine to be
necessary to pay the reasonable and necessary expenses of operating and maintaining the
Sewer System, and the City may withdraw funds credited to the Operation and
Maintenance Account as necessary from time to time to pay such expenses.
(c)BOND PAYMENT ACCOUNT - Out of the Grand Island Sewer
System Fund there shall be credited monthly on or before the fifteenth day of each month
to the Bond Payment Account the following amounts:
(1)After taking into consideration any amount on deposit in the Bond
Payment Account for payment of the next installment amount (principal
and interest) on the Bonds, an amount equal to such next installment
amount divided by the number of monthly periods which will elapse
before such installment amount is due;
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ORDINANCE NO. 9493 (Cont.)
5
(2)During such periods and in such amounts, all payments as are required
under the terms of the Outstanding Parity Bonds Ordinance with respect
to the principal and interest on the Outstanding Parity Bonds;
The City Treasurer is hereby authorized and directed, without further authorization, to withdraw
monies credited to the Bond Payment Account, or if the monies in such Account are insufficient,
then from the Debt Service Reserve Account for the Bonds and next from the Surplus Account, in
an amount sufficient to pay, when due, the principal of and interest on the Bonds, the Outstanding
Parity Bonds or any Additional Bonds and to transfer such amounts due to the Paying Agent and
Registrar (or other paying agent for the Outstanding Parity Bonds or any Additional Bonds, as
applicable) at least five (5) business days before each principal and interest payment date. Upon
the issuance of any Additional Bonds pursuant to this Ordinance appropriate additional credits to
the Bond Payment Account shall be provided for sufficient to pay principal and interest on said
Additional Bonds.
(d)DEBT SERVICE RESERVE ACCOUNT - The City agrees that it shall deposit
the amount of $-0- as the amount required to be maintained attributable to the Bonds in a separate
sub-account which is hereby established for the Bonds in the Debt Service Reserve Account.
Monies credited to the Debt Service Reserve Account may be withdrawn, but only from the
designated sub-account for a specific issue, as needed, to provide funds to pay, when due, the
principal of and interest on the Bonds and any Additional Bonds issued pursuant to this
Ordinance, as the case may be, if the Bond Payment Account contains insufficient funds for that
purpose, and the City Treasurer is hereby authorized and directed to make such withdrawal if and
when needed. In the event of a withdrawal from the Debt Service Reserve Account, there shall be
credited to the Debt Service Reserve Account in the month following such withdrawal all monies
in the Grand Island Sewer System Fund remaining after making the payments required to be
made in such month to the Operation and Maintenance Account and Bond Payment Account and
each month thereafter all such remaining monies shall be credited to the Debt Service Reserve
Account until such account has been restored to the required balance. Upon the issuance of any
Additional Bonds, the amount required to be accumulated and maintained in the Debt Service
Reserve Account, in a separate sub-account for such Additional Bonds, shall be set at an amount
determined appropriate by the Mayor and Council in connection with any such issue of
Additional Bonds (which may be $-0-). Any such required increase shall be provided for either
by credit made from bond proceeds or current funds of the Sewer System then available or by
equal monthly credits from the Grand Island Sewer System Fund made in such amounts so that
the required amount shall be accumulated in a period of not more than five years. Each sub-
account in the Debt Service Reserve Account shall be held solely for the specific issue for which
it is established. In the event of withdrawal from any such sub-account which results in the
amount in such sub-account being deficient to meet the required balance, available amounts for
restoring sub-account balances shall be credited to each deficient sub-account on a pro rata basis
in accordance with the respective outstanding principal amounts for those issues for which the
respective sub-accounts are then deficient. When the Outstanding Parity Bonds, the Bonds or any
issue of Additional Bonds for which a sub-account has been established is no longer outstanding,
the particular sub-account for such issue shall no longer be required to be maintained. Anything
in this subsection to the contrary notwithstanding, the amount required to be maintained in the
Debt Service Reserve Account with respect to the Bonds or any issue of Additional Bonds shall
not at any time exceed the maximum amount permitted to be invested without yield restriction
under Sections 103(b) and 148 of the Internal Revenue Code of 1986, as amended, and applicable
regulations of the United States Treasury Department.
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ORDINANCE NO. 9493 (Cont.)
6
(e)SURPLUS ACCOUNT - Monies from the Grand Island Sewer System Fund
remaining after the credits required in the foregoing Subsections 5(b), 5(c) and 5(d) shall be
credited to the Surplus Account. Monies in the Surplus Account may be used to make up any
deficiencies in the preceding Accounts, to retire any of the Bonds, Outstanding Parity Bonds or
any Additional Bonds prior to their maturity, to pay principal of and interest on any junior lien
indebtedness incurred with respect to the Sewer System, to provide for replacements or
improvements for the Sewer System, to provide for in lieu of tax payments in an amount not to
exceed 1% of the gross revenues of the Sewer System in any fiscal year (as and to the extent
permitted by law), or to provide for any other purpose related to the Sewer System.
The provisions of this Section shall require the City to maintain a set of books and records in accordance
with such accounting methods and procedures as are generally applicable to a municipal utility enterprise,
which books and records shall show credits to and expenditures from the several Accounts required by
this Section. Monies credited to the Grand Island Sewer System Fund or any of the Accounts therein as
established by this Ordinance shall be deposited or invested separate and apart from other City funds.
Except as specified below for the Debt Service Reserve Account, the City shall not be required to
establish separate bank or investment accounts for the Accounts described in Subsection 5(b), 5(c), 5(d)
and 5(e). Monies credited to the Debt Service Reserve Account (or any sub-account therein) shall, if
maintained in a demand or time deposit account, be kept in a separate account and not commingled with
other Sewer System funds or accounts. If invested, monies credited to the Debt Service Reserve Account
(or any sub-account therein) may be commingled with other Sewer System funds or accounts so long as
the City maintains books and records clearly identifying the specific investments, or portions thereof,
which belong to the Debt Service Reserve Account (or any sub-account therein).
Monies in any of said Accounts except the Debt Service Reserve Account may be invested in
investments permissible for a city of the first class. Monies in the Debt Service Reserve Account (or any
sub-account therein) may be invested in Deposit Securities or bank depository accounts or certificates of
deposit which are either fully insured or fully collateralized as provided by law for investments of funds
of Cities of the First Class. Monies invested from the Debt Service Reserve Account shall be invested to
mature in not more than five years. Investments held for the Debt Service Reserve Account will be
valued at cost for purposes of determining compliance with the requirements of this Ordinance as to the
amount required to be maintained in the Debt Service Reserve Account or any sub-account therein.
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ORDINANCE NO. 9493 (Cont.)
