05/20/2003 Ordinances 8811
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ORDINANCE NO. ~ ~ I ,
AN ORDINANCE OF THE CITY OF GRAND ISLAND, NEBRASKA, AUTHORIZING THE
ISSUANCE OF SEWER SYSTEM REVENUE AND REFUNDING BONDS, SERIES 2003, OF THE
CITY OF GRAND ISLAND, NEBRASKA, IN THE PRINCIPAL AMOUNT OF FIFTEEN MILLION
NINE HUNDRED SEVENTY THOUSAND DOLLARS ($15,970,000) FOR THE PURPOSE OF
REFUNDING $12,140,000 OF THE CITY'S OUTSTANDING SEWER SYSTEM REVENUE BONDS,
SERIES 1994, AND TO PAY COSTS OF CONSTRUCTING ADDITIONS AND IMPROVEMENTS
TO THE CITY'S SEWER SYSTEM; PRESCRIBING THE FORM, TERMS AND DETAILS OF SAID
BONDS; PLEDGING AND HYPOTHECATING THE REVENUES AND EARNINGS OF THE
SANITARY SEWER SYSTEM OF SAID CITY FOR THE PAYMENT OF SAID BONDS AND
INTEREST THEREON AND PROVIDING FOR THE COLLECTION, SEGREGATION AND
APPLICATION OF THE REVENUE OF SAID SANITARY SEWER SYSTEM; ENTERING INTO A
CONTRACT WITH THE REGISTERED OWNERS OF SAID BONDS; PROVIDING FOR THE SALE
OF SAID BONDS; PROVIDING FOR THE APPLICATION OF THE PROCEEDS OF SAID BONDS;
AUTHORIZING THE DELNERY OF SAID BONDS TO THE PURCHASER AND PROVIDING FOR
THE PUBLICATION OF THE ORDINANCE IN PAMPHLET FORM.
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 City has issued and outstanding the following revenue bonds which are
a lien upon and secured by a pledge of the revenue and earnings of the Sewer System:
Sewer System Revenue Bonds, Series 1994, Date of Original Issue -
April 1, 1994, issued pursuant to Ordinance No. 7992 of the City, of which
$12,140,000 in principal amount are presently outstanding (the "Series 1994
Bonds");
The Series 1994 Bonds are callable for redemption on or after October 1, 2004, at a
redemption price of 101 % of the principal amount thereof, plus accrued interest to date
of redemption.
(c) Series 1994 Bonds maturing April 1, 2004 in the principal amount of
$825,000 shall be paid off as they mature. Series 1994 Bonds in the principal amount of
$11,315,000 maturing serially April 1, 2005 through and including April 1, 2009, and
term bonds maturing April 1, 2014, have been called for redemption on October 1,2004,
at a redemption price of 101 % of the principal amount thereof. Said bonds are herein
referred to as the "Refunded Bonds." In order to effect a savings in interest costs, it is
necessary and advisable for the City to provide for payment in full of the Refunded
Bonds prior to and as called for redemption on October 1, 2004, through the issuance of
refunding bonds in the principal amount of $12,620,000
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(d) That it is necessary and advisable for the City to construct additions and
improvements to the Sewer System (collectively, the "2003 Project") for which the
estimated total cost is not less than $3,350,000.
(e) The Refunded Bonds represent the only indebtedness of the City for which
the revenues and earnings of the Sewer System have been pledged.
(f) To satisfy the funding requirements described in this Section 1, including
funding of appropriate reserves and payment of issuance costs, it is necessary for the
City to issue its Sewer System Revenue and Refunding Bonds, Series 2003, in the total
principal amount of $15,970,000 pursuant to Sections 18-1803 to 18-1805 R.R.S. Neb.
1997. 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 and Refunding Bonds in the principal
amount of $15,970,000, do exist and have 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 2003
Bonds, including all such bonds issued pursuant to Section 13 and refunding bonds
issued pursuant to Section 14.
(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
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 11 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
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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 "Paying Agent and Registrar" shall mean Wells Fargo Bank
Nebraska, National Association, Lincoln, Nebraska, as appointed to act as paying agent
and registrar for the 2003 Bonds pursuant to Section 4 hereof, or any successor thereto.
(g) the term "Escrow Agent" shall mean Wells Fargo Bank Nebraska, National
Association, Lincoln, Nebraska, as appointed to act as escrow agent for the Refunded
Bonds pursuant to Section 10 hereof.
Section 3. For the purposes described in Section 1 of this ordinance, there shall be and there are
hereby ordered issued negotiable bonds of the City of Grand Island, Nebraska, to be designated as "Sewer
System Revenue and Refunding Bonds, Series 2003" (the "2003 Bonds") in the aggregate principal
amount of Fifteen Million Nine Hundred Seventy Thousand Dollars ($15,970,000), with said bonds
bearing interest at the rates per annum and to become due on April 1 of the year as indicated below:
Maturing on
April 1 of Year
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
Amount of
Principal Maturing
$1,250,000
1,340,000
1,355,000
1,390,000
1,430,000
1,470,000
1,520,000
1,575,000
1,590,000
1,630,000
1,420,000
Interest Rate
Per Annum
2.00%
2.00
2.25
2.50
3.00
3.25
3.50
3.75
3.20
3.30
3.45
The 2003 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 2003 Bonds shall be the date of delivery thereof.
