HomeMy WebLinkAbout5931
5055131304
CITY OF AUBURN, WASHINGTON
ORDINANCE NO. 5931
AN ORDINANCE OF THE CITY OF AUBURN, WASHINGTON, RELATING
TO CONTRACTING INDEBTEDNESS; PROVIDING FOR THE ISSUANCE OF
$1,375,000 PAR VALUE OF LIMITED TAX GENERAL OBLIGATION
REFUNDING BONDS, 2005, OF THE CITY TO PAY THE COST OF
ADVANCE REFUNDING THE CALLABLE PORTION OF THE CITY'S
OUTSTANDING LIMITED TAX GENERAL OBLIGATION BONDS, 1999,
AND PAYING THE ADMINISTRA TlVE COSTS OF SUCH REFUNDING AND
THE COSTS OF ISSUANCE AND SALE OF SUCH BONDS; FIXING THE
DATE, FORM, MATURITIES, INTEREST RATES, TERMS AND
COVENANTS OF THE BONDS; ESTABLISHING A BOND REDEMPTION
FUND; PROVIDING FOR AND AUTHORIZING THE PURCHASE OF
CERTAIN OBLIGATIONS OUT OF THE PROCEEDS OF THE SALE OF THE
BONDS HEREIN AUTHORIZED AND FOR THE USE AND APPLICATION OF
THE MONEY DERIVED FROM THOSE INVESTMENTS; AUTHORIZING
THE EXECUTION OF AN AGREEMENT WITH U.S. BANK NATIONAL
ASSOCIATION OF SEATTLE, WASHINGTON, AS REFUNDING TRUSTEE;
PROVIDING FOR THE CALL, PAYMENT AND REDEMPTION OF THE
OUTSTANDING BONDS TO BE REFUNDED; PROVIDING FOR BOND
INSURANCE; AND APPROVING THE SALE AND PROVIDING FOR THE
DELIVERY OF THE BONDS TO SEATTLE-NORTHWEST SECURITIES
CORPORATION OF SEATTLE, WASHINGTON.
PASSED AUGUST 15,2005
This document prepared by:
Foster Pepper & Shefelman PLLC
1111 Third Avenue, Suite 3400
Seattle, Washington 98101
(206) 447-4400
TABLE OF CONTENTS
Page
Section I. Definitions............. ........... ............ ...... ................ .................................................................... 2
Section 2. Debt Capacity .. ........... ........ .......... ............................. .......... ............. ......................................4
Section 3. Authorization of Bonds .........................................................................................................5
Section 4. Description of Bonds ...................... ....................................................................................... 5
Section 5. Registration and Transfer of Bonds ......................................................................................6
Section 6. Payment of Bonds.............................................................................. .................................... 7
Section 7. Redemption Provisions and Open Market Purchase of Bonds............................................ 8
Section 8. Notice of Redemption................................................................... .......................................10
Section 9. Failure To Redeem Bonds...................................................................................................11
Section 10. Pledge of Taxes ............ ......................................................................................................11
Section II. Form and Execution of Bonds...................................................................................... .....11
Section 12. Bond Registrar ...................................................................................................................12
Section 13. Preservation of Tax Exemption for Interest on Bonds.....................................................13
Section 14. Small Governmental Issuer Arbitrage Rebate Exception and Designation of Bonds as
"Qualified Tax-Exempt Obligations." ..............................................................................13
Section 15. Refunding or Defeasance of the Bonds ............................................................................14
Section 16. Bond Fund and Deposit of Bond Proceeds....................................................................... 15
Section 17. Refunding of the Refunded Bonds.................................................................................... 16
Section 18.. Call for Redemption of the Refunded Bonds ...................................................................19
Section 19. City Findings with Respect to Refunding......................................................................... 19
Section 20. Approval of Bond Purchase Contract ...............................................................................20
Section 21. Preliminary Official Statement Deemed Final.................................................................20
Section 22. Undertaking to Provide Continuing Disclosure ...............................................................20
Section 23. Bond Insurance................................................................................................................. .23
Section 24. Ratification......................................................................................................................... 24
Section 25. Effective Date of Ordinance.............................................................. ................................24
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50551313.04
CITY OF AUBURN, WASHINGTON
ORDINANCE NO. 5931
AN ORDINANCE of the City of Auburn, Washington, relating to contracting
indebtedness; providing for the issuance of $1,375,000 par value of Limited Tax
General Obligation Refunding Bonds, 2005, of the City to pay the cost of advance
refunding the callable portion of the City's outstanding Limited Tax General
Obligation Bonds, 1999, and paying the administrative costs of such refunding and
the costs of issuance and sale of such bonds; fixing the date, form, maturities,
interest rates, terms and covenants of the bonds; establishing a bond redemption
fund; providing for and authorizing the purchase of certain obligations out of the
proceeds of the sale of the bonds herein authorized and for the use and application of
the money derived from those investments; authorizing the execution of an
agreement with U.S. Bank National Association of Seattle, Washington, as
refunding trustee; providing for the call, payment and redemption of the outstanding
bonds to be refunded; providing for bond insurance; and approving the sale and
providing for the delivery of the bonds to Seattle-Northwest Securities Corporation
of Seattle, Washington.
