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HomeMy WebLinkAbout6039 CITY OF AUBURN, WASHINGTON ORDINANCE NO. 6039 AN ORDINANCE of the City of Auburn, Washington, relating to contracting indebtedness; providing for the issuance of $3,275,000 par value of Limited Tax General Obligation Bonds, Series 2006A of the City for general City purposes to provide funds with which to make cemetery improvements and certain other improvements to an existing public golf course and the related facilities, and to pay the costs of issuance of the series 2006A bonds; providing for the issuance of $1,885,000 par value of limited tax general obligation bonds, series 2006T (Taxable) of the City for general City purposes to provide funds with which to develop a restaurant and related facilities at an existing public golf course clubhouse and to pay the costs of issuance of the . series 2006T (Taxable) bonds; fixing the date, form, maturities, interest rates, terms and covenants of the bonds; establishing bond accounts and project funds related to each series of bonds; providing for the purchase of bond insurance; and approving the sale and providing for the delivery of the bonds to Seattle-Northwest Securities Corporation of Seattle, Washington. Passed August 7, 2006 This document prepared by: Foster Pepper PLLe 1111 Third Avenue, Suite 3400 Seattle, Washington 98101 (206) 447-4400 50670408.4 Section 1 . Section 2 . Section 3 . Section 4 . Section 5 . Section 6 . Section 7 . Section 8 . Section 9 . Section 10 . Section 11 . Section 12 . Section 13 . Section 14 . Section 15 . Section 16 . Section 17 . Section 18 . Section 19 . Section 20 . Section 21 . 50670408.4 TABLE OF CONTENTS Page Debt Capacity.......................................................................................................... 1 Authorization of Bonds........................................................................................... 2 Description of Bonds. ................ ......... ................ ........... .... .... ....... ........ ... ........... .... 2 Registration and Transfer of Bonds .... ............ ................................... ............. ........ 3 Payment of Bonds ......... ........... .......... ... ..... ............ ............ ...... ..... ......... ......... ........ 4 Redemption Provisions and Open Market Purchase of Bonds ...............................4 Notice of Redemption ... ......... ........ .... ........... .................. .... ........... ..... .......... .......... 5 Failure To Redeem Bonds ...... .................... ....... ............. ........ ........... ....... ...... ... ..... 5 Pledge of Taxes............... ......................................... ............................................... 5 Form and Execution of Bonds. ............................................. ............. ........... ..... ..... 6 Bond Registrar........................................................................................................ 6 Preservation of Tax Exemption for Interest on Series 2006A Bonds..................... 7 Small Governmental Issuer Arbitrage Rebate Exception and Designation of Series 2006A Bonds as "Qualified Tax-Exempt Obligations.".......................... 7 Refunding or Defeasance of the Bonds .................................................................. 7 Bond Fund and Deposit of Bond Proceeds ............................................................. 8 Approval of Bond Purchase Contract .....................................................................9 Preliminary Official Statement Deemed FinaL...................................................... 9 Undertaking to Provide Continuing D~sclosure...................................................... 9 Bond Insurance.............. ............. ... ........ ... ............... ............................................. 12 Ratification... ..... .......... .......... ... ..... ...... .............. ... ..... ... ....... ... ....... ..................... ... 16 Effective Date of Ordinance ................................................................................. 17 -}- CITY OF AUBURN, WASHINGTON ORDINANCE NO. 6039 AN ORDINANCE of the City of Auburn, Washington, relating to contracting indebtedness; providing for the issuance of $3,275,000 par value of Limited Tax General Obligation Bonds, Series 2006A of the City for general City purposes to provide funds with which to make cemetery improvements and certain other improvements to an existing public golf course and the related facilities, and to pay the costs of issuance of the series 2006A bonds; providing for the issuance of $1,885,000 par value of limited tax general obligation bonds, series 2006T (Taxable) of the City for general City purposes to provide funds with which to develop a restaurant and related facilities at an existing public golf course clubhouse