Interest on the 2003 Bonds, at the respective rates for each maturity, shall be payable on October 1,2003,
and semiannually thereafter on April 1 and October 1 of each year (each an "Interest Payment Date"), and
the 2003 Bonds shall bear such interest from the date of original issue or the most recent Interest Payment
Date, whichever is later. Interest shall be computed on the basis of a 360-day year consisting of twelve
30-day months. The interest due on each Interest Payment Date shall be payable to the registered owners
of record as of the fifteenth day of the calendar month immediately preceding the calendar month in
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which the Interest Payment Date occurs (the "Record Date"), subject to the provisions of Section 5 hereof.
The 2003 Bonds shall be numbered from 1 upwards in the order of their issuance. No 2003 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 2003 Bonds issued shall be as designated
by the City Treasurer as directed by the initial purchaser thereof. Payments of interest due on the 2003
Bonds prior to maturity or earlier 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 amount due for such interest on
each Interest Payment Date to the registered owner of each 2003 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 due at maturity or at any date fixed
for redemption prior to maturity together with any unpaid interest accrued thereon shall be made by said
Paying Agent and Registrar to the registered owners upon presentation and surrender of the 2003 Bonds
to the Paying Agent and Registrar. The City and the Paying Agent and Registrar may treat the registered
owner of any 2003 Bond as the absolute owner of such 2003 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 2003 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 2003 Bond in accordance with the terms of this Ordinance shall be valid and
effectual and shall be a discharge of the City and the Paying Agent and Registrar, in respect of the
liability upon the 2003 Bonds or claims for interest to the extent of the sum or sums so paid.
Section 4. Wells Fargo Bank Nebraska, National Association, Lincoln, Nebraska, is hereby
designated as Paying Agent and Registrar for the 2003 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, in substantially the form presented in
connection with the adoption of the Ordinance, which form is hereby approved. The Mayor and City
Clerk are hereby authorized to execute said agreement on behalf of the City in the form presented or with
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such changes, modifications and completions as such officers shall deem appropriate on behalf of the
City. The Paying Agent and Registrar shall keep and maintain for the City books for the registration and
transfer of the 2003 Bonds at its principal corporate trust office. The names and registered addresses of
the registered owner or owners of the 2003 Bonds shall at all times be recorded in such books. Any 2003
Bond may be transferred pursuant to its provisions at the principal corporate trust office of said Paying
Agent and Registrar by surrender of such bond for cancellation, accompanied by a written 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 2003 Bond or 2003 Bonds of the same interest rate, aggregate principal amount and
maturity. To the extent of the denominations authorized for the 2003 Bonds by this Ordinance, one 2003
Bond may be transferred for several such 2003 Bonds of the same interest rate and maturity, and for a like
aggregate principal amount, and several such 2003 Bonds may be transferred for one or several such 2003
Bonds, respectively, of the same interest rate and maturity and for a like aggregate principal amount. In
every case of transfer of a 2003 Bond, the surrendered 2003 Bond or 2003 Bonds shall be canceled and
destroyed. All 2003 Bonds issued upon transfer of the 2003 Bonds so surrendered shall be valid
obligations of the City evidencing the same obligations as the 2003 Bonds surrendered and shall be
entitled to all the benefits and protection of this Ordinance to the same extent as the 2003 Bonds upon
transfer of which they were delivered. The City and said Paying Agent and Registrar shall not be
required to transfer any 2003 Bond during any period from any Record Date until its immediately
following Interest Payment Date or to transfer any 2003 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 2003 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 2003 Bonds as of
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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. The 2003 Bonds maturing on or after April 1, 2012, shall be subject to redemption, in
whole or in part, prior to maturity at any time on or after April 1,2011, or at any time thereafter, at the
principal amount thereof together with accrued interest on the principal amount redeemed to the date
fixed for redemption. Such optional redemption shall be made from time to time as shall be directed by
the Mayor and Council of the City. The City may select the 2003 Bonds for optional redemption in its
sole discretion. The 2003 Bonds shall be redeemed only in amounts of $5,000 or integral multiples
thereof. Any 2003 Bond redeemed in part only shall be surrendered to said Paying Agent and Registrar
in exchange for a new 2003 Bond evidencing the unredeemed principal thereof. Notice of redemption of
any 2003 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 2003 Bond at said owner's registered address. Such notice shall
designate the 2003 Bond or 2003 Bonds to be redeemed by maturity or otherwise, the date of original
issue and the date fixed for redemption and shall state that such 2003 Bond or 2003 Bonds are to be
presented for prepayment at the principal corporate trust office of said Paying Agent and Registrar. In
case of any 2003 Bond partially redeemed, such notice shall specify the portion of the principal amount of
such bond to be redeemed. No defect in the mailing of notice for any 2003 Bond shall affect the
sufficiency of the proceedings of the City designating the 2003 Bonds called for redemption or the
effectiveness of such call for 2003 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 2003 Bond for which defective
notice has been given.
Section 7. If the date for payment of the principal of or interest on the 2003 Bonds 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,o
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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 8. The 2003 Bonds shall be in substantially the following form:
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UNITED STATES OF AMERICA
STATE OF NEBRASKA
COUNTY OF HALL
CITY OF GRAND ISLAND
SEWER SYSTEM REVENUE AND REFUNDING BOND
SERIES 2003
No.