WHEREAS, pursuant to Ordinance No. 5283, the City of Auburn, Washington (the
"City"), heretofore issued its $1,655,000 par value Limited Tax General Obligation Bonds, 1999
(the" 1999 Bonds"), for the purpose of providing funds to pay the cost of construction of hangars
at the Auburn Municipal Airport, and by that ordinance reserved the right to redeem the 1999
Bonds prior to their maturity on December I, 2009, at a price of par plus accrued interest to the
date fixed for redemption; and
WHEREAS, there are presently outstanding $] ,280,000 par value of 1999 Bonds
maturing on December 1, 20]9, and bearing interest at the rate of 5.60% per annum (the
"Refunded Bonds"); and
WHEREAS, after due consideration, it appears to the City Council that the Refunded
Bonds may be refunded by the issuance and sale of the limited tax general obligation refunding
bonds authorized herein (the "Bonds") so that a substantial savings will be effected by the
5055131304
difference between the principal and interest cost over the life of the Bonds and the principal and
interest cost over the life of the Refunded Bonds but for such refunding, which refunding will be
effected by carrying out the Refunding Plan (hereinafter defined); and
WHEREAS, to effect that refunding in the manner that will be most advantageous to the
City it is found necessary and advisable that certain Acquired Obligations (hereinafter defined)
bearing interest and maturing at such time or times as necessary to accomplish the refunding as
aforesaid be purchased out of a portion of the proceeds of the Bonds; and
WHEREAS, the City Council deems it to be in the best interests of the City to issue and
sell the Bonds to pay the costs of carrying out the Refunding Plan; and
WHEREAS, Financial Security Assurance Inc. has made a commitment to issue an
insurance policy (the "Municipal Bond Insurance Policy") insuring the payment when due of the
principal of and interest on the Bonds as provided therein, and the City Council of the City
deems that the purchase of the Municipal Bond Insurance Policy is in the best interest of the
City; and
WHEREAS, Seattle-Northwest Securities Corporation has offered to purchase the Bonds
under the terms and conditions as set forth herein; NOW, THEREFORE
THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section I. Definitions. As used in this ordinance, the following words shall have the
following meanings:
"Acquired Obligations" means those United States Treasury Certificates ofIndebtedness,
Notes, and Bonds--State and Local Government Series and other direct, noncallable obligations
of the United States of America purchased to accomplish the refunding of the Refunded Bonds
as authorized by this ordinance.
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"Bond Fund" means that special fund of the City known as the Limited Tax General
Obligation Refunding Bond Fund, 2005, created by this ordinance for the payment of the
principal of and interest on the Bonds.
"Bond Insurer" means Financial Security Assurance Inc. of New York, New York.
"Bond Register" means the registration books of the Bond Registrar on which are
recorded the names of the owners of the Bonds.
"Bond Registrar" means the fiscal agent of the State of Washington (as the same may be
designated by the State of Washington from time to time).
"Bonds" means the $1,375,000 par value Limited Tax General Obligation Refunding
Bonds, 2005, authorized to be issued by this ordinance.
"City" means the City of Auburn, Washington.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"DTC" means The Depository Trust Company, New York, New York.
"Finance Director" means the City Finance Director or the officer that is the successor to
substantially the functions and duties ofthe Finance Director.
"Letter of Representations" means the Blanket Issuer Letter of Representations dated
February 18, 1997, between the City and DTC, as it may be amended from time to time.
"MSRB" means the Municipal Securities Rulemaking Board.
"Municipal Bond Insurance Policy" means the financial guaranty insurance policy issued
by the Bond Insurer insuring the payment when due of the principal of and interest on the Bonds
as provided therein.
"NRMSIR" means a nationally recognized municipal securities information repository
designated by the SEC in accordance with SEC Rule 15c2-12(b )(5).
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"Refunded Bonds" means the outstanding Limited Tax General Obligation Bonds, 1999,
of the City maturing on December 1, 2019, in the aggregate principal amount of $1,280,000,
issued pursuant to Ordinance No. 5283, the refunding of which has been provided for by this
ordinance.
