HomeMy WebLinkAbout3682ORDINANCE NO. 26'POL
AN ORDINANCE of the City Council of the City of
Kent, Washington, relating to contracting indebtedness;
providing for the issuance of $23,280,000 par value of
Limited Tax General Obligation Refunding Bonds, 2004, of
the City to provide funds with which to pay the cost of
advance refunding the City's outstanding Limited Tax
General Obligation Bonds, 1996, Series A (Tax -Exempt) 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, options of redemption, terms
and covenants of the bonds, 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; establishing a bond
redemption fund; providing for bond insurance; and
approving the sale and providing for the delivery of the bonds
to Lehman Brothers Inc. of Seattle, Washington.
PASSED MARCH 16, 2004
This document prepared by-
Foster
y
Foster Pepper & Shefelman PLLC
1111 Third Avenue, Suite 3400
Seattle, Washington 98101
(206) 447-4400
5042024703 LTGO Refunding Bonds, 2004
TABLE OF CONTENTS
Page
SECTION1. - Definitions......................................................... . ............................3
SECTION2. - Debt Capacity......................................................................................4
SECTION 3. - Authorization and Purposes 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............
7
SECTION 8. - Notice of Redemption ....................................... ............ ................
8
SECTION 9. - Failure To Redeem Bonds...................................................................8
SECTION 10. - Pledge of Taxes............................................................................9
SECTION 11. - Bond Fund and Deposit of Bond Proceeds......................................9
SECTION 12. - Refunding of the Refunded Bonds ........... .................................
9
SECTION 13. - Call for Redemption of the Refunded Bonds ............ ...................12
SECTION 14. - City Findings with Respect to Refunding ..................... ................12
SECTION 15. - Form and Execution of Bonds .......................................................
12
SECTION 16. - Bond Registrar................................................................................13
SECTION 17. - Preservation of Tax Exemption for Interest on Bonds .....................14
SECTION 18. - Refunding or Defeasance of the Bonds .................... ................
14
SECTION 19. - Approval of Bond Purchase Agreement .................. .....................15
SECTION 20. - Preliminary Official Statement Deemed Final...............................16
SECTION 21. - Undertaking to Provide Continuing Disclosure..............................16
SECTION 22. - Bond Insurance.............................................................................19
SECTION 23. - Severability....................................................................................19
SECTION 24. - Effective Date................................................................................19
5042024703 LTGO Refunding Bonds, 2004
ORDINANCE NO.
AN ORDINANCE of the City Council of the City of
Kent, Washington, relating to contracting indebtedness;
providing for the issuance of $23,280,000 par value of
Limited Tax General Obligation Refunding Bonds, 2004, of
the City to provide funds with which to pay the cost of
advance refunding the City's outstanding Limited Tax
General Obligation Bonds, 1996, Series A (Tax -Exempt) 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, options of redemption, terms
and covenants of the bonds; 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; establishing a bond
redemption fund; providing for bond insurance; and
approving the sale and providing for the delivery of the bonds
to Lehman Brothers Inc. of Seattle, Washington.
RECITALS
A. Pursuant to Ordinance No. 3301, the City heretofore issued its
$22,565,000 par value Limited Tax General Obligation Bonds, 1996, Series A (Tax -
Exempt) (the "1996 Bonds"), for the purpose of providing the funds necessary to pay part
of the cost of acquiring the Centennial Building, acquiring land for City parks, improving
certain streets and improving the City's Drainage Utility, and by that ordinance reserved
the right to redeem the 1996 Bonds prior to their maturity on December 1, 2007, at a price
of 101 % of par plus accrued interest to the date fixed for redemption
B There are presently outstanding $21,785,000 par value of 1996 Bonds
maturing on December 1 of each of the years 2004 through 2008, inclusive, and in 2016
and 2026, and bearing various interest rates from 5.20% to 5.75% (the "Refunded
Bonds").