$
Interest Rate
Maturity Date
Date of
Orig;inal Issue
CUSIP NUMBER
%
April 1,_
Registered Owner:
Principal Amount:
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, but only from the special sources hereinafter described, 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 October 1,2003, and semiannually thereafter on April 1 and October 1 of each
year (each, an "Interest Payment Date"). Such interest shall be computed on the basis of a 360-day year
consisting of twelve 30 day months. The principal of this bond together with interest thereon unpaid and
accrued at maturity (or earlier redemption) is payable upon presentation and surrender of this bond at the
principal corporate trust office of Wells Fargo Bank Nebraska, National Association, as Paying Agent and
Registrar, in Lincoln, 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 fifteenth day of the month immediately preceding the month in
which the Interest Payment Date occurs, to such owner's 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.
This bond is one of an issue of fully registered bonds of the total principal amount of Fifteen
Million Nine Hundred Seventy Thousand Dollars ($15,970,000) of even date and like tenor, except as of
the date of maturity, rate of interest and denomination, (the "Series 2003 Bonds") which were issued by
the City for the purpose of refunding $12,140,000 of the City's outstanding Sewer System Revenue
Bonds, Series 1994, and paying costs of constructing improvements to the City's Sewer System (as
defined below) and is issued pursuant to the terms of an ordinance (the "Ordinance") passed and approved
by the Mayor and Council of said City in accordance with and under the provisions of Sections 18-1803
to 18-1805, R.R.S. Neb. 1997.
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Any or all of the bonds of said issue maturing on or after April 1, 2012, are subject to redemption
at the option of the City, in whole or in part, on April 1, 2011, or at any time thereafter, at par together
with accrued interest on the principal amount redeemed to the date fixed for redemption. Such optional
redemption shall be made from time to time as shall be directed by the Mayor and Council of the City.
The City may select the Series 2003 Bonds for optional redemption in its sole discretion. Notice of
redemption shall be given by mail to the registered owner of any Series 2003 Bond called for redemption
in the manner specified in the Ordinance authorizing said issue of bonds. Individual bonds may be
redeemed in part but only in the amount of $5,000 or integral multiples thereof.
This bond is transferable by the registered owner or such owner's attorney duly authorized in
writing at the principal corporate trust 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, 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 other purposes and shall not be affected by any notice to the contrary,
whether this bond be overdue or not.
If the day 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 date shall have the
same force and effect as if made on the nominal date of payment.
The revenues and earnings of the wastewater treatment plant and sanitary sewer system of the
City of Grand Island, Nebraska, including all improvements and additions thereto hereafter constructed or
acquired, (the "Sewer System") are pledged and hypothecated by the City for the payment of this bond
and the other Series 2003 Bonds and for the payment of any additional bonds of equal priority issued in
accordance with the terms of the Ordinance. The Series 2003 Bonds are a lien only upon said revenues
and earnings and are not general obligations of the City of Grand Island, Nebraska.
The Ordinance sets forth the covenants and obligations of the City with respect to the Sewer
System and the applications of the revenues and earnings thereof, which revenues and earnings under the
terms of the Ordinance are required to be deposited to the "Grand Island Sewer System Fund" (as
previously established) and disbursed to pay costs of operation and maintenance of the Sewer System,
make payments of principal and interest on the Series 2003 Bonds and any additional bonds of equal
priority with the Series 2003 Bonds and other payments as specified in the Ordinance. The Ordinance
also designates the terms and conditions under which additional bonds of equal priority with the Series
2003 Bonds may be issued. The Ordinance also designates the terms and conditions upon which this
bond shall cease to be entitled to any lien, benefit or security under the Ordinance and all covenants,
agreements and obligations of the City under the Ordinance may be discharged and satisfied at or prior to
the maturity or redemption of this bond if monies or certain specified securities shall have been deposited
with a trustee bank. In the Ordinance the City also reserves the right to issue bonds or notes junior in lien
to the Series 2003 Bonds and any additional bonds of equal priority to the Series 2003 Bonds, the
principal and interest of which shall be payable from monies in the "Surplus Account" of the Grand Island
Sewer System Fund as described in the Ordinance.
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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 provided by law.
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 City
Clerk of the City, all as of the Date of Original Issue shown above.
CITY OF GRAND ISLAND, NEBRASKA
(facsimile signature)
Mayor
ATTEST:
(facsimile signature)
City Clerk
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CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds authorized by Ordinance passed and approved by the Mayor and
Council of the City of Grand Island, Nebraska, as described in said bond.
Wells Fargo Bank Nebraska, National Association,
Lincoln, Nebraska
Paying Agent and Registrar
Authorized Signature
BOND INSURANCE LEGEND
Financial Security Assurance Inc. ("Financial Security"), New York, New Yark, has delivered its
municipal bond insurance policy with respect to the scheduled payments due of principal of and interest
on this Bond to Wells Fargo Bank Nebraska, National Association, of Lincoln, Nebraska, or its successor,
as paying agent for the Bonds (the "Paying Agent"). Said Policy is on file and available for inspection at
the principal office of the Paying Agent and a copy thereof may be obtained from Financial Security or
the Paying Agent.
(FORM OF ASSIGNMENT)
For value received hereby sells, assigns, and transfers
unto 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.
Date:
Registered Owner
Signature Guaranteed
By
Authorized Officer
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.