"Refunding Plan" means:
(a) the placement of sufficient proceeds of the Bonds which, with other
money of the City, if necessary, will acquire the Acquired Obligations to be
deposited, with cash, if necessary, with the Refunding Trustee;
(b) the payment of the interest on the Refunded Bonds when due up to
and including December I, 2009, and the call, payment, and redemption on
December 1,2009, of all of the outstanding Refunded Bonds at a price of par; and
(c) the payment of the costs of issuing the Bonds and the costs of
carrying out the foregoing elements ofthe Refunding Plan.
"Refunding Trust Agreement" means a Refunding Trust Agreement between the City and
the Refunding Trustee substantially in the form of that which is on file with the City Clerk and by
this reference incorporated herein.
"Refunding Trustee" means U.S. Bank National Association of Seattle. Washington,
serving as trustee or escrow agent or any successor trustee or escrow agent.
"SEC" means the Securities and Exchange Commission.
Section 2. Debt Capacity. The assessed valuation of the taxable property within the City
as ascertained by the last preceding assessment for City purposes for the calendar year 2005 is
$4,676,301,307, and the City has outstanding general indebtedness evidenced by limited tax
general obligation bonds in the principal amount of $6,754,000 incurred within the limit of up to
1-1/2% of the value of the taxable property within the City permitted for general municipal
purposes without a vote of the qualified voters therein and has no outstanding indebtedness
evidenced by unlimited tax general obligation bonds issued pursuant to a vote of the qualified
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voters of the City. The amount of indebtedness for which bonds are authorized herein to be
issued is $1,375,000.
Section 3. Authorization of Bonds. The City shall borrow money on the credit of the
City and issue negotiable limited tax general obligation bonds evidencing that indebtedness in
the amount of $1,375,000 for general City purposes to provide the funds to carry out the
Refunding Plan. The general indebtedness to be incurred shall be within the limit of up to
] -1/2% of the value of the taxable property within the City permitted for general municipal
purposes without a vote of the qualified voters therein.
Section 4. Descriotion of Bonds. The Bonds shall be called Limited Tax General
Obligation Refunding Bonds, 2005, of the City; shall be in the aggregate principal amount of
$1,375,000; shall be dated September I, 2005; 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 deems necessary for purposes of
identification; shall bear interest (computed on the basis of a 360-day year of twelve 30-day
months) payable semiannually on each June I and December 1, commencing December 1,2005,
to the maturity or earlier redemption of the Bonds; and shall mature on December I in years and
amounts and bear interest at the rates per annum as follows:
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Maturity Interest
Years Amounts Rates
2005 $ 20,000 4.00%
2006 10,000 4.00
** ** **
2010 85,000 4.00
2011 100,000 4.00
2012 105,000 4.00
2013 115,000 4.00
2014 125,000 4.00
** ** **
2017 450,000 4.50
** ** **
2019 365,000 4.50
Section 5. Registration and Transfer of Bonds. The Bonds shall be issued only in
registered form as to both principal and interest and shall be recorded on the Bond Register. The
Bond Register shall contain the name and mailing address of the owner of each Bond and the
principal amount and number of each ofthe Bonds held by each owner.
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 transfer any Bond during the 15 days
preceding any principal payment or redemption date.
The Bonds initially shall be registered in the name of Cede & Co., as the nominee of
DTC. The Bonds so registered shall be held in fully immobilized form by DTC as depository in
accordance with the provisions of the Letter of Representations. Neither the City nor the Bond
Registrar shall have 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
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any notice which is permitted or required to be given to registered owners hereunder (except
such notice as is required to be given by the Bond Registrar to DTC).
For as long as any Bonds are held in fully immobilized form, DTC, its nominee 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
nominee 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
appointed by the City or such substitute depository's successor; or (iii) to any person if the
Bonds are no longer held in immobilized form.
Upon the resignation of DTC or its successor (or any substitute depository or its
successor) from its functions as depository, or a determination by the City that it no longer
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 depository shall be qualified under any applicable laws to provide the services
proposed to be provided by it.
If (i) DTC or its successor (or substitute depository or its successor) resigns from its
functions as depository, and no substitute depository can be obtained, or (ii) the City determines
that the Bonds are to be in certificated form, the ownership of Bonds may be transferred to any
person as provided herein and the Bonds no longer shall be held in fully immobilized form.