5042024703 1 LTGO Refunding Bonds, 2004
C. After due consideration, it appears to the City Council that the Refunded
is may be refunded by the issuance and sale of the limited tax general obligation
iding bonds authorized herein (the 'Bonds") so that a substantial savings will be
:ted by the difference between the principal and interest cost over the life of the Bonds
the principal and interest cost over the life of the Refunded Bonds but for such
refunding, which refunding will be effected by -
(a) The issuance of the Bonds and the payment of the costs of the
issuance of the Bonds and the costs of the refunding, and
(b) The payment of the principal of and interest on the Refunded
Bonds when due up to and including, and the call, payment and
redemption on December 1, 2007, of all of the then -outstanding
Refunded Bonds at a price of 101% of par.
D. 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
E. The City Council deems it to be in the best interests of the City to issue and
the Bonds to pay the cost of advance refunding the Refunded Bonds and to pay the
costs of such refunding and the costs of issuance and sale of the Bonds;
F. Financial Guaranty Insurance Company of New York, New York (`Bond
Insurer"), has made a commitment to issue an insurance policy (the "Municipal Bond New
Issue 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 New Issue Insurance Policy is in the best interest of the City
G. Lehman Brothers Inc. of Seattle, Washington, has offered to purchase the
bonds authorized herein under the terms and conditions hereinafter set forth in the form of
a Bond Purchase Agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS
5042024703 2 LTGO Refunding Bonds, 2004
SECTION 9. - Definitions. As used in this ordinance, the following words
have the following meanings:
"Acquired Obligations" means those direct, noncallable obligations of the
States of America purchased to accomplish the refunding of the Refunded Bonds
authorized by this ordinance and Chapter 39.53 RCW.
"Bond Fund" means the Limited Tax General Obligation Refunding Bond
2004, created by this ordinance for the payment of the Bonds
"Bond Insurer" means Financial Guaranty Insurance Company.
`Bond Register' means the books or records maintained by the Bond Regis'
containing the name and mailing address of the owner of each Bond and the prince
amount and number of Bonds held by each owner.
"Bond Registrar" means the Fiscal Agent.
"Bonds" means the $23,280,000 par value Limited Tax General
Refunding Bonds, 2004, of the City issued pursuant to and for the purposes provided
this ordinance.
"City" means the City of Kent, Washington, a municipal corporation duly
and existing under and by virtue of the laws of the state of Washington.
"Code" means the United States Internal Revenue Code of 1986, as amended,
applicable rules and regulations promulgated thereunder.
"DTC" means The Depository Trust Company, New York, New York.
"Finance Director" means the Finance Director of the City
"Fiscal Agent" means the fiscal agent of the state of Washington, or any other
paying agent/registrar of the City, as the same may be designated from time to time.
"Letter of Representations" means the Blanket Issuer Letter of Represe
dated March 16, 1999, between the City and DTC, as it may be amended from time
time.
50420247 03 3 LTGO Refunding Bonds, 2004
"Municipal Bond New Issue Insurance Policy" means the policy issued by th
Bond Insurer insuring the payment of the principal of and interest on the Bonds.
"Refunded Bonds" means the outstanding Limited Tax General Obligation Bonds
1996, Series A (Tax -Exempt) of the City maturing in the years 2004 through 2008
inclusive, and 2016 and 2026, issued pursuant to Ordinance No. 3301, the refunding o
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 principal of and interest on the Refunded
Bonds when due up to and including December 1, 2007, and the call,
payment, and redemption on December 1, 2007, of all of the then -
outstanding Refunded Bonds at a price of 101 % of par; and
(c) the payment of the costs of issuing the Bonds and the costs
of carrying out the foregoing elements of the Refunding Plan.
"Refunding Trust Agreement" means a Refunding Trust Agreement between
City and the Refunding Trustee substantially in the form of that which is on file with
Finance Director and by this reference incorporated herein.
"Refunding Trustee" means U.S. Bank National Association of
Washington, serving as trustee or escrow agent or any successor trustee or escrow
SECTION 2. - Debt Capacity. The assessed valuation of the taxable
within the City as ascertained by the last preceding assessment for City purposes for t
calendar year 2003 is $8,453,034,167, and the City as of March 1, 2004, has outstandi
general indebtedness evidenced by limited tax general obligation bonds, loans, leases a
conditional sales contracts in the principal amount of $99,304,755 incurred within the lir
of up to 1-112% of the value of the taxable property within the City permitted for gene
municipal purposes without a vote of the qualified voters therein, unlimited tax gene
obligation bonds in the principal amount of $6,250,000 incurred within the limit of up to
1/2% of the value of the taxable property within the City for capital purposes only issu
5042024703 4 LTGO Refunding Bonds, 2004
rsuant to a vote of the qualified voters of the City, and the amount of indebtedness for
bonds are authorized herein to be issued is $23,280,000.
