HomeMy WebLinkAbout3912ORDINANCE NO.
AN ORDINANCE of the City of Kent,
Washington, providing for the issuance and sale
of limited tax general obligation refunding bonds
of the City in the aggregate principal amount of
not to exceed $9,000,000 to provide funds for
the purpose of refunding certain limited tax
general obligation bonds of the City, and paying
costs of issuance of the bonds; providing the
form and terms of the bonds; delegating
authority to approve the final terms of the bonds,
to appoint an escrow agent and to execute an
escrow agreement; and repealing Ordinance
No. 3893.
PASSED: April 7, 2009
This document prepared by:
K&L Preston Gates Ellis LLP
Seattle, Washington
LTGO Refunding Bonds, 2009
TABLE OF CONTENTS
Page
SECTION 1. - Repeal of Ordinance No. 3893 ...............................2
SECTION 2. - Definitions..........................................................
2
SECTION 3. - Authorization of Bonds .........................................
6
SECTION 4. -Description of Bonds .............................................
6
SECTION 5. - Registration, Transfer and Payment of Bonds ..........
6
SECTION 6. - No Optional Redemption; Purchase of Bonds.........
11
SECTION 7. - Form of the Bonds .............................................
11
SECTION S. - Execution of the Bonds .......................................
14
SECTION 9. - Refunding Procedures......... ................................
15
SECTION 10. - Tax Covenants -Bonds .......................................
17
SECTION 11. - Bond Fund; Provision for Payment .....................
19
:SECTION 12. - Defeasance.....................................................
20
'SECTION 13. - Sale of the Bonds ............................................
21
SECTION 14. - Bond Insurance ...............................................
23
SECTION 15. - Continuing Disclosure Undertaking .....................
23
(SECTION 16. - Lost, Stolen or Destroyed Bonds ........................
26
SECTION 17. - Severability.....................................................
26
SECTION 18. - Effective Date of Ordinance...............................
27
LTGO Refunding Bonds, 2009
CITY OF KENT, WASHINGTON
ORDINANCE NO -5 *12 --
AN ORDINANCE of the City of Kent,
Washington, providing for the issuance and sale
of limited tax general obligation refunding bonds
of the City in the aggregate principal amount of
not to exceed $9,000,000 to provide funds for
the purpose of refunding certain limited tax
general obligation bonds of the City, and paying
costs of issuance of the bonds; providing the
form and terms of the bonds; delegating
authority to approve the final terms of the bonds,
to appoint an escrow agent and to execute an
escrow agreement; and repealing Ordinance
No. 3893.
RECITALS
A. Pursuant to Ordinance No. 3444 (the "1999 Bond Ordinance"),
passed on March 16, 1999, the City of Kent, Washington (the "City") has
issued and has outstanding its Limited Tax General Obligation Bonds,
1999, issued under date of March 15, 1999 (the "1999 Bonds"), a portion
of which is eligible for refunding:
Maturity
Principal
Interest
(December 1)
Amount
Rate
2010
$ 655,000
4.50%
2011
685,000
4.60
2012
715,000
4.70
2013
750,000
4.75
2019
5,335,000
5.00
(the "1999 Refunding Candidates"); and
B. The 1999 Bond Ordinance authorizes the redemption and
defeasance of the 1999 Refunding Candidates in advance of their
scheduled maturity on or after December 1, 2009, at any time at prices set
1
LTGO Refunding Bonds, 2009
forth in the 1999 Bond Ordinance plus accrued interest to the date of
redemption; and
C. On September 16, 2008, the City Council adopted Ordinance
No. 3893, which authorized the issuance and sale of limited tax general
obligation refunding bonds (the "Bonds") of the City for the purpose of
refunding all or a portion of the 1999 Refunding Candidates so that debt
service savings could be achieved for the City and its taxpayers; and
D. Ordinance No. 3893 granted authority to the Designated City
Representative to negotiate the terms for the sale of the Bonds during a
Decified period; and
E. During the specified period, conditions in the municipal bond
iarket deteriorated, lessening the debt service savings, and the
,esignated City Representative determined to delay sale of the Bonds; and
F. After due consideration it appears to this Council that all or a
ortion of the 1999 Refunding Candidates may be defeased and refunded
y the proceeds of the refunding bonds authorized herein at a substantial
avings to the City under current bond market conditions; and
G. To effect such refunding in the manner that will be most
dvantageous to the City, it is hereby found necessary and advisable that
ertam "Acquired Obligations" (hereinafter identified) be purchased out of
ie proceeds of sale of the Bonds;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
IASHINGTON, DO ORDAIN AS FOLLOWS:
SECTION 1. - Repeal of Ordinance No. 3893. The City hereby
peals Ordinance No. 3893 in its entirety.
SECTION 2.- Definitions. As used in this ordinance, the following
Fords shall have the following meanings:
Acquired Obligations means the Government Obligations now or
ereafter acquired by the City pursuant to Section 9 of this ordinance to
ffect the refunding of the Refunded Bonds.
2
LTGO Refunding Bonds, 2009
Beneficial Owner means any person that has or shares the power,
directly or indirectly, to make investment decisions concerning ownership
of any Bonds (including persons holding Bonds through nominees,
depositories or other intermediaries).
Bond Fund means the LTGO Bond Debt Service Fund described in
Section 11 of this ordinance.
Bond Insurance Policy means the municipal bond insurance policy, if
any, issued by the Insurer insuring the payment when due of the principal
of and interest on all or a portion of the Bonds as provided therein.
Bond Purchase Contract means the contract for the purchase of the
Bonds between the Underwriter and City, executed pursuant to Section 13
of this ordinance.
Bond Register means the registration books showing the name,
address and tax identification number of each Registered Owner of the
Bonds, maintained pursuant to Section 149(a) of the Code.
Bond Registrar means, initially, the fiscal agency of the State of
Washington, for the purposes of registering and authenticating the Bonds,
maintaining the Bond Register, effecting transfer of ownership of the Bonds
and paying interest on and principal of the Bonds.