Section 6. Pavment of Bonds. Both principal of and interest on the Bonds shall be
payable in lawful money of the United States of America. Interest on the Bonds shall be paid by
checks or drafts of the Bond Registrar mailed on the interest payment date to the registered
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owners at the addresses appearing on the Bond Register on the 15th day of the month preceding
the interest payment date or, if requested in writing by a registered owner of $1 ,000,000 or more
in principal amount of Bonds prior to the applicable record date, by wire transfer on the interest
payment date. Principal of the Bonds shall be payable upon presentation and surrender of the
Bonds by the registered owners to the Bond Registrar. Notwithstanding the foregoing, for as
long as the Bonds are registered in the name of DTC or its nominee, payment of principal of and
interest on the Bonds shall be made in the manner set forth in the Letter of Representations.
Section 7. Redemption Provisions and Ooen Market Purchase of Bonds. Bonds
maturing in the years 2005, 2006 and 2010 through 2014, inclusive, shall be issued without the
right or option of the City to redeem those Bonds prior to their stated maturity dates. The City
reserves the right and option to redeem the Bonds maturing on or after December I, 2017, prior
to their stated maturity dates at any time on or after December I, 2015, as a whole or in part
(within one or more maturities selected by the City and randomly within a maturity in such
manner as the Bond Registrar shall determine), at par plus accrued interest to the date fixed for
redemption.
Bonds maturing in 2017 and 2019 are Term Bonds and, if not redeemed under the
optional redemption provisions set forth above or purchased in the open market under the
provisions set forth below, shall be called for redemption randomly (in such manner as the Bond
Registrar shall determine) at par plus accrued interest on December I in years and amounts as
follows:
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Term Bonds maturin!J; in 2017
Mandatory
Redemption
Years
Mandatory
Redemption
Amounts
2015
2016
2017 (maturity)
$135,000
150,000
165,000
Term Bonds maturing in 2019
Mandatory
Redemption
Years
Mandatory
Redemption
Amounts
2018
2019 (maturity)
$175,000
190,000
If the City redeems under the optional redemption provisions, purchases in the open market
or defeases Term Bonds, the par amount of the Term Bonds so redeemed, purchased or defeased
(irrespective of their actual redemption or purchase prices) shall be credited against one or more
scheduled mandatory redemption amounts for those Term Bonds. The City shall determine the
manner in which the credit is to be allocated and shall notifY the Bond Registrar in writing of its
allocation at least 60 days prior to the earliest mandatory redemption date for that maturity of Term
Bonds for which notice of redemption has not already been given.
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 to 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 maturiry and interest rate in any of the denominations authorized by this
ordinance in the aggregate principal amount remaining unredeemed.
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The City further reserves the right and option to purchase any or all of the Bonds in the
open market at any time at any price acceptable to the City plus accrued interest to the date of
purchase.
All Bonds purchased or redeemed under this section shall be canceled.
Notwithstanding the foregoing, for as long as the Bonds are registered in the name of
DTC or its nominee, selection of Bonds for redemption shall be in accordance with the Letter of
Representations.
Section 8. Notice of Redemption. The City shall cause notice of any intended
redemption of Bonds to be given not less than 30 nor more than 60 days prior to the date fixed
for redemption by first-class mail, postage prepaid, to the registered owner of any Bond to be
redeemed at the address appearing on the Bond Register at the time the Bond Registrar prepares
the notice, and the requirements of this sentence shall be deemed to have been fulfilled when
notice has been mailed as so provided, whether or not it is actually received by the owner of any
Bond. Interest on Bonds called for redemption shall cease to accrue on the date fixed for
redemption unless the Bond or Bonds called are not redeemed when presented pursuant to the
call. In addition, the redemption notice shall be mailed within the same period, postage prepaid,
to Moody's Investors Service, Inc., and Standard & Poor's at their offices in New York,
New York, or their successors, to the Bond Insurer at its principal office in New York, New
York, or its successor, to each NRMSIR or the MSRB, and to such other persons and with such
additional information as the Finance Director shall determine, but these additional mailings
shall not be a condition precedent to the redemption of Bonds. Notwithstanding the foregoing,
for as long as the Bonds are registered in the name of DTC or its nominee, notice of redemption
shall be given in accordance with the Letter of Representations.
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Section 9. Failure To Redeem Bonds. If any Bond is not redeemed when properly
presented at its maturity or call date, the City shall be obligated to pay interest on that Bond at
the same rate provided in the Bond from and after its maturity or call date until that Bond, both
principal and interest, is paid in full or until sufficient money for its payment in full is on deposit
in the Bond Fund and the Bond has been called for payment by giving notice of that call to the
registered owner of each of those unpaid Bonds.
Section 10. Pledge of Taxes. For as long as any of the Bonds are outstanding, the City
irrevocably pledges to include in its budget and levy taxes annually within the constitutional and
statutory tax limitations provided by law without a vote of the electors of the City on all of the
taxable property within the City in an amount sufficient, together with other money legally
available and to be used therefor, to pay when due the principal of and interest on the Bonds, and
the full faith, credit and resources of the City are pledged irrevocably for the annual levy and
collection of those taxes and the prompt payment of that principal and interest.