7
Income from or profit realized from investments for any Account or any sub-account shall be credited to
such Account or sub-account until such Account or sub-account contains any amount then required to be
therein, and thereafter such income or profit shall be transferred to the Grand Island Sewer System Fund
and treated as other revenues from the operation of the Sewer System. The ordinance authorizing any
series of Additional Bonds for which a debt service reserve sub-account is to be established may establish
different terms for investment related to such sub-account.
The pledge of the Revenues of the Sewer System provided for in this Ordinance for the Bonds
and the Outstanding Parity Bonds, subject to the right of the City to issue Additional Bonds as provided in
this Ordinance, is intended as a first and prior pledge of, lien on and security interest in such Revenues for
the payment of principal and interest of the Bonds and the Outstanding Parity Bonds, superior to any
pledge or promise made with respect to any other indebtedness of the City as to its Sewer System, and is
intended to be a full exercise of the powers of the City provided for in Sections 18-1803 to 18-1805 with
respect to its Sewer System.
Section 6. So long as any of the Bonds, the Outstanding Parity Bonds and any Additional Bonds
issued pursuant to this Ordinance shall remain outstanding and unpaid, the City covenants and agrees to
establish, revise, from time to time as necessary, and collect such rates and charges for the service
furnished from the Sewer System adequate to produce Revenues sufficient at all times:
(a)To provide funds to pay, when due, the principal of and interest on the
Bonds, the Outstanding Parity Bonds and any Additional Bonds issued pursuant to this
Ordinance.
(b)To pay all proper and necessary costs of operation and maintenance of
the Sewer System and to pay for the necessary and proper repairs, replacements,
enlargements, extensions and improvements to the Sewer System.
(c)To provide funds sufficient to make the credits into the Accounts and at
the times and in the amounts required by Section 5of this Ordinance.
(d)To maintain Net Revenues in each fiscal year adopted by the City for the
Sewer System in an amount not less than 1.10 times the total amount of principal paid or
payable (exclusive of any principal redeemed prior to maturity other than principal
redeemed in accordance with any schedule of mandatory redemptions) and interest
falling due during such fiscal year on the Bonds, the Outstanding Parity Bonds and any
Additional Bonds.
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ORDINANCE NO. 9493 (Cont.)
8
Section 7. To provide funds for any purpose related to the Sewer System, the City may issue
Additional Bonds, except for Additional Bonds issued for refunding purposes which are governed by
Section 8 of this Ordinance, payable from the Revenues having equal priority and on a parity with the
Bonds, the Outstanding Parity Bonds and any Additional Bonds then outstanding, only upon compliance
with the following conditions:
(a)Such Additional Bonds shall be issued only pursuant to an ordinance
which shall provide for an increase in the monthly credits into the Bond Payment
Account in amounts sufficient to pay, when due, the principal of and interest on the
Bonds then outstanding, the Outstanding Parity Bonds, any Additional Bonds then
outstanding and the proposed Additional Bonds and for any monthly credits to the Debt
Service Reserve Account as are required under Subsection 11(d).
(b)The City shall have complied with one or the other of the two following
requirements:
(1)The Net Revenues derived by the City from its Sewer System for
the fiscal year next preceding the issuance of the Additional
Bonds shall have been at least equal to 1.25 times the Average
Annual Debt Service Requirements of the Bonds, the
Outstanding Parity Bonds and any Additional Bonds, all as then
outstanding, and of the proposed Additional Bonds; or
(2)The City shall have received a projection made by a consulting
engineer or firm of consulting engineers, recognized as having
experience and expertise in municipal utility systems, projecting
that the Net Revenues of the Sewer System in each of the three
full fiscal years after the issuance of such Additional Bonds will
be at least equal to 1.25 times the Average Annual Debt Service
Requirements of the Bonds, the Outstanding Parity Bonds and
any Additional Bonds, all as then outstanding, and of the
proposed Additional Bonds. In making such projection, the
consulting engineer shall use as a basis the Net Revenues of the
Sewer System during the last fiscal year for which an
independent audit has been prepared and shall adjust such Net
Revenues as follows: (A) to reflect changes in rates which have
gone into effect since the beginning of the year for which the
audit was made, (B) to reflect his estimate of the net increase
over or net decrease under the Net Revenues of the Sewer
System for the year which the audit was made by reason of: (i)
changes of amounts payable under existing contracts for service;
(ii) additional general income from sales to customers under
existing rate schedules for various classes of customers or as
such schedules may be revised under a program of changes
which has been adopted by the Mayor and Council of the City;
(iii) projected revisions in costs for labor, wages, salaries,
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ORDINANCE NO. 9493 (Cont.)
9
machinery, equipment, supplies and other operational items; (iv)
revisions in the amount of service to be supplied and any related
administrative or other costs associated with such increases due
to increased supply from the acquisition of any new facility; and
(v) such other factors affecting the projections or revenues and
expenses as the consulting engineer deems reasonable and
proper. Annual debt service on any proposed Additional Bonds
to be issued may be estimated by the consulting engineer in
projecting Average Annual Debt Service Requirements, but no
Additional Bonds shall be issued requiring any annual debt
service payment in excess of the amount so estimated by the
consulting engineer.
The City hereby covenants and agrees that so long as any of the Bonds, the Outstanding Parity
Bonds and any Additional Bonds are outstanding, it will not issue any bonds or notes payable from the
Revenues except in accordance with the provisions of this Ordinance, provided, however, the City
reserves the right to issue bonds or notes which are junior in lien to the Bonds, the Outstanding Parity
Bonds and any such Additional Bonds with the principal and interest on such bonds or notes to be
payable from monies credited to the Surplus Account as provided in Subsection 11(e). In the event that
Additional Bonds are proposed to be issued at a time when the audited financial statements of the City for
its Sewer System for the most recently completed fiscal year are not yet available, compliance with the
test based upon Net Revenues as set forth in Section 13(b)(1) may be determined with reference to the
Net Revenues for the most recent fiscal year for which financial statements have been issued and
unaudited financial statements for the most recently completed fiscal year as certified by the City
Treasurer, provided that compliance shall be determined to be shown for each such fiscal year.
Section 8. The City may issue refunding bonds, which shall qualify as Additional Bonds of equal
lien to refund any Bonds, Outstanding Parity Bonds or any Additional Bonds then outstanding, provided,
that, if any such Bonds, Outstanding Parity Bonds or Additional Bonds are to remain outstanding after the
issuance of such refunding bonds, the principal payments due in any calendar year in which those bonds
which are to remain outstanding mature, or in any calendar year prior thereto, shall not be increased over
the amount of such principal payments due in such calendar years immediately prior to such refunding.
