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12/11/2001 Ordinances 8706 I I I ORDINANCE NO. ?< 70 (p AN ORDINANCE AUTHORIZING THE ISSUANCE OF VARIOUS PURPOSE BONDS OF THE CITY OF GRAND ISLAND, NEBRASKA, IN THE PRINCIPAL AMOUNT OF FOUR MILLION THREE HUNDRED SEVENTY THOUSAND DOLLARS ($4,370,000) FOR THE PURPOSE OF PAYING THE COSTS OF IMPROVING STREETS AND INTERSECTIONS IN STREET IMPROVEMENT DISTRICT NO. 1221; DIRECTING THE APPLICATION OF THE PROCEEDS OF SAID BONDS; PRESCRIBING THE FORM OF SAID BONDS; PROVIDING FOR THE LEVY AND COLLECTION OF TAXES TO PAY THE SAME; PROVIDING FOR THE SALE OF THE BONDS; AUTHORIZING THE DELIVERY OF THE BONDS TO THE PURCHASER; AND ORDERING THE ORDINANCE PUBLISHED IN PAMPHLET FORM. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF GRAND ISLAND, NEBRASKA: Section 1. The Mayor and Council hereby find and determine: that pursuant to ordinance heretofore duly enacted, Street Improvement District No. 1221 was created in said City and certain street improvements have been constructed in said District and as of the date hereof placed in service, with certain remaining phases of work and certain additional work remaining to be completed; that, based upon current interest market conditions and the amount of work constructed to date, it is necessary and appropriate for the City to proceed with permanent fmancing for certain of the costs incurred to date and to payoff certain note indebtedness incurred by the City to pay costs of improvements in Street Improvement District No. 1221; that the cost of improvements in Street Improvement District No. 1221, incurred to date, as reported by the City's Engineer, is not less than $4,278,695, of which $3,936,399 is District cost and $342,296 is the cost of improving intersections and areas formed by the crossing of streets, avenues or alleys and one-half of the streets adjacent to real estate owned by the City; that additional miscellaneous costs including interest on warrants or note indebtedness and issuance costs (including bond insurance premium and underwriter's discount) have been or are being incurred for said improvements; that special assessments have been or shall be levied according to law on the real estate in said District specially benefited by said improvements and such special assessments are (or shall be) valid liens on the lots and tracts of land upon which they are I I I assessed; that after applying funds available for such purpose, there still remains due and payable from the City on the district costs not less than $4,020,000 and on the intersection costs not less than $350,000; that all conditions, acts and things required by law to exist or to be done precedent to the issuance of Intersection Improvement Bonds in the amount of $350,000 pursuant to Section 16-626 R.R.S. Neb. 1997, and to the issuance of Street Improvement Bonds of said District in the amount of $4,020,000 pursuant to Section 16-623 R.RS. Neb. 1997, do exist and have been done as required by law. Section 2. The Mayor and Council of the City of Grand Island, Nebraska, further find and determine: That all conditions, acts and things required to exist or to be done precedent to the issuance of Various Purpose Bonds of the City of Grand Island, Nebraska, in the principal amount of Four Million Three Hundred Seventy Thousand Dollars ($4,370,000) under Sections 18-1801 and 18-1802 RRS. Neb. 1997, as amended, to pay the costs mentioned in Section 1 hereof do exist and have been done as required by law. Section 3. For the purpose described in Section 1, there shall be and there are hereby ordered issued, Various Purpose Bonds of the City of Grand Island, Nebraska, in the principal amount of Four Million Three Hundred Seventy Thousand Dollars ($4,370,000) (the "Series 2002 Bonds") with said bonds bearing interest at the rates per annum (said interest to be computed on the basis of a 360-day year consisting of twelve 30-day months) and maturing on December 15 of each year in the principal amounts as follows: 2 Principal Interest I Amount Date o.fMaturity Rate $220,000 December 15,2003 2.50% 230,000 December 15, 2004 2.95 235,000 December 15, 2005 3.30 250,000 December 15,2006 3.60 250,000 December 15, 2007 3.90 260,000 December 15, 2008 4.10 270,000 December 15, 2009 4.20 285,000 December 15, 2010 4.30 295,000 December 15, 2011 4.40 310,000 December 15, 2012 4.50 320,000 December 15,2013 4.65 330,000 December 15,2014 . 4.75 355,000 December 15, 2015 4.85 370,000 December 15, 2016 4.95 390,000 December 15, 2017 5.00 I I The Series 2002 Bonds shall be issued in fully registered form in the denomination of $5,000 or any integral multiple thereof. The date of original issue for the Series 2002 Bonds shall be the date of delivery thereof. Interest on the Series 2002 Bonds, at the respective rates for each maturity, shall be payable on June 15, 2002, and semiannually thereafter on December 15 and June 15 of each year (each of said dates an "Interest Payment Date") and the Series 2002 Bonds shall bear such interest from the date of original issue or the most recent Interest Payment Date, whichever is later. The interest due on each Interest Payment Date shall be payable to the registered owners of record as of the close of business on the last business day of the month immediately preceding the month in which the Interest Payment Date occurs (the "Record Date"), subject to the provisions of Section 5 hereof. The Series 2002 Bonds shall be numbered from 1 upwards in the order of their issuance. No Series 2002 Bond shall be issued originally or upon transfer or partial redemption having more than one principal maturity. The initial bond