Section II. Form and Execution of Bonds. The Bonds shall be prepared 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:
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CERTIFICATE OF AUTHENTICATION
This Bond is one of the fully registered City of Auburn, Washington,
Limited Tax General Obligation Refunding Bonds, 2005, described in the Bond
Ordinance.
WASHINGTON STATE FISCAL AGENT
Bond Registrar
By
Authorized Signer
The authorized signing of a Certificate of Authentication shall be conclusive evidence that the Bond
so authenticated has been duly executed, authenticated and delivered and is 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 authorized to sign bonds,
although he or she did not hold the required office on the date of issuance of the Bonds.
Section 12. Bond Registrar. The Bond Registrar shall keep, or cause to be kept,
sufficient books for the registration and transfer of the Bonds, which shall be open to inspection
by the City at all times. The Bond Registrar is authorized, on behalf of the City, to authenticate
and deliver Bonds transferred or exchanged in accordance with the provisions of the Bonds and
this ordinance, to serve as the City's paying agent for the Bonds and to carry out all of the Bond
Registrar's powers and duties under this ordinance and City Ordinance No. 3905 establishing a
system of registration for the City's bonds and obligations.
51l551313.04
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The Bond Registrar shall be responsible for its representations contained in the Bond
Registrar's Certificate of Authentication on the Bonds. The Bond Registrar may become the
owner of Bonds with the same rights it would have if it were not the Bond Registrar and, to the
extent permitted by law, may act as 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.
Section 13. Preservation of Tax Exemotion for Interest on Bonds. The City covenants
that it will take all actions necessary to prevent interest on the Bonds from being included in
gross income for federal income tax purposes, and it will neither take any action nor make or
permit any use of proceeds of the Bonds or other funds of the City treated as proceeds of the
Bonds at any time during the term of the Bonds which will cause interest on the Bonds to be
included in gross income for federal income tax purposes. The City certifies that it has not been
notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a
bond issuer whose arbitrage certifications may not be relied upon.
Section 14. Small Governmental Issuer Arbitrage Rebate Exception and Designation of
Bonds as "Oualified Tax-Exempt Obligations." The City finds and declares that (a) it is a duly
organized and existing governmental unit of the State of Washington and has general taxing
power; (b) no Bond which is part of this issue of Bonds is a "private activity bond" within the
meaning of Section 141 of the Code; (c) at least 95% of the net proceeds of the Bonds will be
used for local governmental activities of the City (or of a governmental unit the jurisdiction of
which is entirely within the jurisdiction of the City); (d) the aggregate face amount of all tax-
exempt obligations (other than private activity bonds and other obligations not required to be
included in such calculation) issued by the City and all entities subordinate to the City (including
any entity that the City controls, that derives its authority to issue tax-exempt obligations from
50551313,04
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the City, or that issues tax-exempt obligations on behalf of the City) during the calendar year in
which the Bonds are issued is not reasonably expected to exceed $5,000,000; and (e) the amount
of tax-exempt obligations, including the Bonds, designated by the City as "qualified tax-exempt
obligations" for the purposes of Section 265(b)(3) of the Code during the calendar year in which
the Bonds are issued does not exceed $10,000,000. The City therefore certifies that the Bonds
are eligible for the arbitrage rebate exception under Section 148(f)(4)(D) of the Code and
designates the Bonds as "qualified tax-exempt obligations" for the purposes of Section 265(b )(3)
ofthe Code.
Section 15. Refunding or Defeasance of the Bonds. The City may issue refunding bonds
pursuant to the laws of the State of Washington or use money available from any other lawful
source to pay when due the principal of and interest on the Bonds, or any portion thereof
included in a refunding or defeasance plan, and to redeem and retire, refund or defease all such
then-outstanding Bonds (hereinafter collectively called the "defeased Bonds") and to pay the
costs of the refunding or defeasance. If money and/or direct obligations of the United States of
America maturing at a time or times and bearing interest in amounts (together with money, if
necessary) sufficient to redeem and retire, refund or defease the defeased Bonds in accordance
with their terms are set aside in a special trust fund or escrow account irrevocably pledged to that
redemption, retirement or defeasance of defeased Bonds (hereinafter called the "trust account"),
then all right and interest of the owners of the defeased Bonds in the covenants of this ordinance
and in the funds and accounts obligated to the payment of the defeased Bonds shall cease and
become void. The owners of defeased Bonds shall have the right to receive payment of the
principal of and interest on the defeased Bonds from the trust account. The City shall include in
the refunding or defeasance plan such provisions as the City deems necessary for the random
selection of any defeased Bonds that constitute less than all of a particular maturity of the Bonds,
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for notice of the defeasance to be given to the owners of the defeased Bonds and to such other
persons as the City shall determine, and for any required replacement of Bond certificates for
defeased Bonds. The defeased Bonds shall be deemed no longer outstanding, and the City may
apply any money in any other fund or account established for the payment or redemption of the
defeased Bonds to any lawful purposes as it shall determine.