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ORDINANCE NO. 9493 (Cont.)
10
Refunding bonds issued in accordance with this paragraph of this Section 8 may be issued as Additional
Bonds of equal lien without compliance with the conditions set forth in Subsection 7(b) of this Ordinance.
The City may also issue refunding bonds which shall qualify as Additional Bonds of equal lien to
refund any Bonds, Outstanding Parity Bonds or Additional Bonds then outstanding, provided, that, if any
Bonds, Outstanding Parity Bonds or Additional Bonds then outstanding are to remain outstanding after
the application of the proceeds of the refunding bonds to the payment of the bonds which are to be
refunded, such issuance must comply with the Net Revenues test set forth in Subsection 7(b)(1) of this
Ordinance and, if the proceeds of such refunding bonds are not to be applied immediately to the
satisfaction of the bonds which are to be refunded, then such refunding bonds must provide by their terms
that they shall be junior in lien to all Bonds, Outstanding Parity Bonds and any Additional Bonds
outstanding at the time of issuance of such refunding bonds until the time of application of their proceeds
to the satisfaction of the bonds which are to be refunded. In the event that refunding bonds are proposed
to be issued at a time when the audited financial statements of the City for its Sewer System for the most
recently completed fiscal year are not yet available, compliance with the test based upon Net Revenues as
set forth in Section 7(b)(1) may be determined with reference to the Net Revenues for the most recent
fiscal year for which financial statements have been issued and unaudited financial statements for the
most recently completed fiscal year as certified by the City Treasurer, provided that compliance shall be
determined to be shown for each such fiscal year. In computing Average Annual Debt Service
Requirements to show compliance with said Net Revenues test for such refunding bonds, all payments of
principal and interest due on such refunding bonds from time of their issuance to the time of application
of the proceeds of such refunding bonds to the satisfaction of the bonds which are to be refunded shall be
excluded from such computation to the extent that such principal and interest are payable from sources
other than the Revenues (such as bond proceeds held in escrow or investment earnings thereon) or from
monies in the Surplus Account and all payments of principal and interest due on the bonds which are to
be refunded from and after the time of such application shall also be excluded. For purposes of this
paragraph of this Section 8, the time of application of the proceeds of the refunding bonds to the
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ORDINANCE NO. 9493 (Cont.)
11
satisfaction of the bonds which are to be refunded shall be the time of deposit with the paying agent for
such bonds which are to be refunded pursuant to Section 10-126, R.R.S. Neb. 2012 (or any successor
statutory provision thereto) or the time when such bonds which are to be refunded under the terms of their
authorizing ordinance or ordinances are no longer deemed to be outstanding, whichever occurs sooner.
Section 9. So long as any Bonds, Outstanding Parity Bonds or Additional Bonds are outstanding,
the City hereby covenants and agrees as follows:
(a)The City will maintain the Sewer System in good condition and will
continuously operate the same in a reasonable and efficient manner, and the City will
punctually perform all duties with reference to said system required by the Constitution
and statutes of the State of Nebraska, but this covenant shall not prevent the City from
discontinuing the use and operation of all or any portion of the Sewer System so long as
the Revenues derived from the City's ownership of the properties constituting the Sewer
System shall be sufficient to fulfill the City's obligations under Section 6 of this
Ordinance.
(b)The City will not grant any franchise or right to any person, firm or
corporation to own or operate a sewer system in competition with the Sewer System.
(c)The City will maintain insurance on the property constituting the Sewer
System (other than such portions of the system as are not normally insured) against risks
customarily carried by similar utilities, but including fire and extended coverage
insurance in an amount which would enable the City to repair, restore or replace the
property damaged to the extent necessary to make the Sewer System operable in an
efficient and proper manner to carry out the City's obligations under this Ordinance. The
Mayor and Council shall annually examine the amount of insurance carried with respect
to the Sewer System and shall evidence approval of such insurance by resolution. The
proceeds of any such insurance received by the City shall be used to repair, replace or
restore the property damaged or destroyed to the extent necessary to make the Sewer
System operable in an efficient and proper manner, and any amount of insurance
proceeds not so used shall be credited to the Surplus Account. In the event of any such
insured casualty loss, the City may advance funds to make temporary repairs or provide
for an advance on costs of the permanent repair, restoration or replacement from the
Operation and Maintenance Account and any such advances shall be repaid from
insurance proceeds received.
(d)The City will keep proper books, records and accounts separate from all
other records and accounts in which complete and correct entries will be made of all
transactions relating to the Sewer System. The City will have its operating and financial
statements related to the Sewer System audited annually by a certified public accountant
or firm of certified public accounts. The City will furnish to the original purchaser of the
Bonds and to the original purchaser or purchasers of each series of Additional Bonds
issued hereunder, within four months after the end of each fiscal year of the Sewer
System, a copy of the financial statements of the Sewer System and the report thereon of
the certified public accountants.
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ORDINANCE NO. 9493 (Cont.)
12
(e)The City shall cause each person handling any of the monies in the
Grand Island Sewer System Fund to be bonded by an insurance company licensed to do
business in Nebraska in an amount or amounts deemed sufficient by the Mayor and
Council to cover the amount of money belonging to said system reasonably expected to
be in the possession or control of any such person. The amount of such bond or bonds
shall be fixed by the Mayor and Council and the costs thereof shall be paid as an
operating and maintenance expense from the Operation and Maintenance Account.
Section 10. The City's obligations under this Ordinance and the liens, pledges, covenants and
agreements of the City herein made or provided for, shall be fully discharged and satisfied as to the Bonds
issued pursuant to this Ordinance and any such bonds shall no longer be deemed outstanding hereunder if
such bonds shall have been purchased and cancelled by the City, or when payment of the principal of and
interest thereon to the respective date of maturity or redemption (a) shall have been made or caused to be
made in accordance with the terms thereof, or (b) shall have been provided for by depositing with the
Paying Agent and Registrar, or with a national or state bank having trust powers or trust company, in trust
solely for such payment, (i) sufficient money to make such payment and/or (ii) Deposit Securities in such
amount and bearing interest payable and maturing or redeemable at stated fixed prices at the option of the
holder as to principal, at such time or times, as will ensure the availability of sufficient money to make
such payment; provided, however, that, with respect to any Bond to be paid prior to maturity, the City
shall have duly given notice of redemption of such bond as provided by law or made irrevocable
provisions for the giving of such notice. Any such money so deposited with a bank or trust company or
the Paying Agent and Registrar may be invested and reinvested in Deposit Securities and all interest and
income from such Deposit Securities in the hands of such bank or trust company or Paying Agent and
Registrar, in excess of the amount required to pay principal of and interest on the bonds for which such
monies were deposited, shall be paid over to the City as and when collected.