numbering and principal amounts for each of the Series 2002 Bonds issued shall be designated by the City's Treasurer as directed by the initial purchaser thereof. Payments of interest due on the Series 2002 Bonds prior to maturity or date of redemption shall be made by the Paying Agent and Registrar, as designated pursuant to Section 4 hereof, by mailing a check or draft in the 3 I I I amount due for such interest on each Interest Payment Date to the registered owner of each Series 2002 Bond, as of the Record Date for such Interest Payment Date, to such owner's registered address as shown on the books of registration as required to be maintained in Section 4 hereof. Payments of principal and accrued interest thereon due at maturity or at any date fixed for redemption prior to maturity shall be made by said Paying Agent and Registrar to the registered owners upon presentation and surrender of the Series 2002 Bonds to said Paying Agent and Registrar. The City and said Paying Agent and Registrar may treat the registered owner of any Series 2002 Bond as the absolute owner of such Series 2002 Bond for the purpose of making payments thereon and for all other purposes and neither the City nor the Paying Agent and Registrar shall be affected by any notice or knowledge to the contrary, whether such Series 2002 Bond or any installment of interest due thereon shall be overdue or not. All payments on account of interest or principal made to the registered owner of any Series 2002 Bond in accordance with the terms of this Ordinance shall be valid and effectual and shall be a discharge of the City and said Paying Agent and Registrar, in respect of the liability upon the Series 2002 Bonds or claims for interest to the extent ofthe sum or sums so paid. Section 4. Cornerstone Bank, National Association, York, Nebraska, is hereby designated as Paying Agent and Registrar for the Series 2002 Bonds. Said Paying Agent and Registrar shall serve in such capacities under the terms of an agreement entitled "Paying Agent and Registrar's Agreement" between the City and said Paying Agent and Registrar, the form of which is hereby approved. The Mayor and City Clerk are hereby authorized to execute said agreement in substantially the form presented but with such changes as they shall deem appropriate or necessary. The Paying Agent and Registrar shall keep and maintain for the City books for the registration and transfer of the Series 2002 Bonds at its principal corporate trust office. The names and registered addresses of the registered owner or owners of the Series 2002 Bonds shall at all times be recorded in such books. Any Series 2002 Bond may be transferred pursuant to its provisions at the principal corporate trust office of said Paying Agent and Registrar by surrender of such Series 2002 Bond for cancellation, accompanied by a written 4 I I I instrument of transfer, in form satisfactory to said Paying Agent and Registrar~ duly executed by the registered owner in person or by such owner's duly authorized agent, and thereupon the Paying Agent and Registrar on behalf of the City will deliver at its office (or send by registered mail to the transferee owner or owners thereof at such transferee owner's or owners' risk and expense), registered in the name of such transferee owner or owners, a new Series 2002 Bond or Series 2002 Bonds of the same interest rate, aggregate principal amount and maturity. To the extent of the denominations authorized for the Series 2002 Bonds by this Ordinance, one such bond may be transferred for several such bonds of the same interest rate and maturity, and for a like aggregate principal amount, and several such bonds may be transferred for one or several such bonds, respectively, of the same interest rate and maturity and for a like aggregate principal amount. In every case of transfer of a Series 2002 Bond, the surrendered Series 2002 Bond or Bonds shall be canceled and destroyed. All Series 2002 Bonds issued upon transfer of the Series 2002 Bonds so surrendered shall be valid obligations of the City evidencing the same obligations as the Series 2002 Bonds surrendered and shall be entitled to all the benefits and protection of this Ordinance to the same extent as the Series 2002 Bonds upon transfer of which they were delivered. The City and said Paying Agent and Registrar shall not be required to transfer any Series 2002 Bond during any period from any Record Date until its immediately following Interest Payment Date or to transfer any Series 2002 Bond called for redemption for a period of 30 days next preceding the date fixed for redemption. Section 5. In the event that payments of interest due on the Series 2002 Bonds on an Interest Payment Date are not timely made, such interest shall cease to be payable to the registered owners as of the Record Date for such Interest Payment Date and shall be payable to the registered owners of the Series 2002 Bonds as of a special date of record for payment of such defaulted interest as shall be designated by the Paying Agent and Registrar whenever monies for the purpose of paying such defaulted interest become available. Section 6. If the date for payment of the principal of or interest on the Series 2002 Bonds shall be a Saturday, Sunday, legal holiday or a day on which banking institutions in the 5 I I I city where the principal corporate trust office of the Paying Agent and Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not a Saturday, Sunday, legal holiday or a day on which such banking institutions are authorized to close, and payment on such day shall have the same force and effect as if made on the nominal date of payment. Section 