Bonds means the City of Kent, Washington Limited Tax General
'Obligation Refunding Bonds, 2009, if any, issued pursuant to this
ordinance.
Bond Year means each one-year period that ends on the date
selected by the City. The first and last Bond Years may be short periods.
If no day is selected by the City before the earlier of the final maturity date
of the Bonds or the date that is five years after the date of issuance of the
Bonds, Bond Years end on each anniversary of the date of issue and on the
final maturity date of the Bonds.
City means the City of Kent, Washington, a municipal corporation of
the State of Washington.
Code means the Internal Revenue Code of 1986, as amended, and
shall include all applicable regulations and rulings relating thereto.
3
LTGO Refunding Bonds, 2009
Commission means the Securities and Exchange Commission.
Council means the City Council of the City, as the same shall be duly
land regularly constituted from time to time.
Designated City Representative means the Mayor of the City and any
successor to the functions of such office.
DTC means The Depository Trust Company, New York, New York, a
imited purpose trust company organized under the laws of the State of
Vew York, as depository for the Bonds pursuant to Section 5 hereof.
Escrow Agent means the financial institution selected pursuant to
;he conditions set forth in Section 9 of this ordinance,
Escrow Agreement means the Escrow Deposit Agreement to be
?ntered into by the City and the Escrow Agent pursuant to Section 9 of this
)rdinance.
Finance Director means the Finance Director of the City, or any
successor to the functions of the Finance Director.
Government Obligations means those obligations now or hereafter
Defined as such in chapter 39.53 RCW.
Insurer means the municipal bond insurance company, if any,
;elected and designated by the Designated City Representative, pursuant
:o Section 14 of this ordinance, or any successor thereto or assignee
:hereof, as issuer of a Bond Insurance Policy for all or a portion of the
3onds.
Letter of Representations means the blanket issuer letter of
-epresentations from the City to DTC.
MSRB means the Municipal Securities Rulemaking Board or any
successor to its functions.
Net Proceeds, when used with reference to the Bonds, means the
)rincipal amount of the Bonds, plus accrued interest and original issue
premium, if any, and less original issue discount, if any.
1999 Bond Ordinance means Ordinance No. 3444 passed by the City
Council on March 16, 1999, authorizing the issuance of the 1999 Bonds.
4
LTGO Refunding Bonds, 2009
1999 Bonds means the outstanding "City of Kent, Washington
Limited Tax General Obligation Bonds, 1999" issued pursuant to the 1999
Bond Ordinance.
1999 Refunding Candidates means the 1999 Bonds identified in the
recitals to this ordinance.
NRMSIR means a nationally recognized municipal securities
information repository.
Private Person means any natural person engaged in a trade or
business or any trust, estate, partnership, association, company or
corporation.
Private Person Use means the use of property in a trade or business
by a Private Person if such use is other than as a member of the general
public. Private Person Use includes ownership of the property by the
Private Person as well as other arrangements that transfer to the Private
Person the actual or beneficial use of the property (such as a lease,
management or incentive payment contract or other special arrangement)
in such a manner as to set the Private Person apart from the general
public. Use of property as a member of the general public includes
attendance by the Private Person at municipal meetings or business rental
of property to the Private Person on a day-to-day basis if the rental paid by
such Private Person is the same as the rental paid by any Private Person
who desires to rent the property. Use of property by nonprofit community
groups or community recreational groups is not treated as Private Person
Use if such use is incidental to the governmental uses of property, the
property is made available for such use by all such community groups on
an equal basis and such community groups are charged only a de minimis
fee to cover custodial expenses.
RCW means the Revised Code of Washington.
Refunded Bonds means the 1999 Refunding Candidates selected as
Refunded Bonds by the Designated City Representative pursuant to
Section 9(a).
5
LTGO Refunding Bonds, 2009
Registered Owner means the person named as the registered owner
of a Bond in the Bond Register.
Rule means the Commission's Rule 15c2-12 under the Securities
Exchange Act of 1934, as the same may be amended from time to time.
Savings Target means a dollar amount equal to at least three
percent (3.0%) of the outstanding principal of the Refunded Bonds.
j SID means a state information depository, if any, for the State of
Washington.
Underwriter means Barclays Capital Inc.
SECTION 3. - Authorization of Bonds. The City is hereby
authorized to issue limited tax general obligation refunding bonds (the
'Bonds") in an aggregate amount not to exceed $9,000,000 for the
purpose of providing the funds necessary to (a) refund the Refunded Bonds
and (ii) pay all or a portion of the costs incidental to the foregoing and to
the issuance of the Bonds.
SECTION 4. - Description of Bonds. The Bonds shall be general
obligations of the City; shall be designated the "City of Kent, Washington,
Limited Tax General Obligation Refunding Bonds, 2009", with any
additional series designation, if necessary; shall be dated as of their initial
date of delivery; shall be fully registered as to both principal and interest;
shall be in the denomination of $5,000 each, or any integral multiple
thereof within a maturity, provided that no Bond shall represent more than
one maturity; shall be numbered separately in such manner and with any
additional designation as the Bond Registrar deems necessary for purposes
of identification; shall bear interest from their date, payable semiannually
on the interest payment dates set forth in the Bond Purchase Contract; and
shall mature on December 1 in the years and principal amounts set forth
and approved in the Bond Purchase Contract executed by the Designated
City Representative pursuant to Section 13 of this ordinance.