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Section 9. Each of the 2003 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 2003
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 of the City 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
2003 Bonds. With respect to the issuance of the 2003 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 2003 Bonds as securities depository (each, a "Bond Participant") or to
any person who is an actual purchaser of a 2003 Bond from a Bond Participant while the
2003 Bonds are in book-entry form (each, a "Beneficial Owner") with respect to the
following:
(i) the accuracy of the records of the Depository, any nominees
of the Depository or any Bond Participant with respect to any ownership
interest in the 2003 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 2003 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 2003 Bonds. The Paying Agent and Registrar shall make
payments with respect to the 2003 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 2003 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 responsibilities,
the Paying Agent and Registrar shall issue, transfer and exchange 2003 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,
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for a substitute depository willing and able upon reasonable and customary terms to maintain
custody of the 2003 Bonds or (ii) to make available 2003 Bonds registered in whatever name or
names as the Beneficial Owners transferring or exchanging such 2003 Bonds shall designate.
(c) If the City determines that it is desirable that certificates representing the 2003 Bonds
be delivered to the ultimate beneficial owners of the 2003 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 2003 Bonds. In such event, the Paying Agent
and Registrar shall issue, transfer and exchange bond certificates representing the 2003 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
2003 Bond is registered in the name of the Depository or any nominee thereof, all payments with
respect to such 2003 Bond and all notices with respect to such 2003 Bond shall be made and
given, respectively, to the Depository as provided in the Letter of Representations.
(e) Registered ownership of the 2003 Bonds may be transferred on the books of
registration maintained by the Paying Agent and Registrar, and the 2003 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 of the 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 2003 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 2003 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, or upon termination by the City of book-
entry-only form, 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 issuance of replacement bond certificates upon transfer or partial redemption, the
City agrees to order printed an additional supply of bond certificates and to direct their execution by
manual or facsimile signatures of its then duly qualified and acting officers. In case any officer whose
signature or facsimile thereof shall appear on any 2003 Bond shall cease to be such officer before the
delivery of such bond (including such certificates delivered to the Paying Agent and Registrar for
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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 the 2003 Bond. The 2003 Bonds shall not be valid and binding on the City until
authenticated by the Paying Agent and Registrar. The 2003 Bonds shall be delivered to the Paying Agent
and Registrar for registration and authentication. Upon execution, registration, and authentication of the
2003 Bonds, they shall be delivered to the City Treasurer, acting on behalf of the City, who is authorized
to deliver them to Ameritas Investment Corp., as initial purchaser thereof. The 2003 Bonds are hereby
sold to said purchaser for the sum of $15,999,312.05, which sum represents a premium to the stated
principal amount in the sum of$29,312.05, of which $203,617.50 is attributable to underwriter's discount
and $232,929.55 in aggregate is attributable to net original issue premium, allocated to the specific
maturities of principal as follows:
Date Total Total Original Issue Price. for each
I Principal Principal Premium (Discount) for $100 of
Maturing Amount Maturing Maturity Principal
April 1, 2004 $1,250,000 $ 8,550.00 $100.684
April 1, 2005 1,340,000 15,142.00 101.130
April 1, 2006 1,355,000 22,980.80 101.696
April 1, 2007 1,390,000 22,531.90 101.621
April 1, 2008 1,430,000 41,641.60 102.912
April 1, 2009 1,470,000 48,421.80 103.294
April 1, 2010 1,520,000 50,889.60 103.348
April 1, 2011 1,575,000 62,385.75 103.961
April 1, 2012 1,590,000 (12,084.00) 99.240
April 1, 2013 1,630,000 (14,849.30) 99.089
April 1, 2014 1.420.000 (12.680.60) 99.107
Total $15.970.0QQ $232.929.55
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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 2003 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 2003 Bonds which shall be delivered to said purchaser. The City
Treasurer shall maintain a record of information with respect to the 2003 Bonds in accordance with the
requirements of Section 10-140, R.R.S. Neb. 1997, as amended, and shall cause the same to be filed in the
Office of the Auditor of Public Accounts of the State of Nebraska.