7. Series 2002 Bonds maturing December 15, 2007 and thereafter shall be subject to redemption, in whole or in part, prior to maturity at any time on or after January 15, 2007, at par plus accrued interest on the principal amount redeemed to the date fixed for redemption. The City may select the Series 2002 Bonds to be redeemed in its sole discretion but the Series 2002 Bonds shall be redeemed only in amounts of $5,000 or integral multiples thereof. Series 2002 Bonds redeemed in part only shall be surrendered to said Paying Agent and Registrar in exchange for new Series 2002 Bonds evidencing the unredeemed principal thereof. Notice of redemption of any Series 2002 Bond called for redemption shall be given at the direction of the City by said Paying Agent and Registrar by mail not less than 30 days prior to the date fixed for redemption, first class, postage prepaid, sent to the registered owner of such Series 2002 Bond at said owner's registered address. Such notice shall designate the Series 2002 Bond or Series 2002 Bonds to be redeemed by maturity or otherwise, the date of original issue and the date fixed. for redemption and shall state that such Series 2002 Bond or Series 2002 Bonds are to be presented for prepayment at the office of said Paying Agent and Registrar. In case of any Series 2002 Bond partially redeemed, such notice shall specify the portion of the principal amount of such Series 2002 Bond to be redeemed. No defect in the mailing of notice for any Series 2002 Bond shall affect the sufficiency of the proceedings of the City designating the Series 2002 Bonds called for redemption or the effectiveness of such call for Series 2002 Bonds for which notice by mail has been properly given and the City shall have the right to further direct notice of redemption for any such Series 2002 Bond for which defective notice has been given. Section 8. The Series 2002 Bonds shall be in substantially the following form: 6 I I I UNITED STATES OF AMERICA STATE OF NEBRASKA COUNTY OF HALL VARIOUS PURPOSE BOND OF THE CITY OF GRAND ISLAND, NEBRASKA SERIES 2002 No. $ Interest Rate Maturity Date December 15, Cusip No. Date of Original Issue Registered Owner: Principal Amount: Dollars ($ ) KNOW ALL PERSONS BY THESE PRESENTS: That the City of Grand Island, in the County of Hall, in the State of Nebraska, hereby acknowledges itself to owe and for value received promises to pay to the registered owner specified above, or registered assigns, the principal amount specified above in lawful money of the United States of America on the date of maturity specified above with interest thereon to maturity (or earlier redemption) from the date of original issue or most recent Interest Payment Date, whichever is later, at the rate per annum specified above, payable on June 15 and December 15 of each year commencing June 15,2002 (each of said dates an "Interest Payment Date"). Said interest shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The principal hereof and unpaid accrued interest hereon due at maturity or upon earlier redemption are payable upon presentation and surrender of this bond at the principal corporate trust office of Cornerstone Bank, National Association, the Paying Agent and Registrar, in York, Nebraska. Interest on this bond due prior to maturity or earlier redemption will be paid on each Interest Payment Date by a check or draft mailed by the Paying Agent and Registrar to the registered owner of this bond, as shown on the books of record maintained by the Paying Agent and Registrar, at the close of business on the last business day of the month immediately preceding the month in which the Interest Payment Date occurs, to such owner's registered address as shown on such books and records. Any interest not so timely paid shall cease to be payable to the person entitled thereto as of the record date such interest was payable, and shall be payable to the person who is the registered owner of this bond (or of one or more predecessor bonds hereto) on such special record date for payment of such defaulted interest as shall be fixed by the Paying Agent and Registrar whenever monies for such purpose become available. For the prompt payment of this bond, principal and interest, as the same become due, the full faith, credit and resources of said City are hereby irrevocably pledged. This bond is one of an issue of fully registered bonds of the total principal amount of Four Million Three Hundred Seventy Thousand Dollars ($4,370yOOO), of even date and like tenor except as to date of maturity, rate of interest and denomination which were issued by the City for the purpose of paying part of the costs of improving streets and alleys, intersections and areas 7 I I I formed by the crossing of streets, avenues or alleys and streets adjacent to real estate owned by the City in Street Improvement District No. 1221, all in strict compliance with Sections 16-623, 16-626, 18-1801 and 18-1802, R.R.S. Neb. 1997, as amended. The issuance of said bonds has been authorized by proceedings duly had and an ordinance legally passed, approved and published by the Mayor and Council of said City. Bonds of this issue maturing December 15,2007 and thereafter are subject to redemption at the option of the City, in whole or in part, at any time on or after January 15, 2007, at par plus interest accrued on the principal amount redeemed to the date fixed for redemption. Notice of redemption shall be given by mail to the registered owner of any bond to be redeemed at said registered owner's address in the manner specified in the ordinance authorizing said issue of bonds. Individual bonds may be redeemed in