Section 11. The terms and provisions of this Ordinance do and shall constitute a contract
between the City and the registered owner or owners of the Bonds and no changes, variations or
alterations of any kind, except for changes necessary to cure any ambiguity, formal defect or omission,
shall be made to this Ordinance without the written consent of the registered owners of two-thirds (2/3rds)
in principal amount of the Bonds then outstanding, provided, however, that neither the principal and
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ORDINANCE NO. 9493 (Cont.)
13
interest to be paid upon any Bond nor the maturity date of any Bond shall be changed without the written
consent of the registered owners of all such bonds then outstanding. Any registered owner of a Bond may
by mandamus or other appropriate action or proceedings at law or in equity in any court of competent
jurisdiction enforce and compel performance of this Ordinance and every provision and covenant hereof,
including without limiting the generality of the foregoing, the enforcement of the performance of all
duties required of the City by this Ordinance and the applicable laws of the State of Nebraska, including
in such duties the collecting of Revenues and the segregation and application of such Revenues as
described in Section 5 of this Ordinance. After any default in payment or other default in performance,
the registered owners of the Bonds, the Outstanding Parity Bonds or any Additional Bonds shall be
entitled to the appointment of a receiver for the Sewer System. Any and all actions brought by any
registered owner or owners of the Bonds, the Outstanding Parity Bonds or Additional Bonds shall be
maintained for the equal and ratable benefit of all registered owners of the Bonds, the Outstanding Parity
Bonds and Additional Bonds outstanding and no registered owners of any of the Bonds, the Outstanding
Parity Bonds or Additional Bonds shall have any right in any manner whatsoever by any action or
proceedings to affect, disturb or prejudice the pledge created by this Ordinance.
Section 12. The Mayor and City Clerk and City Treasurer of the City are hereby authorized to do
all things and execute all documents as may by them be deemed necessary and proper to complete the
issuance and sale of the Bonds contemplated by this Ordinance.
Section 13. 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 14. This Ordinance shall be in force and take effect from and after its passage and
approval as provided by law and shall be published in pamphlet form.
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ORDINANCE NO. 9493 (Cont.)
14
PASSED AND APPROVED this 29th day of July, 2014.
__________________________________________
Mayor
ATTEST:
____________________________________
Nicki Stoltenberg, Assistant to the City Administrator
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City of Grand Island
Tuesday, July 29, 2014
Special Meeting/Study Session
Item S1
Presentation of Enhanced Employment Area
Staff Contact: Chad Nabity
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Council Agenda Memo
From:Chad Nabity, Regional Planning Director
Meeting:July 29, 2014
Subject:Enhanced Employment Area
Item #’s:S1
Presenter(s):Chad Nabity, Regional Planning Director
Background
What is an Enhance Employment Area as authorized by LB562?
This bill allows for the designation of Enhanced Employment Areas (EEA). These
areas can be up to 600 acres in size. Multiple EEA’s can be created within a city.
The creation of the EEA allows the City to place an occupation tax on the businesses
(potential businesses) within the boundaries of the EEA. Bonds can be issued to pay
for public infrastructure (utilities, streets, storm sewer) in any EEA along with
anything that tax increment financing money can be spent on and a variety of
programming and enforcement expenses related to parking and promotions. The
bonds are to be paid off using revenue from the occupation tax. The tax does not
expire until such time as the bonds are paid off.
When did it go into effect?
LB 562 went into effect on September 1, 2007. Portions were modified in 2014 by
LB 474 to specifically exclude certain transactions already subject to taxes under
specific section of state statutes. The current statutory references are attached.
Discussion
What are the requirements to create an EEA?
The Community Redevelopment Authority can designate any approved
redevelopment area or portion of a redevelopment area as an EEA.
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In Grand Island, the City Council can declare areas not with a redevelopment area as
an EEA if a developer can assure Council that the creation of this EEA would result
in the creation of at least 15 new full time equivalent jobs and investment of at least
$1,000,000 new monies. This requirement is adjusted based on the population of the
county in which community is located.
All of the owners and businesses within the area have to agree to the occupation tax
or it cannot be assessed. The proceeds from this tax must then be used to pay off
bonds issued for specific purposes as detailed in statute.
Any development that is in a designated redevelopment area or meets the
employment and investment requirements is eligible to use this tool if the EEA is
approved.
What if the EEA is also an area that is blighted and substandard?
An EEA can be created in an area that has been declared blighted and substandard
and used in addition to TIF to fund projects.
What type of occupation tax can be assessed?
The legislature left this very wide open. For example, this could be an extra one half
cent tax on all retail transactions. The indications are that this would not scare off
major retailers. It could be 50 cents per seat on theater admissions. It could be
based on square footage of the development or on the number of parking spaces. If
this were to be used in a manufacturing setting it could be an add on fee of $1.00 per
widget made and transported from the property. The developer and businesses in the
EEA have to be involved in determining how the tax will be levied as they have to
unanimously agree to the imposition of the tax by the City.
Who collects the occupation tax?
The City passes an ordinance enacting the tax and the City would be responsible for
collecting the tax. The legislation allows the City to recoup the cost of this activity.
After the original passage of the LB 562, a meeting was held by the Nebraska
League of Municipalities to discuss implementation of this and the Cities
represented at meeting suggested that the rates be set at 5% of for collection on the
first $1,000,000 of debt and 3% for everything over $1,000,000. This would mean
that if $1,000,000 of debt were issued the City would send $95 of every $100 to the
bond holder when the money is collected. If $2,000,000 of debt were issued the city
would send $96 of every $100 collected or would keep a weighted percentage of 4%
the average of 3% and 5%. The more debt that is issued the closer the administrative
fee would come to approaching 3%.
Are these general obligation bonds of the City?
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They are revenue bonds based on the occupation tax. They can however be backed
by the full faith and credit of the City if the City chooses to do so. That is not a
requirement. If they are not backed by the full faith and credit of the City they
would not count as City issued debt.
How would these bonds work?
The bonds can be sold at a general issue just like any other bonds.
The developer may also choose to forego the general issue and purchase the bonds
directly. The developer may or may not borrow money from a bank using the bonds
as collateral. As the tax is collected the bonds are retired and the loan is also paid
off.
What advantage does this give the City?
The City does not have to foot the bill for the cost of development and gives
developers more tools for creating development within the City.
What advantage does this give the developer?
The developer does not need as much money up front to get the development going.
Those businesses that are made possible by the new infrastructure will pay for the
costs of the infrastructure.