Section 10. The proceeds of the 2003 Bonds herein authorized shall be applied to: (a) the
payment of principal of, and premium and interest on, the Refunded Bonds as the same fall due on and
prior to October 1, 2004, and as called for redemption on October 1, 2004; (b) payment of costs of
construction and acquisition of the 2003 Project; ( c) funding a portion of the 2003 sub-account in the
Debt Service Reserve Account; and (d) paying the costs of issuance of the 2003 Bonds. Accrued interest,
if any, received upon closing of the 2003 Bonds shall be applied to pay interest falling due on October 1,
2003, and shall be credited to the Bond Payment Account as described in Section 11 hereof. $47,623.27
of the proceeds of the 2003 Bonds is to be applied to pay premium for the msurance Policy (as defined
below), and the underwriter is hereby authorized to pay the such premium directly to the msurer with
proceeds of the 2003 Bonds. $3,000,000 from the proceeds of the 2003 Bonds is to be deposited to a
separate construction account of the City which is hereby established and designated as the "2q03 Project
Construction Fund" to be applied to pay costs of the 2003 Project. All of the reserve monies held with
respect to the Refunded Bonds, together with $60,717.50 of Sewer System revenues available to the City
for such purpose, shall be deposited to the sub-account for the 2003 Bonds in the Debt Service Reserve
Account as described in Section 11 below. All of the proceeds of the 2003 Bonds remaining after
payment of costs of issuance, together with such other available funds of the City as may be required to
fully fund the escrow for the Refunded Bonds, shall be set aside and held and invested in a special trust
account for payment of the Refunded Bonds which is hereby ordered established. Wells Fargo Bank
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Nebraska, National Association, Lincoln, Nebraska, is hereby designated to serve as the escrow agent
("Escrow Agent"), to have custody and safekeeping of the funds and investments which are to be set aside
for the payment of the Refunded Bonds. For purposes of governing such escrow account and the holding
and application of such funds and investments, the City shall enter into a contract entitled "Escrow
Agreement" with the Escrow Agent. The Mayor and City Clerk are hereby authorized and directed to
execute and deliver on behalf of the City said Escrow Agreement, including necessary counterparts, in
substantially the form and content as presented to the meeting at which this Ordinance is passed, but with
such changes and modifications therein as to them seem necessary, desirable, or appropriate for and on
behalf of the City. Said Mayor and City Clerk are further authorized to approve the investments provided
for in said Escrow Agreement, and to make any necessary subscriptions for United States Treasury
Securities, State and Local Government Series, or to contract for the purchase of securities in the open
market. Said proceeds shall be invested in obligations of the United States Government, direct or
guaranteed, including United States Treasury Securities, State and Local Government Series. To the
extent that such proceeds are held in a bank depository account, such deposits shall be insured by
insurance of the Federal Deposit Insurance Corporation or, to the extent not fully insured, fully
collateralized in the same manner as is required for deposit of public funds. Any investment from the
proceeds of the 2003 Bonds herein authorized shall mature not later than October I, 2004. As provided in
said Escrow Agreement, the proceeds of the 2003 Bonds herein authorized and investment earnings
thereon shall be applied to the payment of the principal of, premium and interest on the Refunded Bonds
as the same become due on and prior to October 1, 2004, and as called for redemption on October 1,
2004. The City agrees that on June 25, 2003, or as soon thereafter as practicable, it shall deposit or
otherwise have on hand with the Escrow Agent from revenues of the City's Sewer System, funds
sufficient after taking into consideration available proceeds of the 2003 Bonds and investment earnings to
provide funds for all payments due on the Refunded Bonds on or before October 1, 2004, and as called
for redemption on such date. The City hereby covenants and agrees to take all steps necessary and
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appropriate, including transfer and deposit of any additional required funds, to provide for the calling and
redemption of the Refunded Bonds on October 1,2004.
Section 11. The revenues and earnings of the Sewer System are hereby pledged and
hypothecated for the payment of the 2003 Bonds and any Additional Bonds as authorized by this
Ordinance and interest on such 2003 Bonds and Additional Bonds and the City does hereby agree with
the holders of said 2003 Bonds and Additional Bonds as follows:
(a) GRAND ISLAND SEWER SYSTEM FUND - The entire gross
revenues and income 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, starting with the month of May 2003, the following
amounts:
(1) Beginning July 15, 2003 and continuing for the period from July 15,
2003 through and including September 15, 2003, an amount equal to
1/3rd of the next maturing interest payment on the 2003 Bonds;
(2) Beginning October 15, 2003, and continuing for the period from
October 15, 2003 so long as the 2003 Bonds remain outstanding, an
amount equal to 1/6th of the next maturing semiannual interest payment
on the 2003 Bonds;
(3) Beginning July 15, 2003 and continuing for the period from July 15,
2003 through and including March 15,2004, an amount equal to 1/9th of
the next maturing principal payment on the 2003 Bonds; and
(4) For the period from and including April 15, 2004, and continuing so long
as the 2003 Bonds remain outstanding an amount equal to 1/12th of the
next maturing principal payment on the 2003 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,
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then from the Debt Service Reserve Account and next from the Surplus Account, in an amount
sufficient to pay, when due, the principal of and interest on the 2003 Bonds or any Additional
Bonds and to transfer such amounts due to the Paying Agent and Registrar (or other paying agent
for Additional Bonds) 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.
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(d) DEBT SERVICE RESERVE ACCOUNT - The City agrees that it shall deposit
the amount of $1,597 ,000 (consisting of $1,536,282.50 of reserve funds held with respect to the
Refunded Bonds and $60,717.50 from proceeds of the 2003 Bonds) as the amount required to be
maintained attributable to the 2003 Bonds in a separate sub-account which is hereby established
for the 2003 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 2003
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 2003 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 l1(d) to the contrary
notwithstanding, the amount required to be maintained in the Debt Service Reserve Account with
respect to the 2003 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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(e) SURPLUS ACCOUNT - Monies from the Grand Island Sewer System Fund
remaining after the credits required in the foregoing Subsections 11 (b), l1(c) and l1(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 2003 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
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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 11 (b), 11 (c),
1 1 (d) and ll(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.
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
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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 and earnings of the Sewer System provided for in this ordinance for
the 2003, 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 and earnings for the
payment of principal and interest of the 2003 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 12. So long as any of the 2003 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 and earnings sufficient at all times:
(a) To provide funds to pay, when due, the principal of and interest on the
2003 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 11 of 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 2003 Bonds and any Additional Bonds.