If the Bonds are registered in the name of DTC or its nominee, notice of any defeasance
of Bonds shall be given to DTC in the manner prescribed in the Letter of Representations for
notices of redemption of Bonds.
Notwithstanding anything in this section to the contrary, if the principal of and/or interest
due on the Bonds is paid by the Bond Insurer pursuant to the Municipal Bond Insurance Policy,
the Bonds shall be treated as remaining outstanding for all purposes and shall not be considered
paid by the City, and the covenants, agreements and other obligations of the City to the
registered owners of the Bonds shall continue to exist and run to the benefit of the Bond Insurer,
and the Bond Insurer shall be subrogated to the rights of the registered owners.
Section 16. Bond Fund and Deposit of Bond Proceeds. The Bond Fund is created and
established in the office of the Finance Director as a special fund designated the Limited Tax
General Obligation Refunding Bond Fund, 2005, for the purpose of paying principal of and
interest on the Bonds. Accrued interest on the Bonds, if any, received from the sale and delivery
of the Bonds shall be paid into the Bond Fund. All taxes collected for and allocated to the
payment of the principal of and interest on the Bonds shall be deposited in the Bond Fund.
The principal proceeds and premium, if any, received from the sale and delivery of the
Bonds shall be deposited with the Refunding Trustee as set forth in Section 17 to carry out the
Refunding Plan.
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Section 17. Refunding of the Refunded Bonds.
(a) AODointment of Refunding Trustee. U.S. Bank National Association of Seattle,
Washington, is appointed Refunding Trustee.
(b) Use of Bond Proceeds; Acquisition of Acquired Obligations. All of the proceeds
of the sale of the Bonds, exclusive of the accrued interest thereon which shall be paid into the
Bond Fund, shall be deposited immediately upon the receipt thereof with the Refunding Trustee
and used to discharge the obligations of the City relating to the Refunded Bonds under
Ordinance No. 5283 by providing for the payment of the amounts required to be paid by the
Refunding Plan. To the extent practicable, such obligations shall be discharged fully by the
Refunding Trustee's simultaneous purchase of the Acquired Obligations, bearing such interest
and maturing as to principal and interest in such amounts and at such times so as to provide,
together with a beginning cash balance, if necessary, for the payment of the amount required to
be paid by the Refunding Plan. The Acquired Obligations are listed and more particularly
described in Exhibit A attached to the Refunding Trust Agreement, but are subject to substitution
as set forth below. Any Bond proceeds or other money deposited with the Refunding Trustee not
needed to carry out the Refunding Plan shall be returned to the City at the time of delivery of the
Bonds to the initial purchaser thereof and deposited in the Bond Fund to pay interest on the
Bonds on the first interest payment date.
(c) Substitution of Acquired Obligations. Prior to the purchase of any Acquired
Obligations by the Refunding Trustee, the City reserves the right to substitute other direct,
noncallable obligations of the United States of America ("Substitute Obligations") for any of the
Acquired Obligations and to use any savings created thereby for any lawful City purpose if,
(a) in the opinion of Foster Pepper & Shefelman PLLC, the City's bond counsel, the interest on
the Bonds and the Refunded Bonds will remain excluded from gross income for federal income
50551313.04
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tax purposes under Sections 103, 148, and 149(d) of the Code, and (b) such substitution shall not
impair the timely payment of the amounts required to be paid by the Refunding Plan, as verified
by a nationally recognized independent certified public accounting firm.
