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HomeMy WebLinkAbout49451 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 CITY OF AUBURN, WASHINGTON ORDINA~Cm. NO. 4945 AN ORDINANCE OF THE CITY OF AUBURn, WASHINGTON, RELATING TO THE COMBINED WATER SUPPLY AND DISTRIBUTION SYSTEM AND THE SANITARY SEWAGE SYSTEMS; COMBINING THE STORM DRAINAGE/SURFACE SYSTEM WITH THE EXISTING COMBINED SYSTEMS; SPECIFYING AND ADOPTING A SYSTEM OR PLAN OF ADDITIONS TO AND BETTERMENTS AND EXTENSIONS OF THAT COMBINED UTILITY; PROVIDING FOR THE ISSUANCE OF $5,000,000 PAR VALUE OF UTILITY SYSTEM REVENUE BONDS, 1997, OF THE CITY TO OBTAIN THE FUNDS REQUIRED TO CARRY OUT THAT SYSTEM OR PLAN AND TO FUND A RESERVE FOR AND TO PAY THE COSTS OF ISSUING THE BONDS; FIXING THE DATE, FORM, MATURITIES, INTEREST RATES, TERMS AND COVENANTS OF THE BONDS; CREATING CERTAIN FUNDS ~ ACCOUNTS OF THE CITY AND PROVIDING FOR THE DEPOSIT THEREIN OF BOND PROCEEDS AND OTHER MONEY OF THE CITY; PROVIDING FOR BOND INSURANCE; AND APPROVING THE SALE AIqD PROVIDING FOR THE DELIVERY OF THE BONDS TO SEATTLE- NORTHWEST SECURITIES CORPORATION OF SEATTLE, WASHINGTON. Prepared by Foster Pepper & Shefelman 1111 Third Avenue, Suite 3400 Seattle, Washington 98104 (206) 447-4400 TABLE OF CONTENTS SECTION 1. DEFINITIONS ............................................................................................................... ; ..................... 4 SECTION 2. COMBINING OF UTILITIES .......................................................................................................... 15 SECTION 3. ADOPTION OF PLAN OF ADDITIONS ........................................................................................ 15 SECTION 4. DESCRIPTION OF BONDS ............................................................................................................. 15 SECITON 5. REGISTRATION AND TRANSFER OF BONDS .......................................................................... 17 SECTION 6. PAYMENT OF BONDS .................................................................................................................... 20 SECTION 7. OPTIONAL REDEMPTION[, MANDATORY REDEMPTIONI AND OPEN MARKET PURCHASE OF BONDS .......................................................................................................................................... 21 SECTION 8. NOTICE OF REDEMPTION ........................................................................................................... 23 SECTION 9. FAILURE TO REDEEM BONDS .................................................................................................... 24 SECTION 10. CREATION OF AND PAYMENTS INTO BOND FUND ........................................................... 25 SECTION 11. RATE STABILIZATION FUND .................................................................................................... 29 SECTION 12. FINDING AS TO SUFFICIENCY OF REVENUE, PLEDGE OF REVENUE AND LIEN POSITION .................................................................................................................................................................. 30 SECTION I3. DEPOSIT OF BOND PROCEEDS ................................................................................................. 31 SECTION 14. REVOCATION OF RIGHT TO ISSUE PRIOR LIEN BONDS ................................................. 32 SECTION 15. COVENANTS ................................................................................................................................... 32 SECTION 16. FLOW OF FUNDS ........................................................................................................................... 37 SECTION 17. PROVISIONS FOR FUTURE PARITY BONDS ......................................................................... 39 SECTION 18. SEPARATE UTILITY SYSTEMS ................................................................................................. 43 SECTION 19. CONTRACT RESOURCE OBLIGATIONS ................................................................................. 44 SECTION 20. FORM AND EXECUTION OF BONDS ........................................................................................ 46 SECTION 21. BOND REGISTRAR ....................................................................................................................... 48 SECTION 22. PRESERVATION OF TAX EXEMPTION FOR INTEREST ON BONDS ............................... 49 SECTION 23. DESIGNATION OF BONDS AS "QUALIFIED TAX-EXEMPT OBLIGATIONS .................. 50 SECTION 24. BONDS NEGOTIABLE .................................................................................................................. 51 SECTION 25. REFUNDING OR DEFEASANCE OF THE BONDS .................................................................. 51 SECTION 26. APPROVAL OF BOND PURCHASE CONTRACT .................................................................... 53 SECTION 27. PRELIMINARY OFFICIAL STATEMENT DEEMED FINAL ................................................. 54 SECTION 28. TEMPORARY BOND .................................................................................................................... 54 SECTION 29. UNDERTAKING TO PROVIDE CONTINUING DISCLOSURE ............................................. 55 SECTION 30. AMENDATORY AND SUPPLEMENTAL ORDINANCE .......................................................... 59 SECTION 31. DEFAULTS AND REMEDIES ........................................................................................................ 65 SECTION 32. PARTIES INTERESTED HEREIN ............................................................................................... 78 SECTION 33. EFFECTIVE DATE OF ORDINANCE ......................................................................................... 79 CITY OF AUBURN, WASHINGTON ORDINA/~Cm. ~;0. 4945 AN ORDINANCE OF THE CITY OF AUBURN, WASHINGTON, RELATING TO THE COMBINED WATER SUPPLY ~ DISTRIBUTION SYSTEM AND THE SANITARY SEWAGE SYSTEMS; COMBINING THE STORM DRAINAGE/SURFACE SYSTEM WITH THE EXISTING COMBINED SYSTEMS; SPECIFYING AND ADOPTING A SYSTEM OR PLAI~ OF ADDITIONS TO AND BETTERMENTS ~ EXTENSIONS OF THAT COMBINED UTILITY; PROVIDING FOR THE ISSUANCE OF $5,000,000 PAR VALUE OF UTILITY SYSTEM REVENUE BONDS, 1997, OF THE CITY TO OBTAIN THE FUNDS REQUIRED TO CARRY OUT THAT SYSTEM OR PLAN AND TO FUND A RESERVE FOR AIqD TO PAY THE COSTS OF ISSUING THE BONDS; FIXING THE DATE, FORM, MATURITIES, INTEREST RATES, TERMS AND COVENANTS OF THE BONDS; CREATING CERTAIN FUNDS AND ACCOUNTS OF THE CITY AND PROVIDING FOR THE DEPOSIT THEREIN OF BOND PROCEEDS AND OTHER MONEY OF THE CITY; PROVIDING FOR BOND INSURANCE; AND APPROVING THE SALE AND PROVIDING FOR THE DELIVERY OF THE BONDS TO SEATTLE-NORTHWEST SECURITIES CORPORATION OF SEATTLE, WASHINGTON. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 W}{EREAS, the City of Auburn, Washington (the 26 owns, operates and maintains a water supply and 27 system and a sanitary sewage system, which 28 pursuant to RCW 35.67.320 by Ordinance 29 approved March 7, 1950, said combined systems, 30 additions thereto and betterments and extensions 31 time made, "City"), now distribution systems were combined No.. 961, passed and including all thereof at any to be hereinafter referred to as the "Utility System of 32 the City" or "the "System"; and Ordinance NO. 4945 February 18, 1997 Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 WHEREAS, pursuant to Ordinance No. 1379, the City issued its $400,000 Water and Sewer Revenue Bonds, 1960, and by Section 13 of Ordinance No. 1379, the City reserved the right to issue additional water and sewer revenue bonds which would constitute a lien and charge upon the gross revenues of the waterworks utility of the City on a parity with were met and complied with; and WHEREAS, pursuant $1,000,000 par value "1972 Bonds"), of outstanding; and WHEREAS, the City, those bonds if certain conditions to Ordinance No. 2675, the City issued its Water and Sewer Revenue Bonds, 1972 (the which $595,000 par value presently are by Ordinance No. 1986, established a storm drainage Sanitary Sewer Utility; and W-~EREAS, the City, by Ordinance 4193, passed December 5, utility as a part of the No. 4492, passed March 13, 1991, Utility by repealing Auburn City Code Chapter 13.48 "Storm Drainage Utility" contained in Auburn City Code separated the storm drainage utility from the Sanitary Sewer entitled Title 13 entitled "Water, Sewers and Public Utilities," and enacting a new Auburn City Code Chapter 13.48 entitled "Storm Drainage Utility"; and Ordinance No. 4945 February 18, 1997 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 WHEREAS, the City now owns, operates and maintains a storm drainage utility and the City desires to recombine such storm drainage utility into the Utility System; and WHEREAS, the City Council has determined that it is necessary to issue and sell its $5,000,000 bonds to provide the funds additions to and betterments City; and W/4EREAS, the MBIA Insurance ("Bond Insurer"), has made a policy (the "Municipal Bond par value utility system revenue to carry out a system or plan of and extensions to the System of the Corporation of Armonk, commitment to issue Insurance Policy") payment when due provided therein, purchase of the Municipal interest o~ the City; and to purchase those forth herein; NOW, as of the principal of and interest on the and the City Council of the City deems Bond Insurance Policy is in New York an insurance insuring the Bonds as that the the best WHEREAS, bonds under the terms and conditions THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, follows: Section 1. ~. As used in this ordinance, following meanings: following words shall have the Ordinance NO. 4945 February 19, 1997 Page 3 DO ORDAIN the Seattle-Northwest Securities Corporation has offered as set 1 "Alternate Security" means any bond insurance, reserve 2 insurance, collateral, security, letter of credit, guaranty, 3 surety bond or similar credit enhancement device providing for or 4 securing the payment of all or part of the principal of and 5 interest on Parity Bonds, issued by an institution which has been 6 assigned a credit rating at the time of issuance of the Parity 7 Bonds, secured by such Alternate Security equal to or better than 8 the highest two rating categories by both Moody's Investors 9 Service, Inc., and Standard & Poor's. Alternate Security 10 includes, in lieu of cash and investments, insurance obtained by 11 the City equal to part or all of the Reserve Requirement for any 12 Parity Bonds then outstanding for which such insurance is 13 obtained. 14 "Annual Debt Service" for the applicable series of the Parity 15 Bonds for any calendar year means all the interest, plus all 16 principal (except principal of Term Bonds due in any Term Bond 17 Maturity Year), plus all mandatory redemption and sinking fund 18 installments for that year, less all bond interest payable from 19 the proceeds of any such bonds in that year. 20 "Assessment Bonds" shall mean the original principal amount 21 of any issue of bonds payable from the Bond Fund equal to the Ordinance No. 4945 February 1~, 1997 Page 4 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 total principal amount (or, if refunding bonds, the remaining unpaid principal amount) of ULID Assessments on any final assessment roll or rolls of one or more ULIDs formed in connection with the improvements being financed by such issue of bonds (or bonds being refunded). The original issue of bonds in excess of Assessment Bonds as "bonds (or Bonds) that are not Assessment principal amount of such shall be referred to Bonds." Assessment Bonds shall be allocated to each $5,000 of bonds in proportion to their percentage of the entire issue of bonds containing purchased, and retired, the percentage of Assessment bonds shall be treated purchased and retired. "Average Annual Debt issue of bonds. When a bond of any Assessment Bonds is redeemed or same percentage of that bond as the Bonds is to the total issue of those as Assessment Bonds being redeemed or Service" means, as of its date of calculation, the sum of the Annual Debt Service for the remaining calendar years to the last scheduled maturity of the applicable issue or issues of bonds divided by the number of those years. For purposes of computing the Reserve Requirement the estimated amount of Bonds to be redeemed prior to maturity may be taken into account if required under federal arbitrage regulations. Ordinance NO. 4945 February 18, 1997 Page 5 1 "Bond Fund" means that special fund of the City known as the 2 Utility System Revenue Bond Fund created by Section 10 of this 3 ordinance for the payment of the principal of and interest on the Insurance Corporation of 4 Parity Bonds. 5 "Bond Insurer" shall mean MBIA 6 Armonk, New York. 7 "Bond Register" means the 8 Registrar on which are recorded 9 Bonds. 