SECTIONS. - Registration, Transfer and Payment of Bonds. The
hereby specifies and adopts the system of registration approved by
6
LTGO Refunding Bonds, 2009
the Washington State Finance Committee from time to time through the
appointment of state fiscal agencies. The City shall cause a Bond Register
to be maintained by the Bond Registrar. So long as any Bonds remain
outstanding, the Bond Registrar shall make all necessary provisions to
permit the exchange or registration or transfer of Bonds at its principal
corporate trust office. The Bond Registrar may be removed at any time at
the option of the Finance Director upon prior notice to the Bond Registrar
and a successor Bond Registrar appointed by the Finance Director. No
resignation or removal of the Bond Registrar shall be effective until a
successor shall have been appointed and until the successor Bond Registrar
shall have accepted the duties of the Bond Registrar hereunder. The Bond
Registrar is authorized, on behalf of the City, to authenticate and deliver
Bonds transferred or exchanged in accordance with the provisions of such
Bonds and this ordinance and to carry out all of the Bond Registrar's
powers and dunes under this ordinance. The Bond Registrar shall be
responsible for its representations contained in the Certificate of
Authentication of the Bonds.
The City and the Bond Registrar, each in its discretion, may deem
and treat the Registered Owner of each Bond as the absolute owner
thereof for all purposes (except as provided in Section 15 of this
ordinance), and neither the City nor the Bond Registrar shall be affected by
Jany notice to the contrary. Payment of any such Bond shall be made only
as described in this section, but such Bond may be transferred as herein
provided. All such payments made as described in this section shall be
valid and shall satisfy and discharge the liability of the City upon such Bond
to the extent of the amount or amounts so paid.
The Bonds initially shall be held in fully immobilized form by DTC
acting as depository. To induce DTC to accept the Bonds as eligible for
deposit at DTC, the City has executed and delivered to DTC a Blanket
Issuer Letter of Representations. Neither the City nor the Bond Registrar
will have any responsibility or obligation to DTC participants or the persons
for whom they act as nominees (or any successor depository) with respect
7
LTGO Refunding Bonds, 2009
to the Bonds in respect of the accuracy of any records maintained by DTC
(or any successor depository) or any DTC participant, the payment by DTC
(or any successor depository) or any DTC participant of any amount in
respect of the principal of or interest on Bonds, any notice which is
permitted or required to be given to Registered Owners under this
!ordinance (except such notices as shall be required to be given by the City
to the Bond Registrar or to DTC (or any successor depository)), or any
consent given or other action taken by DTC (or any successor depository)
as the Registered Owner. For so long as any Bonds are held in
fully -immobilized form hereunder, DTC, its nominee or its successor
depository shall be deemed to be the Registered Owner for all purposes
hereunder, and all references herein to the Registered Owners shall mean
DTC (or any successor depository) or its nominee and shall not mean the
owners of any beneficial interest in such Bonds.
If any Bond shall be duly presented for payment and funds have not
been duly provided by the City on such applicable date, then interest shall
continue to accrue thereafter on the unpaid principal thereof at the rate
i
!stated on such Bond until it is paid.
The Bonds shall be registered initially in the name of "Cede & Co.",
as nominee of DTC, with one Bond maturing on each of the maturity dates
for the Bonds in a denomination corresponding to the total principal therein
designated to mature on such date. Registered ownership of such
immobilized Bonds, or any portions thereof, may not thereafter be
transferred except (i) to any successor of DTC or its nominee, provided
that any such successor shall be qualified under any applicable laws to
provide the service proposed to be provided by it; (ii) to any substitute
depository appointed by the Finance Director pursuant to this section or
such substitute depository's successor; or (iii) to any other person as
specifically provided in this section.
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 Finance Director to discontinue the system of
8
LTG4 Refunding Bonds, 2009
book -entry transfers through DTC or its successor (or any substitute
depository or its successor), the Finance Director may hereafter 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.
In the case of any transfer pursuant to clause (i) or (ii) above, the
Bond Registrar shall, upon receipt of all outstanding Bonds, together with a
written request on behalf of the Finance Director, issue a single new Bond
for each maturity then outstanding, registered in the name of such
successor or such substitute depository, or their nominees, as the case
may be, all as specified in such written request of the Finance Director.
In the event that (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 Finance Director determines that it
is in the best interest of the Beneficial Owners of the Bonds that such
owners be able to obtain such Bonds in the form of Bond certificates, the
ownership of the Bonds may then be transferred to any person or entity as
herein provided, and shall no longer be held in fully -immobilized form. The
Finance Director shall deliver a written request to the Bond Registrar,
together with a supply of definitive Bonds, to issue Bonds as herein
provided in any authorized denomination. Upon receipt by the Bond
Registrar of all then outstanding Bonds together with a written request on
behalf of the Finance Director to the Bond Registrar, new Bonds shall be
issued in the appropriate denominations and registered in the names of
such persons as are requested in such written request.
The transfer of any Bond may be registered and Bonds may be
exchanged, but no transfer of any such Bond shall be valid unless it is
surrendered to the Bond Registrar with the assignment form appearing on
such Bond duly executed by the Registered Owner or such Registered
Owner's duly authorized agent in a manner satisfactory to the Bond
Registrar. Upon such surrender, the Bond Registrar shall cancel the
surrendered Bond and shall authenticate and deliver, without charge to the
9
LTGO Refunding Bonds, 2009
Registered Owner or transferee therefor, a new Bond (or Bonds at the
option of the new Registered Owner) of the same date, maturity and
interest rate and for the same aggregate principal amount in any
authorized denomination, naming as Registered Owner the person or
persons listed as the assignee on the assignment form appearing on the
surrendered Bond, in exchange for such surrendered and cancelled Bond.
Any Bond may be surrendered to the Bond Registrar and exchanged,
without charge, for an equal aggregate principal amount of Bonds of the
same date, maturity and interest rate, in any authorized denomination.
The Bond Registrar shall not be obligated to register the transfer or to
exchange any Bond during the 15 days preceding any date on which any
such Bond is to be redeemed.
The Bond Registrar may become the Registered Owner of any Bond
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 member of, or in any other capacity with
respect to, any committee formed to protect the right of the Registered
Owners of Bonds.
The City covenants that, until all Bonds have been surrendered and
canceled, it will maintain a system for recording the ownership of each
!Bond that complies with the provisions of Section 149(a) of the Code.
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
calculated on the basis of a year of 360 days and twelve 30 -day months.