part but only in $5,000 amounts or integral multiples thereof. This bond is transferable by the registered owner or such owner's attorney duly authorized in writing at the office of the Paying Agent and Registrar upon surrender and cancellation of this bond, and thereupon a new bond or bonds of the same aggregate principal amount, interest rate and maturity will be issued to the transferee as provided in the ordinance authorizing said issue of bonds, subject to the limitations therein prescribed. The City, the Paying Agent and Registrar and any other person may treat the person in whose name this bond is registered as the absolute owner hereof for the purpose of receiving payment due hereunder and for all purposes and shall not be affected by any notice to the contrary, whether this bond be overdue or not. If the date for payment of the principal of or interest on this bond shall be a Saturday, Sunday, legal holiday or a day on which banking institutions in the city where the principal corporate trust office of the Paying Agent and Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not a Saturday, Sunday, legal holiday or a day on which such banking institutions are authorized to close, and payment on such day shall have the same force and effect as if made on the nominal date of payment. IT IS HEREBY CERTIFIED AND WARRANTED that all conditions, acts and things required by law to exist or to be done precedent to and in the issuance of this bond did exist, did happen and were done and performed in regular and due form and time as required by law and that the indebtedness of said City, including this bond, does not exceed any limitation imposed by law. The special assessments levied or to be levied upon real estate specially benefited by the improvements in said district, when collected, shall be set aside and constitute a sinking fund for the payment of the principal and interest of this bond and the bonds of this issue; the City agrees that it will collect said special assessments and, in addition thereto, will cause to be levied and collected annually a tax by valuation on all the taxable property in the City, in addition to all other taxes, sufficient in rate and amount to make up the deficiency between the amounts collected on said special assessments and the amount required to fully pay the principal and interest of said bonds as the same become due. 8 I I I AS PROVIDED IN THE ORDINANCE REFERRED TO HEREIN, UNTIL THE TERMINATION OF THE SYSTEM OF BOOK-ENTRY-ONL Y TRANSFERS THROUGH THE DEPOSITORY TRUST COMPANY, NEW YORK, NEW YORK (TOGETHER WITH ANY SUCCESSOR SECURITIES DEPOSITORY APPOINTED PURSUANT TO THE ORDINANCE, "DTC"), AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THE ORDINANCE TO THE CONTRARY, A PORTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE PAID OR REDEEMED WITHOUT SURRENDER HEREOF TO THE PAYING AGENT AND REGISTRAR. DTC OR A NOMINEE, TRANSFEREE OR ASSIGNEE OF DTC OF THIS BOND MAY NOT RELY UPON THE PRINCIPAL AMOUNT INDICATED HEREON AS THE PRINCIPAL AMOUNT HEREOF OUTSTANDING AND UNPAID. THE PRINCIPAL AMOUNT HEREOF OUTSTANDING AND UNPAID SHALL FOR ALL PURPOSES BE THE AMOUNT DETERMINED IN THE MANNER PROVIDED IN THE ORDINANCE. UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED OFFICER OF DTC (A) TO THE PAYING AGENT AND REGISTRAR FOR REGISTRATION OF TRANSFER OR EXCHANGE OR (B) TO THE PAYING AGENT AND REGISTRAR FOR PAYMENT OF PRINCIPAL, AND ANY BOND ISSUED IN REPLACEMENT HEREOF OR SUBSTITUTION HEREOF IS REGISTERED IN THE NAME OF DTC AND ANY PAYMENT IS MADE TO DTC OR ITS NOMINEE, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSONS IS WRONGFUL BECAUSE ONLY THE REGISTERED OWNER HEREOF, DTC OR ITS NOMINEE, HAS AN INTEREST HEREIN. This bond shall not be valid and binding on the City until authenticated by the Paying Agent and Registrar. IN WITNESS WHEREOF, the Mayor and Council of the City of Grand Island, Nebraska, have caused this bond to be executed on behalf of the City with the facsimile signatures of the Mayor and. the City Clerk and by causing the official seal of the City to be imprinted hereon or affixed hereto, all as of the date of original issue specified above. CITY OF GRAND ISLAND, NEBRASKA Mayor ATTEST: City Clerk (SEAL) 9 I I I CERTIFICATE OF AUTHENTICATION This bond is one of the bonds authorized by the Ordinance of the Mayor and City Council of the City of Grand Island, in the State of Nebraska, described in the foregoing bond. Cornerstone Bank, National Association, York, Nebraska Paying Agent and Registrar By: Authorized Signature (Form of Assignment) For value received hereby sells, assigns and transfers unto _ (Social Security or Taxpayer I.D. No. _ ) the within bond and hereby irrevocably constitutes and appoints _ , attorney, to transfer the same on the books of registration in the office of the within mentioned Paying Agent and Registrar with full power of substitution in the premises. Dated: Registered Owner(s) Signature Guaranteed By Authorized Officer(s) . Note: The signature(s) on this assignment MUST CORRESPOND with the name(s) as written on the face of the within bond in every particular, without alteration, enlargement or any change whatsoever, and must be guaranteed by a commercial bank or a trust company or by a firm having membership on the New York, Midwest or other stock exchange. 