10 "Bond Registrar" means either of the 11 12 13 14 registration books of the Bond the names of the owners of the fiscal agencies of the State of Washington located in Seattle, Washington, and New York, New York, as the same may be designated from time to time. "Bonds" means the $5,000,000 par value Utility System Revenue Bonds, 1997, authorized to be issued by this ordinance. Ordinance No. 4945 February 18, 1997 Page 6 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 2 3 4 5 "1972 Bonds" means Bonds, 1972, issued for Ordinance No. 2675. City, the outstanding Water and Sewer Revenue the purposes provided in and pursuant to "City" means the City of Auburn, "Code" means the Internal from time to time. "Construction Accounts" means such accounts created System Funds as the City Finance Director shall designate. "Contract Resource Obligation" means an obligation of the designated as a Contract Resource Obligation and entered Washington. Revenue Code of 1986, as amended into pursuant to Section 19 of this for water supply, sewer service, transmission or other commodity or entity (including without limitation a separate created pursuant to Section 18 of this resolution). "Coverage Requirement" in any calendar year of Net Revenue of the System at least equal to 1.25 times Annual Debt Service in that year on all bonds payable from Bond Fund that are not Assessment Bonds. in such resolution, to make payments water, sewage or stormwater service to another person or utility system means an amount the the Ordinance NO. 4945 February 19, 1997 Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 "Finance Director" means the City Finance Director or the officer that is the successor to substantially the functions and duties of the Finance Director. "Future Parity Bonds" means any and all utility system revenue bonds of the City issued after the date of the issuance of the Bonds, the payment of the principal of and interest on which constitutes a charge or lien on the Gross Revenue of the System and ULID Assessments equal in rank with the charge and lien upon such revenue and assessments required to be paid into the Bond Fund to pay and secure the payment of the principal of and interest on the Bonds. "Government Obligations" means direct obligations of or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America. Ordinance No. 4945 February 18, 1997 Page 8 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 2 3 4 5 "Gross Revenue of the System" or "Gross Revenue" means all of the earnings and revenues received by the City from the maintenance and operation of the System and all earnings~ from the investment in the Principal and improvement charges of money in the Bond Fund which earnings are deposited Interest Account, and connection and capital collected for the purpose of defraying the cost of capital facilities of the System, except ULID Assessments, government grants, proceeds from the sale of System property, City taxes collected by or through the System, bonds or other obligations and earnings investments in a trust, defeasance defease or refund System obligations earnings and revenues of the System) principal proceeds of or proceeds from any or escrow fund created to (until commingled with other or held in a special account for the purpose of paying a rebate to the United States Government under the Code, on earnings of a separate utility system that may independent licensed design, construction comparable certified public be created under Section 18 of this ordinance. "Independent Utility Consultant" means either (1) an professional engineer experienced in the or operation of municipal utilities of size and character to the System, or (2) an independent accountant or other professional consultant Ordinance No. 4945 February 18, 1997 Page 9 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 experienced in the development of rates and charges for municipal 2 utilities of comparable size and character to the System. 3 "Maintenance and Operation Expense" means all reasonable 4 expenses incurred by the City in causing the System to be operated 5 and maintained in good repair, working including without limitation payments made corporation or private entity, Obligations, and payments with order and condition, to any other municipal payments under Contract Resource respect to any other expenses of the System that are properly treated as maintenance and operation expenses under generally accepted accounting principles applicable corporations. The term Maintenance and Operation not include any depreciation or capital additions or to municipal Expense does capital replacements to the System. "Maximum Annual Debt Service" means calculation, the maximum amount of Annual Debt at the time of Service that will mature or come due in the current calendar year or any future year on the outstanding Parity Bonds. "Maximum Interest Rate" means, with respect to any Variable Interest Rate Bond, a numerical rate of interest, set forth in the ordinance authorizing the Future Parity Bonds, that is the maximum rate of interest those Future Parity Bonds may bear at any time. Ordinance NO. 4945 February 18, 1997 Page 10 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 "Municipal Bond Insurance Policy" shall mean the municipal 2 bond insurance policy issued by the Bond Insurer insuring the 3 payment when due of the principal of and interest on the Bonds as 4 provided therein. 5 "Net Revenue of the System" Revenue less (1) Maintenance and into the Rate Stabilization Fund, of the property of the System, Stabilization Fund. or "Net Revenue" means the Gross Operation Expense, (2) deposits and (3) proceeds from the sale and plus withdrawals from the Rate "Parity Bonds" means the Bonds and Future Parity Bonds. "Plan of Additions" means the system or plan of additions and improvements to and betterments and extensions of the System specified, adopted and ordered to be carried out by Section 3 of this ordinance. "Principal and Interest Account" means the account of that name created in the Bond Fund for the payment of the principal of and interest on the Parity Bonds. "Prior Lien Bonds" means the outstanding 1972 Bonds. "Rate Stabilization Fund" means the Utility System Rate Stabilization Fund created in Section 11 of this ordinance. Ordinance No. 4945 Pebruary 18, 1997 Page 11 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 1 2 3 4 5 "Reserve Account" means the account of that name created in the Bond Fund for the purpose of securing the payment of the principal of and interest on the Bonds and any Future Parity Bonds. "Reserve Requirement" means: For all bonds payable from the Bond Fund, the lesser of (i) Maximum Annual Debt Service on those bonds and (ii) 125% of Average Annual Debt Service on those bonds, but at no time shall the Reserve Requirement exceed 10% of the proceeds of those bonds. For purposes of calculating the Reserve Requirement for Future Parity Bonds (including any Future Parity Bonds proposed to be issued), Variable Interest Rate Bonds shall be assumed to bear interest at a fixed rate equal to the higher of (1) the highest variable rate borne during the preceding 24 months by any outstanding variable rate revenue bonds of the System or, (2) if no such Variable Interest Rate Bonds are outstanding at the time of calculation, the rate borne by other variable rate debt the interest rate for which is determined by reference to an index comparable to the index to be used to determine the interest rate on the Future Parity Bonds proposed to be issued. Notwithstanding the above, the deposit to be made in the Reserve Account shall be decreased for any issue of bonds payable from the Bond Fund when and to the extent that the City provides for an Alternate Security to secure the payment of the principal of and interest on that issue of bonds. The amount payable under any Alternate Security shall be credited against the amount otherwise required to be made into the Reserve Account to meet the Reserve Requirement for that issue of bonds. Ordinance No. 4945 February 18, 1997 Page 12 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 "System" or "Utility System" means the City's existing 2 combined water supply and distribution system, sanitary sewage 3 system, storm and surface water utility, together with all 4 additions thereto and betterments and extensions thereof at any 5 time made or constructed, and shall include any utility systems hereafter combined with the System. The System shall not include any water supply or service or other facilities that may be created, acquired or constructed by the City as a separate utility system as provided in Section 11 of this ordinance. "System Funds" means, collectively, the Water Fund, Sewer Fund and Storm Drainage Fund of the System and Construction Accounts. "Term Bond Maturity Year" means any calendar year in which Term Bonds are scheduled to mature. "Term Bonds" means the Bonds maturing in the year 2016 and any Future Parity Bonds of any single issue or series d.esignated as such in the ordinance authorizing their issuance or sale. "ULID" means Utility Local Improvement District. "ULID Assessments" means all assessments levied and collected in any ULID of the City created for the acquisition or construction of additions to and extensions and betterments of the Ordinance No. 4945 February 18, 1997 Page i3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 2 3 4 5 System if such assessments are pledged to be paid intc. the Bond Fund (less any prepaid assessments paid or to be paid into a construction fund or account). ULID Assessments shall include installments thereof and any interest or penalties that may be due thereon. "Variable Interest Rate" means a variable interest rate or rates to be borne by a series of Future Parity Bonds or any one or more maturities within a series of Future Parity Bonds. The method of computing such a variable interest rate shall be specified in the ordinance authorizing such Future Parity Bonds, which ordinance also shall specify either (i) the particular period or periods of time or manner of determining such period or periods of time for which each value of such variable interest rate shall remain in effect or (ii) the time or times upon which any change in such variable interest rate shall become effective. "Variable Interest Rate Bonds" means, for any period, of time, Future Parity Bonds which bear a Variable Interest Rate during that period, except that Future Parity Bonds the interest rate or rates on which shall have been fixed for the remainder of the term thereof no longer shall be deemed to be Variable Interest Rate Bonds. Ordinance NO. 4945 February 18, 1997 Page 14 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 Section 2. Combinina of Utilities. The City hereby combines 2 the City's storm drainage utility with the City's existing 3 combined water supply and distribution system and sanitary sewage 4 system, pursuant to RCW 35.67.331. 5 Section 3. Adoption of Plan of Addition~. The City 6 specifies, adopts and orders the carrying out of the system or 7 plan of additions to and betterments and extensions of the System as set forth in Exhibit A, attached hereto and by this reference made a part hereof (the "Plan of Additions"). The City may modify the details of the Plan of Additions where, in its judgment, it appears advisable if such modifications do not substantially alter the purposes of that plan. The estimated cost of the acquisition, construction and financing of the Plan of Additions, including the costs of issuance and sale of the Bonds and funding a reserve therefor, is declared to be approximately $8,000,000, which costs shall be paid from the proceeds of the Bonds authorized in this ordinance, together with other money of the City. Section 4. Description of Bo~-. For the purpose of paying costs of carrying out the Plan of Additions, funding the Reserve Requirement and paying the costs of issuance and sale of the Bonds, the City shall issue the Bonds in the principal amount of Ordinance No. 4945 February 18, 1997 Page 15 1 2 3 4 5 6 $5,000,000. The Bonds shall be designated Utility System Revenue Bonds, 1997; shall be dated March 1, 1997; shall be in the denomination of $5,000 or any integral multiple thereof within a single maturity; shall be numbered separately in the manner and with any additional designation as the Bond Registrar (collectively, the fiscal agencies of the State of Washington located in Seattle, Washington, and New York, New York) deems 8 necessary for purposes of identification; shall bear interest 9 (computed on the basis of a 360-day year of twelve 30-day months) 10 payable semiannually on each May 1 and November 1, commencing 11 May 1, 1997, to the maturity or earlier redemption of the Bonds; 12 and shall mature on November 1 in years and amounts and bear 13 interest at the rates per annum as follows: 14 Maturity 15 ~ 16 17 1997 18 1998 19 1999 20 2000 21 2001 22 2002 23 2003 24 2004 25 2005 26 2006 27 2007 28 2008 29 2009 30 2010 Interest 215,000 150,000 155,000 165,000 180,000 185 000 195 000 205 000 220 000 230 000 245 000 255 000 270,000 280,000 6.00% 6.00 6.00 6.00 5.25 5.25 5.25 5.50 5.50 5.50 5.50 4.90 5.00 5.15 Ordinance No. 4945 Februa~ 18, 1997 Page 16 10 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2011 300,000 5.25 2012 320,000 5.30 2013 330,000 5.30 2016 1,100,000 5.45 Section 5. Registration and Transfer of Bond,. The Bonds shall be issued only in registered form as to both principal and interest and shall be recorded on books or records maintained by the Bond Registrar (the "Bond Register"). shall contain the name and mailing address Bond and the principal held by each owner. The Bond Register of the owner of each amount and number of each of the Bonds Bonds surrendered to the Bond Registrar may be exchanged for Bonds in any authorized denomination of an equal aggregate principal amount and of the same interest rate and maturity. Bonds may be transferred only if endorsed in the manner provided thereon and surrendered to the Bond Registrar. Any exchange or transfer shall be without cost to the owner or transferee. The Bond Registrar shall not be obligated to exchange or Bond during the 15 days preceding any principal redemption date. The Bonds initially shall be registered in the name of CEDE & as the nominee of The Depository Trust Company, New York, New transfer any payment or Ordinance No. 4945 February 18, 1997 Page 17 7 8 9 10 11 12 13 14 15 16 17 18 19 20 York ("DTC"). The Bonds so registered shall be held[ in fully immobilized form by DTC as depository in accordance with the provisions of a Blanket Issuer Letter of Representations dated February 18, 1997, between the City and DTC (the '~'Letter of Representations). To induce DTC to accept the Bonds as eligible for deposit at DTC, the City approves the Letter of Representations. The Finance Director of the City is authorized and directed to execute and deliver the Letter of Representations, on behalf of the City, to DTC on or before the date of delivery of the Bonds to the purchaser thereof and the payment such changes as the Finance Director of the City the best interests of the City, and her execution the Letter of Representations shall evidence approval of the Letter of Representations the City nor the Bond Registrar shall have therefor, with deems to be in and delivery of irrevocably the by the City. Neither any responsibility or obligation to DTC participants or the persons for whom they act as nominees with respect to the Bonds regarding accuracy of any records maintained by DTC or DTC participants of any amount in respect of principal of or interest on the Bonds, or any notice which is permitted or required to be given to registered owners Ordinance No. 4945 February 18, 1997 Page 18 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 hereunder (except such notice as is required to be given by the Bond Registrar to DTC). For so long as any Bonds are held in fully immobilized form, DTC or its successor depository shall be deemed to be the registered owner for all purposes hereunder and all references to registered owners, bondowners, bondholders or the like shall mean DTC or its nominees and shall not mean the owners of any beneficial interests in the Bonds. Registered ownership of such Bonds, or any portions thereof, may not thereafter be transferred except: (i) to any successor of DTC or its nominee, if that successor shall be qualified under any applicable laws to provide the services proposed to be provided by it; (ii) to any substitute depository, depository appointed by the City or successor; or (iii) to any person if in immobilized form. Upon the resignation of DTC or its successor (or any substitute depository or its successor) from its functions as or a determination by the City that it no longer such substitute depository's the Bonds are no longer held wishes to continue the system of book entry transfers through DTC or its successor (or any substitute depository or its successor), the City may appoint a substitute depository. Any such substitute Ordinance No. 4945 February 18, 1997 Page 19 1 depository shall be qualified under any applicable 2 the services proposed to be provided by it. 3 If (i) 4 successor) 5 substitute depository can be obtained, or 6 that the Bonds are to be in certificated laws to provide DTC or its successor resigns from its functions as (ii) form, (or substitute depository or its depository, and no the City determines the ownership of 7 Bonds may be transferred to any person as provided herein and the 8 Bonds no longer shall be held in fully immobilized form. 9 Section 6. ~. Both principal of and interest 10 on the Bonds shall be payable in lawful money of the United 11 States of America. Interest on the Bonds shall be paid by checks 12 or drafts of the Bond Registrar mailed on the interest payment 13 date to the registered owners at the addresses appearing on the 14 Bond Register on the 15th day of the month preceding the interest 15 payment date. Principal of the Bonds shall be payable upon 16 presentation and surrender of the Bonds by the registered owners 17 at either of the principal offices of the Bond Registrar at the 18 option of the owners. Notwithstanding the foregoing, as long as 19 the Bonds are registered in the name of DTC or its nominee, 20 payment of principal of and interest on the Bonds shall be made 21 in the manner set forth in the Letter of Representations. Ordinance No. 4945 ~ebruary 18, 1997 Page 20 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Section 7. Optional Redemption. ~.