SECTION 3. -Authorization and Purposes 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 $23,280,000 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 1-1/2% of the value of the taxable property within
City permitted for general municipal purposes without a vote of the qualified voters
SECTION 4. - Description of Bonds. The Bonds shall be in the aggregate principal
amount of $23,280,000; shall be dated their date of initial delivery; 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 1 and December 1, commencing December 1, 2004, to the maturity or earlier
redemption of the Bonds; and shall mature on December 1 in years and amounts and bear
interest at the rates per annum as follows:
Maturity
Interest
Years
Amounts
Rates
2004
$ 550,000
2.000%
2005
210,000
2.000
2006
855,000
5 000
2007
1,135,000
4.000
2008
1,155,000
4.000
2009
820,000
4.000
2010
1,225,000
5.000
2011
1,650,000
5.000
2012
1,480,000
5.000
2013
1,605,000
5.000
2014
1,875,000
5.000
2015
1,750,000
5.250
2016
1,625,000
5.250
2017
1,445,000
5.250
2018
1,265,000
5 250
2019
1,280,000
4 000
2020
2,030,000
4.000
2021
1,325,000
4.125
5042024703 5 LTGO Refunding Bonds, 2004
SECTION 5. - Registration and Transfer of Bonds. The Bonds shall be issued on
in registered form as to both principal and interest and shall be recorded on the Boi
Register. The Bond Register shall contain the name and mailing address of the owner
each Bond and the principal amount and number of each of the Bonds held by ea
owner.
Bonds surrendered to the Bond Registrar may be exchanged for Bonds in a
authorized denomination of an equal aggregate principal amount and of the same interes
rate and maturity. Bonds may be transferred only if endorsed in the manner provide(
thereon and surrendered to the Bond Registrar. Any exchange or transfer shall be withou
cost to the owner or transferee. The Bond Registrar shall not be obligated to exchange o
transfer any Bond during the 15 days preceding any principal or interest payment o
redemption date.
The Bonds initially shall be registered in the name of Cede & Co., as the
of DTC. The Bonds so registered shall be held in fully immobilized form by DTC
depository in accordance with the provisions of the Letter of Representations. Neither
City nor the Bond Registrar shall have any responsibility or obligation to DTC participa
or the persons for whom they act as nominees with respect to the Bonds regard
accuracy of any records maintained by DTC or DTC participants of any amount in resp
of principal of or interest on the Bonds, or any notice which is permitted or required to
given to registered owners hereunder (except such notice as is required to be given by
Bond Registrar to DTC).
For as long as any Bonds are held in fully immobilized form, DTC, its nominee
its successor depository shall be deemed to be the registered owner for all purpos
hereunder and all references to registered owners, bondowners, bondholders or the li
shall mean DTC or its nominee and shall not mean the owners of any beneficial intere,
in the Bonds. Registered ownership of such Bonds, or any portions thereof, may r
thereafter be transferred except. (i) to any successor of DTC or its nominee, if th
successor shall be qualified under any applicable laws to provide the services proposed
be provided by it; (n) to any substitute depository appointed by the City or such substitL
depository's successor; or (in) to any person if the Bonds are no longer held in immobiliz
form.