10 I I I STATEMENT OF INSURANCE MBIA Insurance Corporation (the "Insurer") has issued a policy containing the following provisions, such policy being on file at Cornerstone Bank:, National Association, York, Nebraska. The Insurer, in consideration of the payment of the premium and subject to the terms of this policy, hereby unconditionally and irrevocably guarantees to any owner, as hereinafter defmed, of the following described obligations, the full and complete payment required to be made by or on behalf of the Issuer to Cornerstone Bank, National Association, York, Nebraska or its successor (the "Paying Agent") of an amount equal to (i) the principal of (either at the stated maturity or by any advancement of maturity pursuant to a mandatory sinking fund payment) and interest on, the Obligations (as that term is defmed below) as such payments shall become due but shall not be so paid (except that in the event of any acceleration of the due date of such principal by reason of mandatory or optional redemption or acceleration resulting from default or otherwise, other than any advancement of maturity pursuant to a mandatory sinking fund payment, the payments guaranteed hereby shall be made in such amounts and at such times as such payments of principal would have been due had there not been any such acceleration); and (ii) the reimbursement of any such payment which is subsequently recovered from any owner pursuant to a final judgment by a court of competent jurisdiction that such payment constitutes an avoidable preference to such owner within the meaning of any applicable bankruptcy law. The amounts referred to in clauses (i) and (ii) of the preceding sentence shall be referred to herein collectively as the "Insured Amounts." "Obligations" shall mean: $4,370,000 CITY OF GRAND ISLAND, NEBRASKA VARIOUS PURPOSE BONDS, SERIES 2002 Upon receipt of telephonic or telegraphic notice, such notice subsequently confirmed in writing by registered or certified mail, or upon receipt of written notice by registered or certified mail, by the Insurer from the Paying Agent or any owner of an Obligation the paymenf of an Insured Amount for which is then due, that such required payment has not been made, the Insurer on the due date of such payment or within one business day after receipt of notice of such nonpayment, whichever is later, will make a deposit of funds, in an account with State Street Bank and Trust Company, N.A., in New York, New York, or its successor, sufficient for the payment of any such Insured Amounts which are then due. Upon presentment and surrender of such Obligations or presentment of such other proof of ownership of the Obligations, together with any appropriate instruments of assignment to evidence the assignment of the Insured Amounts due on the Obligations as are paid by the Insurer, and appropriate instruments to effect the appointment of the Insurer as agent for such owners of the Obligations in any legal proceeding related to payment of Insured Amounts on the Obligations, such instruments being in a form satisfactory to State Street Bank and Trust Company, N.A., State Street Bank and Trust Company, N.A. shall disburse to such owners or the Paying Agent payment of the Insured Amounts due on such Obligations, less any amount held by the Paying Agent for the payment of such Insured Amounts and legally available therefor. This policy does not insure against loss of any prepayment premium which may at any time be payable with respect to any Obligation. As used herein, the term "owner" shall mean the registered owner of any Obligation as indicated in the books maintained by the Paying Agent, the Issuer, or any designee of the Issuer for such purpose. 11 I I I The term owner shall not include the Issuer or any party whose agreement with the Issuer constitutes the underlying security for the Obligations. Any service of process on the Insurer may be made to the Insurer at its offices located at 113 King Street, Armonk, New York 10504 and such service of process shall be valid and binding. This policy is non-cancellable for any reason. The premium on this policy is not refundable for any reason including the payment prior to maturity of the Obligations. MBIA INSURANCE CORPORATION STD-R-1 12 I I I Section 9. Each of the Series 2002 Bonds shall be executed on behalf of the City with the facsimile signatures of the Mayor and the City Clerk and shall have imprinted thereon the City's seal. The Series 2002 Bonds shall be issued initially as "book-entry-only" bonds under the services of The Depository Trust Company (the "Depository"), with one typewritten bond per maturity being issued to the Depository. In such connection said officers are authorized to execute and deliver a Letter of Representations (the "Letter of Representations") in the form required by the Depository (which may be in the form of a blanket letter, including any such letter previously executed and delivered), for and on behalf of the City, which shall thereafter govern matters with respect to registration, transfer, payment and redemption of the Series 2002 Bonds. With respect to the issuance of the Series 2002 Bonds as "book-entry-only" bonds, the following provisions shall apply: (a) The City and the Paying Agent and Registrar shall have no responsibility or obligation to any broker-dealer, bank or other financial institution for which the Depository holds Series 2002 Bonds as securities depository (each, a "Bond Participant") or to any person who is an actual purchaser of a Series 2002 Bond from a Bond Participant while the Series 2002 Bonds are in book-entry form (each, a "Beneficial Owner") with respect to the following: (i) the accuracy ofthe records of the Depository, any nominees of the Depository or any Bond Participant with respect to any ownership interest in the Series 2002 Bonds, (ii) the delivery to any Bond Participant, any Beneficial Owner or any other person, other than the Depository, of any notice with respect to the