~dator~_ Redemntlon and 2 Open Market Purchase of BOD~-. Bonds maturing in the years 1997 3 through 2007, inclusive, shall be issued without the right or 4 option of the City to redeem those Bonds prior to their stated 5 maturity dates. The City reserves the right and option to redeem 6 Bonds maturing on or after November 1, 2008, prior to ti~eir stated maturity dates on or after November 1, 2007, as a whole or in part at any time within one or more maturities selected by the City (and by lot within a maturity in such manner as the Bond Registrar shall determine), date fixed for redemption. Bonds maturing in 2016 are under the optional redemption at par plus accrued interest to the Term Bonds and, if not redeemed provisions set forth above or purchased in the open market under the provisions set forth below, shall be called for redemption by lot (in such manner as the Bond Registrar shall determine) at par plus accrued interest on November 1 in years and amounts as follows: Mandatory Redemption Years Mandatory Redemption 2014 2015 2016 $ 350,000 365,000 385,000 Ordinance No. 4945 Febx~/ary 18, 1997 Page 21 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 If the City shall redeem Term Bonds under the optional 2 redemption provisions set forth above or purchase Term Bonds in 3 the open market as set forth below, the par amount of the Term 4 Bonds so redeemed or purchased (irrespective of their actual 5 redemption or purchase prices) shall be credited against one or 6 more scheduled mandatory redemption amounts for those Term Bonds (as allocated by the City) beginning not earlier than 60 days after the date of the optional redemption or purchase, and the City shall promptly notify the Bond Registrar in writing of the manner in which the credit for the Term Bonds so redeemed or purchased has been allocated. Portions of the principal amount of any Bond, in installments of $5,000 or any integral multiple thereof, may be redeemed. If less than all of the principal amount of any Bond is redeemed, upon surrender of that Bond at either of the principal offices of the Bond Registrar, there shall be issued to the registered owner, without charge therefor, a new Bond (or Bonds, at the option of the registered owner) of the same maturity and interest rate in any of the denominations authorized by this ordinance in the aggregate principal amount remaining unredeemed. Ordinance NO. 4945 Februar~ 18, 1997 Page 22 1 The City further reserves the right and option to purchase 2 any or all of the Bonds in the open market at any time at any 3 price acceptable to the City plus accrued interest to the date of 4 purchase. 5 All Bonds purchased or redeemed under this section shall be 6 canceled. Notwithstanding the foregoing, for so long as the Bonds are registered in the name of Cede & Co., as nominee of DTC, selection of Bonds for redemption shall be in accordance with the Letter of Representations. Section 8. Notice of Redemption. The City shall cause 7 8 9 10 11 12 notice of any intended redemption of Bonds to be given not less 13 than 30 nor more than 60 days prior to the date fixed for 14 redemption by first-class mail, postage prepaid, to the 15 registered owner of any Bond to be redeemed at the address 16 appearing on the Bond Register at the time the Bond Registrar 17 prepares the notice, and the requirements of this sentence shall 18 be deemed to have been fulfilled when notice has been mailed as 19 so provided, whether or not it is actually received by the owner 20 of any Bond. Interest on Bonds called for redemption shall cease 21 to accrue on the date fixed for redemption unless the Bond or 22 Bonds called are not redeemed when presented pursuant to the Ordinance NO. 4945 February 18, 1997 Page 23 1 call. In addition, the redemption notice shall be mailed within 2 the same period, postage prepaid, to Moody's Investors Service, 3 Inc., and Standard & Poor's at their offices in New York, New 4 York, or their successors, to Seattle-Northwest Securities 5 Corporation, at its principal office in Seattle, Washin!~ton, or 6 its successor, the Bond Insurer at its principal office in 7 Armonk, New York, and to such other persons, including registered 8 securities depositories, and with such additional information as 9 the City Finance Director shall determine, but these additional 10 mailings shall not be a condition precedent to the reder~tion of 11 Bonds. Notwithstanding the foregoing, for so long as the Bonds 12 are registered in the name of Cede & Co., as nominee of DTC, 13 notice of redemption shall be given in accordance with the Letter 14 of Representations. 15 Section 9. Failure to Redeem Bon~. If any Bond is not 16 redeemed when properly presented at its maturity or call date, 17 the City shall be obligated to pay interest on that Bond at the 18 same rate provided in the Bond from and after its maturity or 19 call date until that Bond, both principal and interest, is paid 20 in full or until sufficient money for its payment in full is on 21 deposit in the bond redemption fund hereinafter created and the Ordinance No. 4945 February 18, 1997 Page 24 issue Except Account 1 Bond has been called for payment by giving notice of that call to 2 the registered owner of each of those unpaid Bonds. 3 Section 10. Creation of and Payments into B~ F~,~. There 4 is created in the office of the Finance Director a special fund 5 to be known as the Utility System Revenue Bond Fund (the "Bond 6 Fund"), which fund shall be divided into two accounts: the 7 Principal and Interest Account and the Reserve Account. So long 8 as any Bonds are outstanding against the Bond Fund, the City 9 shall set aside and pay into the Bond Fund all ULID Assessments 10 on their collection and, out of the Net Revenue of the System, 11 certain fixed amounts without regard to any fixed proportion, 12 namely: 13 (a) Into the Principal and Interest Account on or 14 before each interest and principal and interest pa~ent 15 date, an amount, together with other money on deposit 16 therein, sufficient to pay the next ensuing interest or 17 principal and interest requirements on the Bonds; and 18 19 (b) Into the Reserve Account from Bond proceeds 20 and other money of the City at closing an amount equal 21 to the Reserve Requirement. 22 23 The Reserve Account may be divided into subaccounts for each 24 of bonds remaining outstanding payable from the Bond Fund. 25 for withdrawals therefrom as authorized herein, the Reserve 26 and all subaccounts shall be maintained at the Reserve Ordinance NO. 4945 February 18, 1997 Page 25 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 2 3 4 5 Requirement amount for all bonds payable from the Bond Fund at all times so long as any of the Parity Bonds are outstanding. When the total amount in the Bond Fund shall equal the total amount of principal and interest for all outstanding bonds payable out of the Bond Fund to the last maturity thereof, no further payment need be made into the Bond Fund. Notwithstanding the second sentence of this paragraph, the amounts in any subaccount in the Reserve Account may be decreased for the Bonds or any issue of Future Parity Bonds when and to the extent the City has provided for the Reserve Requirement by means of Alternate Security. If there shall be a deficiency in the Principal and Interest Account in the Bond Fund to meet maturing installments of either principal or interest, as the case may be, that deficiency shall be made up ratably from the Reserve Account and its subaccounts based on the amount of the total Reserve Requirement to be paid into each subaccount (except when Alternative Security requires all cash and investments in the Reserve Account be withdrawn before draws on the Alternate Security) by the withdrawal of cash therefrom for that purpose. Any deficiency created in the Reserve Account and its subaccounts by reason of any such withdrawal shall then be made up from ULID Assessment payments and the Net Revenue Ordinance No. 4945 February 18, 1997 Page 26 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 of the System first available after making necessary provisions 2 for the required payments into the Principal and Interest Account. 3 The money in the Reserve Account and its subaccounts otherwise 4 shall be held intact and may be applied against the last 5 outstanding bonds payable out of the Bond Fund, except that if the 6 Reserve Account and any of its subaccounts are fully funded, money Reserve Requirement shall in excess of the be withdrawn and deposited, first, in any subaccount having a deficiency in its Reserve Requirement, and second, at the option of tke Finance Director, either in the Principal and Interest Account and spent for the purpose of retiring bonds payable from the Bond ]Fund or in any of the System Funds and spent for other lawful System purposes. The City may provide for the purchase, redemption or defeasance of bonds payable from the Bond Fund by the use of money on deposit in any account in the Bond Fund as long as the money remaining in those accounts is sufficient to satisfy the required deposits in those accounts for the remaining bonds outstanding payable from the Bond Fund. Ail money in the Bond Fund may be kept in cash or invested in legal investments maturing not later than the date when the funds Ordinance NO. 4945 February 18, ~997 Page 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 are required for the payment of principal of or interest on the outstanding bonds payable from the Bond Fund (for investments in the Principal and Interest Account) or having a guaranteed redemption price prior to maturity and, in no event, maturing later than the last maturity of any remaining outstanding bonds payable from the Bond Fund (for investments in the Reserve Account). Earnings from investments in the Principal and Interest Account shall be deposited in that account. Income from investments in the Reserve Account shall be deposited in that account. The City may create sinking fund accounts or other accounts or subaccounts in the Bond Fund for the payment or securing the payment of bonds payable from the Bond Fund as long as the maintenance of such accounts does not conflict with the rights of the owners of bonds payable from the Bond Fund. If the City fails to set aside and pay into the Bond[ Fund the amounts set forth above, the owner of any of the outstandling bonds payable out of the Bond Fund may bring action against the City and compel such setting aside and payment. Section 11. Rate Stabilization F,,~. There is hereby established a Utility System Rate Stabilization Fund. The City may at any time, as determined by the City and as consistent with Ordinance NO. 4945 February 18, 1997 Page 28 1 Section 16 of this ordinance, deposit in the Rate Stabilization 2 Fund Gross Revenue and any other money received by the System and 3 available to be used therefor, excluding principal proceeds of 4 any Future Parity Bonds or other borrowing. The City may, upon 5 authorization by ordinance, at any time withdraw money from the 6 Rate Stabilization Fund for inclusion in the Net Revenue for the 7 current fiscal year of the System, except that the total amount 8 withdrawn from the Rate Stabilization Fund in any fiscal year of 9 the System may not exceed the total debt service of the System in 10 that year. Such deposits or withdrawals may be made up to and 11 including the date 90 days after the end of the fiscal year for 12 which the deposit or withdrawal will be included as Net Revenue 13 for that fiscal year. 14 Earnings from investments in the Rate Stabilization Fund 15 shall be deposited in that fund and shall not be included as Net 16 Revenue of the System unless and until withdrawn from that fund as 17 provided herein. The City may also deposit earnings from 18 investments in the Rate Stabilization Fund into any System fund as 19 authorized by ordinance, and such deposits shall be included as 20 Net Revenue in the year of deposit. Ordinance No. 4945 February 18, 1997 Page 29 1 No 2 Stabilization 3 the City from 4 fiscal year. 5 Section 12. 6 deposit of Gross Revenue shall be made into the Rate Fund to the extent that such deposit would prevent meeting the Coverage Requirement in the relevant Findina as to Sufficiency of Revenue. Pledae of Revenue and Lien Posit~nn. The City Council finds and determines 7 that the Gross Revenue and benefits to be derived from the 8 operation and maintenance of the System at the rates to be 9 charged for services from the System will be more than sufficient 10 to meet all Maintenance and Operation Expense and to permit the 11 setting aside into the Bond Fund out of the Gross Revenue of 12 amounts sufficient to pay the principal of and interest on the 13 Bonds when due. The City Council declares that in fixing the 14 amounts to be paid into the Bond Fund under this ordinance it has 15 exercised due regard for Maintenance and Operation Expense and 16 has not obligated the City to set aside and pay into the Bond 17 Fund a greater amount of Gross Revenue of the System than in its 18 judgment will be available over above such Maintenance and 19 Operation Expense. 