For so long as all Bonds are in fully immobilized form, payments of
;principal and interest thereon shall be made as provided in accordance with
the operational arrangements of DTC referred to in the Letter of
Representations. In the event that the Bonds are no longer in fully
immobilized form, interest on the Bonds shall be paid by check or draft
mailed to the Registered Owners at the addresses for such Registered
Owners appearing on the Bond Register on the fifteenth day of the month
preceding the interest payment date, or upon the written request of a
10
LTGO Refunding Bonds, 2009
Registered Owner of more than $1,000,000 of Bonds (received by the Bond
Registrar at least 15 days prior to the applicable payment date), such
payment shall be made by the Bond Registrar by wire transfer to the
account within the continental United States designated by the Registered
Owner. Principal of the Bonds shall be payable upon presentation and
surrender of such Bonds by the Registered Owners at the principal office of
the Bond Registrar.
SECTION 6. - No Optional Redemption; Purchase of Bonds. The
City does not reserve the right to redeem the Bonds prior to their
scheduled maturities.
The City reserves the right to purchase any of the Bonds offered to it
at any time at a price deemed reasonable by the Finance Director. Bonds
purchased by the City shall be cancelled.
SECTION 7. - Form of the Bonds. The Bonds shall be in
substantially the following form:
[DTC LANGUAGE]
[STATEMENT OF INSURANCE]
UNITED STATES OF AMERICA
JO. $
STATE OF WASHINGTON
CITY OF KENT, WASHINGTON
LIMITED TAX GENERAL OBLIGATION REFUNDING BOND, 2009
INTEREST RATE:
REGISTERED OWNER:
PRINCIPAL AMOUNT:
0/0 MATURITY DATE: CUSIP NO.:
CEDE & CO.
The City of Kent, Washington (the "City"), hereby acknowledges
itself to owe and for value received promises to pay to the Registered
Owner identified above, or registered assigns, on the Maturity Date
identified above, the Principal Amount indicated above and to pay interest
thereon from , 2009, or the most recent date to which
interest has been paid or duly provided for until payment of this bond at
the Interest Rate set forth above, payable on , 2009, and
semiannually thereafter on the first days of each succeeding December and
June. Both principal of and interest on this bond are payable in lawful
11
LTGO Refunding Bonds, 2009
money of the United States of America. The fiscal agency of the State of
Washington has been appointed by the City as the authenticating agent,
paying agent and registrar for the bonds of this issue (the "Bond
Registrar"). For so long as the bonds of this issue are held in fully
immobilized form, payments of principal and interest thereon shall be
made as provided in accordance with the operational arrangements of The
Depository Trust Company ("DTC") referred to in the Blanket Issuer Letter
of Representations (the "Letter of Representations") from the City to DTC.
The bonds of this issue are issued under and in accordance with the
provisions of the Constitution and applicable statutes of the State of
Washington and Ordinance No. duly passed by the City Council
on April 7, 2009 (the "Bond Ordinance"). Capitalized terms used in this
bond have the meanings given such terms in the Bond Ordinance.
This bond shall not be valid or become obligatory for any purpose or
�be entitled to any security or benefit under the Bond Ordinance until the
Certificate of Authentication hereon shall have been manually signed by or
;on behalf of the Bond Registrar or its duly designated agent.
This bond is one of an authorized issue of bonds of like date, tenor,
rate of interest and date of maturity, except as to number and amount in
the aggregate principal amount of $ and is issued pursuant to
the Bond Ordinance to refund certain outstanding limited tax general
obligation bonds of the City and to pay costs of issuance.
The bonds of this issue are not subject to redemption prior to their
stated maturities.
The City hereby irrevocably covenants and agrees with the owner of
(this bond that it will include in its annual budget and levy taxes annually,
within and as a part of the tax levy permitted to the City without a vote of
.the electorate, upon all the property subject to taxation in amounts
sufficient, together with other money legally available therefor, to pay the
principal of and interest on this bond as the same shall become due. The
full faith, credit and resources of the City are hereby irrevocably pledged
ifor the annual levy and collection of such taxes and the prompt payment of
such principal and interest.
The bonds of this issue are not "qualified tax-exempt obligations" for
investment by financial institutions under Section 265(b) of the Code. The
bonds of this issue are not private activity bonds.
The pledge of tax levies for payment of principal of and interest on
the bonds may be discharged prior to maturity of the bonds by making
provision for the payment thereof on the terms and conditions set forth in
the Bond Ordinance.
12
LTGO Refunding Bonds, 2009
It is hereby certified that all acts, conditions and things required by
the Constitution and statutes of the State of Washington to exist, to have
happened, been done and performed precedent to and in the issuance of
this bond exist and have happened, been done and performed and that the
issuance of this bond and the bonds of this issue does not violate any
constitutional, statutory or other limitation upon the amount of bonded
indebtedness that the City may incur.
IN WITNESS WHEREOF, the City of Kent, Washington has caused
this bond to be executed by the manual or facsimile signatures of the
Mayor and City Clerk and the seal of the City imprinted, impressed or
otherwise reproduced hereon as of this day of , 2009.
i
ATTEST:
City Clerk
[SEAL]
CITY OF KENT, WASHINGTON
/s/ manual or facsimile _
By Mayor
The Bond Registrar's Certificate of Authentication on the Bonds shall
in substantially the following form:
CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds described in the within mentioned
Bond Ordinance and is one of the Limited Tax General Obligation Refunding
Bonds, 2009 of the City of Kent, Washington, dated , 2009.
WASHINGTON STATE FISCAL AGENCY,
as Bond Registrar
By
13
LTGO Refunding Bonds, 2009
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER OF TRANSFEREE
(Please print or typewrite name and address, including zip code of
Transferee)
the within bond and all rights thereunder and does hereby irrevocably
constitute and appoint of , or its
successor, as agent to transfer said bond on the books kept by the Bond
Registrar for registration thereof, with full power of substitution in the
premises.