and to pay the costs of issuance of the series 2006T (Taxable) bonds; fixing the date, form, maturities, interest rates, terms and covenants of the bonds; establishing bond accounts and project funds related to each series of bonds; providing for the purchase of bond insurance; and approving the sale and providing for the delivery of the bonds to Seattle-Northwest Securities . Corporation of Seattle, Washington. WHEREAS, the City of Auburn, Washington (the "City"), is in need of: (i) constructing a mausoleum or similar structure or facility at a public cemetery, (ii) making certain improvements to an existing public golf course, including a pro shop and other related facilities, and (iii) to develop a restaurant and banquet area at the golf course clubhouse, the combined estimated cost of which is $5,300,000, and the City does not have available sufficient funds to pay the cost; and WHEREAS, the City Council deems it to be in the best interest of the City to borrow money by the issuance of limited tax general obligation bonds in two series (together, the "Bonds"): (1) the Series 2006A Bonds are to be issued in the principal amount of $3,275,000 for general city purposes and to provide funds to carry out for the 2006A Projects (as defined in Section 2(A), below) and to pay the costs of issuance of the Series 2006A Bonds; and (2) the Series 2006T Bonds are to be issued in the principal amount of $1,885,000 to provide funds to carry out the 2006T Project (as defined in Section 2(B), below) and to pay the costs of issuance of the Series 2006T Bonds; and WHEREAS, Seattle-Northwest Securities Corporation has offered to purchase the Bonds authorized herein under the terms and conditions set forth in this Ordinance in the form of a bond purchase contract; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DOES ORDAIN AS FOLLOWS: Section 1. 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 2006 is $5,099,468,852, and the City has outstanding general indebtedness evidenced by limited tax -1- 50670408.4 general obligation bonds, notes, leases and conditional sales contracts in the principal amount of $6,737,247 incurred within the limit of up to 1 ~% of the value of the taxable property within the City permitted for general municipal purposes without a vote of the qualified voters therein. The City has no unlimited tax general obligation bonds or notes outstanding. The amount of indebtedness for which bonds are authorized herein to be issued is $5,300,000. Section 2. 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 combined amount of $5,300,000 in two series for the purposes described in subsections (A) and (B) of this Section. The general indebtedness to be incurred shall be within the limit of up to 1 ~% of the value of the taxable property within the City permitted for general municipal purposes without a vote of the qualified voters therein. (A) The Series 2006A Bonds shall be issued for general City purposes to: (i) construct a mausoleum or similar structure or facility at a public cemetery; and (ii) fund improvements to a City golf course, including a pro shop, clubhouse and related facilities serving the public course (together, the "2006A Projects"); and to pay the costs of issuance of the Series 2006A Bonds. (B) The Series 2006T Bonds shall be issued to provide the fundsto develop and equip restaurant, banquet and related facilities for a restaurant facility to be located at the golf course clubhouse (the "2006T Project") and to pay the costs of issuance and sale of the Series 2006T Bonds. Section 3. Description of Bonds. The bonds shall be called Limited Tax General Obligation Bonds, Series 2006A (the Series 2006A Bonds") and Limited Tax General Obligation Bonds, Series 2006T (Taxable) (the "Series 2006T Bonds"), of the City (collectively, the "Bonds"). The Bonds shall be dated their date of delivery to the initial purchasers thereof; 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 fiscal agent of the State of Washington (as the same may be designated by the State of Washington from time to time) (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 1 and December 1, commencing December 1, 2006, to the maturity or earlier redemption of the Bonds; and shall mature and bear interest, all as follows: -2- 50670408.4 (A) Series 2006A Bonds. The Series 2006A Bonds shall be issued in the aggregate principal amount of $3,275,000 and shall bear interest at the rates and mature on December 1 of each of the years as follows: Maturity Interest Maturity Interest Years Amounts Rates Years Amounts Rates 2015 $ 5,000 4.250% 2021 $330,000 4.500% 2016 265,000 5.000 2022 345,000 4.500 2017 280,000 4.500 2023 360,000 4.500 2018 290,000 4.500 2024 380,000 4.500 2019 305,000 4.500 2025 395,000 4.500 2020 320,000 4.500 (B) Series 2006T Bonds. The Series 2006T Bonds shall be issued in the aggregate principal amount of$1,885,000 and shall bear interest at the rates and mature on December I in each of the years as follows: Maturity Interest Maturity Interest Years Amounts Rates Years Amounts Rates 2006 $ 45,000 5.400% 2011 $205,000 5.440% 2007 165,000 5.400 2012 215,000 5.440 2008 175,000 5.410 2013 225,000 5.460 2009 180,000 5.420 2014 240,000 5.500 2010 190,000 5.430 2015 245,000 5.520 Section 4. 