20 The Net Revenue of the System and ULID Assessments are 21 pledged to the payment of the Parity Bonds, and the Parity Bonds Ordinance No. 4945 February 18, 1997 Page 30 1 shall constitute a lien 2 Assessments prior and superior to 3 subject only to the prior lien and 4 the outstanding Prior Lien Bonds. 5 and charge upon such Net Revenue and ULID any other charges whatsoever, charge on the Net Revenue of Section 13. Deposit of Bond Proeeg~-. The accrued interest 6 received from the purchaser of the Bonds shall be deposited in 7 the Principal and Interest Account of the Bond Fund and used to 8 pay interest on the Bonds on their first interest payment date. 9 Principal proceeds of the Bonds, together with other money of the 10 City, in an amount equal to the Reserve Requirement for the Bonds 11 shall be deposited in the Reserve Account. The remaining 12 principal proceeds of the Bonds shall be deposited in such 13 Construction Accounts as the Finance Director shall designate and 14 used to pay the costs of carrying out the Plan of Additions and 15 the costs of issuance and sale of the Bonds. Money on deposit in 16 the Construction Accounts may be invested and the investment 17 earnings retained in the Construction Accounts and used for the 18 purposes of those accounts. 19 Section 14. Revocation of Right to Issue Prior Lien Bonn.. 20 The right of the City to issue bonds on a parity of lien with the 21 Prior Lien Bonds in accordance with Section 13 of Ordinance 22 No. 1379 is permanently revoked. Ordinance No. 4945 February 18, 1997 Page 31 1 Section 15. g~iY_~D~BJL~. The City covenants and agrees with the owner of each Bond at any time outstanding, as follows: (a) 2L~. Ail ULID Assessments shall be paid into the Bond Fund and may be used to build up the required reserves in the Reserve Account and to pay the principal of and interest on the Parity Bonds, without those ULID Assessments, being particularly allocated to the payment of the principal of and interest on any particular issue of bonds. 10 11 (b) Maintenance and Operation. It will at all 12 times maintain, preserve and keep the properties of the 13 System in good repair, working order and condition, 14 will make all necessary and proper additions, 15 betterments, renewals and repairs thereto, and 16 improvements, replacements and extensions thereof, and 17 will at all times operate or cause to be operated the 18 properties of the System and the business in connection 19 therewith in an efficient manner and at a reasonable 20 cost. 21 22 (c) Establishment and Collection of Rates and 23 ~g_~. It will establish, maintain and collect rates 24 and charges for all services and facilities provided by 25 the System which will be fair and nondiscriminatory, 26 and will adjust those rates and charges from time to 27 time so that: 28 29 (1) The Gross Revenue of the System will at 30 all times be sufficient to (i) pay all Maintenance 31 and Operation Expense on a current basis, (ii) pay 32 when due all amounts that the City is obligated to 33 pay into the Bond Fund and the accounts therein, 34 (iii) pay all taxes, assessments or other 35 governmental charges lawfully imposed on the 36 System or the revenue therefrom or payments in 37 lieu thereof and any and all other amounts which 38 the City may now or hereafter become obligated to 39 pay from the Gross Revenue of the System by law or 40 contract; 41 Ordinance No. 4945 February 18, 1997 Page 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 4O 41 42 (2) The Net Revenue of the System (together with any ULID Assessment collections) in each calendar year will be at least equal to the Coverage Requirement. To the extent allowable by law, those to which service of the System is available will be charged for that service at the prevailing rate within 30 days of the availability of that service. (d) Sale or Disposition of the System. It will not sell or otherwise dispose of the System in its entirety unless, simultaneously with such sale or other disposition, all Parity Bonds are redeemed and retired, or defeased pursuant to the provisions of this ordinance. It will not sell, lease, mortgage or in any manner encumber or otherwise dispose of any part of the System, including all additions and improvements thereto and extensions thereof at any time made, that are used, useful or material in the operation of the System (each, as used in this subparagraph, a "transfer"), unless provision is made for the replacement thereof or for payment into the Bond Fund of the greatest of the following: (1) An amount which will be in the same proportion to the net amount of Parity Bonds then outstanding (defined as the total amount of those bonds less the amount of cash and investments in the Bond Fund and accounts therein) that the Gross Revenue of the System from the portion of the System sold or disposed of for the preceding year bears to the total Gross Revenue of the System for that period; or (2) An amount which will be in the same proportion to t~e net amount of Parity Bonds then outstanding (as defined above) that the Net Revenue from the portion of the System sold or disposed of for the preceding year bears to the Ordinance No. 4945 February 18, 1997 Page 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 4O 41 42 43 total Net Revenue of the System for such period; or (3) An amount which will be in the same proportion to the net amount of Parity Bonds then outstanding (as defined above) that the cost of the assets sold or disposed of (less depreciation) bears to the cost of the assets of the entire System (less depreciation) immediately prior to such sale or disposition. (4) An amount which will be in the same proportion to the net amount of Parity Bonds then outstanding (as defined above) that the number of customers served by the portion of the System sold or disposed bears to the number of customers served by the entire System prior to such sale or disposition. Before any such transfer under this subparagraph with respect to greater than 5% of the total assets of the System (measured by cost of the assets less depreciation), the City must obtain a certificate of an Independent Utility Consultant to the effect that in his or her professional opinion, upon such transfer of assets, the remaining System will retain its operational integrity and the Net Revenue of the System will be at least equal to the Coverage Requirement during the 5 fiscal years following the fiscal year in which the transfer is to occur, taking into account, (1) the reduction in revenue resulting from the transfer; (2) the use of any proceeds of the transfer for the redemption of Parity Bonds, (3) the Independent Utility Consultant's estimate of revenue from customers anticipated to be served by any additions to and betterments and extensions of the System financed in part by ~he proposed portion of the proceeds of the transfer. Notwithstanding any other provision of this subsection, (1) the City in its discretion may sell or otherwise dispose of any of the works, plant, properties or facilities of the System or any real or Ordinance NO. 4945 February 18, 1997 Page 34 1 2 3 4 5 7 8 9 10 11 personal property comprising a part of the same which shall have become unserviceable, inadequate, obsolete or unfit to be used in the operation of the System, or no longer necessary, material to or useful to the operation of the System, without making any deposit into the Bond Fund, (2) the City may transfer the System to another municipal corporation so long as ULID Assessments and Net Revenue with respect to the portion of the System so transferred are used for payment of debt service on Parity Bonds prior to any other purpose, or (3) the City in its discretion may carry 12 out such a transfer if the aggregate cost of the 13 facilities, property or other assets (less 14 depreciation) being transferred under this subparagraph 15 comprises no more than 5% of the costs of all of the 16 assets of the System (less depreciation). 17 18 (e) Liens Upon the System. It will not at any 19 time create or permit to accrue or to exist any lien or 20 other encumbrance or indebtedness upon the Gross 21 Revenue of the System, or any part thereof, prior or 22 superior to the lien thereon for the payment of Parity 23 Bonds, and will pay and discharge, or cause to be paid 24 and discharged, any and all lawful claims for labor, 25 materials or supplies which, if unpaid, might become a 26 lien or charge upon the Gross Revenue of the System, or 27 any part thereof, prior to or superior to the lien of 28 the Parity Bonds, or which might impair the security of 29 the Parity Bonds. 30 31 (f) Books and Accounts. It will keep proper 32 books, records and accounts with respect to the 33 operations, income and expenditures of the System in 34 accordance with proper accounting procedures and any 35 applicable rules and regulations prescribed by the 36 State of Washington. It will prepare annual financial 37 and operating statements within 270 days of the close 38 of each fiscal year showing in reasonable detail the 39 financial condition of the System as of the close of 40 the previous year, and the income and expenses for such 41 year, including the amounts paid into the Bond Fund and 42 into any and all special funds or accounts created 43 pursuant to the provisions of this ordinance, the Ordinance NO. 4945 February 18, 1997 Page 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 status of all funds and accounts as of the end of such year, and the amounts expended for maintenance, renewals, replacements and capital additions to the System. Such statements shall be sent to the owner of any Parity Bonds upon written request therefor being made to the City. (g) ~Q~. Except to aid the poor or infirm, to provide for resource conservation or to provide for the proper handling of hazardous materials, it will not furnish or supply or permit the furnishing or supplying of any service or facility in connection with the operation of the System free of charge to any person, firm or corporation, public or private, other than the City, so long as any Parity Bonds are outstanding. (h) Collection of Delinquent Account~. On at least an annual basis, it will determine all accounts that are delinquent and will take all necessary action to enforce payment of such accounts against those property owners whose accounts are delinquent. (i) Fire and Extended Coverage Insura~¢m. It will carry the types of insurance on its System properties in the amounts normally carried by private water, sewer and storm drainage utility companies engaged in the operation of water, sewer and storm drainage systems, and the cost of such insurance shall be considered a part of Maintenance and Operation Expense, or it will implement and maintain a self- insurance program or an insurance pool program with reserves adequate, in the reasonable judgment of the City, to protect the owners of the Parity Bonds against loss. (j) Condemnation Awards. Any condemnation awards received by the City in excess of 1% of cost of the assets of the System (less depreciation) shall be applied, to one or more of the following: in (1) to the damaged property, (2) to retiring bonds, and (3) to improvements of the System. Ordinance No. 4945 February 18, 1997 Page 36 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Section 16. ~. The Gross Revenue of the System shall be deposited in the System Funds and used for the following purposes only in the following order of priority: (a) To pay Maintenance and Operation Expense; (b) To pay principal of and interest on the Prior Lien Bonds; (c) To pay, together with ULID Assessments, the principal of and interest on any Parity Bonds when due or as the principal is required to be paid and to make all payments required to be made into any mandatory redemption or sinking fund account created to provide for the payment of the principal of Term Bonds; (d) To make, together with O-LID Assessments, all payments required to be made into the Reserve Account or its subaccounts and to make all payments required to be made pursuant to a reimbursement agreement in connection with an Alternate Security, except that if there is not sufficient money to make all payments under reimbursement agreements, the payments will be made on a pro rata basis; (e) To make all payments required to be made into any revenue bond, note, warrant or other revenue obligation redemption fund, debt service account or reserve account created to pay or secure the payment of the principal of and interest on any revenue bonds, notes, warrants or other obligations of the City having a lien upon the revenue of the System subordinate to the lien thereon for the payment of the principal of and interest on any Parity Bonds; (f) To make necessary additions, betterments and improvements and repairs to or extensions and replacements of the System, to retire by redemption or purchase in the open market any outstanding revenue obligations or other obligations of the System, to make Ordinance No. 4945 February 18, 1997 Page 37 1 2 3 4 5 the 6 funds, refunding escrow funds, 7 meet 8 deposits into the Rate Stabilization Fund, or to provide for any other lawful City purpose. The City may transfer any money from any funds or accounts of System legally available therefor, except bond redemption defeasance or other trust funds, to the required payments to be made into the Bond Fund. Section 17. Provisions for Future Parity B~. The City to issue Future Parity Bonds if the following and complied with at the time of the issuance no deficiency in the Bond 9 reserves the right 10 conditions are met 11 of those Future Parity Bonds: 12 (a) There shall be 13 Fund. 14 15 (b) The ordinance providing for the issuance of 16 the Future Parity Bonds shall provide that all 17 assessments and interest thereon that may be levied in 18 any ULID created for the purpose of paying, in whole or 19 in part, the principal of and interest on those Future 20 Parity Bonds, shall be paid directly into the Bond 21 Fund, except for any prepaid assessments permitted by 22 law to be paid into a construction fund or account. 