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HomeMy Public PortalAboutOrd 481 3rd Supplemental Water Supply & Wastewater Gilmore Bell, P.C. 04/30/2009 ORDINANCE NO. 481 OF THE CITY OF BEL AIRE, KANSAS PASSED MAY 5, 2009 THIRD SUPPLEMENTAL WATER SUPPLY AND WASTEWATER SERVICE AGREEMENT CHISHOLM CREEK UTILITY AUTHORITY KMC \601000 \CCUA ORDINANCE 043009 TABLE OF CONTENTS ARTICLE I DEFINITIONS Section 101. Definitions of Words and Terms 2 ARTICLE II AUTHORIZATION OF THE SECOND SUPPLEMENTAL AGREEMENT Section 201. Authorization of the Third Supplemental Agreement 5 Section 202. Preliminary and Final Official Statement 5 ARTICLE HE TAX COVENANTS Section 301. General Covenants 5 ARTICLE IV CONTINUING DISCLOSURE REQUIREMENTS Section 401. Disclosure Requirements 6 Section 402. Failure to Comply with Continuing Disclosure Requirements 6 ARTICLE V RESERVED ARTICLE VI MISCELLANEOUS PROVISIONS Section 601. Inconsistent Provisions 6 Section 602. Electronic Transactions 6 Section 603. Further Authority 6 Section 604. Severability 7 Section 605. Governing Law 7 Section 606. Effective Date 7 KMC \601000 CCUA ORDINANCE 043009 1 (PUBLISHED IN THE ARK VALLEYNEWS ON May 7, 2009) ORDINANCE NO. 481 AN ORDINANCE SUPPLEMENTING ORDINANCE NOS. 365, 417 AND 457 OF THE CITY; AUTHORIZING THE EXECUTION OF A THIRD SUPPLEMENTAL WATER SUPPLY AND WASTEWATER SERVICE AGREEMENT WITH CHISHOLM CREEK UTILITY AUTHORITY; AND AUTHORIZING ALL OTHER NECESSARY DOCUMENTS AND ACTIONS WITH RESPECT THERETO. WHEREAS, the City of Bel Aire, Kansas (the "City is a city of the second class, duly created, organized and existing under the Constitution and laws of the State; and WHEREAS, pursuant to an Interlocal Cooperation Agreement, certain Kansas municipalities, including the City, have joined together under the provisions of K.S.A. 12 -2901 et seq. (the "Act to organize and create the Chisholm Creek Utility Authority "Authority and WHEREAS, Authority has acquired, constructed, furnished and equipped a water treatment plant, a wastewater treatment plant, and associated facilities (the "Project for the purpose of providing an economic means of long -term public water supply and wastewater collection and treatment for the mutual benefit of Authority members participating in the Project (the "Contracting Members and WHEREAS, the Authority financed the costs of the Project through the issuance of its Water and Wastewater Facilities Revenue Bonds, Series 2002 (Cities of Bel Aire and Park City, Kansas Project), dated as of the March 1, 2002 (the "Series 2002 Bonds which were and are secured in part by revenues generated, and an assignment of the Authority's rights under, a Water Supply and Wastewater Service Agreement with the City and a similar agreement with the other Contracting Member; and WHEREAS, the Authority refunded in advance of maturity the Series 2002 Bonds scheduled to mature in the years 2013 to 2020, inclusive, through the issuance of the Authority's "Water and Wastewater Facilities Refunding Revenue Bonds (Cities of Bel Aire and Park City Project), Series 2004," in the aggregate principal amount of $7,235,000 (the "Series 2004 Bonds and WHEREAS, the Authority refunded in advance of maturity the Series 2002 Bonds scheduled to mature in the years 2021 to 2032, inclusive, through the issuance of the Authority's "Water and Wastewater Facilities Refunding Revenue Bonds (Cities of Bel Aire and Park City Project), Series 2007," in the aggregate principal amount of $19,415,000 (the "Series 2007 Bonds and WHEREAS, the Authority is proceeding with a headworks addition, improvement, repair and modification to the Project (the "Headworks Project Addition which is required by a governmental agency having jurisdiction over the Project, and the issuance of its bonds to fund all or a portion of the costs of such Project Addition (the "Series 2009 Bonds and WHEREAS, in connection with the issuance of the Series 2009 Bonds, it is necessary and advisable for the City to amend and supplement its Ordinance Nos. 365, 417 and 457 and its Water Supply and Wastewater Service Agreement, as amended and supplemented by a First Supplemental Water Supply and Wastewater Service Agreement and a Second Supplemental Water Supply and Wastewater