Section 13. 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 14 of this Ordinance, payable from the revenues of the Sewer System having equal priority and
on a parity with the 2003 Bonds and any Additional Bonds then outstanding, only upon compliance with
the following conditions:
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(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 2003
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)
requirements:
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The City shall have complied with one or the other of the two following
(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 2003 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 2003 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, 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.
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The City hereby covenants and agrees that so long as any of the 2003 Bonds and any Additional
Bonds are outstanding, it will not issue any bonds or notes payable from the revenues of the Sewer
System 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 2003 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 ll(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 l3(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.
I Section 14. The City may issue refunding bonds, which shall qnalifY as Additional Bonds of
equal lien to refund any 2003 Bonds or any Additional Bonds then outstanding, provided, that, if any such
2003 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
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payments due in such calendar years immediately prior to such refunding. Refunding bonds issued in
accordance with this paragraph of this Section 14 may be issued as Additional Bonds of equal lien
without compliance with the conditions set forth in Subsection l3(b) of this Ordinance.
The City may also issue refunding bonds which shall qualify as Additional Bonds of equal lien to
refund any 2003 Bonds or Additional Bonds then outstanding, provided, that, if any 2003 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 13(b)(1) of this Ordinance and, if the proceeds of such
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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
2003 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 13(b)(I) 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 of the Sewer System (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 14, the time of
application of the proceeds of the refunding bonds to the 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. 1997 (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 15. So long as any 2003 Bonds or Additional Bonds are outstanding, the City hereby
covenants and agrees as follows:
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(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 12 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
2003 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.
(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 16. 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 2003
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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 2003 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 17. The terms and provisions of this Ordinance do and shall constitute a contract
between the City and the registered owner or owners of the 2003 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 2003 Bonds then outstanding, provided, however, that neither the principal and
interest to be paid upon any 2003 Bond nor the maturity date of any 2003 Bond shall be changed without
the written consent of the registered owners of all such bonds then outstanding. Any registered owner of
a 2003 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 perfor-
mance of all duties required of the City by this Ordinance and the applicable laws of the State of
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Nebraska, including in such duties the collecting of revenues of the Sewer System and the segregation
and application of such revenues as described in Section 11 of this Ordinance. After any default in
payment or other default in performance, the registered owners of the 2003 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 2003 Bonds or Additional Bonds shall be maintained
for the equal and ratable benefit of all registered owners of the 2003 Bonds and Additional Bonds
outstanding and no registered owners of any of the 2003 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 18. 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 2003 Bonds contemplated by this Ordinance. The Preliminary Official Statement
in the form presented is hereby approved and deemed final as of its date under the terms of Reg. Sec.
240.l5c2-l2 of the Rules of the Securities and Exchange Commission and such officers or anyone of
them are further authorized to approve a final Official Statement on behalf of the City.
Section 19. 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 20. In accordance with the requirements of Rule l5c2-12 (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 secuntIes information repository (a
"NRMSIR") and to the initial purchaser of the 2003 Bonds, 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, information concerning the rates and number of users for the Sewer System and
the City's 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
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revenues collected and expenses paid and for proprietary fund types in conformity with
generally accepted accounting principles;
(b) in a timely manner to each NRMSIR or to the Municipal Securities Rulemaking
Board ("MSRB It), notice of the occurrence of any of the following events with respect to
the 2003 Bonds, if in the judgment of the City, such event is material:
(I) principal and interest payment delinquencies,
(2) non-payment related defaults,
(3) unscheduled draws on debt service reserves reflecting financial
difficulties,
(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 2003 Bonds,
(7) modifications to rights of the bondholders,
(8) bond calls,
(9) defeasances,
(10) release, substitution, or sale of property securing repayment of the 2003 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 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 2003 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
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default under the Ordinance. The continuing disclosure obligations of the City under the Ordinance, as
described above, shall cease when none of the 2003 Bonds remain outstanding.
Section 21. The 2003 Bonds are being sold on the basis of bond insurance to be provided by
Financial Security Assurance Inc. (the "Insurer") with the premium for such insurance to be paid by the City
as a part of the terms of the sale of the 2003 Bonds and the Mayor and City Clerk are hereby authorized to
take any and all actions deemed necessary in connection with effecting such insurance and to execute any and
all agreements, documents and certificates deemed necessary in connection therewith.
Provisions Relating to Bond Insurance:
(a) "Insurance Policy" shall be defined as follows: "the insurance policy issued by the
Insurer guaranteeing the scheduled payment of principal of and interest on the 2003
Bonds when due". "Insurer" shall be defined as follows: "Financial Security Assurance
Inc., a New York stock insurance company, or any successor thereto or assignee thereof'.
(b)
Following any default in payment or other default in performance by the City of its
obligations under this Ordinance, the Insurer shall be deemed to be the sole holder of the
2003 Bonds insured by it for the purpose of exercising any voting right or privilege or
giving any consent or direction or taking any other action that the holders of the 2003
Bonds insured by it are entitled to take pursuant to this Ordinance.
(c)
The Insurer shall be deemed to be a third party beneficiary to the covenants made by the
City in this Ordinance and shall have the right of an owner of the 2003 Bonds to enforce
such covenants to the full extent provided by this Ordinance and under Nebraska law.
(c) No modification or amendment to this Ordinance may become effective except upon
obtaining the prior written consent of the Insurer. Copies of any modification or
amendment to this Ordinance shall be sent to Standard & Poor's Credit Market Services
and Moody's Investors Service, Inc. at least lO days prior to the effective date thereof.