23 24 25 26 27 28 29 30 31 32 33 34 35 (c) The ordinance providing for the issuance of those Future Parity Bonds shall provide for the payment of the principal thereof and interest thereon out of the Bond Fund. (d) The ordinance providing for the issuance of such Future Parity Bonds shall provide for the deposit into the Reserve Account or a subaccount therein of (i) an amount equal to the Reserve Requirement for those Future Parity Bonds from the Future Parity Bond proceeds or other money legally available, or (ii) Alternate Security or an amount plus Alternate Ordinance No. 4945 February 18, 1997 Page 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Security equal to the Reserve Requirement for those Future Parity Bonds, or (iii) to the extent that the Reserve Requirement is not funded from Future Parity Bond proceeds, other legally available money or Alternate Security at the time of issuance of those Future Parity Bonds, within five years from the date of issue of the Future Parity Bonds from ULID Assessments, if any, levied and first collected for the payment of the principal of and interest on those Future Parity Bonds and, to the extent that ULID Assessments are insufficient, then from the Net Revenue of the System in five approximately equal annual payments. No Alternate Security may be used to satisfy the Reserve Requirement for Future Parity Bonds unless (i) the Alternate Security is non-cancelable and (ii) the insurer or provider of the Alternate Security as of the time of issuance of such Alternate Security is rated in the highest two rating categories by both Moody's Investors Service, Inc., and Standard & Poor's. (e) The ordinance authorizing the issuance of such Future Parity Bonds shall provide for the payment of mandatory redemption or sinking fund requirements into the Bond Fund for any Term Bonds to be issued and for regular payments to be made for the payment of the principal of such Term Bonds on or before their maturity, or, as an alternative, the mandatory redemption of those Term Bonds prior and up to their maturity date from money in the Principal and Interest Account. (f) There shall be on file from an Independent Utility Consultant, a certificate showing that in his or her professional opinion, based on any 12 consecutive calendar months out of the immediately preceding 24 calendar months, the Net Revenue of the System (together with any ULID Assessment collections) shall be equal to the Coverage Requirement for each year thereafter. The certificate, in estimating the Net Revenue of the System available for debt service, may adjust Net Revenue of the System to reflect: Ordinance No. 4945 February 18, 1997 Page 39 1 2 3 4 5 6 7 8 9 10, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 (1) Any changes in rates in effect and being charged or expressly committed by ordinance to be made in the future; (2) Income derived from customers of the System who have become customers during the 12 consecutive month period or thereafter adjusted to reflect one year's net revenue from those customers; (3) Income from any customers to be connected to the System who have paid the required connection charges; (4) The Independent Utility Consultant's estimate of the Net Revenue of the System to be derived from customers anticipated to connect for whom new building permits have been issued; (5) The Independent Utility Consultant's estimate of the Net Revenue of the System to be derived from customers with existing homes or buildings which will be required to connect to any additions to and improvements and extensions of the System constructed and to be paid for out of the proceeds of the sale of the additional Future Parity Bonds or other additions to and improvements and extensions of the System then under construction and not fully connected to the facilities of the System when such additions, improvements and extensions are completed; and (6) Income received or to be received which is derived from any person, firm, corporation or municipal corporation under any executed contract for utility service, which revenue was not included in the historical Net Revenue of the System; Ordinance No. 4945 February 18, 1997 Page 40 1 (7) Any increases or decreases in Net 2 Revenue as a result of any actual or 3 reasonably anticipated changes in Maintenance 4 and Operation Expense subsequent to the 5 12-month period. 6 7 In lieu of the certificate of an Independent 8 Utility Consultant as described in this paragraph (f), 9 there may be on file from the City Finance Director, a 10 certificate showing that in his or her professional 11 opinion, based on any 12 consecutive calendar months 12 out of the immediately preceding 24 calendar months, 13 and without the adjustments described in subparagraphs 14 (1) through (7), above, the Net Revenue of the System 15 shall be equal to the Coverage Requirement for each 16 year thereafter. 17 18 No certificate provided for in this paragraph (f) 19 shall be required in connection with the issuance of a 20 bond issue if the amount of bonds proposed to be issued 21 does not exceed the ULID Assessments levied in support 22 of such bond issue by more than $5,000 plus any amount 23 of the proceeds of such bonds deposited in the Reserve 24 Account as capitalized reserve. 25 26 Furthermore, if the Future Parity Bonds proposed 27 to be so issued are for the sole purpose of refunding 28 outstanding bonds payable from the Bond Fund, no such 29 certification of coverage shall be required if the 30 Annual Debt Service in each year for the refunding 31 bonds is not increased by $5,000 over the amount 32 required for the bonds to be refunded thereby and the 33 maturities of those refunding bonds are not extended 34 beyond the maturities of the bonds to be refunded 35 thereby. 36 37 Nothing contained herein shall prevent the City from issuing 38 Future Parity Bonds to refund maturing Parity Bonds then Ordinance NO. 4945 February 18, 1997 Page 41 1 outstanding, money for the payment of which is not otherwise 2 available. 3 Nothing contained herein shall prevent the City from issuing 4 revenue bonds or other obligations that are a charge upon the 5 Gross Revenue of the System subordinate to the payments required 6 to be made therefrom into the Bond Fund for the payment of any Parity Bonds or from pledging the payment of utility local improvement district assessments into a bond redemption fund created for the payment of the principal of and interest on those subordinate improvement bonds or obligations as long as such utility local district assessments are levied for improvements 7 8 9 10 11 12 constructed from the proceeds of those junior lien bonds. 13 Section 18. Separate Utility System-. The City may create, 14 acquire, construct, finance, own and operate one or more 15 additional systems for water supply, sewer service, water, sewage 16 or stormwater transmission, treatment or other commodity or 17 service. The revenue of that separate utility system shall not 18 be included in the Gross Revenue of the System and may be pledged 19 to the payment of revenue obligations issued to purchase, 20 construct, condemn or otherwise acquire or expand the separate 21 utility system. Neither the Gross Revenue nor the Net Revenue of 22 the System shall be pledged by the City to the payment of any Ordinance NO. 4945 February 19, 1997 Page 42 1 obligations of a separate utility system except (1) as a Contract 2 Resource Obligation upon compliance with Section 19 hereof and/or 3 (2), with respect to the Net Revenue, on a basis subordinate to 4 the lien of the Parity Bonds on that Net Revenue. 5 Section 19. Contract Resource Obliaatio~-. The City may at any time enter into one or more contracts or other obligations 7 for the acquisition (from facilities yet to be constructed) of 8 water supply, sewer service, water sewer or stormwater 9 transmission, treatment or other commodity or service relating to 10 the System. The City may determine that such contract or other 11 obligation is a Contract Resource Obligation, and may provide 12 that all payments under that Contract Resource Obligation 13 (including payments prior to the time that water supply, 14 transmission, treatment or other commodity or service is being 15 provided, or during a suspension or after termination of supply 16 or service) shall be Maintenance and Operation Expense if the 17 following requirements are met at the time such Contract Resource 18 Obligation is entered into: 19 (a) No Event of Default as defined in 20 Section 31 of this ordinance has occurred and is 21 continuing. 22 23 (b) There shall be on file a certificate of 24 an Independent Utility Consultant stating that (i) the 25 payments to be made by the City in connection with the Ordinance No. 4945 Februa~ 18, 1997 Page 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Contract Resource Obligation are reasonable for the supply, transmission, treatment or other service rendered; (ii) the source of any new supply, and any facilities to be constructed to provide the supply, transmission, treatment or other service, are sound from a water, sewerage, or other commodity supply or transmission planning standpoint, are technically and economically feasible in accordance with prudent utility practice, and are likely to provide supply or transmission or other service no later than a date set forth in the Independent Utility Consultant's certification; and (iii) the Net Revenue (further adjusted by the Independent Utility Consultant's estimate of the payments to be made in accordance with the Contract Resource Obligation) for the five fiscal years following the year in which the Contract Resource Obligation is incurred, as such Net Revenue is estimated by the Independent Utility Consultant (with such estimate based on such factors as he or she considers reasonable), will be at least equal to the Coverage Requirement. Payments required to be made under Contract Resource 24 Obligations shall not be subject to acceleration. 25 Nothing in this Section 19 shall be deemed to prevent the 26 City from entering into other agreements for the acquisition of 27 water supply, sewer service, water, sewage or stormwater 28 transmission, treatment or other commodity or service from 29 existing facilities and from treating those payments as 30 Maintenance and Operation Expense. Nothing in this Section 19 31 shall be deemed to prevent the City from entering into other 32 agreements for the acquisition of water supply, transmission, Ordinance No. 4945 February 18, 1997 Page 44 6 7 8 9 10 11 12 13 14 15 16 1 treatment 2 constructed 3 thereto, 4 Revenue 5 Bonds. Section 20. or other commodity or service from facilities to be and from agreeing to make payments with respect such payments constituting a lien and charge on Net subordinate to that of the Bonds and any Future Parity Form and Execution of Bon8-. The Bonds shall be printed, typed, lithographed or photocopied on good bond paper in a form consistent with the provisions of this ordinance and state law and shall be signed by the Mayor and City Clerk, either or both of whose signatures may be manual or in facsimile, and the seal of the City or a facsimile reproduction thereof shall be impressed or printed thereon. Only Bonds bearing a Certificate of Authentication in the following form, manually signed by the Bond Registrar, shall be valid or obligatory for any purpose or entitled to the benefits of this ordinance: Ordinance NO. 4945 February 18, 1997 Page 45 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF AUTHENTICATION This Bond is one of the fully registered City of Auburn, Washington, Utility System Revenue Bonds, 1997, described in the Bond Ordinance. WASHINGTON STATE FISCAL AGENCY Bond Registrar By Authorized Signer The authorized signing of a Certificate of Authentication shall be conclusive evidence that the Bonds so authenticated have been duly executed, authenticated and delivered and are entitled to the benefits of this ordinance. If any officer whose facsimile signature appears on the Bonds ceases to be an officer of the City authorized to sign bonds before the Bonds bearing his or her facsimile signature are authenticated or delivered by the Bond Registrar or issued by the City, those Bonds nevertheless may be authenticated, issued and delivered and, when authenticated, issued and delivered, shall be as binding on the City as though that person had continued to be an officer of the City authorized to sign bonds. Any Bond also may be signed on behalf of the City by any person who, on the actual date of signing of the Bond, is an officer of the City Ordinance NO. 4949 February 18, 1997 Page 46 1 authorized to sign bonds, although he or she did not hold the 2 required office on the date of issuance of the Bonds. 3 Section 21. ~. The Bond Registrar shall keep, 4 or cause to be kept, at its principal corporate trust office, 5 sufficient books for the registration and transfer of the Bonds, 6 which shall be open to inspection by the City at all times. The 7 Bond Registrar is authorized, on behalf of the City, to 8 authenticate and deliver Bonds transferred or exchanged in 9 accordance with the provisions of the Bonds and this ordinance, 10 to serve as the City's paying agent for the Bonds and to carry 11 out all of the Bond Registrar's powers and duties under this 12 ordinance and City Ordinance No. 3905 establishing a system of 13 registration for the City's bonds and obligations. 14 The Bond Registrar shall be responsible for its 15 representations contained in the Bond Registrar's Certificate of 16 Authentication on the Bonds. The Bond Registrar may become the 17 owner of Bonds with the same rights it would have if it were not 18 the Bond Registrar and, to the extent permitted by law, may act as 19 20 21 depository for and permit any of its officers or directors to act as members of, or in any other capacity with respect to, any committee formed to protect the rights of Bond owners. Ordinance No. 4945 February 18, 1997 Page 47 1 Section 22. Preservation of Tax Exemption for Interest on 2 ]~_~. The City covenants that it will take all actions 3 necessary to prevent interest on the Bonds from being included in 4 gross income for federal income tax purposes, and it will neither 5 take any action nor make or permit any use of proceeds of the 6 Bonds or other funds of the City treated as proceeds of the Bonds 7 at any time during the term of the Bonds which will cause 8 interest on the Bonds to be included in gross income for federal 9 income tax purposes. The City also covenants that it will, to 10 the extent the arbitrage rebate requirement of Section 148 of the 11 Internal Revenue Code of 1986, as amended (the "Code"), is 12 applicable to the Bonds, take all actions necessary to comply (or 13 to be treated as having complied) with that requirement in 14 connection with the Bonds, including the calculation and payment 15 of any penalties that the City has elected to pay as an 16 alternative to calculating rebatable arbitrage, and the payment 17 of any other penalties if required under Section 148 of the Code 18 to prevent interest on the Bonds from being included in gross 19 income for federal income tax purposes. The City certifies that 20 it has not been notified of any listing or proposed listing by 21 the Internal Revenue Service to the effect that it is a bond 22 issuer whose arbitrage certifications may not be relied upon. Ordinance No. 4945 February 19, 1997 Page 48 1 Section 23. Desiqnation of Bonds as "Oualified Tax-E~-m~t 2 ~h~.