Service Agreement (collectively, the "Agreement with the Authority; and KMC \601000 \CCUA ORDINANCE 043009 1 WHEREAS, amending and supplementing the Agreement with the Authority in connection with the issuance of the Series 2009 Bonds will result in the City incurring addition Agreement Obligations, in accordance with Section 803 of the Agreement; and; WHEREAS, Section 1401 of Ordinance No. 365 provides that, without notice to or the consent of any other entity, the City may amend or supplement such Ordinance in connection with any other change therein which is not materially adverse to the interests of the Authority; WHEREAS, the City hereby fords that this Ordinance will amend and supplement Ordinance Nos. 365, 417 and 457 to provide for the issuance of the Series 2009 Bonds and for the additional Agreement Obligations referenced above, in accordance with Section 803 of the Agreement, which is not materially adverse to the interests of the Authority. NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF BEL AIRE, KANSAS, AS FOLLOWS: ARTICLE I DEFINITIONS Section 101. Definitions of Words and Terms. In addition to words and terms defined elsewhere in Ordinance Nos. 365 and 417 and in the Agreement, as amended and supplemented, the following words and terms as used in this Ordinance shall have the meanings hereinafter set forth. Unless the context shall otherwise indicate, words importing the singular number shall include the plural and vice versa, and words importing persons shall include firms, associations and corporations, including public bodies, as well as natural persons. "Agreement" means the Water Supply and Wastewater Service Agreement, as amended and supplemented by the First Supplemental Agreement, as further amended and supplemented by the Second Supplemental Agreement and Third Supplemental Agreement, and as further amended and supplemented from time to time. "Ambac" shall mean Ambac Assurance Corporation, a Wisconsin domiciled stock insurance company. "Bond Insurance Policy" means (a) with respect to the Series 2002 Bonds, the financial guaranty insurance policy issued by MBIA on the date of delivery of the Series 2002 Bonds insuring the payment when due of the principal of and interest on the Series 2002 Bonds, as provided therein, (b) with respect to the Series 2004 Bonds, the municipal bond insurance policy issued by FSA concurrently with the delivery of the Series 2004 Bonds guaranteeing the scheduled payment when due of the principal of and interest on the Series 2004 Bonds, and (c) with respect to the Series 2007 Bonds, the municipal bond insurance policy issued by Ambac concurrently with the delivery of the Series 2007 Bonds guaranteeing the scheduled payment when due of the principal of and interest on the Series 2007 Bonds. "Bond Insurer" means (a) with respect to the Series 2002 Bonds, MBIA; and (b) with respect to the Series 2004 Bonds, FSA; and (c) with respect to the Series 2007 Bonds, Ambac. "Bonds" means the Series 2002 Bonds, the Series 2004 Bonds, the Series 2007 Bonds, the Series 2009 Bonds and any additional bonds of the Authority issued pursuant to the Indenture, secured in whole or in part by the Agreement. KMC \601000 \CCUA ORDINANCE 043009 2 "Disclosure Agreement" means, jointly, the Continuing Disclosure Agreements relating to the Series 2002 Bonds, the Series 2004 Bonds, the Series 2009 Bonds and certain obligations contained in the SEC Rule. "First Supplemental Agreement" means the First Supplemental Water Supply and Wastewater Service Agreement between the City and the Authority, dated as of October 1, 2004, which supplements the Water Supply and Wastewater Service Agreement in connection with the issuance of the Series 2004 Bonds. "FSA" means Financial Security Assurance Inc., a New York stock insurance company, or any successor thereto or assignee thereof "MBIA" means MBIA Insurance Corporation, Armonk, New York. "Notice Address" means with respect to the following entities: (a) To the City at: City Hall 7651 E. Central Park Ave. Bel Aire, Kansas 67220 (b) To the Authority: Chisholm Creek Utility Authority 5551 N. Broadway Park City, Kansas 67219 (c) To the Bond Insurer: Series 2002: MBIA Insurance Corporation 113 King Street