Who loses if the occupation tax is not paid the bonds are not retired?
The bond holder or the bank that loaned money with those bonds as collateral loses
in that case. The City still has the infrastructure around the developed site.
Conclusion
It is anticipated that the owners of properties along the 281 Corridor including the Grand
Island Mall and vacant K-Mart building may wish to consider asking the City Council to
approve the use of this tool to further redevelopment efforts on those properties.
This item is presented to the City Council in a Study Session to allow for any questions to
be answered and to create a greater understanding of the issue at hand.
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Statutory References:
18-2103. Terms, defined.
For purposes of the Community Development Law, unless the context
otherwise requires:
(1) An authority means any community redevelopment authority created
pursuant to section 18-2102.01 and a city or village which has created a
community development agency pursuant to the provisions of section 18-
2101.01 and does not include a limited community redevelopment authority;
(2) Limited community redevelopment authority means a community
redevelopment authority created pursuant to section 18-2102.01 having only
one single specific limited pilot project authorized;
(3) City means any city or incorporated village in the state;
(4) Public body means the state or any municipality, county, township,
board, commission, authority, district, or other political subdivision or public
body of the state;
(5) Governing body or local governing body means the city council, board
of trustees, or other legislative body charged with governing the municipality;
(6) Mayor means the mayor of the city or chairperson of the board of
trustees of the village;
(7) Clerk means the clerk of the city or village;
(8) Federal government means the United States of America, or any agency
or instrumentality, corporate or otherwise, of the United States of America;
(9) Area of operation means and includes the area within the corporate
limits of the city and such land outside the city as may come within the purview
of sections 18-2123 and 18-2123.01;
(10) Substandard areas means an area in which there is a predominance of
buildings or improvements, whether nonresidential or residential in character,
which, by reason of dilapidation, deterioration, age or obsolescence, inadequate
provision for ventilation, light, air, sanitation, or open spaces, high density of
population and overcrowding, or the existence of conditions which endanger
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life or property by fire and other causes, or any combination of such factors, is
conducive to ill health, transmission of disease, infant mortality, juvenile
delinquency, and crime, (which cannot be remedied through construction of
prisons), and is detrimental to the public health, safety, morals, or welfare;
(11) Blighted area means an area, which (a) by reason of the presence of a
substantial number of deteriorated or deteriorating structures, existence of
defective or inadequate street layout, faulty lot layout in relation to size,
adequacy, accessibility, or usefulness, insanitary or unsafe conditions,
deterioration of site or other improvements, diversity of ownership, tax or
special assessment delinquency exceeding the fair value of the land, defective
or unusual conditions of title, improper subdivision or obsolete platting, or the
existence of conditions which endanger life or property by fire and other
causes, or any combination of such factors, substantially impairs or arrests the
sound growth of the community, retards the provision of housing
accommodations, or constitutes an economic or social liability and is
detrimental to the public health, safety, morals, or welfare in its present
condition and use and (b) in which there is at least one of the following
conditions: (i) Unemployment in the designated area is at least one hundred
twenty percent of the state or national average; (ii) the average age of the
residential or commercial units in the area is at least forty years; (iii) more than
half of the plotted and subdivided property in an area is unimproved land that
has been within the city for forty years and has remained unimproved during
that time; (iv) the per capita income of the area is lower than the average per
capita income of the city or village in which the area is designated; or (v) the
area has had either stable or decreasing population based on the last two
decennial censuses. In no event shall a city of the metropolitan, primary, or first
class designate more than thirty-five percent of the city as blighted, a city of the
second class shall not designate an area larger than fifty percent of the city as
blighted, and a village shall not designate an area larger than one hundred
percent of the village as blighted. A redevelopment project involving a
formerly used defense site as authorized under section 18-2123.01 shall not
count towards the percentage limitations contained in this subdivision;
(12) Redevelopment project means any work or undertaking in one or more
community redevelopment areas: (a) To acquire substandard and blighted areas
or portions thereof, including lands, structures, or improvements the acquisition
of which is necessary or incidental to the proper clearance, development, or
redevelopment of such substandard and blighted areas; (b) to clear any such
areas by demolition or removal of existing buildings, structures, streets,
utilities, or other improvements thereon and to install, construct, or reconstruct
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streets, utilities, parks, playgrounds, public spaces, public parking facilities,
sidewalks or moving sidewalks, convention and civic centers, bus stop shelters,
lighting, benches or other similar furniture, trash receptacles, shelters, skywalks
and pedestrian and vehicular overpasses and underpasses, and any other
necessary public improvements essential to the preparation of sites for uses in
accordance with a redevelopment plan; (c) to sell, lease, or otherwise make
available land in such areas for residential, recreational, commercial, industrial,
or other uses, including parking or other facilities functionally related or
subordinate to such uses, or for public use or to retain such land for public use,
in accordance with a redevelopment plan; and may also include the preparation
of the redevelopment plan, the planning, survey, and other work incident to a
redevelopment project and the preparation of all plans and arrangements for
carrying out a redevelopment project; (d) to dispose of all real and personal
property or any interest in such property, or assets, cash, or other funds held or
used in connection with residential, recreational, commercial, industrial, or
other uses, including parking or other facilities functionally related or
subordinate to such uses, or any public use specified in a redevelopment plan or
project, except that such disposition shall be at its fair value for uses in
accordance with the redevelopment plan; (e) to acquire real property in a
community redevelopment area which, under the redevelopment plan, is to be
repaired or rehabilitated for dwelling use or related facilities, repair or
rehabilitate the structures, and resell the property; and (f) to carry out plans for
a program of voluntary or compulsory repair, rehabilitation, or demolition of
buildings or other improvements in accordance with the redevelopment plan;
(13) Redevelopment plan means a plan, as it exists from time to time for
one or more community redevelopment areas, or for a redevelopment project,
which (a) conforms to the general plan for the municipality as a whole and (b)
is sufficiently complete to indicate such land acquisition, demolition and
removal of structures, redevelopment, improvements, and rehabilitation as may
be proposed to be carried out in the community redevelopment area, zoning and
planning changes, if any, land uses, maximum densities, and building
requirements;
(14) Redeveloper means any person, partnership, or public or private
corporation or agency which enters or proposes to enter into a redevelopment
contract;
(15) Redevelopment contract means a contract entered into between an
authority and a redeveloper for the redevelopment of an area in conformity with
a redevelopment plan;