~." The City has determined and certifies that (a) the 3 Bonds are not "private activity bonds" within the meaning of 4 Section 141 of the Code; (b) the reasonably anticipated amount of 5 tax-exempt obligations (other than private activity bonds) which 6 the City and any entity subordinate to the City (including any 7 entity which the City controls, which derives its authority to 8 issue tax-exempt obligations from the City or which issues tax- 9 exempt obligations on behalf of the City) will issue during the 10 calendar year in which the Bonds are issued will not exceed 11 $10,000,000; and (c) the amount of tax-exempt obligations, 12 including the Bonds, designated by the City as "qualified tax- 13 exempt obligations" for the purposes of Section 265(b) (3) of the 14 Code during the calendar year in which the Bonds are issued does 15 not exceed'S10,000,000. The City designates the Bonds as 16 "qualified tax-exempt obligations', for the purposes of 17 Section 265(b) (3) of the Code. 18 Section 24. ~. The Bonds shall be negotiable 19 instruments to the extent provided by RCW 62A.8-102 and 20 62A.8-105. 21 Section 25. Refunding or Defeasance of the Bon~-. The City 22 may issue refunding bonds pursuant to the laws of the State of Ordinance No. 4945 Feb~a~ 18, 1997 Page 49 1 Washington or use money available from any other lawful source to 2 pay when due the principal of and interest on the Bonds, or any 3 portion thereof included in a refunding or defeasance plan, and 4 to redeem and retire, refund or defease all such then-outstanding 5 Bonds (hereinafter collectively called the "defeased Bonds") and 6 to pay the costs of the refunding or defeasance. If money 7 and/or direct obligations of the United States of maturing at a 8 time or times and bearing interest in amounts (together with 9 money, if necessary) sufficient to redeem and retire, refund or 10 defease the defeased Bonds in accordance with their terms are set 11 aside in a special trust fund or escrow account irrevocably 12 pledged to that redemption, retirement or defeasance of defeased 13 Bonds (hereinafter called the "trust account"), then all right 14 and interest of the owners of the defeased Bonds in the covenants 15 of this ordinance and in the funds and accounts obligated to the 16 payment of the defeased Bonds shall cease and become void. The 17 owners of defeased Bonds shall have the right to receive payment 18 of the principal of and interest on the defeased Bonds from the 19 trust account. The City shall include in the refunding or 20 defeasance plan such provisions as the City deems necessary for 21 the random selection of any defeased Bonds that constitute less Ordinance No. 4945 February 18, 1997 Page 50 1 than all of a particular maturity of the Bonds, for notice of the 2 defeasance to be given to the owners of the defeased Bonds and to 3 such other persons as the City shall determine, and for any 4 required replacement of Bond certificates for defeased Bonds. 5 The defeased Bonds shall be deemed no longer outstanding, and the 6 City may apply any money in any other fund or account established 7 for the payment or redemption of the defeased Bonds to any lawful 8 purposes as it shall determine. 9 Notwithstanding anything in this section to the contrary, if 10 the principal of and/or interest due on the Bonds is paid by the 11 Bond Insurer pursuant to the Municipal Bond Insurance Policy, the 12 Bonds shall be treated as remaining outstanding for all purposes 13 and shall not be considered paid by the City, and the covenants, 14 agreements and other obligations of the City to the registered 15 owners of the Bonds shall continue to exist, and the Bond Insurer 16 shall be surbrogated to the rights of the registered owners. 17 Section 26. Approval of Bond Purchase Contract. Seattle- 18 Northwest Securities Corporation of Seattle, Washington, has 19 presented a purchase contract {the "Bond Purchase Contract") to 20 the City offering to purchase the Bonds under the terms and 21 conditions provided in the Bond Purchase Contract, which written 22 Bond Purchase Contract is on file with the City Clerk and is Ordinance No. 4945 Feb~a~ 18, 1997 Page 51 1 incorporated herein by this reference. The City Council finds 2 that entering into the Bond Purchase Contract is in the City's 3 best interest and therefore accepts the offer contained therein 4 and authorizes its execution by City officials. 5 _ The Bonds will be printed at City expense delivered to the purchaser in accordance with the Contract, with the approving legal Shefelman, municipal bond counsel of 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 and will be Bond Purchase opinion of Foster Pepper & Seattle, Washington, Bond counsel shall not with the Bonds, and bond counsel's opinion shall so state. _ The proper City officials are authorized and directed to do everything necessary for the prompt delivery of the Bonds to the purchaser and for the proper application and use of the proceeds of the sale thereof. Section 27. The City Council official Official Bonds. For the sole purpose of the Bond purchaser's compliance Ordinance NO. 4945 February 18, 1997 Page 52 Preliminary_ Official Statement Deemed Fins]. has been provided with copies of a preliminary statement dated February 5, 1997 (the "Preliminary Statement"), prepared in connection with the sale of the regarding the Bonds printed on each Bond. be required to completeness or accuracy of any circular or other sales material review and shall express no opinion concerning the official statement, offering issued or used in connection prices, amount, redemption, delivery dates, dependent on such matters. 1 with Securities and Exchange Commission Rule 15c2-12(b) (1), the 2 City "deems final" that Preliminary Official Statement as of its 3 date, except for the omission of information as to offering 4 interest rates, selling compensation, aggregate principal 5 principal amount per maturityl maturity dates, options of 6 ratings and other terms of the Bonds Section 28. ~. Pending the printing, 7 8 execution 9 and delivery to the purchaser of definitive Bonds, the City may 10 cause to be executed and delivered to the purchaser a single 11 temporary Bond in the total principal amount of the Bonds. The 12 temporary Bond shall bear the same date of issuance, interest 13 rates, principal payment dates and terms and covenants as the 14 definitive Bonds, shall be issued as a fully registered Bond in 15 the name of the purchaser, and otherwise shall be in a form 16 acceptable to the purchaser. The temporary Bond shall be 17 exchanged for definitive Bonds as soon as they are printed, 18 executed and available for delivery. 19 Section 29. Undertakina to Prov~d~ Cont~nu~n? Disclosure. 20 To meet the requirements of United States Securities and Exchange 21 Commission ("SEC") Rule 15c2-12 (b) (5) (the "Rule") , as applicable 22 to a participating underwriter for the Bonds, the City makes the Ordinance No. 4945 February 18, 1997 Page 53 1 following written undertaking (the "Undertaking") for the benefit 2 of holders of the Bonds. 3 (a) Undertakin~ to Provide Annual Financial 4 Information and Notice of Material Events. The City 5 undertakes to provide or cause to be provided, either 6 directly or through a designated agent: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (i) To each nationally recognized municipal securities information repository designated by the SEC in accordance with the Rule ("NRMSIR") and to a state information depository, if any, established in the state of Washington (the "SID") annual financial information and operating data of the type included in the final official statement for the Bonds and described in Section 29(b) ("annual financial information"); (ii) To each NRMSIR or the Municipal Securities Rulemaking Board ("MSRB"), and to the SID, timely notice of the occurrence of any of the following events with respect to the Bonds, if material: (1) 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 Bonds; (7) modifications to rights of holders of the Bonds; (8) Bond calls (other than scheduled mandatory redemptions of Term Bonds); (9) defeasances; (10) release, substitution, or sale of property securing repayment of the Bonds; and (11) rating changes; and (iii) To each NRMSIR or to the MSRB, and to the SID, timely notice of a failure by the City to provide required annual financial information on or before the date specified in Section 29(b). Ordinance NO. 4949 February 18, 1997 Page 54 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 (b) Type of Annual Financial Information Undertaken to be Provided. The annual financial information that the City undertakes to provide in Section 29(a): (i) Shall consist of (1) a statement of authorized, issued and outstanding bonded debt secured by Gross Revenue of the System; (2) debt service coverage ratios; and (3) general customer statistics for the System; (ii) Shall be prepared (except as noted in the financial statements) in accordance with accounting procedures prescribed by the State Auditor and any other applicable rules and regulations prescribed by the State of Washington; (iii) Shall not be audited, except, however, that if and when audited financial statements are otherwise prepared and available to the City they will be provided; (iv) Shall be provided to each NRMSIR and the SID, not later than the last day of the ninth month after the end of each fiscal year of the City (currently, a fiscal year ending December 31), as such fiscal year may be changed as required or permitted by State law, commencing with the City's fiscal year ending December 31, 1996; and (v) May be provided in a single or multiple documents, and may be incorporated by reference to other documents that have been filed with each NRMSIR and the SID, or, if the document incorporated by reference is a "final official statement" with respect to other obligations of the City, that has been filed with the MSRB. Ordinance No. 4945 February 18, 1997 Page 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 (c) Amendment of UndertakiNg. The Undertaking is subject to amendment after the primary offering of the Bonds without the consent of any holder of any Bond, or of any broker, dealer, municipal securities dealer, participating underwriter, rating agency, NRMSIR, the SID or the MSRB, under the circumstances and in the manner permitted by the Rule. The City will give notice to each NRMSIR or the MSRB, and the SID, of the substance (or provide a copy) of any amendment to the Undertaking and a brief statement of the reasons for the amendment. If the amendment changes the type of annual financial information to be provided, the annual financial information containing the amended financial information will include a narrative explanation of the effect of that change on the type of information to be provided. (d) ~[~L~. The Undertaking evidenced by this Section 29 shall inure to the benefit of the City and any holder of Bonds, and shall not inure to the benefit of or create any rights in any other person. (e) Termination of Undertakinq. The City's obligations under this Undertaking shall terminate upon the legal defeasance of all of the Bonds. In addition, the City's obligations under this Undertaking shall terminate if those provisions of the Rule which require the City to comply with this Undertaking become legally inapplicable in respect of the Bonds for any reason, as confirmed by an opinion of nationally recognized bond counsel or other counsel familiar with federal securities laws delivered to the City, and the City provides timely notice of such termination to each NRMSIR or the MSRB and the SID. Ordinance NO. 4945 February 18, 1997 Page 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 (f) Remedy for Failure to Comply with ~. As soon as practicable after the City learns of any failure to comply with the Undertaking, the City will proceed with due diligence to cause such noncompliance to be corrected. No failure by the City or other obligated person to comply with the Undertaking shall constitute a default in respect of the Bonds. The sole remedy of any holder of a Bond shall be to take such actions as that holder deems necessary, including seeking an order of specific performance from an appropriate court, to compel the City or other obligated person to comply with the Undertaking. (g) Designation of Official Responsible ~o Administer Undertaking. The Finance Director of the City (or such other officer of the City who may in the future perform the duties of the Finance Director) or his or her designee is authorized and directed in his or her discretion to take such further actions as may be necessary, appropriate or convenient to carry out the Undertaking of the City in respect of the Bonds set forth in this Section 29 and in accordance with the Rule, including, without limitation, the following actions: (i) Preparing and filing the annual financial information undertaken to be provided; (ii) Determining whether any event specified in Section 29(a) has occurred, assessing its materiality with respect to the Bonds, and, if material, preparing and disseminating notice of its occurrence; (iii) Determining whether any person other than the City is an "obligated person" within the meaning of the Rule with respect to the Bonds, and obtaining from such person an undertaking to provide any annual financial information and notice of material events for that person in accordance with the Rule; Ordinance No. 4945 February 18, 1997 Page 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (iv) Selecting, engaging and compensating designated agents and consultants, including but not limited to financial advisors and legal counsel, to assist and advise the City in carrying out the Undertaking; and (v) Effecting any necessary amendment of the Undertaking. Section 30. Amendatorv and Supplemental Oral-b-Ce. (a) This ordinance shall not be modified or amended in any respect subsequent to the initial issuance of the Bonds, except as provided in and in accordance with and subject to the provisions of this section. (b) The City, from time to time, and at any time, without the consent of or notice to the registered owners of the Bonds, may pass supplemental or amendatory ordinances as follows: (1) To cure any formal defect, omission, inconsistency or ambiguity in this ordinance in a manner not adverse to the owner of any Parity Bond; (2) To impose upon the Bond Registrar (with its consent) additional rights, remedies, powers, liabilities or duties which may lawfully be for the benefit of the registered owners of the Bonds any authority, security, granted, conferred or Ordinance No. 4945 February 18, 1997 Page 58 1 imposed and which are not contrary to or inconsistent with this 2 ordinance as theretofore in effect; 3 (3) To add to the covenants and agreements of, 4 and limitations and restrictions upon, the City in this ordinance, 5 other covenants, agreements, limitations and restrictions to be 6 observed by the City which are not contrary or inconsistent with 7 this ordinance as theretofore in effect; 8 (4) To confirm, as further assurance, any pledge 9 under, and the subjection to any claim, lien or pledge created or 10 to be created by this ordinance of any other money, securities or 11 funds; 12 (5) To authorize different denominations of the 13 Bonds and to make correlative amendments and modifications to this 14 ordinance regarding exchangeability of Bonds of different 15 authorized denominations, redemptions of portions of Bonds of 16 particular authorized denominations and similar amendments and 17 modifications of a technical nature; 18 (6) To modify, alter, amend or supplement this 19 ordinance in any other respect which is not materially adverse to 20 the registered owners of Parity Bonds and which does not involve a 21 change described in paragraph (c) of this Section 30; Ordinance No. 4945 February 18, 1997 Page 59 1 (7) Because of change in federal law or rulings, 2 to maintain the exclusion from gross income of the interest on the 3 Bonds from federal income taxation; and 4 (8) To add to the covenants and agreements of, 5 and limitations and restrictions upon, the City in this ordinance, 6 other covenants, agreements, limitations and restrictions to be 7 observed by the City which are requested by a bond insurer or 8 provider of Reserve Insurance and which are not materially adverse 9 to the registered owners of Parity Bonds. 