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 books or records maintained by the Bond Registrar (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 of the 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 The Depository Trust Company, New York, New 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 (as it may be amended from time to time, 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 -3- 50670408.4 the Bonds, or 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 5. Payment 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 Bpnd Registrar mailed on the interest pa~ent date to the registered owners at the addresses appearing on the Bond Register on the 15t 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 6. Redemption Provisions and Open Market Purchase of Bonds. The Series 2006T Bonds shall be issued without the right or option of the City to redeem the Series 2006T Bonds prior to their stated maturity dates. The Series 2006A Bonds maturing prior to December 1, 2017 shall be issued without the right or option of the City to redeem the Series 2006A Bonds prior to their stated maturity dates. The City reserves the right and option to redeem the Series 2006A Bonds maturing on or after December 1, 2017, prior to their stated maturity dates at any time on or after December 1,2016, 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. -4- 50670408.4 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 maturity and interest rate in any of the denominations authorized by this ordinance in the aggregate principal amount remaining unredeemed. 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 7. 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 Seattle-Northwest Securities Corporation, at its principal office in Seattle, Washington, or its successor, to each NRMSIR or the MSRB and to such other persons and with such additional information as the City 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 ofDTC or its nominee, notice of redemption shall be given in accordance with the Letter of Representations. Section 8. 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 saine 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 redemption fund hereinafter created 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 9. 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 -5- 50670408.4 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 10. Form and Execution of Bonds. The Bonds shall be printed or lithographed 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: CERTIFICATE OF AUTHENTICATION This Bond is one of the fully registered City of Auburn, Washington, Limited Tax General Obligation Bonds, [Series 2006A] [Series 2006T (Taxable)], 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 11. Bond Re~istrar. 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. 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 -6- 50670408.4 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 12. Preservation of Tax Exemption for Interest on Series 2006A Bonds. The City covenants that it will take all actions necessary to prevent interest on the Series 2006A Bonds from being jncluded 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 Series 2006A Bonds or other funds of the City treated as proceeds of the Series 2006A Bonds at any time during the term of the Series 2006A Bonds which would cause interest on the Series 2006A Bonds to be included in gross income for federal income tax purposes. Section 13. Small Governmental Issuer Arbitra~e Rebate Exception and Designation of Series 2006A Bonds as "Qualified 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 Series 2006A Bonds is a "private activity bond" within the meaning of Section 141 of the United States Internal Revenue Code of 1986, as amended (the "Code"); (c) at least 95% of the net proceeds of the Series 2006A 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 ofthe 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 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 Series 2006A 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 Series 2006A Bonds are issued does not exceed $10,000,000. The City therefore certifies that the Series 2006A Bonds are eligible for the arbitrage rebate exception under Section 148(f)(4)(D) of the Code and designates the Series 2006A Bonds as "qualified tax-exempt obligations" for the purposes of Section 265(b )(3) of the Code. Section 14. 