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(16) Real property means all lands, including improvements and fixtures
thereon, and property of any nature appurtenant thereto, or used in connection
therewith, and every estate, interest and right, legal or equitable, therein,
including terms for years and liens by way of judgment, mortgage, or
otherwise, and the indebtedness secured by such liens;
(17) Bonds means any bonds, including refunding bonds, notes, interim
certificates, debentures, or other obligations issued pursuant to the Community
Development Law except for bonds issued pursuant to section 18-2142.04;
(18) Obligee means any bondholder, agent, or trustee for any bondholder, or
lessor demising to any authority, established pursuant to section 18-2102.01,
property used in connection with a redevelopment project, or any assignee or
assignees of such lessor's interest or any part thereof, and the federal
government when it is a party to any contract with such authority;
(19) Person means any individual, firm, partnership, limited liability
company, corporation, company, association, joint-stock association, or body
politic and includes any trustee, receiver, assignee, or other similar
representative thereof;
(20) Community redevelopment area means a substandard and blighted area
which the community redevelopment authority designates as appropriate for a
renewal project;
(21) Redevelopment project valuation means the valuation for assessment of
the taxable real property in a redevelopment project last certified for the year
prior to the effective date of the provision authorized in section 18-2147;
(22) Enhanced employment area means an area not exceeding six
hundred acres (a) within a community redevelopment area which is
designated by an authority as eligible for the imposition of an occupation
tax or (b) not within a community redevelopment area as may be
designated under section 18-2142.04;
(23) Employee means a person employed at a business as a result of a
redevelopment project;
(24) Employer-provided health benefit means any item paid for by the
employer in total or in part that aids in the cost of health care services,
including, but not limited to, health insurance, health savings accounts,
and employer reimbursement of health care costs;
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(25) Equivalent employees means the number of employees computed
by (a) dividing the total hours to be paid in a year by (b) the product of
forty times the number of weeks in a year;
(26) Business means any private business located in an enhanced
employment area;
(27) New investment means the value of improvements to real estate
made in an enhanced employment area by a developer or a business;
(28) Number of new employees means the number of equivalent
employees that are employed at a business as a result of the redevelopment
project during a year that are in excess of the number of equivalent
employees during the year immediately prior to the year that a
redevelopment plan is adopted; and
(29) Occupation tax means a tax imposed under section 18-2142.02.
Source:Laws 1951, c. 224, § 3, p. 797; R.R.S.1943, § 14-1603; Laws 1957, c.
52, § 4, p. 249; Laws 1961, c. 61, § 3, p. 227; R.R.S.1943, § 19-2603; Laws
1965, c. 74, § 3, p. 303; Laws 1969, c. 106, § 2, p. 488; Laws 1973, LB 299, §
3; Laws 1979, LB 158, § 2; Laws 1980, LB 986, § 2; Laws 1984, LB 1084, § 2;
Laws 1993, LB 121, § 143; Laws 1997, LB 875, § 5; Laws 2007, LB562, § 2;
Laws 2012, LB729, § 1; Laws 2013, LB66, § 2; Laws 2014, LB1012, § 1.
Effective Date: April 3, 2014
18-2142.02. Enhanced employment area; redevelopment project; levy of
general business occupation tax authorized; governing body; powers;
occupation tax; power to levy; exceptions.
A city may levy a general business occupation tax upon the businesses and
users of space within an enhanced employment area for the purpose of paying
all or any part of the costs and expenses of any redevelopment project within
such enhanced employment area. After March 27, 2014, any occupation tax
imposed pursuant to this section shall make a reasonable classification of
businesses, users of space, or kinds of transactions for purposes of imposing
such tax, except that no occupation tax shall be imposed on any transaction
which is subject to tax under section 53-160, 66-489, 66-489.02, 66-4,140, 66-
4,145, 66-4,146, 77-2602, or 77-4008 or which is exempt from tax under
section 77-2704.24*. The collection of a tax imposed pursuant to this section
shall be made and enforced in such a manner as the governing body shall by
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ordinance determine to produce the required revenue. The governing body may
provide that failure to pay the tax imposed pursuant to this section shall
constitute a violation of the ordinance and subject the violator to a fine or other
punishment as provided by ordinance. Any such occupation tax agreed to by
the authority and the city shall remain in effect so long as the authority has
bonds outstanding which have been issued stating such occupation tax as an
available source for payment.
Source:Laws 2007, LB562, § 8; Laws 2014, LB474, § 6.
Effective Date: March 27, 2014
18-2142.03. Enhanced employment area; use of eminent domain
prohibited.
Eminent domain shall not be used to acquire property that will be
transferred to a private party in the enhanced employment area.
Source:Laws 2007, LB562, § 9.
18-2142.04. Enhanced employment area; authorized work within area;
levy of general business occupation tax authorized; exceptions; governing
body; powers; revenue bonds authorized; terms and conditions.
(1) For purposes of this section:
(a) Authorized work means the performance of any one or more of the
following purposes within an enhanced employment area designated pursuant
to this section:
(i) The acquisition, construction, maintenance, and operation of public
offstreet parking facilities for the benefit of the enhanced employment area;
(ii) Improvement of any public place or facility in the enhanced
employment area, including landscaping, physical improvements for decoration
or security purposes, and plantings;
(iii) Construction or installation of pedestrian shopping malls or plazas,
sidewalks or moving sidewalks, parks, meeting and display facilities, bus stop
shelters, lighting, benches or other seating furniture, sculptures, trash
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receptacles, shelters, fountains, skywalks, and pedestrian and vehicular
overpasses and underpasses, and any useful or necessary public improvements;
(iv) Leasing, acquiring, constructing, reconstructing, extending,
maintaining, or repairing parking lots or parking garages, both above and below
ground, or other facilities for the parking of vehicles, including the power to
install such facilities in public areas, whether such areas are owned in fee or by
easement, in the enhanced employment area;
(v) Creation and implementation of a plan for improving the general
architectural design of public areas in the enhanced employment area;
(vi) The development of any public activities and promotion of public
events, including the management, promotion, and advocacy of retail trade
activities or other promotional activities, in the enhanced employment area;
(vii) Maintenance, repair, and reconstruction of any improvements or
facilities authorized by the Community Development Law;
(viii) Any other project or undertaking for the betterment of the public
facilities in the enhanced employment area, whether the project is capital or
noncapital in nature;
(ix) Enforcement of parking regulations and the provision of security within
the enhanced employment area; or
(x) Employing or contracting for personnel, including administrators for any
improvement program under the Community Development Law, and providing
for any service as may be necessary or proper to carry out the purposes of the
Community Development Law;
(b) Employee means a person employed at a business located within an
enhanced employment area; and
(c) Number of new employees means the number of equivalent employees
that are employed at a business located within an enhanced employment area
designated pursuant to this section during a year that are in excess of the
number of equivalent employees during the year immediately prior to the year
the enhanced employment area was designated pursuant to this section.