10 Before the City shall adopt any such supplemental ordinance 11 pursuant to this subsection, there shall have been delivered to 12 the City and the Bond Registrar an opinion of Bond Counsel, 13 stating that such supplemental ordinance is authorized or 14 permitted by this ordinance and, upon the execution and delivery 15 thereof, will be valid and binding upon the City in accordance 16 with its terms and will not adversely affect the exclusion from 17 gross income for federal income tax purposes of interest on the 18 Bonds. 19 (c) (1) Except for any supplemental ordinance entered 20 into pursuant to paragraph (b) of this Section 28, subject to the 21 terms and provisions contained in this paragraph (c) and not Ordinance NO. 4945 February 18, 1997 Page 60 otherwise, registered owners of not less than 60% in aggregate principal amount of the Parity Bonds shall have the right from time to time to consent to and approve the adoption by the City of any supplemental ordinance deemed necessary or desirable by the City for the purpose of modifying, altering, amending, 6 supplementing or rescinding, in any particular, any of the terms 7 or provisions contained in this ordinance; except that, unless 8 approved in writing by the registered owners of all Parity Bonds, 9 nothing contained in this section shall permit, or be construed as 10 permitting: 11 (i) A change in the times, amounts or 12 currency of payment of the principal of or 13 interest on any outstanding Parity Bond or a 14 reduction in the principal amount or redemption 15 price of any outstanding Parity Bond or a change 16 in the redemption price of any outstanding Parity 17 Bond or a change in the method of determining the 18 rate of interest thereon, or 19 20 (ii) A preference of priority of any Parity 21 Bonds or any other bond or bonds, or 22 23 (iii) A reduction in the aggregate principal 24 amount of any Parity Bond. 25 26 (2) If at any time the City shall pass any 27 supplemental ordinance for any of the purposes of this subsection 28 (c), the Bond Registrar shall cause notice of the proposed 29 supplemental ordinance to be given by first-class United States Ordinance No. 4945 February 18, 1997 Page 61 1 mail to all registered owners of the Bonds and Parity Bonds, to 2 any bond insurer, and to the Rating Agencies if the Parity Bonds 3 are rated by those agencies. Such notice shall briefly set forth 4 the nature of the proposed supplemental ordinance and shall state 5 that a copy thereof is on file at the office of the Bond Registrar for inspection by all registered owners of the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Parity Bonds. (3) Within two years after the date of the mailing of such notice, the City may adopt such supplemental ordinance in substantially the form described in such notice, but only if there shall have first been delivered to the Bond Registrar (i) the required consents, in writing, of the registered owners of the Parity Bonds, and (ii) an opinion of Bond Counsel stating that such supplemental ordinance is authorized or permitted by this ordinance and, upon the execution and delivery thereof, will be valid and binding upon the City in accordance with its terms and will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Parity Bonds. (4) If registered owners of not less than the percentage of Parity Bonds required by this paragraph (c) shall have consented to and approved the execution and delivery thereof Ordinance NO. 4945 February 18, 1997 Page 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 as herein provided, no owner of the Parity Bonds shall have any right to object to the adoption of such supplemental ordinance, or to object to any of the terms and provisions contained therein or the operation thereof, or in any manner to question the propriety of the passage thereof, or to enjoin or restrain the City or the Bond Registrar from passing the same or from taking any action pursuant to the provisions thereof. (d) Upon the execution and delivery of any supplemental ordinance pursuant to the provisions of this Section 28, this ordinance shall be, and be deemed to be, modified and amended in accordance therewith, and the respective rights, duties and obligations under this ordinance of the City, the Bond Registrar and all registered owners of Parity Bonds, shall thereafter be determined, exercised and enforced under this ordinance subject in all respects to such modifications and amendments. Section 31. Defaults and (a) Events of Default. The following shall constitute "Events of Default" with respect to the Bonds: Ordinance NO. 4945 February 18, 1997 Page 63 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 (1) If a default is made in the payment of the 2 principal of or interest on any of the Bonds when the same shall 3 become due and payable; or 4 (2) If the City defaults in the observance and 5 performance of any other of the covenants, conditions and agreements on the part of the City set forth in this ordinance or any covenants, conditions or agreements on the part of the City contained in any Future Parity Bond authorizing ordinance and such default or defaults have continued for a period of six months after they have received from the Bondowners, Trustee (as defined below) or from the registered owners of not less than 25% in principal amount of the Parity Bonds, a written notice specifying and demanding the cure of such default. However, if the default in the observance and performance of any other of the covenants, conditions and agreements is one which cannot be completely remedied within the six months after written notice has been given, it shall not be Bonds as long as the after written notice an Event of Default with respect to the City has taken active steps within 90 days has been given to remedy the default and is diligently pursuing such remedy. Ordinance NO. 4945 February 18, 1997 Page 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (3) If the City files a petition in bankruptcy or is placed in receivership under any state or federal bankruptcy or insolvency law. (b) Bondowners' Trustem. So long as such Event of Default has not been remedied, a bondowners, trustee (the "Bondowners' Trustee") may be appointed by the registered owners of 25% in principal amount of the Parity Bonds or by the Bond Insurer, by an instrument or concurrent instruments in writing signed and acknowledged by such registered owners of the Parity Bonds or Bond Insurer or by their attorneys-in-fact duly authorized and delivered to such Bondowners' Trustee, notification thereof being given to the City. That appointment shall become effective immediately upon acceptance thereof by the Bondowners' Trustee. Any Bondowners' Trustee appointed under the provisions of this Subsection 29(b) shall be a bank or trust company organized under the laws of the State of Washington or the State and a successor registered owners Bonds or by the of New York or a national banking association. The bank or trust company acting as Bondowners' Trustee may be removed at any time, Bondowners' Trustee may be appointed, by the of a majority in principal amount of the Parity Bond Insurer, by an instrument or concurrent Ordinance NO. 4945 February 18, 1997 Page 65 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 instruments in writing signed and acknowledged by such registered 2 owners of the Bonds or by their attorneys-in-fact duly authorized. 3 The Bondowners' Trustee may require such security and indemnity as 4 may be reasonable against the costs, expenses and liabilities that 5 may be incurred in the performance of its duties. In the event that any Event of Default in the sole judgment of the Bondowners' Trustee is cured and the Bondowners' Trustee furnishes to the City a certificate so stating, that Event of the Default shall be conclusively deemed to be cured and the City, Bondowners' Trustee and the registered owners of the Parity Bonds shall be restored to the same rights and position which they would have held if no Event of Default had occurred. The Bondowners' Trustee appointed in the manner herein provided, and each successor thereto, is declared to be a trustee for the registered owners of all the Parity Bonds and is empowered to exercise all the rights and powers herein conferred on the Bondowners' Trustee. (c) Suits at Law or in Equity. Upon the happening of an Event of Default and during the continuance thereof, the Bondowners' Trustee may, and upon the written request of the registered owners of not less then 25% in principal amount of the Ordinance No. 4945 February 18, 1997 Page 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 Parity Bonds steps as it outstanding or by the Bond Insurer shall, take such and institute such suits, actions or other proceedings, all may deem appropriate for the protection and enforcement of the rights of the registered owners of the Parity Bonds, to collect any amounts due and owing to or from the City, or to obtain other appropriate relief, and may enforce the specific performance of any covenant, agreement or condition contained in this ordinance or in any of the Parity Bonds. Nothing contained in this Section 31 shall, in any event or under any circumstance, be deemed to authorize the acceleration of maturity of principal on the Parity Bonds, and the remedy of acceleration is expressly denied to the registered owners of the Parity Bonds or the Bond Insurer under any circumstances including, without limitation, upon the occurrence and continuance of an Event of Default. Any action, suit or other proceedings instituted by the Bondowners' Trustee hereunder shall be brought in its name as trustee for the Bondowners and all such rights of action upon or under any of the Parity Bonds or the provisions of this ordinance may be enforced by the Bondowners' Trustee without the possession of any of those Parity Bonds and without the production of the Ordinance No. 4945 February 18, 1997 Page 67 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 same at any trial or proceedings relative thereto except where 2 otherwise required by law. Any such suit, action or proceeding 3 instituted by the Bondowners' Trustee shall be brought for the 4 ratable benefit of all of the registered owners of those Parity 5 Bonds and/or for the benefit of the Bond Insurer, subject to the 6 provisions of this ordinance. The respective registered owners of the Parity Bonds and the Bond Insurer, by taking and holding the be conclusively deemed irrevocably to appoint the Trustee the true and lawful trustee of the respective same, shall Bondowners' registered institute trustee account owners of those Parity Bonds, with authority to any such action, suit or proceeding; to receive as and deposit in trust any sums becoming distributable on of those Parity Bonds; to execute any paper or documents for the receipt of money; and to do all acts with respect thereto that the registered owner himself or herself might have done in person. Nothing herein shall be deemed to authorize or empower the Bondowners, Trustee to consent to accept or adopt, on behalf of any registered owner of the Parity Bonds, any plan of reorganization or adjustment affecting the Parity Bonds or any right of any registered owner thereof, or to authorize or empower the Bondowners' Trustee to vote the claims of the registered Ordinance NO. 4945 February 18, 1997 Page 68 1 owners thereof in any receivership, insolvency, liquidation, 2 bankruptcy, reorganization or other proceeding to which the City 3 is a party. 4 (d) Application of Money Collected by Bondowners' 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 5 Trustee. Any money collected by the Bondowners' Trustee at any 6 time pursuant to this Section 31 shall be applied in the following 7 order of priority: (i) first, to the payment of the charges, expenses, advances and compensat ion of the Bondowners ' Trustee and the charges, expenses, counsel fees, disbursements and compensation of its agents and attorneys; (ii) second, to the payment to the persons entitled thereto of all installments of interest then due on the Parity Bonds in the order of maturity of such installments and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof ratably, according to the amounts due thereon to the persons entitled thereto, without any discrimination or preference; and (iii) third, to the payment to the persons entitled thereto of the unpaid principal amounts of any Parity Bonds which shall have become due (other than Parity Bonds previously called for redemption for the payment of which money is held pursuant to the provisions hereto) , whether at maturity or by proceedings for redemption or otherwise, in the order of their due dates and, if the amount available shall not be sufficient to pay in full the principal amounts due on the same date, then to the payment thereof ratably, according to the principal amounts due thereon to Ordinance NO. 4945 February 18, 1997 Page 69 the persons entitled thereto, without any discrimination or preference. For purposes of payments under this subsection 31(d) the Bond Insurer shall be treated as a registered owner with respect to the Bonds upon which it has paid interest and/or principal, and shall 7 receive payments ratably from the Trustee. 