5042024703 6 LTGO Refunding Bonds, 2004
Upon the resignation of DTC or its successor (or any substitute depository or
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 (oi
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 fro
its functions as depository, and no substitute depository can be obtained, or (ii) the C
determines that the Bonds are to be in certificated form, the ownership of Bonds may
transferred to any person as provided herein and the Bonds no longer shall be held in fi
immobilized form
SECTION 6 - Payment of Bonds. Both principal of and interest on the Bonds
be payable in lawful money of the United States of America. Interest on the Bonds shal
be paid by checks or drafts of the Bond Registrar mailed on the interest payment date tc
the registered owners at the addresses appearing on the Bond Register on the 15"' day o
the month preceding the interest payment date. Principal of the Bonds shall be payable
upon presentation and surrender of the Bonds by the registered owners at either of the
principal offices of the Bond Registrar at the option of the registered owners
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. -
Bonds maturing in the years 2004 through 2013, inclusive, shall be issued without the ric
or option of the City to redeem those Bonds prior to their stated maturity dates. The C
reserves the right and option to redeem the Bonds maturing on or after December 1, 201
prior to their stated maturity dates at any time on or after June 1, 2014, as a whole or
part (within one or more maturities selected by the City and randomly within a maturity
such manner as the Bond Registrar shall determine), at par plus accrued interest to tl
date fixed for redemption.
Portions of the principal amount of any Bond, in installments of $5,000 or a
integral multiple thereof, maybe redeemed If less than all of the principal amount of a
5042024703 7 LTGO Refunding Bonds, 2004
Bond is redeemed, upon surrender of that Bond at either of the principal offices of the
Bond Registrar, there shall be issued to the registered owner, without charge therefor, a
new Bond (or Bonds, at the option of the registered owner) of the same maturity and
interest rate in any of the denominations authorized by this ordinance in the aggregate
principal amount remaining unredeemed.
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 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 registered 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 Lehman Brothers Inc. at its office in Seattle, Washington, or its
successor, 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
SECTION 9. - Failure To Redeem Bonds. If any Bond is not redeemed wl•
properly presented at its maturity or call date, the City shall be obligated to pay interest
5042024703 8 LTGO Refunding Bonds, 2004
that Bond at the same rate provided in the Bond from and after its maturity or call da
until that Bond, both principal and interest, is paid in full or until sufficient money for
payment in full is on deposit in the bond redemption fund hereinafter created and the Boi
has been called for payment by giving notice of that call to the registered owner of each
those unpaid Bonds.
SECTION 10. - Pledge of Taxes. For as long 6s any of the Bonds are
the City irrevocably pledges to include in its budget and levy taxes annually within tl
constitutional and statutory tax limitations provided by law without a vote of the electors
the City on all of the taxable property within the City in an amount sufficient, together w
other money legally available and to be used therefor, to pay when due the principal
and interest on the Bonds, and the full faith, credit and resources of the City are pledg
irrevocably for the annual levy and collection of those taxes and the prompt payment
that principal and interest.
SECTION 11. - Bond Fund and Deposit of Bond Proceeds. The Bond Fund
created and established in the office of the Finance Director as a special fund designate
as the Limited Tax General Obligation Refunding Bond Fund, 2004, for the purpose
paying principal of and interest on the Bonds. Accrued interest on the Bonds, if ar
received from the sale and delivery of the Bonds, together with any net premium and)
contingency amounts received from Lehman Brothers Inc. that are not necessary to p,
the administrative costs of the refunding and the costs of issuance and sale of the Boric
shall be deposited into the Bond Fund. The remaining principal proceeds of the sale of tl
Bonds shall be deposited with the Refunding Trustee in accordance with the provisions
Section 12 herein. All taxes and other funds collected for and allocated to the payment
the principal of and interest on the Bonds shall be deposited in the Bond Fund.
SECTION 12. - Refunding of the Refunded Bonds.
(a) Appointment of Refunding Trustee. U.S. Bank National Associ
of Seattle, Washington, is appointed Refunding Trustee.