(2) If an area is not blighted or substandard, a city may designate an area as
an enhanced employment area if the governing body determines that new
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investment within such enhanced employment area will result in at least (a) two
new employees and new investment of one hundred twenty-five thousand
dollars in counties with fewer than fifteen thousand inhabitants, (b) five new
employees and new investment of two hundred fifty thousand dollars in
counties with at least fifteen thousand inhabitants but fewer than twenty-five
thousand inhabitants, (c) ten new employees and new investment of five
hundred thousand dollars in counties with at least twenty-five thousand
inhabitants but fewer than fifty thousand inhabitants, (d) fifteen new employees
and new investment of one million dollars in counties with at least fifty
thousand inhabitants but fewer than one hundred thousand inhabitants, (e)
twenty new employees and new investment of one million five hundred
thousand dollars in counties with at least one hundred thousand inhabitants but
fewer than two hundred thousand inhabitants, (f) twenty-five new employees
and new investment of two million dollars in counties with at least two hundred
thousand inhabitants but fewer than four hundred thousand inhabitants, or (g)
thirty new employees and new investment of three million dollars in counties
with at least four hundred thousand inhabitants. Any business that has one
hundred thirty-five thousand square feet or more and annual gross sales of ten
million dollars or more shall provide an employer-provided health benefit of at
least three thousand dollars annually to all new employees who are working
thirty hours per week or more on average and have been employed at least six
months. In making such determination, the governing body may rely upon
written undertakings provided by any owner of property within such area.
(3) Upon designation of an enhanced employment area under this section, a
city may levy a general business occupation tax upon the businesses and users
of space within such enhanced employment area for the purpose of paying all
or any part of the costs and expenses of authorized work within such enhanced
employment area. After March 27, 2014, any occupation tax imposed pursuant
to this section shall make a reasonable classification of businesses, users of
space, or kinds of transactions for purposes of imposing such tax, except that
no occupation tax shall be imposed on any transaction which is subject to tax
under section 53-160, 66-489, 66-489.02, 66-4,140, 66-4,145, 66-4,146, 77-
2602, or 77-4008 or which is exempt from tax under section 77-2704.24*. The
collection of a tax imposed pursuant to this section shall be made and enforced
in such a manner as the governing body shall by ordinance determine to
produce the required revenue. The governing body may provide that failure to
pay the tax imposed pursuant to this section shall constitute a violation of the
ordinance and subject the violator to a fine or other punishment as provided by
ordinance. Any occupation tax levied by the city under this section shall remain
in effect so long as the city has bonds outstanding which have been issued
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under the authority of this section and are secured by such occupation tax or
that state such occupation tax as an available source for payment. The total
amount of occupation taxes levied shall not exceed the total costs and expenses
of the authorized work including the total debt service requirements of any
bonds the proceeds of which are expended for or allocated to such authorized
work. The assessments or taxes levied must be specified by ordinance and the
proceeds shall not be used for any purpose other than the making of such
improvements and for the repayment of bonds issued in whole or in part for the
financing of such improvements. The authority to levy the general business
occupation tax contained in this section and the authority to issue bonds
secured by or payable from such occupation tax shall be independent of and
separate from any occupation tax referenced in section 18-2103.
(4) A city may issue revenue bonds for the purpose of defraying the cost of
authorized work and to secure the payment of such bonds with the occupation
tax revenue described in this section. Such revenue bonds may be issued in one
or more series or issues where deemed advisable, and each such series or issue
may contain different maturity dates, interest rates, priorities on revenue
available for payment of such bonds and priorities on securities available for
guaranteeing payment thereof, and such other differing terms and conditions as
are deemed necessary. The following shall apply to any such bonds:
(a) Such bonds shall be limited obligations of the city. Bonds and interest on
such bonds, issued under the authority of this section, shall not constitute nor
give rise to a pecuniary liability of the city or a charge against its general credit
or taxing powers. Such limitation shall be plainly stated upon the face of each
of such bonds;
(b) Such bonds may (i) be executed and delivered at any time and from time
to time, (ii) be in such form and denominations, (iii) be of such tenor, (iv) be
payable in such installments and at such time or times not exceeding twenty
years from their date, (v) be payable at such place or places, (vi) bear interest at
such rate or rates, payable at such place or places, and evidenced in such
manner, (vii) be redeemable prior to maturity, with or without premium, and
(viii) contain such provisions as shall be deemed in the best interest of the city
and provided for in the proceedings of the governing body under which the
bonds shall be authorized to be issued;
(c) The authorization, terms, issuance, execution, or delivery of such bonds
shall not be subject to sections 10-101 to 10-126; and
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(d) Such bonds may be sold at public or private sale in such manner and at
such time or times as may be determined by the governing body to be most
advantageous. The city may pay all expenses, premiums, and commissions
which the governing body may deem necessary or advantageous in connection
with the authorization, sale, and issuance thereof from the proceeds or the sale
of the bonds or from the revenue of the occupation tax described in this section.
Source:Laws 2007, LB562, § 10; Laws 2014, LB474, § 7.
Effective Date: March 27, 2014
*Notes on exceptions listed in §18-2142.02 and §18-2142.04:
§53-160 Manufacture and wholesale distribution of Beer and Wine
§66-489, §66-489.02, §66-4,140, §66-4,145, §66-4,146, Fuel Taxes
§77-2602 Cigarettes
§77-4008 Tobacco
§77-2704.24 Leases between related companies
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REGIONAL
PLANNING
Enhanced Employment Areas
What Are They? How Do They Work and
Why Would We Want Them?
Chad Nabity AICP
Hall County Regional Planning Director
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REGIONAL
PLANNING
History
Created by the Nebraska Unicameral in 2007 with the
passage of LB 562 modified by LB 474 in 2014
Definitions were added to the Community
Redevelopment Statutes and Section 18-2142.02 to
18-42142.04 were added granting authority to Cities
to create Enhanced Employment Areas (EEA) and
levy occupation taxes within those areas for specific
purposes and under specific conditions
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REGIONAL
PLANNING
What is an Enhanced Employment Area?
An area of 600 acres or less declared by an Authority
or by City Council as an Enhanced Employment
Area (EEA)
If located in Blighted and Substandard Area
declaration can be made by the CRA.
If not in a Blighted and Substandard area the City
Council may declare an area an EEA if the owners of
the property show that they will make an investment
of $1,000,000 in the property and create 15 additional
full time equivalent jobs in that area.
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REGIONAL
PLANNING
What is an Enhanced Employment Area?
Participation in an EEA is voluntary and consent
must be given by all property owners, business
owners and the City.