(d) The rights granted to the Insurer under this Ordinance to request, consent to or direct any
action are rights granted to the Insurer in consideration of its issuance of the Insurance
Policy. Any exercise by the Insurer of such rights is merely an exercise of the Insurer's
contractual rights and shall not be construed or deemed to be taken for the benefit or on
behalf of the holders of the 2003 Bonds nor does such action evidence any position of the
Insurer, positive or negative, as to whether consent of holders of the 2003 Bonds is
required in addition to consent of the Insurer with respect to any such action.
(e)
For purposes of Section 16 of this Ordinance with respect to determinations of whether
bonds remain outstanding under this Ordinance, only (1) cash, (2) Deposit Securities
which consist of non-callable direct obligations of the United States of America
("Treasuries"), or (3) evidences of ownership of proportionate interests in future interest
and principal payments on Treasuries held by a bank or trust company as custodian,
under which the owner of the investment is the real party in interest and has the right to
proceed directly and individually against the obligor and the underlying Treasuries are
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not available to any person claiming through the custodian or to whom the custodian may
be obligated shall be authorized to be used to effect defeasance of the 2003 Bonds unless
the Insurer otherwise approves.
To accomplish defeasance the City shall cause to be delivered (i) a report of an
independent firm of nationally recognized certified public accountants or such other
accountant as shall be acceptable to the Insurer ("Accountant") verifying the sufficiency
of the escrow established to pay the Bonds in full on the maturity or redemption date
("Verification"), (ii) an Escrow Deposit Agreement (which shall be acceptable in form
and substance to the Insurer), (iii) an opinion of nationally recognized bond counsel to
the effect that the 2003 Bonds are no longer "outstanding" under this Ordinance and (iv)
a certificate of discharge of the Paying Agent with respect to the 2003 Bonds; each
Verification and defeasance shall be acceptable in form and substance, and addressed, to
the City, the Paying Agent and the Insurer. The Insurer shall be provided with final
drafts of the above-referenced documentation not less than five business days prior to the
funding of the escrow. 2003 Bonds shall be deemed "outstanding" under this Ordinance
unless and until they are in fact paid and retired or the above criteria are met.
(f)
Amounts paid by the Insurer under the Insurance Policy shall not be deemed paid for
purposes of this Ordinance and shall remain outstanding and continue to be due and
owing until paid by the City in accordance with this Ordinance. This Ordinance shall not
be discharged unless all amounts due or to become due to the Insurer have been paid in
full or duly provided for.
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(g)
Each of the City and the Paying Agent covenant and agree to take such action (including,
as applicable, filing of UCC financing statements and continuations thereof) as is
necessary from time to time to perfect or otherwise preserve the priority of the pledge of
the Revenues under applicable law.
(h) Claims Upon the Insurance Policy and Payments by and to the Insurer.
If, on the business day prior to the related scheduled interest payment date or principal
payment date ("Payment Date") there is not on deposit with the Paying Agent, after
making all transfers and deposits required under this Ordinance, moneys sufficient to pay
the principal of and interest on the 2003 Bonds due on such Payment Date, the Paying
Agent shall make a claim under the Insurance Policy and give notice to the Insurer and to
its designated agent (if any) (the "Insurer's Fiscal Agent") by telephone or telecopy of the
amount of such deficiency, and the allocation of such deficiency between the amount
required to pay interest on the 2003 Bonds and the amount required to pay principal of
the 2003 Bonds, confirmed in writing to the Insurer and the Insurer's Fiscal Agent by
12:00 noon, New York City time, on such Business Day by filling in the form of Notice
of Claim and Certificate delivered with the Insurance Policy.
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In the event the claim to be made is for a mandatory sinking fund redemption installment,
upon receipt of the moneys due, the Paying Agent shall authenticate and deliver to
affected Bondholders who surrender their 2003 Bonds a new 2003 Bond or 2003 Bonds
in an aggregate principal amount equal to the unredeemed portion of the 2003 Bond
surrendered. The Paying Agent shall designate any portion of payment of principal on
2003 Bonds paid by the Insurer, whether by virtue of mandatory sinking fund
redemption, maturity or other advancement of maturity, on its books as a reduction in the
principal amount of 2003 Bonds registered to the then current Bondholder whether DTC
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(k)
or its nominee or otherwise, and shall issue a replacement 2003 Bond to the Insurer,
registered in the name of Financial Security Assurance Inc., in a principal amount equal
to the amount of principal so paid (without regard to authorized denominations); provided
that the Paying Agent's failure to so designate any payment or issue any replacement
2003 Bond shall have no effect on the amount of principal or interest payable by the City
on any 2003 Bond or the subrogation rights of the Insurer.
The Paying Agent shall keep a complete and accurate record of all funds deposited by the
Insurer into the Policy Payments Account and the allocation of such funds to payment of
interest on and principal paid in respect of any Bond. The Insurer shall have the right to
inspect such records at reasonable times upon reasonable notice to the Paying Agent.