Series 2002 Bonds, including any notice of redemption, or (iii) the payment to any Bond Participant, any Beneficial Owner or any other person, other than the Depository, of any amount with respect to the Series 2002 Bonds. The Paying Agent and Registrar shall make payments with respect to the Series 2002 Bonds only to or upon the order of the Depository or its nominee, and all such payments shall be valid and effective fully to satisfy and discharge the obligations with respect to such Series 2002 Bonds to the extent of the sum or sums so paid. No person other than the Depository shall receive an authenticated Bond, except as provided in (e) below. (b) Upon receipt by the Paying Agent and Registrar of written notice from the Depository to the effect that the Depository is unable or unwilling to discharge its 13 I I I responsibilities, the Paying Agent and Registrar shall issue, transfer and exchange Series 2002 Bonds requested by the Depository in appropriate amounts. Whenever the Depository requests the Paying Agent and Registrar to do so, the Paying Agent and Registrar will cooperate with the Depository in taking appropriate action after reasonable notice (i) to arrange, with the prior written consent of the City, for a substitute depository willing and able upon reasonable and customary terms to maintain custody of the Series 2002 Bonds or (ii) to make available Series 2002 Bonds registered in whatever name or names as the Beneficial Owners transferring or exchanging such Series 2002 Bonds shall designate. (c) If the City determines that it is desirable that certificates representing the Series 2002 Bonds be delivered to the ultimate beneficial owners ofthe Series 2002 Bonds and so notifies the Paying Agent and Registrar in writing, the Paying Agent and Registrar shall so notify the Depository, whereupon the Depository will notify the Bond Participants of the availability through the Depository of bond certificates representing the Series 2002 Bonds. In such event, the Paying Agent and Registrar shall issue, transfer and exchange bond certificates representing the Series 2002 Bonds as requested by the Depository in appropriate amounts and in authorized denominations. (d) Notwithstanding any other provision of this Ordinance to the contrary, so long as any Series 2002 Bond is registered in the name of the Depository or any nominee thereof, all payments with respect to such Series 2002 Bond and all notices with respect to such Series 2002 Bond shall be made and given, respectively, to the Depository as provided in the Letter of Representations. J "- (e) Registered ownership of the Series 2002 Bonds may be transferred on the books of registration maintained by the Paying Agent and Registrar, and the Series 2002 Bonds may be delivered in physical form to the following: (i) any successor securities depository or its nominee; (ii) any person, upon (A) the resignation of the Depository from its functions as depository or (B) termination of the use ofthe Depository pursuant to this Section and the terms of the Paying Agent and Registrar's Agreement. (f) In the event of any partial redemption of a Series 2002 Bond unless and until such partially redeemed bond has been replaced in accordance with the provisions of this Ordinance, the books and records of the Paying Agent and Registrar shall govern and establish the principal amount of such bond as is then outstanding and all of the Series 2002 Bonds issued to the Depository or its nominee shall contain a legend to such effect. If for any reason the Depository resigns and is not replaced, the City shall immediately provide a supply of printed bond certificates for issuance upon the transfers from the Depository and subsequent transfers or in the event of partial redemption. In the event that such supply of certificates shall be insufficient to meet the requirements of the Paying Agent and Registrar for 14 I I I issuance of replacement certificates upon transfer or partial redemption, the City agrees to order printed an additional supply of such certificates and to direct their execution by manual or facsimile signatures of its then duly qualified and acting Mayor and City Clerk and by imprinting thereon or affixing thereto the City's seal. In case any officer whose signature or facsimile thereof shall appear on any Series 2002 Bond shall cease to be such officer before the delivery of such bond (including such certificates delivered to the Paying Agent and Registrar for issuance upon transfer or partial redemption), such signature or such facsimile signature shall nevertheless be valid and sufficient for all purposes the same as if such officer or officers had remained in office until the delivery of such bond. The Series 2002 Bonds shall not be valid and binding on the City until authenticated by the Paying Agent and Registrar. Thereafter the Series 2002 Bonds shall be delivered to the Paying Agent and Registrar for registration and authentication. . Upon execution, registration and authentication of the Series 2002 Bonds, they shall be delivered to the City Treasurer, who is authorized to deliver them to Ameritas Investment Corp., as initial purchaser thereof, upon receipt of98.75% of the principal amount of the Series 2002 Bonds plus accrued interest thereon to date of payment for the Series 2002 Bonds. The officers of the City (or anyone of them) are hereby authorized to execute and deliver the Bond Purchase Agreement for and on behalf of the City. Said initial purchaser shall have the right to direct the registration of the Series 2002 Bonds and the denominations thereof within each maturity, subject to the restrictions of this