DATED:
SIGNATURE GUARANTEED:
Notice: signature(s) must be
guaranteed pursuant to law.
NOTE: The signature of this
Assignment must correspond with
the name of the registered owner as
it appears upon the face of the
within bond in every particular,
without alteration or enlargement or
any change whatever.
SECTIONS. - Execution of the Bonds. The Bonds shall be executed
on behalf of the City with the manual or facsimile signatures of the Mayor
and City Clerk of the City and the seal of the City shall be impressed,
imprinted or otherwise reproduced thereon.
Only such Bonds as shall bear thereon a Certificate of Authentication
in the form hereinbefore recited, manually executed by the Bond Registrar,
shall be valid or obligatory for any purpose or entitled to the benefits of
this ordinance. Such Certificate of Authentication shall be conclusive
evidence that the Bonds so authenticated have been duly executed,
14
LTGO Refunding Bonds, 2009
authenticated and delivered hereunder and are entitled to the benefits of
this ordinance.
In case either of the officers who shall have executed the Bonds
shall cease to be an officer or officers of the City before the Bonds so
signed shall have been authenticated or delivered by the Bond Registrar, or
issued by the City, such Bonds may nevertheless be authenticated,
delivered and issued and upon such authentication, delivery and issuance,
shall be as binding upon the City as though those who signed the same had
continued to be such officers of the City. Any Bond may be signed and
attested on behalf of the City by such persons who at the date of the actual
execution of such Bond, are the proper officers of the City, although at the
original date of such Bond any such person shall not have been such officer
of the City.
SECTION 9. — Refunding Procedures
(a) Designation of Refunded Bonds. All or some of the 1999
Refunding Candidates may be refunded and refinanced with the proceeds
of the Bonds authorized by this ordinance. The Designated City
Representative may select some or all of the 1999 Refunding Candidates
and designate those 1999 Refunding Candidates as the "Refunded Bonds"
at or prior to the time of sale of the Bonds.
(b) Creation of Refunding Account. A special account is hereby
authorized to be created by the Finance Director, which account is to be
drawn for the sole purpose of paying (or purchasing Government
Obligations, which obligations so purchased, are herein called "Acquired
Obligations") maturing in such amounts and at such times as to pay) the
principal of and premium and interest on the Refunded Bonds. The special
account shall be held as a trust fund for the benefit of the owners of the
Refunded Bonds, wholly segregated from all other funds and securities on
deposit with the Finance Director. The Finance Director shall not allow the
assets or amounts on deposit for the benefit of the Refunded Bonds to be
commingled with any other funds or securities of the City. The Finance
is
LTGO Refunding Bonds, 2009
Director shall cause the assets and amounts on deposit in such special
account to be held and disposed of only as set forth in this section.
(c) Application of Bond Proceeds. A portion of the net proceeds of
the Bonds (exclusive of any amounts designated by the Designated City
Representative to be used to pay costs of issuance of the Bonds), together
with other available funds of the City in the amount specified by the
Designated City Representative, shall be applied at the direction of the
Designated City Representative to purchase the Acquired Obligations to be
used to redeem the Refunded Bonds on their redemption date.
(d) Defeasance of Refunded Bonds. The net proceeds of the
Bonds so deposited shall be utilized immediately upon receipt thereof to
redeem Refunded Bonds or to purchase the Government Obligations
specified by the Designated City Representative and to maintain such
necessary beginning cash balance to defease the Refunded Bonds and to
discharge the other obligations of the City relating thereto under the 1999
Bond Ordinance, by providing for the payment of the interest on the
Refunded Bonds to the date fixed for redemption and the redemption price
on the redemption date for the Refunded Bonds.
{ When the final transfers have been made for the payment of such
;redemption price and interest on the Refunded Bonds, any balance then
remaining shall be used for the purposes specified by the Designated City
Representative.
(e) Redemption of Refunded Bonds, The Council authorizes the
Designated City Representative to call the Refunded Bonds that are callable
for redemption on the redemption date specified by the Designated City
Representative in accordance with the 1999 Bond Ordinance.
Said defeasance and call for redemption of the Refunded Bonds shall
be irrevocable after the deposit of the proceeds of the Bonds as described
in Section 9(c).
The Designated City Representative is hereby authorized and
directed to provide for the giving of irrevocable notice of the redemption of
the callable Refunded Bonds in accordance with the terms of the 1999
lb
LTGO Refunding Bonds, 2009
Bond Ordinance. The Finance Director is authorized and directed to
provide whatever assistance is necessary to accomplish such redemption
and the giving of notice therefor.
(f) Escrow Agent and Escrow Agreement. The Designated City
Representative is hereby authorized to select a financial institution to serve
as the Escrow Agent for the Refunded Bonds (the "Escrow Agent"). A
beginning cash balance, if any, and Acquired Obligations shall be deposited
irrevocably with the Escrow Agent in an amount sufficient to defease the
Refunded Bonds. The proceeds of the Bonds remaining in the Refunding
Account after acquisition of the Acquired Obligations and provision for the
necessary beginning cash balance shall be utilized to pay expenses of the
acquisition and safekeeping of the Acquired Obligations and expenses of
the issuance of the Bonds. The Designated City Representative or the
Finance Director is authorized to execute and deliver to the Escrow Agent
an Escrow Agreement, with such changes or modifications as the
Designated City Representative or the Finance Director, with the advice of
'bond counsel to the City, consider necessary or advisable.
The City hereby irrevocably sets aside for and pledges to the
payment of the Refunded Bonds the moneys and obligations to be
deposited with the Escrow Agent pursuant to the Escrow Agreement to
accomplish the plan of refunding and defeasance of the Refunded Bonds
set forth herein and in the Escrow Agreement. When all of the Refunded
Bonds shall have been redeemed and retired, the Designated City
Representative or Finance Director may cause any remaining money to be
transferred to the Bond Fund for the purposes set forth below.