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 "government obligations" (as defined in chapter 39.53 RCW, as now or hereafter amended) 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 -7- 50670408.4 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, 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. Section 15. Bond Fund and Deposit of Bond Proceeds. (A) Bond Fund and Bond Redemption Accounts. 1. There is created and established in the office of the City Finance Director a special account within the City's Golf Course Fund designated as the Series 2006A Limited Tax General Obligation Bond Debt Service Account (the "2006A Bond Redemption Account"), for the purpose of paying principal of and interest on an allocable portion of the Series 2006A Bonds. There is also created and established in the office of the City Finance Director a special account within the City's Cemetery Fund designated as the Series 2006A Limited Tax General Obligation Bond Account (the "2006A Bond Redemption Account"), for the purpose of paying principal of and interest on an allocable portion of the Series 2006A Bonds. All taxes collected for and allocated to the payment of the principal of and interest on the Series 2006A Bonds shall be deposited in a 2006A Bond Redemption Account within either the Golf Course Fund or the Cemetery Fund. 2. There is created and established in the office of the City Finance Director a special account within the City's Golf Course Fund designated as the Series 2006T Limited Tax General Obligation Bond Debt Service Account (the "2006T Bond Redemption Account"), for the purpose of paying principal of and interest on the Series 2006T Bonds. All taxes collected for and allocated to the payment of the principal of and interest on the Series 2006T Bonds shall be deposited in the 2006T Bond Redemption Account. (B) Deposit of Proceeds. 1. Series 2006A Bond Proceeds. There is created and established in the office of the City Finance Director a special account designated as the Cemetery Project Account. A portion of the principal proceeds and premium, if any, received from the sale and delivery of the Series 2006A Bonds equal to $500,000 shall be paid into the Cemetery Project Account and used for the cemetery purposes specified in Section 2(A) of this ordinance. Upon completion of the Cemetery Project, any Bond proceeds remaining in the Cemetery Project Account may be transferred to and used for the -8- 50670408.4 purposes of the Golf Course Project Account. There is also created and established in the office of the City Finance Director a special account designated as the Golf Course Project Account. The remaining portion of the principal proceeds and premium, if any, received from the sale and delivery of the Series 2006A Bonds shall be paid into the Golf Course Project Account and used for the golf course related purposes specified in Section 2(A) of this ordinance. Until needed to pay the costs of the 2006A Projects and costs of issuance of the Series 2006A Bonds, the City may invest principal proceeds temporarily in any legal investment, and the investment earnings may be retained in the applicable account and be spent for the purposes of that account. 2. Series 2006T Bond Proceeds. There is created and established in the office of the City Finance Director a special fund designated as the Restaurant Project Account, 2006 (the "Restaurant Project Account"). The principal proceeds and premium, if any, received from the sale and delivery of the Series 2006T Bonds shall be paid into the Restaurant Project Account and used for the purposes specified in Section 2(B) of this ordinance. Until needed to pay the costs of the Project and costs of issuance of the Series 2006T Bonds, the City may invest principal proceeds temporarily in any legal investment, and the investment earnings may be retained in the Restaurant Project Account and be spent for the purposes of that fund. Section 16. 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 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 17. Preliminary Official Statement Deemed Final. The City Council has been provided with copies of a preliminary official statement dated August 1, 2006 (the "Preliminary Official Statement"), prepared in connection with the sale of the Bonds. For the sole purpose of the Bond purchaser's compliance with Securities and Exchange Commission Rule lSc2- 12(b)( 1), 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 of the Bonds dependent on such matters. Section 18. Undertaking to Provide Continuing Disclosure. To meet the requirements of United States Securities and Exchange Commission ("SEC") Rule lSc2-12(b)(5) (the "Rule"), -9- 50670408.4 as applicable to a participating underwriter for the Bonds, the City makes the following written undertaking (the "Undertaking") for the benefit of holders of the Bonds: (A) Undertaking to Provide Annual Financial Information and Notice of Material Events. The City undertakes to provide or cause to be provided, either directly or through a designated agent: 1. 