(b) Use of Bond Proceeds; Acquisition of Acquired Obligations. All
the proceeds of the sale of the Bonds, exclusive of the accrued interest thereon and
contingency amount which shall be paid into the Bond Fund, shall be depot
immediately upon the receipt thereof with the Refunding Trustee and used to disch
5042024703 9 LTGO Refunding Bonds, 2004
the obligations of the City relating to the Refunded Bonds under Ordinance No. 3301 t
providing for the payment of the amounts required to be paid by the Refunding Plan ar
pay costs of issuance of the Bonds. To the extent practicable, such obligations shall t
discharged fully by the Refunding Trustee's simultaneous purchase of the Acquire
Obligations, bearing such interest and maturing as to principal and interest in suc
amounts and at such times so as to provide, together with a beginning cash balance,
necessary, for the payment of the amount required to be paid by the Refunding Plan. Tt
Acquired Obligations are listed and more particularly described in Exhibit A attached to tt
Refunding Trust Agreement between the City and the Refunding Trustee, but are suble
to substitution as set forth below. Any Bond proceeds or other money deposited with tt
Refunding Trustee not needed to purchase the Acquired Obligations and provide
beginning cash balance, if any, and pay the costs of issuance of the Bonds shall t
returned to the City at the time of delivery of the Bonds to the initial purchaser thereof ar
deposited in the Bond Fund to pay interest on the Bonds on the first interest payment dat
(c) Substitution of Acguired Obligations. Prior to the purchase of
Acquired Obligations by the Refunding Trustee, the City reserves the right to substitu
other direct, noncallable obligations of the United States of America ("Substitu
Obligations") for any of the Acquired Obligations and to use any savings created theret
for any lawful City purpose if, (a) in the opinion of Foster Pepper & Shefelman PLLC, #
City's bond counsel, the interest on the Bonds and the Refunded Bonds will rema
excluded from gross income for federal income tax purposes under Sections 103, 14
and 149(d) of the Code, and (b) such substitution shall not impair the timely payment
the amounts required to be paid by the Refunding Plan, as verified by a national
recognized independent certified public accounting firm.
After the purchase of the Acquired Obligations by the
Trustee, the City reserves the right to substitute therefor cash or Substitute Obligatior
subject to the conditions that such money or securities held by the Refunding Trustee sh,
be sufficient to carry out the Refunding Plan, that such substitution will not cause tt
Bonds and the Refunded Bonds to be arbitrage bonds within the meaning of Section 1 �
of the Code and regulations thereunder in effect on the date of such substitution ar
applicable to obligations issued on the issue date of the Bonds, and that the City obtain,
its expense: (1) a verification by a nationally recognized independent certified publ
accounting firm acceptable to the Refunding Trustee confirming that the payments
5042024703 10 LTGO Refunding Bonds, 2004
principal of and interest on the substitute securities, if paid 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, or its
successor, 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 for deposit into Bond Fund.
(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. 3301, 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 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 of the proceeds of the Bonds.
(e) Authorization for Refunding Trust Agreement To carry out the
Refunding Plan provided for by this ordinance, the Mayor or 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 Finance Director 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
5042024703 11 LTGO Refunding Bonds, 2004
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 provided therein and the
Bonds are in compliance with the requirements of provisions of the Code governing the
exclusion of interest on the Bonds from gross income for federal income tax purposes
SECTION 13. - Call for Redemption of the Refunded Bonds. The City calls for
redemption on December 1, 2007, all of the then -outstanding Refunded Bonds at a price
of 101 % of par plus accrued interest. Such call for redemption shall be irrevocable after
the delivery of the Bonds to Lehman Brothers Inc. The date on which such Refunded
Bonds are herein called for redemption is the first date on which such Refunded 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. 3301 in order to effect the redemption prior to their maturity of the Refunded Bonds.
SECTION 14. - City Findings with Respect to Refunding. The City Council 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 findings and determinations, 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 of the 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 12 of this
Ordinance will discharge and satisfy the obligations of the City under Ordinance No 3301
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 Ordinance No.
3301 immediately upon the deposit of such money with the Refunding Trustee.
SECTION 15. - 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
$042024703 12 LTGO Refunding Bonds, 2004
and state law and shall be signed by the Mayor and City Clerk, either or both of wt
signatures may be manual or in facsimile, and the seal of the City or a facsi
reproduction thereof shall be impressed or printed thereon.
Only Bonds bearing a Certificate of Authentication in the following form,
signed by the Bond Registrar, shall be valid or obligatory for any purpose or entitled to
benefits of this ordinance:
CERTIFICATE OF AUTHENTICATION
This Bond is one of the fully registered City of Kent, Washington,
Limited Tax General Obligation Refunding Bonds, 2004, described in the
Bond Ordinance.