Upon payment of a claim under the Insurance Policy the Paying Agent shall establish a
separate special purpose trust account for the benefit of Bondholders referred to herein as
the "Policy Payments Account" and over which the Paying Agent shall have exclusive
control and sole right of withdrawal. The Paying Agent shall receive any amount paid
under the Insurance Policy in trust on behalf of Bondholders and shall deposit any such
amount in the Policy Payments Account and distribute such amount only for purposes of
making the payments for which a claim was made. Such amounts shall be disbursed by
the Paying Agent to Bondholders in the same manner as principal and interest payments
are to be made with respect to the 2003 Bonds under the sections hereof regarding
payment of 2003 Bonds. It shall not be necessary for such payments to be made by
checks or wire transfers separate from the check or wire transfer used to pay debt service
with other funds available to make such payments.
Funds held in the Policy Payments Account shall not be invested by the Paying Agent
and may not be applied to satisfy any costs, expenses or liabilities of the Paying Agent.
Any funds remaining in the Policy Payments Account following a Payment Date shall
promptly be remitted to the Insurer.
(i)
The Insurer shall, to the extent it makes any payment of principal of or interest on the
2003 Bonds, become subrogated to the rights of the recipients of such payments in
accordance with the terms of the Insurance Policy. This Ordinance shall not be
discharged unless all amounts due or to become due to the Insurer have been paid in full
or duly provided for.
(j)
The City shall payor reimburse the Insurer any and all charges, fees, costs and expenses
which the Insurer may reasonably payor incur in connection with (i) the administration,
enforcement, defense or preservation of any rights or security in this Ordinance, (ii) the
pursuit of any remedies under this Ordinance or otherwise afforded by law or equity, (iii)
any amendment, waiver or other action with respect to, or related to, this Ordinance
whether or not executed or completed, (iv) the violation by the City of any law, rule or
regulation, or any judgment, order or decree applicable to it, or (v) any litigation or other
dispute in connection with this Ordinance or the transactions contemplated hereby, other
than amounts resulting from the failure of the Insurer to honor its obligations under the
Insurance Policy.
The Insurer shall be entitled to pay principal or interest on the 2003 Bonds that shall
become Due for Payment but shall be unpaid by reason of Nonpayment by the City (as
such terms are defined in the Insurance Policy), whether or not the Insurer has received a
Notice of Nonpayment (as such term is defined in the Insurance Policy) or a claim upon
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the Insurance Policy.
(j)
The notice address of the Insurer is: Financial Security Assurance Inc., 350 Park
Avenue, New York, New York 10022-6022, Attention: Managing Director -
Surveillance; Re: Policy No. Telephone: (212) 826-0100; Te1ecopier:
(212) 339-3556. In each case in which notice or other communication refers to an Event
of Default, then a copy of such notice or other communication shall also be sent to the
attention of General Counsel and shall be marked to indicate "URGENT MATERIAL
ENCLOSED."
(k) The Insurer shall be provided with the following information:
(i) Annual audited financial statements within 150 days after the end of the City's
fiscal year (together with a certification of the City that it is not aware of any
default under this Ordinance), and the City's annual budget within 30 days after
the approval thereof together with such other information, data or reports as the
Insurer shall reasonably request from time to time;
(ii) Notice of any draw upon the Debt Service Reserve Fund within two Business
Days after knowledge thereof other than (i) withdrawals of amounts in excess of
the Debt Service Reserve Requirement, and (ii) withdrawals in connection with a
refunding of bonds;
( iii)
Notice of any default known to the Paying Agent or the City within five Business
Days after knowledge thereof;
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(iv)
Prior notice of the advance refunding or redemption of any of the 2003 Bonds,
including the principal amount, maturities and CUSIP numbers thereof;
(v) Notice of the resignation or removal of the Paying Agent and the appointment of,
and acceptance of duties by, any successor thereto;
(vi) Notice of the commencement of any proceeding by or against the City
commenced under the United States Bankruptcy Code or any other applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (an
"Insolvency Proceeding");
(vii) Notice of the making of any claim in connection with any Insolvency Proceeding
seeking the avoidance as a preferential transfer of any payment of principal of, or
interest on, the 2003 Bonds;
(viii) A full original transcript of all proceedings relating to the execution of any
amendment or supplement to this Ordinance; and
(ix) All reports, notices and correspondence to be delivered to holders of the 2003
Bonds under the terms of this Ordinance.
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(1)
No contract shall be entered into nor any action taken by which the rights of the Insurer
or security for or sources of payment of the 2003 Bonds may be impaired or prejudiced in
any material respect except upon obtaining the prior written consent of the Insurer.
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The provisions of this Section 21 shall govern, notwithstanding anything to the contrary set forth
in this Ordinance.
Section 22. The City hereby covenants and agrees that it will make no use of the proceeds of the
2003 Bonds which would cause the 2003 Bonds to be arbitrage bonds within the meaning of
Sections 103(b)(2) and 148 of the Internal Revenue Code of 1986, as amended (the "Code") and further
covenants to comply with said Sections 103(b)(2) and 148 and all applicable regulations thereunder
throughout the term of said issue. The City hereby covenants to take all action necessary to preserve the
tax-exempt status of the interest on the 2003 Bonds for federal income tax purposes under the Code with
respect to taxpayers generally. The City further agrees that it will not take any actions which would cause
the 2003 Bonds to constitute "private activity bonds" within the meaning of Section 141 ofthe Code.
Section 23. 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.
ATTEST:
PASSED AND APPROVED this~dpy-of'-
.cc
Q~\\~ ~
City Clerk .
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