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REGIONAL
PLANNING
From NRSS 18-2103
(22) Enhanced employment area means an area not
exceeding six hundred acres (a) within a community
redevelopment area which is designated by an
authority as eligible for the imposition of an
occupation tax or (b) not within a community
redevelopment area as may be designated under
section 18-2142.04;
(23) Employee means a person employed at a
business as a result of a redevelopment project;
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REGIONAL
PLANNING
From NRSS 18-2103
(24) Employer-provided health benefit means any
item paid for by the employer in total or in part that
aids in the cost of health care services, including, but
not limited to, health insurance, health savings
accounts, and employer reimbursement of health care
costs;
(25) Equivalent employees means the number of
employees computed by (a) dividing the total hours to
be paid in a year by (b) the product of forty times the
number of weeks in a year;
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REGIONAL
PLANNING
From NRSS 18-2103
(26) Business means any private business located in
an enhanced employment area;
(27) New investment means the value of
improvements to real estate made in an enhanced
employment area by a developer or a business;
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REGIONAL
PLANNING
From NRSS 18-2103
(28) Number of new employees means the number of
equivalent employees that are employed at a business
as a result of the redevelopment project during a year
that are in excess of the number of equivalent
employees during the year immediately prior to the
year that a redevelopment plan is adopted;
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REGIONAL
PLANNING
What Are the Benefits of an EEA
Ability to issue and sell revenue bonds and levy an
occupation tax on the businesses within the district to
pay for development/redevelopment costs.
Revenue bonds issued are not counted as part of the
City’s general obligation debt.
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REGIONAL
PLANNING
What can EEA Bonds Pay For?
NRSS 18-2142.04
(i) The acquisition, construction, maintenance, and
operation of public offstreet parking facilities for the
benefit of the enhanced employment area;
(ii) Improvement of any public place or facility in the
enhanced employment area, including landscaping,
physical improvements for decoration or security
purposes, and plantings;
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REGIONAL
PLANNING
What can EEA Bonds Pay For?
NRSS 18-2142.04
(iii) Construction or installation of pedestrian
shopping malls or plazas, sidewalks or moving
sidewalks, parks, meeting and display facilities, bus
stop shelters, lighting, benches or other seating
furniture, sculptures, trash receptacles, shelters,
fountains, skywalks, and pedestrian and vehicular
overpasses and underpasses, and any useful or
necessary public improvements;
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REGIONAL
PLANNING
What can EEA Bonds Pay For?
NRSS 18-2142.04
(iv) Leasing, acquiring, constructing, reconstructing,
extending, maintaining, or repairing parking lots or
parking garages, both above and below ground, or
other facilities for the parking of vehicles, including
the power to install such facilities in public areas,
whether such areas are owned in fee or by easement,
in the enhanced employment area;
(v) Creation and implementation of a plan for
improving the general architectural design of public
areas in the enhanced employment area;
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REGIONAL
PLANNING
What can EEA Bonds Pay For?
NRSS 18-2142.04
(vi) The development of any public activities and
promotion of public events, including the
management, promotion, and advocacy of retail trade
activities or other promotional activities, in the
enhanced employment area;
(vii) Maintenance, repair, and reconstruction of any
improvements or facilities authorized by the
Community Development Law;
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REGIONAL
PLANNING
What can EEA Bonds Pay For?
NRSS 18-2142.04
(viii) Any other project or undertaking for the
betterment of the public facilities in the enhanced
employment area, whether the project is capital or
noncapital in nature;
(ix) Enforcement of parking regulations and the
provision of security within the enhanced
employment area;
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REGIONAL
PLANNING
What can EEA Bonds Pay For?
NRSS 18-2142.04
x) Employing or contracting for personnel, including
administrators for any improvement program under
the Community Development Law, and providing for
any service as may be necessary or proper to carry
out the purposes of the Community Development
Law;
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REGIONAL
PLANNING
What Can the Occupation Tax Cover?
It can be an extra sales tax on all retail transactions
unless otherwise exempted per statute. Typically this
would not exceed 1% or $1 on a $100 purchase.
The occupation tax has to be agreed to by the owners
of the property, the businesses within the EEA and
the City Council.
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REGIONAL
PLANNING
What are the Benefits to the City?
Bonds for redevelopment are revenue bonds not general
obligation bonds and the City has no responsibility to
make payments on those bonds beyond collecting and
administering the taxes collected from businesses in the
EEA.
The bonds do not count against the general indebtedness
of the City.
The bonds can be issued or certified upon completion of
the agreed upon improvements.
Revitalization of targeted areas of the community.
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REGIONAL
PLANNING
What are the Risks to the City?
Litigation with businesses that are not remitting the
occupation tax to the City.
The creation of additional commercial space that can
be leased at a rate lower than current market rate may
impact the marketability and rates for existing
commercial property.
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REGIONAL
PLANNING
What are the Benefits to the Developer?
An income stream from customers who choose to do
business at that location can help offset costs of
redevelopment.
An increased ability to garner financing because of
multiple sources of income generation.
Ability to lease the property more aggressively to get
favored tenants by offering better lease rates.
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REGIONAL
PLANNING
What are the Risks to the Developer?
Consumers may choose to do business in other places
to avoid paying the additional tax.
Existing tenants will choose to relocate in a different
commercial area to avoid collecting the additional
tax.
The bonds may not be marketable or have too high a
discount rate.
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REGIONAL
PLANNING
How to proceed if Council seeks to use this
Development tool
If the area of interest is in a redevelopment area have the
CRA pass a resolution declaring it an EEA.
Have Council pass a confirming resolution declaring it an
EEA. (This is not required but it sets a clear line of
communication and allows Council to take action prior to
considering an Ordinance to implement the Occupation
Tax.)
If the area of interest is not in a redevelopment area; Council
passes a resolution declaring the EEA based on employment
and investment assurances from the developer.
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City of Grand Island
Tuesday, July 29, 2014
Special Meeting/Study Session
Item X1
Strategy Session with Respect to Threatened Litigation
The City Council may hold a closed or Executive Session as permitted by Neb. Rev. Stat. Sec. 84-1410.
Closed sessions may be held for, but shall not be limited to such reasons as:
1. Protection of the public interest.
2. Needless injury to the reputation of an individual.
3. Strategy sessions with respect to
a. collective bargaining,
b. real estate purchases,
c. pending litigation, or
d. imminent or threatened litigation.
4. Discussion regarding deployment of security personnel or devices.
5. For the Community Trust created under Sec. 81-1801.02, discussion regarding the amounts to be
paid to individuals who have suffered from a tragedy of violence or natural disaster.
Staff Contact: Robert J. Sivick, City Attorney
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