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 subsection (b) of this section ("annual financial information"); 2. 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 fmancial 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 3. 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) Type of Annual Financial Information Undertaken to be Provided. The annual financial information that the City undertakes to provide in subsection (a) of this section: 1. Shall consist of (1) annual financial statements prepared (except as noted in the fmancial 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; 2. 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, 2006; and -10- 50670408.4 3. 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. (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) Remedy for Failure to Comply 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 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 to Administer Undertaking. The Finance Director of the City (or such other officer of the City who may in the future peiform the duties of that office) 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 and in accordance with the Rule, including, without limitation, the following actions: 1. provided; Preparing and filing the annual financial information undertaken to be -11- 50670408.4 2. 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; 3. 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; 4. 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 5. 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 o$er centralized dissemination agent as may be approved by the SEC). Section 19. 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 financial guaranty insurance policies for the Bonds. The City is hereby authorized to purchase from the CIFG Assurance North America, Inc. (the "Bond Insurer") the financial guaranty insurance policies insuring the prompt payment of the principal of and interest on the Bonds and agrees to the conditions for obtaining those policies, including the payment of the premium therefor. The Mayor and the Finance Director are each independently authorized to execute the Bond Insurer's Commitment to Issue Financial Guaranty Insurance Policies and all other documents on behalf of the City in connection with the financial guaranty insurance policies. The Bond Insurer (referred to in this section as "CIFG NA") requires that the following provisions entitled "General Document Provisions" be included in this ordinance: "A. Notice and Other Information to be given to CIFG NA. 1. Any notice that is required to be given to the holders of the Bonds (collectively, the "Bondholders"), nationally recognized municipal securities information repositories or state information depositories pursuant to Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission or to the Bond Registrar pursuant to this ordinance shall also be provided to CIFG NA. All notices required to be given to CIFG NA shall be in writing and shall be sent by registered or certified mail addressed to CIFG Assurance North America, Inc., 825 Third Avenue, 6th Floor, New York, New York 10022, Attn: General Counsel; all electronic mail sent to CIFG NA shall be addressed both to surveillance@cifg.com and to general.counsel@cifg.com. -12- 50670408.4 2. Within thirty (30) days of the Issuer's receipt thereof, a copy of the audited financial statements of the Issuer, within forty-five (45) days of the end of the Issuer's fiscal year, a copy of the annual budget of the Issuer, and promptly after the submission of the unaudited financial statements to the State Auditor, a copy of the unaudited financial statements of the Issuer shall be sent to CIFG Assurance North America, Inc., 825 Third Avenue, 6th Floor, New York, New York 10022, Attn: Surveillance; provided, however, that if the Issuer has knowledge that said audited financial statements will not be available within 270 days of the end of its fiscal year, the Issuer shall be obligated to promptly so advise CIFG NA, and to further advise CIFG NA of the expected date on which the same shall be available. 3. CIFG NA shall have the right to receive such additional information as it may reasonably request. 4. The City will permit CIFG NA to discuss the affairs, finances and accounts of the City or any information CIFG NA may reasonably request regarding the security for the Bonds with appropriate officers ofthe City, and will grant CIFG NA access to the facilities, books and records of the City on any business day upon reasonable prior notice. 5. [Intentionally Omitted] B. Defeasance. In the event that the Bonds are advance refunded, CIFG NA shall receive a copy of the CPA verification and defeasance opinion prepared in connection with such advance refunding. C. Trustee and Paving Agent. 