WASHINGTON STATE FISCAL AGENT,
Bond Registrar
M
Authorized Signer
The authorized signing of a Certificate of Authentication shall be conclusive evidence
the Bonds so authenticated have been duly executed, authenticated and delivered and
entitled to the benefits of this ordinance.
If any officer whose facsimile signature appears on the Bonds ceases to be
officer of the City authorized to sign bonds before the Bonds bearing his or her facsimd(
signature are authenticated or delivered by the Bond Registrar or issued by the City, thos(
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 continue(
to be an officer of the City authorized to sign bonds. Any Bond also may be signed or
behalf of the City by any person who, on the actual date of signing of the Bond, is ar
officer of the City authorized to sign bonds, although he or she did not hold the require(
office on the date of issuance of the Bonds.
SECTION 16. - Bond Registrar. The Bond Registrar shall keep, or cause to
kept, at its principal corporate trust office, sufficient books for the registration and tran
of the Bonds, which shall be open to inspection by the City at all times The B
Registrar is authorized, on behalf of the City, to authenticate and deliver Bonds transfe
or exchanged in accordance with the provisions of the Bonds and this ordinance, to sE
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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 2418 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 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 17. - Preservation of Tax Exemption 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 also covenants that it will, to the extent the arbitrage rebate
requirement of Section 148 of the Code, is applicable to the Bonds, take all actions
necessary to comply (or to be treated as having complied) with that requirement in
connection with the Bonds, including the calculation and payment of any penalties that the
City has elected to pay as an alternative to calculating rebatable arbitrage, and the
payment of any other penalties if required under Section 148 of the Code to prevent
interest on the Bonds from being 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 18. - 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
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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 of
defeasance of defeased Bonds (hereinafter called the "trust account'), then all right an(
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 an(
become void. The owners of defeased Bonds shall have the right to receive payment o
the principal of and interest on the defeased Bonds from the trust account. The City shal
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 particula
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 an)
required replacement of Bond certificates for defeased Bonds. The defeased Bonds shal
be deemed no longer outstanding, and the City may apply any money in any other fund o
account established for the payment or redemption of the defeased Bonds to any lawfu
purposes as it shall determine.
If the Bonds are registered in the name of DTC or its nominee, notice of a
defeasance of Bonds shall be given to DTC in the manner prescribed in the Letter
Representations for notices of redemption of Bonds.
Notwithstanding anything in this section to the contrary, if the principal of and
interest due on the Bonds is paid by the Bond Insurer pursuant to the Municipal Bond N
Issue Insurance Policy, the Bonds shall be treated as remaining outstanding for
purposes and shall not be considered paid by the City, and the covenants, agreemei
and other obligations of the City to the registered owners of the Bonds shall continue
exist and run to the benefit of the Bond Insurer, and the Bond Insurer shall be subrogat
to the rights of the registered owners
SECTION 19. - Approval of Bond Purchase Agreement. Lehman Brothers Inc c
Seattle, Washington, has presented a purchase contract (the `Bond Purchas
Agreement") to the City offering to purchase the Bonds under the terms and condition
provided in the Bond Purchase Agreement, which written Bond Purchase Agreement is o
file with the City Clerk and is incorporated herein by this reference. The City Council find
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that entering into the Bond Purchase Agreement is in the City's best interest and tt
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 i
accordance with the Bond Purchase Agreement, with the approving legal opinion of Foste
Pepper & Shefelman PLLC, bond counsel of Seattle, Washington, regarding the Bonds
The proper City officials are authorized and directed to do everything necessary
the prompt delivery of the Bonds to Lehman Brothers Inc. and for the proper appl
and use of the proceeds of the sale thereof.
SECTION 20. - Preliminary Official Statement Deemed Final. The City Council
been provided with copies of a preliminary official statement dated March 5, 2004
"Preliminary Official Statement"), prepared in connection with the sale of the Bonds.
the sole purpose of Lehman Brother's compliance with Securities and Exchc
Commission Rule 15c2 -12(b)(1), the City "deems final" that Preliminary Official Stater
as of its date, except for the omission of information as to offering prices, interest n
selling compensation, aggregate principal amount, principal amount per maturity, mai
dates, options of redemption, delivery dates, ratings and other terms of the Bi
dependent on such matters.