SECTION IO.— Tax Covenants -Bonds. The City covenants that it
will not take or permit to be taken on its behalf any action that would
adversely affect the exemption from federal income taxation of the interest
on the Bonds and will take or require to be taken such acts as may
reasonably be within its ability and as may from time to time be required
under applicable law to continue the exemption from federal income
taxation of the interest on the Bonds.
17
LTGO Refunding Bonds, 2009
Without limiting the generality of the foregoing, the City covenants
that it will not take any action or fail to take any action with respect to the
'proceeds of sale of the Bonds or any other funds of the City which may be
;deemed to be proceeds of the Bonds pursuant to Section 148 of the Code
and the regulations promulgated thereunder which, if such use had been
-easonably expected on the dates of delivery of the Bonds to the initial
purchasers thereof, would have caused the Bonds to be treated as
'arbitrage bonds" within the meaning of such term as used in Section 148
3f the Code.
The City will comply with the requirements of Section 148 of the
Zode and the applicable regulations thereunder throughout the term of the
Bonds.
The City covenants that for as long as the Bonds are outstanding, it
will not permit, (i) more than 10% of the Net Proceeds of the Bonds to be
allocated to any Private Person Use; and (ii) more than 10% of the
principal or interest payments on the Bonds in a Bond Year to be directly or
;indirectly secured by any interest in property used or to be used for any
(Private Person Use or secured by payments in respect of property used or
be used for any Private Person Use, or derived from payments (whether
or not made to the City) in respect of property, or borrowed money, used
or to be used for any Private Person Use.
The City further covenants that, if: (i) more than five percent of the
Net Proceeds of the Bonds are allocable to any Private Person Use; and
(ii) more than five percent of the principal or interest payments on the
Bonds in a Bond Year are (under the terms of this ordinance or any
underlying arrangement) directly or indirectly secured by any interest in
property used or to be used for any Private Person Use or secured by
payments in respect of property used or to be used for any Private Person
Use, or derived from payments (whether or not made to the City) in
pect of property, or borrowed money, used or to be used for any Private
rson Use, then, any Private Person Use of the projects or Private Person
se payments that is in excess of the five percent limitations described
18
LTGO Refunding Bonds, 2009
above will be for a Private Person Use that is related to the state or local
governmental use of the projects refunded by the proceeds of the Bonds,
and any Private Person Use will not exceed the amount of Net Proceeds of
the Bonds allocable to the state or local governmental use portion of the
Pro3ect(s) to which the Private Person Use of such portion of the projects
refunded by the proceeds of the Bonds relate. The City further covenants
that it will comply with any limitations on the use of the projects refunded
by the proceeds of the Bonds by other than state and local governmental
users that are necessary, in the opinion of its bond counsel, to preserve
the tax exemption of the interest on the Bonds.
The covenants of this section are specified solely to assure the
continued exemption from regular income taxation of the interest on the
Bonds. To that end, the provisions of this section may be modified or
eliminated without any requirement for formal amendment thereof upon
receipt of an opinion of the City's bond counsel that such modification or
elimination will not adversely affect the tax exemption of interest on any
Bonds.
The City has not designated the Bonds as "qualified tax-exempt
obligations" under Section 265(b)(3) of the Code for investment by
financial institutions.
SECTION 11. — Bond Fund; Provision for Payment. The City has
heretofore established a fund to be used for the payment of debt service
on the Bonds, designated as the "L.TGO Bond Debt Service Fund" (the
"Bond Fund"). No later than the date each payment of principal of and/or
interest on the Bonds matures or becomes due and payable, the City shall
transmit sufficient funds, from the Bond Fund or from other legally
available sources to the Bond Registrar for the payment of such principal
and/or interest. Money in the Bond Fund not needed to pay the interest or
principal next coming due may temporarily be deposited in legal
investments for City funds.
The City hereby irrevocably covenants and agrees for as long as any
of the Bonds are outstanding and unpaid that each year it will include in its
19
LTGO Refunding Bonds, 2009
budget and levy an ad valorem tax upon all the property within the City
subject to taxation in an amount that will be sufficient, together with all
other revenues and money of the City legally available for such purposes,
to pay the principal of and interest on the Bonds as the same shall become
due.
The City hereby irrevocably pledges that the annual tax provided for
herein to be levied for the payment of such principal and interest shall be
within and as a part of the tax levy permitted to cities without a vote of the
people, and that a sufficient portion of each annual levy to be levied and
collected by the City prior to the full payment of the principal of and
interest on the Bonds will be and is hereby irrevocably set aside, pledged
and appropriated for the payment of the principal of and interest on the
Bonds, The full faith, credit and resources of the City are hereby
irrevocably pledged for the annual levy and collection of said taxes and for
the prompt payment of the principal of and interest on the Bonds as the
same shall become due.
SECTION 12. - Defeasance. In the event that the City, in order to
effect the payment, retirement or redemption of any Bond, sets aside in
the Bond Fund or in another special account, cash or noncallable
,Government Obligations, or any combination of cash and/or noncallable
'Government Obligations, in amounts and maturities which, together with
the known earned income therefrom, are sufficient to redeem or pay and
retire such Bond in accordance with its terms and to pay when due the
;interest and redemption premium, if any, thereon, and such cash and/or
noncallable Government Obligations are irrevocably set aside and pledged
for such purpose, then no further payments need be made into the Bond
Fund for the payment of the principal of and interest on such Bond. The
owner of a Bond so provided for shall cease to be entitled to any lien,
benefit or security of this ordinance except the right to receive payment of
principal, premium, if any, and interest from the Bond Fund or such special
account, and such Bond shall be deemed to be not outstanding under this
ordinance.
20
LTGO Refunding Bonds, 2009
The City shall give written notice of defeasance to the owners of all
Bonds so provided for within 30 days of the defeasance and to each party
entitled to receive notice in accordance with Section 15 of this ordinance.