After the purchase of the Acquired Obligations by the Refunding Trustee, the City
reserves the right to substitute therefor cash or Substitute Obligations subject to the conditions
that such money or securities held by the Refunding Trustee shall be sufficient to carry out the
Refunding Plan, that such substitution will not cause the Bonds or the Refunded Bonds to be
arbitrage bonds within the meaning of Section 148 of the Code and regulations thereunder in
effect on the date of such substitution and applicable to obligations issued on the issue dates of
the Bonds and the Refunded Bonds, as applicable, and that the City obtain, at its expense: (I) a
verification by a nationally recognized independent certified public accounting firm acceptable
to the Refunding Trustee confirming that the payments of principal of and interest on the
substitute securities, ifpaid when due, and any other money held by the Refunding Trustee will
be sufficient to carry out the Refunding Plan; and (2) an opinion from Foster Pepper &
Shefelman PLLC, bond counsel to the City, its successor, or other nationally recognized bond
counsel to the City, to the effect that the disposition and substitution or purchase of such
securities, under the statutes, rules, and regulations then in force and applicable to the Bonds,
will not cause the interest on the Bonds or the Refunded Bonds to be included in gross income
for federal income tax purposes and that such disposition and substitution or purchase is in
compliance with the statutes and regulations applicable to the Bonds. Any surplus money
resulting from the sale, transfer, other disposition, or redemption of the Acquired Obligations and
the substitutions therefor shall be released from the trust estate and transferred to the City to be
used for any lawful City purpose.
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(d) Administration of Refunding Plan. The Refunding Trustee is authorized and
directed to purchase the Acquired Obligations (or substitute obligations) and to make the
payments required to be made by the Refunding Plan from the Acquired Obligations (or
substitute obligations) and money deposited with the Refunding Trustee pursuant to this
ordinance. All Acquired Obligations (or substitute obligations) and the money deposited with
the Refunding Trustee and any income therefrom shall be held irrevocably, invested and applied
in accordance with the provisions of Ordinance No. 5283, this ordinance, chapter 39.53 RCW
and other applicable statutes of the State of Washington and the Refunding Trust Agreement.
All necessary and proper fees, compensation, and expenses of the Refunding Trustee for the
Bonds and all other costs incidental to the setting up of the escrow to accomplish the refunding
of the Refunded Bonds and costs related to the issuance and delivery of the Bonds, including
bond printing, verification fees, bond insurance premium, bond counsel's fees, and other related
expenses, shall be paid out ofthe proceeds of the Bonds.
(e) Authorization for Refunding Trust Agreement. To carry out the Refunding Plan
provided for by this ordinance, the Mayor or the Finance Director of the City is authorized and
directed to execute and deliver to the Refunding Trustee a Refunding Trust Agreement
substantially in the form on file with the City Clerk and by this reference made a part hereof
setting forth the duties, obligations and responsibilities of the Refunding Trustee in connection
with the payment, redemption, and retirement of the Refunded Bonds as provided herein and
stating that the provisions for payment of the fees, compensation, and expenses of such
Refunding Trustee set forth therein are satisfactory to it. Prior to executing the Refunding Trust
Agreement, the Mayor or Finance Director of the City is authorized to make such changes
therein that do not change the substance and purpose thereof or that assure that the escrow
50551313.04
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provided therein and the Bonds are in compliance with the requirements of federal law governing
the exclusion of interest on the Bonds from gross income for federal income tax purposes.
Section 18. Call for Redemotion of the Refunded Bonds. The City calls for redemption
on December 1, 2009, all of the Refunded Bonds at par plus accrued interest. Such call for
redemption shall be irrevocable after the delivery of the Bonds to the initial purchaser thereof.
The date on which the Refunded Bonds are herein called for redemption is the first date on
which those bonds may be called.
The proper City officials are authorized and directed to give or cause to be given such
notices as required, at the times and in the manner required, pursuant to Ordinance No. 5283 in
order to effect the redemption prior to their maturity of the Refunded Bonds.
Section 19. City Findings with Resoect to Refunding. The City Council of the City finds
and determines that the issuance and sale of the Bonds at this time will effect a savings to the
City and is in the best interest of the City and its taxpayers and in the public interest. In making
such finding an? determination, the City Council has given consideration to the fixed maturities
of the Bonds and the Refunded Bonds, the costs of issuance of the Bonds and the known earned
income from the investment of the proceeds of the issuance and sale of the Bonds pending
payment and redemption ofthe Refunded Bonds.
The City Council further finds and determines that the money to be deposited with the
Refunding Trustee for the Refunded Bonds in accordance with Section 17 of this ordinance will
discharge and satisfY the obligations of the City under Ordinance No. 5283 with respect to the
Refunded Bonds, and the pledges, charges, trusts, covenants, and agreements of the City therein
made or provided for as to the Refunded Bonds, and that the Refunded Bonds shall no longer be
deemed to be outstanding under such ordinance immediately upon the deposit of such money
with the Refunding Trustee.
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Section 20. Approval of Bond Purchase Contract. Seattle-Northwest Securities
Corporation of Seattle, Washington, has presented a purchase contract (the "Bond Purchase
Contract") to the City offering to purchase the Bonds under the terms and conditions provided in
the Bond Purchase Contract, which written Bond Purchase Contract is on file with the City Clerk
and is incorporated herein by this reference. The City Council finds that entering into the Bond
Purchase Contract is in the City's best interest and therefore accepts the offer contained therein
and authorizes its execution by City officials.