SECTION 21. - Undertaking to Provide Continuing Disclosure. To meet
requirements of United States Securities and Exchange Commission ("SEC") Rule 15
12(b)(5) (the "Rule"), as applicable to a participating underwriter for the Bonds, the (
makes the following written undertaking (the "Undertaking") for the benefit of holders of
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:
(i) To each nationally recognized municipal securities
information repository designated by the SEC in accordance with
the Rule ("NRMSIR") and to a state information depository, if any,
established in the state of Washington (the "SID") annual financial
information and operating data of the type included in the final
official statement for the Bonds and described in subsection (b) of
this section ("annual financial information"),
(ii) To each NRMSIR or the Municipal Securities
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Rulemaking Board ("MSRB"), and to the SID, timely notice of the
occurrence of any of the following events with respect to the Bonds,
if material: (1) principal and interest payment delinquencies; (2)
non-payment related defaults; (3) unscheduled draws on debt
service reserves reflecting financial difficulties; (4) unscheduled
draws on credit enhancements reflecting financial difficulties; (5)
substitution of credit or liquidity providers, or their failure to perform;
(6) adverse tax opinions or events affecting the tax-exempt status
of the Bonds; (7) modifications to rights of holders of the Bonds; (8)
Bond calls (other than scheduled mandatory redemptions of Term
Bonds); (9) defeasances; (10) release, substitution, or sale of
property securing repayment of the Bonds; and (11) rating
changes; and
(iii) To each NRMSIR or to the MSRB, and to the SID,
timely notice of a failure by the City to provide required annual
financial information on or before the date specified in 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:
(i) Shall consist of (1) annual financial statements
prepared (except as noted in the financial statements) in
accordance with applicable generally accepted accounting
principles applicable to governmental units, as such principles may
be changed from time to time and as permitted by State law, 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 the City's
general obligation debt service requirements; and (3) an update of
the information set forth in tables 1, 3, 4 and 10 of the Official
Statement for the Bonds;
(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 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,
2004,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, 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
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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 the Undertaking shall
terminate if those provisions of the Rule which require the City to comply
with the Undertaking become legally inapplicable in respect of the Bonds
for any reason, as confirmed by an opinion of nationally recognized bond
counsel or other counsel familiar with federal securities laws delivered to
the City, and the City provides timely notice of such termination to each
NRMSIR or the MSRB and the SID.
(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 (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 his or her discretion to take such further actions
as may be necessary, appropriate or convenient to carry out the
Undertaking 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)(ii) has occurred, assessing its materiality with
respect to the Bonds, and, if material, preparing and disseminating
notice of its occurrence;
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(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.
SECTION 22. - Bond Insurance. The District is authorized to purchase from
Bond Insurer the Municipal Bond New Issue Insurance Policy issued by the Bond Insures
insuring the prompt payment of the principal of and interest on the Bonds and agrees tc
the conditions for obtaining that policy, including the payment of the premium therefor
The Mayor or Finance Director is hereby authorized to execute the Bond Insurer';
Commitment for Municipal Bond Insurance
SECTION 23. - Severability. If any one or more sections, subsections,
sentences of this ordinance are held to be unconstitutional or invalid, such decision
not affect the validity of the remaining portion of this ordinance and the same shall re
in full force and effect.
SECTION 24. - Effective Date. This ordinance shall take effect and be in force
(5) days from and after its passage, approv a publicatio by law
JI HITE, MAYOR
ATTEST:
BRENDA JACOBER, CIW CLERK
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APPROVED AS TO FORM -
FOSTER PEPPER & SHEFELMAN PLLC
Special Counsel and Bond Counsel
PASSED• /6
day of March, 2004.
APPROVED: /to
day of March, 2004.
PUBLISHED: aZV
day of March, 2004
I hereby certify that this is a true copy of Ordinance No. PZ , passed by the
Council of the City of Kent, Washington, and approved by the Mayor of the City of Kent
hereon indicated.
(SEAL)
BRENDA JACOBER,4CITY CLERK
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