1. CIFG NA shall receive prior written notice of any name change of the Bond Registrar or the resignation or removal of the Bond Registrar. 2. [Intentionally Omitted] D. Amendments and Supplements. With respect to amendments or supplements to this ordinance which do not require the consent of the Bondholders, CIFG NA must be given notice of any such amendments or supplements. With respect to amendments or supplements to this ordinance which require the consent of the Bondholders, CIFG NA's prior written consent is required. Copies of any such amendments or supplements which are consented to by CIFG NA shall be sent to the rating agencies which have assigned a rating to the Bonds. Notwithstanding any other provision of this ordinance, in determining whether the rights of Bondholders will be adversely affected by any action taken pursuant to the terms and provisions of this ordinance, the Bond Registrar shall consider the effect on the Bondholders as if there were no Policy. E. [Intentionally Omitted] -13- 50670408.4 F. Consent Rights ofCIFG NA. 1. eonsent of eIFG NA. Any provision of this ordinance expressly recognizing or granting rights in or to CIFG NA may not be amended in any manner which affects the rights of CIFG NA thereunder without the prior written consent of CIFG NA. 2. eonsent of eIFG NA in Addition to Bondholder eonsent. Wherever any financing document requires the consent of Bondholder's CIFG NA's consent shall also be required. 3. [Intentionally Omitted] 4. [Intentionally Omitted] G. Payment Procedure Under the Policy. 1. In the event that on the business day prior to the payment date on the Bonds, the Bond Registrar has not received sufficient moneys to pay all principal of and interest on the Bonds due on the following business day, the Bond Registrar shall immediately notify CIFG NA or its designee on the same business day by telephone or electronic mail, confirmed in writing by registered or certified mail, of the amount of the deficiency. 2. If any deficiency is made up in whole or in part prior to or on the payment date, the Bond Registrar shall so notify CIFG NA or its designee. 3. In addition, if the Bond Registrar has notice that any Bondholder has been required to disgorge payments of principal or interest on the Bonds pursuant to a final non- appealable order by a court of competent jurisdiction that such payment constitutes an avoidable preference to such Bondholder within the meaning of any applicable bankruptcy laws, then the Bond Registrar shall notify CIFG NA or its designee of such fact by telephone or electronic mail, confirmed in writing by registered or certified mail. 4. The Bond Registrar shall irrevocably be designated, appointed, directed and authorized to act as attorney-in-fact for holders of the Bonds as follows: (a) If there is a deficiency in amounts required to pay interest on the Bonds, the Bond Registrar shall (i) execute and deliver to CIFG NA, in form satisfactory to CIFG NA, an instrument appointing CIFG NA as agent for such holders in any legal proceeding related to the payment of and an assignment to CIFG NA of the claims for interest on the Bonds, (ii) receive as designee of the respective holders (and not as Bond Registrar) in accordance with the tenor of the Policy payment from CIFG NA with respect to the claims for interest so assigned, and (iii) disburse the same to such respective holders; and (b) If there is a deficiency in amounts required to pay principal of the Bonds, the Bond Registrar shall (i) execute and deliver to CIFG NA, in form satisfactory to -14- 50670408.4 CIFG NA, an instrument appointing CIFG NA as agent for such holder in any legal proceeding related to the payment of such principal and an assignment to CIFG NA of the Bond surrendered to CIFG' NA (but such assignment shall be delivered only if payment from CIFG NA is received), (ii) receive as designee of the respective holders (and not as Bond Registrar) in accordance with the tenor of the Policy payment therefor from CIFG NA, and (iii) disburse the same to such holders. 5. Payments with respect to claims for interest on and principal of Bonds disbursed by the Bond Registrar from proceeds of the Policy shall not be considered to discharge the obligation of the City with respect to such Bonds, and CIFG NA shall become the owner of such unpaid Bond and claims for the interest in accordance with the tenor of the assignment made to it under the provisions of this subsection or otherwise. 