SECTION 13. - Sale of the Bonds. The Bonds shall be sold by
negotiated sale to the Underwriter pursuant to the terms of the Bond
Purchase Contract. The Designated City Representative is hereby
authorized to negotiate terms for the purchase of the Bonds and execute
the Bond Purchase Contract, with such terms as are approved by her
pursuant to this section and consistent with this ordinance. The
Underwriter has advised the Council that market conditions are fluctuating
and, as a result, the most favorable market conditions may occur on a day
other than a regular meeting date of the Council. The Council has
determined that it would be in the best interest of the City to delegate to
the Designated City Representative for a limited time the authority to
(determine whether to proceed with the refunding of the Refunded Bonds,
to designate which of the Refunding Candidates shall be the Refunded
Bonds, and to approve the final interest rates, maturity dates, aggregate
,principal amount, redemption rights and principal amounts of each
maturity of the Bonds. The Designated City Representative is hereby
authorized to determine whether to proceed with the refunding of the
Refunded Bonds if and to the extent that the aggregate savings to be
realized as a result of the refunding of the Refunded Bonds (i.e., the
present value of (i) the aggregate debt service on the Refunded Bonds
minus (ii) the aggregate debt service on the Refunding Bonds, after
payment of all costs of issuance of the Bonds), exceed the Savings Target.
The Designated City Representative is further authorized to approve the
final interest rates, maturity dates, aggregate principal amount, and
principal amounts of each maturity of the Bonds in the manner provided
hereafter so long as (i) the aggregate principal amount of all Bonds does
not exceed $9,000,000; and (ii) the true interest cost for the Bonds does
not exceed 5.50%.
21
LTGO Refunding Bonds, 2009
In determining whether or not to proceed with bond insurance and
determining the final interest rates, aggregate principal amounts, principal
maturities and redemption rights, the Designated City Representative, in
consultation with City staff, shall take into account those factors that, in
her judgment, will result in the lowest true interest cost on the Bonds to
their maturity, including, but not limited to current financial market
conditions and current interest rates for obligations comparable in tenor
and quality to the Bonds. Subject to the terms and conditions set forth in
this Section 13, the Designated City Representative is hereby authorized to
execute the final form of the Bond Purchase Contract, upon the Designated
City Representative's designation of the Refunded Bonds and approval of
the final interest rates, aggregate principal amount, principal maturities
and redemption rights set forth therein. Following the execution of the
Bond Purchase Contract, the Designated City Representative shall provide
a report to the Council, describing the final terms of the Bonds approved
pursuant to the authority delegated in this section. The authority granted
to the Designated City Representative by this Section 13 shall expire 120
days after the date of approval of this ordinance. If a Bond Purchase
Contract for the Bonds has not been executed within 120 days after the
date of final approval of this ordinance, the authorization for the issuance
of the Bonds shall be rescinded, and the Bonds shall not be issued nor their
sale approved unless such Bonds shall have been re -authorized by
ordinance of the Council. The ordinance re -authorizing the issuance and
sale of such Bonds may be in the form of a new ordinance repealing this
ordinance in whole or in part or may be in the form of an amendatory
ordinance approving a bond purchase contract or establishing terms and
conditions for the authority delegated under this ordinance.
Upon the passage and approval of this ordinance, the proper officials
of the City, including the Designated City Representative, are authorized to
undertake all actions necessary for the prompt execution and delivery of
the Bonds to the Underwriter thereof and further to execute all closing
22
LTGO Refunding Bonds, 2009
certificates and documents required to effect the closing and delivery of the
Bonds in accordance with the terms of the Bond Purchase Contract.
The Finance Director is authorized to ratify and to approve for
purposes of the Rule, on behalf of the City, the preliminary Official
Statement and Official Statement (as defined in the Bond Purchase
.Contract) relating to the issuance and sale of the Bonds and the
distribution of the preliminary Official Statement and Official Statement
pursuant thereto with such changes, if any, as may be deemed by him to
be appropriate. The preliminary Official Statement for the Bonds is hereby
deemed final for the purposes of the Rule.
SECTION 14. - Bond Insurance. The Finance Director is hereby
further authorized to solicit proposals from municipal bond insurance
companies for the issuance of a Bond Insurance Policy. In the event that
the Finance Director receives multiple proposals in response to a
solicitation, the Finance Director may select the proposal having the lowest
cost and resulting in an overall lower interest cost with respect to the
'Bonds to be insured. The Finance Director may execute a commitment
received from the Insurer selected by the Finance Director. The Council
further authorizes all proper officers, agents, attorneys and employees of
the City to cooperate with the Insurer in preparing such additional
agreements, certificates, and other documentation on behalf of the City as
(shall be necessary or advisable in providing for the Bond Insurance Policy.
SECTION 15. - Continuing Disclosure Undertaking, This section
,onstitutes the City's written undertaking for the benefit of the owners,
ncluding Beneficial Owners, of the Bonds as required by Section (b)(5) of
:he Rule.
The City agrees to provide or cause to be provided to each NRMSIR
and to the SID, if any, in each case as designated by the Commission in
accordance with the Rule, the following annual financial information and
3peratmg data for the prior fiscal year (commencing in 2009 for the fiscal
year ended December 31, 2008): (1) annual financial statements, which
23
LTGO Refunding Bonds, 2009
statements may or may not be audited, showing ending fund balances for
the City's general fund prepared in accordance with the Budgeting
Accounting and Reporting System prescribed by the Washington State
Auditor pursuant to RCW 43.09.200 (or any successor statute) and
generally of the type included in the official statement for the Bonds;
(ii) the assessed valuation of taxable property in the City; (iii) ad valorem
taxes due and percentage of taxes collected; (iv) property tax levy rate per
$1,000 of assessed valuation; and (v) outstanding general obligation debt
of the City.
Items (ii) through (v) shall be required only to the extent that such
information is not included in the annual financial statements.
The information and data described above shall be provided on or
before nine months after the end of the City's fiscal year. The City's
current fiscal year ends December 31. The City may adjust such fiscal year
by providing written nonce of the change of fiscal year to each then
existing NRMSIR and the SID, if any. In lieu of providing such annual
financial information and operating data, the City may cross reference to
other documents provided to the NRMSIR, the SID or to the Commission
and, if such document is a final official statement within the meaning of the
Rule, available from the MSRB.