Armonk, New York 10504 Series 2004: Financial Security Assurance Inc. 350 Park Avenue New York, New York 10022 -6022 Series 2007: Ambac Assurance Corporation One State Street Plaza New York, New York 10004 (d) To the Trustee: The Bank of New York Trust Company, N.A. 911 Washington Avenue KMC \601000 \CCUA ORDINANCE 043009 3 St. Louis, Missouri 63101 or such other address as is furnished in writing to the other parties referenced herein. "Notice Representative" means: (a) With respect to the City, the Clerk. (b) With respect to the Authority, the Manager thereof. (c) With respect to the Bond Insurer, any Vice President, with a copy to its General Counsel. (d) With respect to the Trustee and Escrow Agent, the senior Corporate Trust Officer. "Purchaser" means (a) with respect to the Series 2002 Bonds, U.S. Bancorp Piper Jaffray, Kansas City, Missouri, the original purchaser of the Series 2002 Bonds, and any successor and assigns; and (b) with respect to the Series 2004 Bonds, Piper Jaffray Co., Leawood, Kansas, the original purchaser of the Series 2004 Bonds, and any successor and assigns; and (c) with respect to the Series 2007 Bonds, Piper Jaffray Co., Leawood, Kansas, the original purchaser of the Series 2007 Bonds, and any successor and assigns. "Second Supplemental Agreement" means the Second Supplemental Water Supply and Wastewater Service Agreement between the City and the Authority, dated as of April 1, 2007, which supplements the Water Supply and Wastewater Service Agreement, as amended and supplemented by a First Supplemental Agreement, in connection with the issuance of the Series 2007 Bonds. "Series 2002 Bonds" means the Authority's Water and Wastewater Facilities Revenue Bonds, Series 2002 (Cities of Bel Aire and Park City, Kansas Project), dated as of March 1, 2002. "Series 2004 Bonds" means the Authority's Water and Wastewater Facilities Refunding Revenue Bonds, Series 2004 (Cities of Bel Aire and Park City, Kansas Project), dated as of October 1, 2004. "Series 2007 Bonds" means the Authority's Water and Wastewater Facilities Refunding Revenue Bonds, Series 2007 (Cities of Bel Aire and Park City, Kansas Project), dated as of April 1, 2007. "Series 2009 Bonds" means the Authority's Water and Wastewater Facilities Refunding Revenue Bonds, Series 2009, issued to finance all or a portion of the costs of the Headworks Project Addition described in the preamble to this Ordinance. "Third Supplemental Agreement" means a Third Supplemental Water Supply and Wastewater Service Agreement between the City and the Authority, dated as of the date of issuance of the Series 2009 Bonds, which supplements the Water Supply and Wastewater Service Agreement, as amended and supplemented by the First Supplemental Agreement and the Second Supplemental Agreement, entered into in connection with the issuance of the Series 2009 Bonds. "Trustee" means the trustee designated in the Indenture, which is as of the date of this ordinance, The Bank of New York Mellon Trust Company, N.A., St. Louis, Missouri. KMC \601000 \CCUA ORDINANCE 043009 4 "Water Supply and Wastewater Service Agreement" means the Water Supply and Wastewater Service Agreement between the City and the Authority, dated as of March 1, 2002, as amended and supplemented by the First Supplemental Agreement and by the Second Supplemental Agreement. ARTICLE II AUTHORIZATION OF THE SECOND SUPPLEMENTAL AGREEMENT Section 201. Authorization of the Third Supplemental Agreement. A Third Supplemental Agreement is authorized and the Mayor and the Clerk are authorized and directed to execute the Third Supplemental Agreement on behalf of the City in a form approved by the Mayor and City Attorney, with such execution subject to the following parameters: the portion of Series 2009 Bonds allocable to the City's portion of the Headworks Project Addition shall not exceed $1,500,000 and the additional Agreement Obligations incurred by the City in connection with the Series 2009 Bonds and Third Supplemental Agreement shall, when added to existing Agreement Obligations, meet the coverage test set forth in Section 803 of Ordinance No. 365. Section 202. Preliminary and Final Official Statement. The Mayor and Clerk are authorized to approve any portions