Ordinance. The City Clerk shall make and certify a transcript of the proceedings of the Mayor and Council with respect to the Series 2002 Bonds which shall be delivered to said purchaser. The Series 2002 Bonds are being sold to Ameritas Investment Corp. on the basis of bond insurance to be provided under a Financial Guaranty Insurance Policy (the ''Policy'') provided by MBIA Insurance Corporation (the "Insurer") which is to be issued pursuant to a Commitment to Issue a Financial Guaranty Insurance Policy-Application No.: 2001-010053- 01 (as now or hereafter amended, the "Commitment"). The premium for such insurance shall be paid from the proceeds of the Series 2002 Bonds and is hereby authorized to be sent by wire directly by Ameritas Investment Corp. to the Insurer in connection with the closing of the purchase 15 I I I of the Series 2002 Bonds. The execution and delivery of the Commitment on behalf of the City are hereby approved. Section 10. The proceeds of the Series 2002 Bonds shall be applied to the payment of costs as described in Section 1 hereof, including the payment at maturity of the City's Bond Anticipation Notes, Series 2000, issued and outstanding in the principal amount of $3,340,000 (the "2000 Notes") and reimbursement to the City for a part of the principal paid off on the City's Bond Anticipation Notes, Series 1999, issued and outstanding in the principal amount of $1,420,000 (the "1999 Notes"), as advanced from funds of the City to pay such 1999 Notes, as they matured, each as incurred for the payment of costs as referred to in Section 1 of this Ordinance and reimbursement to the City for other costs advanced and to pay issuance costs. Accrued interest, if any, received from the sale of the Series 2002 Bonds shall be applied to pay interest falling due on said Series 2002 Bonds on June 15, 2002. Expenses of issuance of the Series 2002 Bonds may be paid from the proceeds of the Series 2002 Bonds. The 2000 Notes shall be paid in full from the proceeds of the Series 2002 Bonds. The City hereby declares its intent to further reimburse itself for any principal amount paid on the 1999 Notes which is not reimbursed from the proceeds ofthe Series 2002 Bonds, up to the full amount of $1,420,000. Section 11. The special assessments to be levied for the improvements as described in Section 1 of this Ordinance and the interest on said assessments shall constitute a sinking fund for the payment of the principal and interest of the Series 2002 Bonds. The City agrees that it will collect said special assessments and, in addition thereto, shall cause to be levied and collected annually a special levy of taxes on all the taxable property in the City, in addition to all other taxes, sufficient in rate and amount to make up the deficiency between the amounts collected on said special assessments and the amount required to fully pay the principal and interest ofthe Series 2002 Bonds when and as such principal and interest become due. Section 12.. The City hereby covenants to the purchasers and holders of the Series 2002 Bonds hereby authorized that it will make no use of the proceeds of said bond issue, including monies held in any sinking fund for the Series 2002 Bonds, which would cause the Series 2002 16 I I I Bonds to be arbitrage bonds within the meaning of Sections 103(b) and 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and further covenants to comply with said Sections 103(b) and 148 and all applicable regulations thereunder throughout the term of said bond issue. The City hereby covenants and agrees to take all actions necessary under the Code to maintain the tax exempt status (as to taxpayers generally) of interest payable on the Series 2002 Bonds. The Mayor and Council hereby determine and warrant for the benefit of the registered owners (including Beneficial Owners) of the Series 2002 Bonds that $3,340,000 in principal amount of the Series 2002 Bonds are to be treated as the City's "qualified tax-exempt obligations" (as deemed designated) based upon the following determinations which are hereby made: (1) such portion of the Series 2002 Bonds are not to be taken into account under subparagraph (C) of Sec. 265(b )(3) of the Code by reason of clause (ii)(IIT) thereof because they constitute obligations issued to refund (other than to advance refund within the meaning of Section 149( d)( 5) of the Code) other obligations to the extent that the amount of such portion of the Bonds ($3,340,000) does not exceed the outstanding amount of the refunded obligations (the 2000 Notes in the principal amount of $3,340,000); (2) the average maturity of the 2000 Notes was less than 3 years; and (3) the final maturity date of the Series 2002 Bonds is not later than 30 years after the date of the incurring of the original indebtedness evidenced by the 2000 Notes. The City agrees to take all further actions, if any, necessary to qualifY such portion of the. Series 2002 Bonds herein authorized as such "qualified tax-exempt obligations," and "deemed designated" as and to the extent permitted by law. With respect to the balance of the principal amount of the Series 2002 Bonds, the City hereby designates such portion of the Series 2002 Bonds in the principal amount of $1,030,000 as its "qualified tax-exempt obligations" under Section 265 (b)(3)(B)(i)(IIT) of the Internal Revenue Code of 1986, as amended, and covenants and warrants that it does not reasonably anticipate issuance of tax-exempt bonds or other tax-exempt obligations aggregating in principal amount more than $10,000,000 during calendar 2002, taking into consideration statutory exceptions relating to refunding issues and