6. Irrespective of whether any such assignment is executed and delivered, the City and the Bond Registrar shall agree for the benefit of CIFG NA that: (a) They recognize that to the extent CIFG NA makes payments directly or indirectly (e.g., by paying through the Bond Registrar), on account of principal of or interest on the Bonds, CIFG NA will be subrogated to the rights of such holders to receive the amount of such principal and interest from the City, with interest thereon as provided and solely from the sources stated in this ordinance and the Bonds; and (b) They will accordingly pay to CIFG NA the amount of such principal and interest, with interest thereon as provided in this ordinance and the Bonds, but only from the sources and in the manner provided herein for the payment of principal of and interest on the Bonds to holders, and will otherwise treat CIFG NA as the owner of such rights to the amount of such principal and interest. 7. The City shall agree to payor reimburse CIFG NA any and all charges, fees, costs and expenses which CIFG NA may reasonably payor incur, including, but not limited to, fees and expenses of attorneys, accountants, consultants and auditors and reasonable costs of investigations, in connection with (i) any accounts established to facilitate payments under the Policy, (ii) the administration, enforcement, defense or preservation of any rights in respect of any financing document including defending, monitoring or participating in any litigation or proceeding (including any bankruptcy proceeding in respect of the City) relating to this agreement or any other financing document or the transaction contemplated by the financing documents (the "Transaction"), (iii) the foreclosure against, sale or other disposition of any collateral securing any obligations under this agreement or any other financing document, or the pursuit of any remedies under the financing document, to the extent such costs and expenses are not recovered from such foreclosure, sale or other disposition, or (iv) any amendment, waiver or other action with respect to, or related to, any other financing document whether or not executed or completed; costs and expenses shall include a reasonable allocation of compensation and overhead attributable to the time of employees of CIFG NA spent in connection with the actions described in clauses (ii)-(iv) above; and CIFG NA shall reserve the right to charge a reasonable fee as a -15- 50670408.4 condition to executing any amendment, waiver or consent proposed in respect of this agreement or any other financing document. 8. In addition to any and all rights of reimbursement, subrogation and any other rights pursuant hereto or under law or in equity, the City shall agree to payor reimburse CIFG NA any and all charges, fees, costs, claims, losses, liabilities (including penalties), judgments, demands, damages, and expenses which CIFG NA or its officers, directors, shareholders, employees, agents and each Person, if any, who controls CIFG NA within the meaning of either Section 15 of the Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934 may reasonably payor incur, including, but not limited to, fees and expenses of attorneys, accountants, consultants and auditors and reasonable costs of investigations, of any nature in connection with, in respect of or relating to the transactions contemplated by the Bonds and this ordinance by reason of: (a) any omission or action (other than of or by CIFG NA) in connection with the offering, issuance, sale, remarketing or delivery of the Bonds; (b) the negligence, bad faith, willful misconduct, misfeasance, malfeasance or theft committed by any director, officer, employee or agent of the City in connection with any transaction arising from or relating to the Bonds or this ordinance; (c) the violation by the City of any law, rule or regulation, or any judgment, order or decree applicable to it; (d) the breach by the City of any representation, warranty or covenant under this ordinance or the occurrence, in respect of the City, under this ordinance of any "event of default" or any event which, with the giving of notice or lapse of time or both, would constitute any "event of default"; or (e) any untrue statement or alleged untrue statement of a material fact contained in any official statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such claims arise out of or are based upon any untrue statement or omission in information included in an official statement and furnished by CIFG NA in writing expressly for use therein. 9. CIFG NA shall be entitled to pay any amount payable under the Policy in respect of Regular Payments (as defined in the Policy) on the Bonds, whether or not any notice and certificate shall have been Received (as defined in the Policy) by CIFG NA as provided in the Policy." Section 20. Ratification. All actions previously taken m accordance with this ordinance are hereby ratified and confirmed. -16- 50670408.4 Section 21. 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 0 City of Auburn, Washington, at a regular open public meeting thereof, this p~u \ st~O Mayor ATTEST: /~Q:yc~~ City .lerk APPROVED AS TO FORM: ~ Bond Counsel PUBLISHED: oJ-II- 2000 -17- 50670408.4