of the Preliminary Official Statement and final Official Statement relating to the Series 2009 Bonds which set forth City information. The use and public distribution of the portions of the Preliminary and fmal Official Statements setting forth City information in connection with the reoffering of the Series 2009 Bonds is hereby authorized. The proper officials of the City are hereby authorized to execute and deliver a certificate pertaining to such Official Statement, dated as of the date of payment for and delivery of the Series 2009 Bonds. ARTICLE III TAX COVENANTS Section 301. General Covenants. (a) The City covenants and agrees that (1) it will comply with all applicable provisions of the Code, including Code 103 and 141 through 150, necessary to maintain the exclusion from gross income for federal income tax purposes of the interest on the Series 2009 Bonds and (2) it will not use or permit the use of any proceeds of the Series 2009 Bonds or any other funds of the City, will not take or permit any other action, or fail to take any action, if any such action or failure to take action would adversely affect the exclusion from gross income of the interest on the Series 2009 Bonds. The City will, in addition, adopt such other ordinances or resolutions and take such other actions as may be necessary to comply with the Code and with all other applicable future laws, regulations, published rulings and judicial decisions, in order to ensure that the interest on the Series 2009 Bonds will remain excluded from federal gross income, to the extent any such actions can be taken by the City. (b) The City covenants and agrees that (1) it will use any proceeds of the Series 2009 Bonds as soon as practicable and with all reasonable dispatch for the purposes for which such proceeds are intended, and (2) it will not invest or directly or indirectly use or permit the use of any proceeds of the Series 2009 Bonds or any other funds of the City in any manner, or take or omit to take any action, that would cause the Series 2009 Bonds to be "arbitrage bonds" within the meaning of Code 148(a). KMC \601000 \CCUA ORDINANCE 043009 5 (c) The City covenants and agrees that it will not use any portion of the proceeds of the Series 2009 Bonds, including any investment income earned on such proceeds, directly or indirectly, in a manner that would cause any Series 2009 Bond to be a "private activity bond" within the meaning of Code 141(a), or to make or fmance a loan to any Person other than the State or a political subdivision thereof. ARTICLE IV CONTINUING DISCLOSURE REQUIREMENTS Section 401. Disclosure Requirements. The City hereby covenants with the purchaser of the Series 2009 Bonds and the Beneficial Owners thereof to provide and disseminate such information as is required by the SEC Rule and as further set forth in a Disclosure Agreement for the Series 2009 Bonds. Such covenant shall be for the benefit of and enforceable by the Authority and the Beneficial Owners. Section 402. Failure to Comply with Continuing Disclosure Requirements. In the event the City fails to comply in a timely manner with its covenants contained in the preceding section, the Authority and/or any Beneficial Owner may make demand for such compliance by written notice to the City. In the event the City does not remedy such noncompliance within 10 days of receipt of such written notice, the Authority or any Beneficial Owner may in its discretion, without notice or demand, proceed to enforce compliance by a suit or suits in equity for the specific performance of such covenant or agreement contained in the preceding section or for the enforcement of any other appropriate legal or equitable remedy, as the Authority and /or any Beneficial Owner shall deem effectual to protect and enforce any of the duties of the City under such preceding section. ARTICLE V RESERVED ARTICLE VI MISCELLANEOUS PROVISIONS Section 601. Inconsistent Provisions. In case any one or more of the provisions of this Ordinance shall for any reason be inconsistent with the provisions of Ordinance Nos. 365, 417 or 457 or any ordinance or resolution authorizing any additional Agreement Obligations or Additional Indebtedness: (a) the provisions of Ordinance Nos. 