If not provided as part of the annual financial information discussed
above, the City shall provide the City's audited annual financial statement
prepared in accordance with the Budgeting Accounting and Reporting
System prescribed by the Washington State Auditor pursuant to
RCW 43.09.200 (or any successor statute) when and if available to each
(then existing NRMSIR and the SID, if any.
The City agrees to provide or cause to be provided, in a timely
manner, to the SID, if any, and to each NRMSIR notice of the occurrence of
any of the following events with respect to the Bonds, if material:
(i) principal and interest payment delinquencies; (ii) non payment related
defaults; (iii) unscheduled draws on debt service reserves reflecting
financial difficulties; (iv) unscheduled draws on credit enhancements
24
LTGO Refunding Bonds, 2009
.reflecting financial difficulties; (v) substitution of credit or liquidity
(providers, or their failure to perform; (vi) adverse tax opinions or events
affecting the tax-exempt status of the Bonds; (vii) modifications to the
rights of Bond owners; (viii) Bond calls (optional, contingent or
unscheduled Bond calls other than scheduled sinking fund redemptions for
which notice is given pursuant to Exchange Act Release 34 238560);
(ix) defeasances; (x) release, substitution or sale of property, securing
repayment of the Bonds; and (xi) rating changes.
Solely for purposes of disclosure, and not intending to modify this
undertaking, the City advises that no debt service reserves or property
secure payment of the Bonds.
The City agrees to provide or cause to be provided, in a timely
manner, to each NRMSIR and to the SID, if any, notice of its failure to
provide the annual financial information described above on or prior to the
date set forth above.
The City's obligations to provide annual financial information and
notices of material events shall terminate upon the legal defeasance or
payment in full of all of the Bonds. Any provision of this section shall be
null and void if the City (i) obtains an opinion of nationally recognized bond
counsel to the effect that the portion of the Rule that requires that
provision is invalid, has been repealed retroactively or otherwise does not
apply to the Bonds and (ii) notifies each NRMSIR and the SID, if any, of
such opinion and the cancellation of this section.
The City may amend this section with an opinion of nationally
recognized bond counsel in accordance with the Rule. In the event of any
amendment of this section, the City shall describe such amendment in the
next annual report, and shall include a narrative explanation of the reason
for the amendment and its impact on the type (or in the case of a change
of accounting principles, on the presentation) of financial information or
operating data being presented by the City. In addition, if the amendment
relates to the accounting principles to be followed in preparing financial
statements, (i) notice of such change shall be given in the same manner as
25
LTGO Refunding Bonds, 2009
for a material event, and (ii) the annual report for the year in which the
change is made shall present a comparison (in narrative form and also, if
feasible, in quantitative form) between the financial statements as
prepared on the basis of the new accounting principles and those prepared
on the basis of the former accounting principles.
The right of any bondowner or Beneficial Owner of Bonds to enforce
.the provisions of this section shall be limited to a right to obtain specific
enforcement of the City's obligations under this section, and any failure by
the City to comply with the provisions of this undertaking shall not be an
event of default with respect to the Bonds.
The City may elect to submit the information required by this
Section 15 to be filed with the NRMSIRs and the SID, if any, directly to
DisclosureUSA.org or any other entity approved for electronic submittal by
the Commission, unless or until the Commission withdraws its approval of
the submission process. After July 1, 2009, all information provided
(pursuant to this undertaking shall be submitted to the MSRB as the sole
'NRMSIR in accordance with the Commission's amendments to the Rule.
SECTION 16. - Lost, Stolen or Destroyed Bonds. In case any Bond
or Bonds shall be lost, stolen or destroyed, the Bond Registrar may execute
Mand deliver a new Bond or Bonds of like date, number and tenor to the
Registered Owner thereof upon the Registered Owner's paying the
expenses and charges of the City and the Bond Registrar in connection
therewith and upon his/her filing with the City evidence satisfactory to the
City that such Bond was actually lost, stolen or destroyed and of his/her
ownership thereof, and upon furnishing the City and/or the Bond Registrar
with indemnity satisfactory to the City and the Bond Registrar.
SECTION 17. - Severability. If any one or more of the covenants
Dr agreements provided in this ordinance to be performed on the part of
:he City shall be declared by any court of competent jurisdiction to be
-ontrary to law, then such covenant or covenants, agreement or
agreements, shall be null and void and shall be deemed separable from the
26
L.TGO Refunding Bonds, 2009
remaining covenants and agreements of this ordinance and shall in no way
affect the validity of the other provisions of this ordinance or of the Bonds,
SECTION 18. - 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.
ATTEST:
BRENDA JACOBER,
IAPPROVED AS TO FORM;
CLERK
S
K&L PRESN
GATES ELLIS LLP
Special Co nsel
and Bond Counsel
PASSED:
day of April, 2009.
APPROVED:
�% - day of April, 2009.
PUBLISHED:
day of April, 2009.
27
COOKS, MAYOR
LTGO Refunding Bonds, 2009
CERTIFICATION
I, the undersigned, City Clerk of the City of Kent, Washington (the
"City"), hereby certify as follows:
1. The attached copy of Ordinance No.%2 (the "Ordinance") is
a full, true and correct copy of an ordinance duly passed at a regular
meeting of the City Council of the City held at the regular meeting place
thereof on April 7, 2009, as that ordinance appears on the minute book of
the City; and the Ordinance will be in full force and effect five days after
publication in the City's official newspaper; and
2. A quorum of the members of the City Council was present
:hroughout the meeting and a majority of those members present voted in
:he proper manner for the passage of the Ordinance.
IN WITNESS WHEREOF, I have hereunto set my hand this //, day
Df April, 2009.
P 121266SV21266_0M
CITY OF KENT, WASHINGTON
BrendaJacober,/' ity Clerk