8 (e) Duties and Obliqations of Bondowners' Trusten. The 9 Bondowners' Trustee shall not be liable except for the performance 10 of such duties as are specifically set forth herein. During an 11 Event of Default, the Bondowners' Trustee shall exercise such of 12 the rights and powers vested in it hereby, and shall use the same 13 degree of care and skill in its exercise, as a prudent person 14 would exercise or use under the circumstances in the conduct of 15 his or her own affairs. The Bondowners' Trustee shall have no 16 liability for any act or omission to act hereunder except for the 17 Bondowners' Trustee's own negligent action, its own negligent 18 failure to act or its own willful misconduct. The duties and 19 obligations of the Bondowners' Trustee shall be determined solely 20 by the express provisions of this ordinance, and no implied 21 powers, duties or obligations of the Bondowners' Trustee shall be 22 read into this ordinance. 1 2 5 6 Ordinance No. 4945 February 18, 1997 Page 70 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 The Bondowners' Trustee shall not be required to expend or 2 risk its own funds or otherwise incur individual liability in the 3 performance of any of its duties or in the exercise of any of its 4 rights or powers as the Bondowners' Trustee, except as may result 5 from its own negligent action, its own willful misconduct. The Bondowners' Trustee person as a registered owner of thereto, if disputed, has been satisfaction. its own negligent failure to act or shall not be bound to recognize any any Bond until his or her title established to its reasonable The Bondowners' Trustee may consult with counsel and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance with the opinion of counsel. The Bondowners' Trustee neglect or default of any person, such shall not be answerable for any firm or corporation employed and or more selected-by it with reasonable care. (f) Suits by Individual Bondowners Restricted. Neither the registered owner nor the beneficial owner of any one of Parity Bonds, nor the Bond Insurer, shall have any Ordinance NO. 4945 February 18, 1997 Page 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 right to institute any action, suit or proceeding at law or in equity for the enforcement of same unless: (i) an Event of Default has happened and is continuing; and (ii) a Bondowners' Trustee has been appointed; and (iii) such owner or Bond Insurer previously shall have given to the Bondowners' Trustee written notice of the Event of Default on account of which such suit, action or proceeding is to be instituted; and (iv) the registered owners of 25% in principal amount of the Bonds and Future Parity Bonds, after the occurrence of such Event of Default, or the Bond Insurer, has made written request of the Bondowners' Trustee and have afforded the Bondowners' Trustee a reasonable opportunity to institute such suit, action or proceeding; and (v) there have been offered to the Bondowners' Trustee security and indemnity satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby; and (vi) the Bondowners' Trustee has refused or neglected to comply with such request within a reasonable time. No registered owner or beneficial owner of ally Parity 34 Bond shall have any right in any manner whatever by his or her 35 action to affect or impair the obligation of the City to pay from Ordinance NO. 4945 February 18, 1997 Page 72 1 the Net Revenue the principal of and interest on such Parity Bonds 2 to the respective owners thereof when due. 3 Section 32. ~. The City Council finds that it 4 is in the City's best interest to purchase, and that a savings 5 will result from purchasing, the Municipal Bond Insurance Policy 6 for the Bonds. The City shall purchase from the Bond Insurer the 7 Municipal Bond Insurance Policy insuring the prompt pay~ent of 8 the principal of and interest on the Bonds and agrees to the 9 conditions for obtaining that policy, including the payment of 10 the premium therefor and the following provisions entitled 11 "Payments under the Policy" required by the Bond Insurer to be 12 included in this ordinance: 13 "A. In the event that, on the second Business Day, and 14 again on the Business Day, prior to the payment date on the 15 Obligations, the Bond Registrar has not received sufficient 16 moneys to pay all principal of and interest on the 17 Obligations due on the second following or following, as the 18 case may be, Business Day, the Paying Agent shall immediately 19 notify the Insurer or its designee on the same Business Day 20 by telephone or telegraph, confirmed in writing by registered 21 or certified mail, of the amount of the deficiency. 22 23 "B. If the deficiency is made up in whole or in part 24 prior to or on the payment date, the Bond Registrar shall so 25 notify the Insurer or its designee. 26 27 "C. In addition, if the Bond Registrar has notice that 28 any registered owner has been required to disgorge payments 29 of principal or interest on the Obligation to a trustee in 30 Bankruptcy or creditors or others pursuant to a final 31 j udgraent by a court of competent jurisdiction that such Ordinance NO. 4945 Page 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 payment constitutes a voidable preference to such registered owner within the meaning of any applicable bankruptcy laws, then the Bond Registrar shall notify the Bond Insurer or its designee of such fact by telephone or telegraphic notice, confirmed in writing by registered or certified mail. "D. The Bond Registrar is hereby i:~revocably designated, appointed, directed and authorized to act as attorney-in-fact for registered owners of the Bonds as follows: "1. If and to the extent there is a deficiency in amounts required to pay interest on the Obligations, the Bond Registrar shall (a) execute and deliver to State Street Bank and q?rust Company, N.A., or its successors under the Policy (the "Insurance Paying Agent"), in form satisfactory to the Insurance Paying Agent~, an instrument appointing the Insurer as agent for such registered owners in any legal proceeding related to the payment of such interest and an assignment to the Insurer of the claims for interest to which such deficiency relates and which are paid by the Bonds Insurer, (b) receive as designee of the respective registered o~ers (and not as Bond Registrar) in accordance with the tenor of the Policy payment from the Insurance Paying Agent with respect to the claims for interest so assigned, and (c) disburse the same to such respective Holders; and "2. If and to the extent of a deficiency in amounts required to pay principal of the Obligations, the Bond Registrar shall (a) execute and deliver to the Insurance Paying Agent in form satisfactory to the Insurance Paying Agent an instrument appointing the Insurer as agent for such Holder in any legal proceeding relating to the payment of such principal and an assignment to the Insurer of any of the Obligation surrendered to the Insurance Paying Agent of so much of the principal amount thereof as has not previously been paid or for which moneys are not held by the Ordinance NO. 4945 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Bond Registrar and available for such payment (but such assignment shall be delivered only if pa[fment from the Insurance Paying Agent is received), (b) receive as designee of the respective regislzered owners (and not as Paying Agent) in accordance with the tenor of the Policy payment therefor from the Insurance Paying Agent, and (c) disburse the same to such registered owners. "E. Payments with respect to claims for interest on and principal of Obligations disbursed by the Bond Registrar from proceeds of the Policy shall not be considered to discharge the obligation of the Issuer with respect to such Obligations, and the Bond Insurer shall become the owner of such unpaid Obligations and claims for the interest in accordance with the tenor of the assignment made to it under the provisions of this subsection or otherwise. "F. Irrespective of whether any such assignment is executed and delivered, the City and the Paying Agent hereby agree for the benefit of the Bond Insurer that: "1. They recognize that to the extent the Insurer makes payments, directly or indirectly. (as by paying through the Bond Registrar), on account of principal of or interest on the Obligations, the Bond Insurer will be subrogated to the rights of such registered owners to receive the amount of such principal and interest from the Issuer, with interest thereon as provided and solely from the sources stated in this ordinance and the Bonds; and "2. They will accordingly pay to the Bond Insurer the amount of such principal and interest (including principal and interest recovered under subparagraph (ii) of the first paragraph of the Policy, which principal and interest shall be deemed past due and not to have been paid), with interest thereon as provided in this ordinance and the Obligations, but only from the sources and in the manner provided herein for the payment of principal of and interest on the Obligations to Ordinance NO. 4945 1 registered owners, and will otherwise treat the 2 Bond Insurer as the owner of such rights to the 3 amount of such principal and interest. 4 5 "G. In connection with the issuance of additional Obligations, the City shall deliver to the Insurer a copy of the disclosure document, if any, circulated with respect to such additional Bonds. 6 7 8 9 10 "H. Copies of any amendments made to the documents 11 executed in connection with the issuance of the Obligations 12 which are consented to by the Bond Insurer shall be sent to 13 Standard & Poor's Corporation. 14 15 "I. The Bond Insurer shall receive notice of the 16 resignation or removal of the Bond Registrar and the 17 appointment of a successor thereto. 18 19 "J. The Bond Insurer shall receive copies of all 20 notices required to be delivered to registered owners and, on 21 an annual basis, copies of the City's audited financial 22 statements and Annual Budget. 23 24 Section 33. Notices. Any notice that is required to be 25 given to a holder of a Bond or to the Bond Registrar pursuant to 26 this ordinance shall also be provided to the Bond Insurer. All 27 notices required to be given to the Bond Insurer under the 28 Indenture shall be in writing and shall be sent by registered or 29 certified mail addressed to MBIA Insurance Corporation, 113 King 30 Street, Armonk, New York 10504 Attention: Insured Portfolio 31 Management." 32 Section 34. Parties Interested ~ere~n. Nothing expressed or 33 implied in this ordinance is intended or shall be constr'~ed to Ordinance NO. 4945 Page 76 1 2 3 4 5 6 7 8 9 10 confer upon, or to give to, any person or entity, other than the City, and the registered owners of the Bonds, any right,, remedy or claim under or by reason of this ordinance or any covenant, condition or stipulation hereof, and all covenants, stipulations, promises and agreements in this ordinance contained by and on behalf of the City shall be for the sole and exclusive benefit of the City and the registered owners of the Bonds. Section 35. ~. All actions previously taken in accordance with this ordinance are hereby ratified and confirmed. Ordinance No. 4945 Page 77 2 Section 36. Effective Date of Ordi~m.. This ordinance 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 shall take effect and be in force from and after its passage and five days following its publication as required by law. ATTEST: Robin Wohlhueter, City Clerk 23 APPROVED AS TO FORM: 2 28 Michael J. 29 30 31 PUBLISHED: INTRODUCED 2/18/97 PASSED: 2/18/97 APPROVED: 2/18/97 Reynolds, Charles A. Booth, Mayor City Attorney Ordinance NO. 4945 Page 78 EXHIBIT A PLAN OF ADDITIONS WATER PROJECTS FOR BOND SALE Lea Hill Intertie Project: This project is for the construction of water supply, pumping, and transmission facilities to wholesale five million gallons per day (5 xngd) to neighboring water purveyors, and provide 2 mgd for further City growth. Elements of the Project: The facilities are composed of the following: Green River Pump Station lntertie Pump Station Transmission Pipelines Well 6 and Well 7 Water Resources Program The water resources program is a characterization and study of the Auburn aquifer and other water sources to determine the instantaneous and annual capacities in order to support the City's application for additional water rights. This study will also develop management strategies including long term monitoring for hydraulic continuity between the deep aquifer and the adjacent surface water bodies. The Water Resources Program will include water quality protection as mandated by the Safe Drinking Water Act. Elements of the Program: The program includes the following activities and facilities: Water Resources Protection Program Coal Creek Spring Improvement Aquifer Capacity Evaluation Monitoring Wells Well 5B, 5C, Test Wells Green River and White River Gauging STORM PROJECT FOR BOND SALE Central Storm Improvement: The project is intended to provide storm drainage relief for the Central Drainage sub-basin. This sub-basin serves the developed downtown area of Auburn and stretches generally northward between the BNRR and 'UPRR to the receiving waters of Mill Creek. This comprises an area of approximately 400 acres of developed and undeveloped land. Currently, portions of this area experience surface flooding during periods of heavy rainfall. This project will provide relief to these areas by increasing the size of the storm facilities to accommodate greater intensity rains than tlhe system can currently manage. Design alternatives are currently being reviewed to determine the best route. This eftbrt will be followed by design and preparation of specifications for phased construction beginning in 1997. Improvements include improved conveyance and water quality facilities. Elements of the Project: The facilities are composed of the following: Increased pipelines capacity Improved and increased ditchline capacity Water quality facilities (created wetlands) I, ROBIN WOHLHUETER, City Clerk of the City of Auburn, Washington, certify that the attached copy of Ordinance No. is a true and correct copy of the original ordinance passed on the 18th day of February, 1997, as that ordinance appears on the Minute Book of the City. DATED this __ day of February, 1997. ROBIN WOHLHUETER, City Clerk