365, 417 and 457 shall prevail with respect to Agreement Obligations or Additional Indebtedness incurred prior in time to this Ordinance, so long as such Agreement Obligations or Additional Indebtedness are Outstanding; and (b) the provisions of this Ordinance shall prevail with respect to any Additional Indebtedness or Agreement Obligations incurred subsequent to this Ordinance, so long as any Agreement Obligations or Additional Indebtedness are Outstanding. Section 602. Electronic Transactions. The transactions contemplated by this Ordinance may be conducted, and documents may be stored, by electronic means. Section 603. Further Authority. The officers and officials of the City, including the Mayor and Clerk, are hereby authorized and directed to execute all documents and take such actions as they may deem necessary or advisable in order to carry out and perform the purposes of this Ordinance and to make ministerial alterations, changes or additions in the foregoing agreements, statements, instruments and other KMC \601000 \CCUA ORDINANCE 043009 6 documents herein approved, authorized and confirmed which they may approve, and the execution or taking of such action shall be conclusive evidence of such necessity or advisability. Section 604. Severability. If any section or other part of this Ordinance, whether large or small, is for any reason held invalid, the invalidity thereof shall not affect the validity of the other provisions of this Ordinance. Section 605. Governing Law. This Ordinance shall be governed exclusively by and construed in accordance with the applicable laws of the State. Section 606. Effective Date. This Ordinance shall take effect and be in full force from and after its passage by the governing body of the City. KMC \601000 \CCUA ORDINANCE 043009 PASSED by the governing body of the City on May 5, 2009, and APPROVED AND SIGNED by the Mayor. (SEAL) ter', Mayor ATTEST: Clerk" CERTIFICATE I, the undersigned, hereby certify that the above and foregoing is a true and correct copy of the Ordinance No. 481 (the "Ordinance of The City of Bel Aire, Kansas, passed by the governing body on May 5, 2009, as the same appears of record in my office, and that this Ordinance has not been modified, amended or repealed and is in full force and effect as of this date. DATED: May 2009. KMC \601000 \CCUA ORDINANCE 043009 8 Gilmore Bell, P.C. 04/30/2009 EXCERPT OF MINUTES OF A MEETING OF THE GOVERNING BODY OF THE CITY OF BEL AIRE, KANSAS HELD ON MAY 5, 2009 The governing body met in regular session at the usual meeting place in the City, at 7:00 p.m., the following members being present and participating, to -wit: Absent: None The Mayor declared that a quorum was present and called the meeting to order. (Other Proceedings) Thereupon, there was presented an Ordinance entitled: AN ORDINANCE SUPPLEMENTING ORDINANCE NOS. 365, 417 AND 457 OF THE CITY; AUTHORIZING THE EXECUTION OF A THIRD SUPPLEMENTAL WATER SUPPLY AND WASTEWATER SERVICE AGREEMENT WITH CHISHOLM CREEK UTILITY AUTHORITY; AND AUTHORIZING ALL OTHER NECESSARY DOCUMENTS AND ACTIONS WITH RESPECT THERETO. Thereupon, Councilmember Carolyn Marlier moved that said Ordinance be passed. The motion was seconded by Councilmember Dave Sly. Said Ordinance was duly read and considered, and upon being put, the motion for the passage of said Ordinance was carried by the vote of the governing body, the vote being as follows: Aye: David Austin, Gary Breault, Carolyn Marlier, Peggy O'Donnell, Dave Sly. Nay: None. The Ordinance was numbered Ordinance No. 481, was approved and signed by the Mayor and attested by the Clerk. The Clerk was directed to publish said Ordinance one time in the official City newspaper. [BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK] (Other Proceedings) On motion duly made, seconded and carried, the meeting thereupon adjourned. CERTIFICATE I hereby certify that the foregoing Excerpt of Minutes is a true and correct excerpt of the proceedings of the governing body of The City of Bel Aire, Kansas held on the date stated therein, and that the official minutes of such proceedings are on file in my office. [SEAL] Clerk [BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK] KMC \601000 \CCUA ORDINANCE 043009 2