The Bonds will be printed at City expense and will be delivered to the purchaser in
accordance with the Bond Purchase Contract, with the approving legal opinion of Foster
Pepper & Shefelman PLLC, municipal bond counsel of Seattle, Washington, regarding the
Bonds.
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 2 I. Preliminarv Official Statement Deemed Final. The City Council has been
provided with copies of a preliminary official statement dated August 10, 2005 (the "Preliminary
Official Statement"), prepared in connection with the sale of the Bonds. For the sole purpose of
the Bond purchaser's compliance with SEC Rule 15c2-12(b)(I), the City "deems final" that
Preliminary Official Statement as of its date, except for the omission of information as to
offering prices, interest rates, selling compensation, aggregate principal amount, principal
amount per maturity, maturity dates, options of redemption, delivery dates, ratings and other
terms ofthe Bonds dependent on such matters.
Section 22. Undertakin~ to Provide Continuing Disclosure. To meet the requirements of
SEC Rule 15c2-12(b)(5) (the "Rule"), as applicable to a participating underwriter for the Bonds,
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the City makes the following written undertaking (the "Undertaking") for the benefit of holders
of the Bonds:
(a) Undertakin~ to Provide Annual Financial Information and Notice of
Material Events. The City undertakes to provide or cause to be prov ided, either
directly or through a designated agent:
(1) To each NRMSIR and to a state information depository, if
any, established in the State of Washington (the "SID") annual fmancial
information and operating data of the type included in the final official
statement for the Bonds and described in subsection (b) of this section
("annual financial information");
(ii) To each NRMSIR or the MSRB, and to the SID, timely
notice of the occurrence of any of the following events with respect to the
Bonds, if material: (I) principal and interest payment delinquencies; (2) non-
payment related defaults; (3) unscheduled draws on debt service reserves
reflecting financial difficulties; (4) unscheduled draws on credit
enhancements reflecting financial difficulties; (5) substitution of credit or
liquidity providers, or their failure to perform; (6) adverse tax opinions or
events affecting the tax-exempt status of the 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 (II)
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 subsection (b) of this section.
(b) Tvpe of Annual Financial Information Undertaken to be Provided.
The annual financial information that the City undertakes to provide in subsection
(a) of this section:
(i) Shall consist of (I) annual fmancial statements prepared
(except as noted in the financial statements) in accordance with applicable
generally accepted accounting principles promulgated by the Government
Accounting Standards Board ("GASB"), as such principles may be changed
from time to time, which statements 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; (2) a statement of authorized,
issued and outstanding balance of general obligation debt; (3) the assessed
value of property within the City subject to ad valorem taxation; and (4)
ad valorem tax levy rates and amounts and percentage of taxes collected;
(ii) 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
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5055131J.04
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, 2005; and
(iii) 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, ifthe document incorporated by reference is
a "final official statement" with respect to other obligations of the City, that
has been filed with the MSRB.
(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) Beneficiaries. The Undertaking evidenced by this section 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 Undertaking. 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 counselor 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.
(f) Remedv for Failure to Complv with Undertaking. 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 ofthe 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 Resoonsible to Administer Undertaking. The
Finance Director of the City (or such other officer of the City who may in the future
perform the duties of that office) or his or her designee is authorized and directed in
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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 ofthe Bonds set forth
in this section 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 subsection (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;
(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.
(h) Centralized Dissemination Agent. To the extent authorized by the
SEC, the City may satisfY the Undertaking by transmitting the required filings
using http://www.disclosureusa.org (or such other centralized dissemination agent
as may be approved by the SEC).
Section 23. Bond Insurance. The City Council finds that it is in the City's best interest to
purchase, and that a savings will result from purchasing, the Municipal Bond Insurance Policy for
the Bonds. The City shall purchase from the Bond Insurer the Municipal Bond Insurance Policy
insuring the prompt payment of the principal of and interest on the Bonds and agrees to the
conditions for obtaining that policy, including the payment ofthe premium therefor.
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Section 24. Ratification. All actions previously taken in accordance with this ordinance
are hereby ratified and confirmed.
Section 25. Effective Date of Ordinance. This ordinance shall take effect and be in force
from and after its passage and five days following its publication as required by law.
PASSED by the City Council and APPROVED by the Mayor of the City of Auburn,
Washington, at a regular open public meeting thereof, this
005.
-
Mayor
ATTEST:
JDaHUI ~~
Dan~ Daskam, City Clerk
PUBLISHED: 0'<:. - \q - 2<:)(:,.::,
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