private activity bonds. The City 17 I I I agrees to take all further actions, if any, necessary to qualifY the Series 2002 Bonds herein authorized as such "qualified tax-exempt obligations," as and to the extent permitted by law. The officers of the City or anyone of them are hereby authorized to make allocations of bonds and proceeds to the various purposes of the Series 2002 Bonds under applicable regulations of the United States Treasury, consistent with the terms of this Ordinance. Section 13. The City's obligations under this Ordinance with respect to any or all of the Series 2002 Bonds herein authorized shall be fully discharged and satisfied as to any or all of such Series 2002 Bonds and any such Series 2002 Bond shall no longer be deemed to be outstanding hereunder if such Series 2002 Bond has been purchased by the City and canceled or when the 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 for the Series 2002 Bonds 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) direct general obligations (including obligations issued or held in book entry form on the books of the Department of Treasury of the United States of America) of or obligations the principal and interest of which are unconditionally guaranteed by the United States of America (herein referred to as "U.S..Government Obligations") 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 Series 2002 Bond to be paid prior to maturity, the City shall have duly called such bond for redemption and given notice of such redemption as provided by law or made irrevocable provision for the giving of such notice. Any money so deposited with such bank or. trust company or with the Paying Agent and Registrar may be invested or reinvested in U.S. Government Obligations at the direction of the City, and all interest and income from U.S. Government Obligations 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 18 I I I Series 2002 Bonds for which such monies or U.S. Government Obligations were deposited shall be paid over to the City as and when collected. Section 14. In accordance with the requirements of Rule 15c2-12 (the "Rule") promulgated by the Securities and Exchange Commission, the City hereby agrees that it will provide the following continuing disclosure information: (a) to each nationally recognized municipal securities information repository (a "NRMSIR") and to the Underwriter, the City shall provide annual financial and operating information generally consistent with the information set forth under the heading "FINANCIAL STATEMENT" in the Official Statement for said bonds and its audited financial statements; such information is expected to be available not later than seven months after the end of each fiscal year for the City. Audited financial information shall be provided for governmental and fiduciary fund types based on the modified accrual basis and as to proprietary fund types on an accrual basis in accordance with generally accepted accounting principles; (b) in a timely manner to each NRMSIR or to the Municipal Securities Rule Making Board ("MSRB"), notice of the occurrence of any of the following events with respect to the Series 2002 Bonds, if in the judgment of the City, such event is material: (1) principal and interest payment delinquencies, (2) non-payment related defaults, (3) unscheduled draws on debt service reserves reflecting financial difficulties (there are no debt service reserves established for the Series 2002 Bonds under the terms ofthe Ordinance), (4) unscheduled draws on credit enhancements reflecting financial difficulties; (5) substitution of credit or liquidity providers, or their failure to perform; - (6) adverse tax opinions or events affecting the tax-exempt statUs of the Series 2002 Bonds, (7) modifications to rights ofthe Bondholders, (8) bond calls, (9) defeasances, 19 I I I (10) release, substitution, or sale of property securing repayment of the Series 2002 Bonds, and (11) rating changes. The City has not undertaken to provide notice of the occurrence of any other material event, except the events listed above. (c) in a timely manner to each NRMSIR or to the Municipal Securities Rule Making Board ("MSRB") notice of any failure on the part of the City to provide required annual financial information not later than seven months from the close of the City's fiscal year. The City reserves the right to modify from time to time the specific types of information provided or the format of the presentation of such information, to the extent necessary or appropriate in the judgment of the City, consistent with the Rule. The City hereby agrees that such covenants are for the benefit of the registered owners of the Series 2002 Bonds (including Beneficial Owners) and that such covenants may be enforced by any registered owner or Beneficial Owner, provided that any such right to enforcement shall be limited to specific enforcement of such undertaking and any failure shall not constitute an event of default under the Ordinance. The continuing disclosure obligations of the City under the Ordinance, as described above, shall cease when none of the Series 2002 Bonds remain outstanding. Section 15. The Preliminary Official Statement is hereby approved and deemed final as of its date and the Mayor and City Clerk are hereby authorized to approve on behalf of the City a final Officia.l Statement with any changes deemed appropriate by them. Section 16. This Ordinance shall be in force and take effect from and after its passage and publication in pamphlet form as provided by law. 20 I I I Passed and approved this \ \ % dayof UCJL,(V\, Wr ,2001. M~~ Attest: Qf\~ 9n~~ City Clerk (SEAL) 21