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HomeMy Public PortalAboutOrd 586 Fourth Supplemental Water Supply and Wastewater Service Agreement CCUAGilmore & Bell, P.C. rv23t20r5 ORDINAI\TCE NO. 586 OF THE CITY OF BEL AIRE. KAI\SAS PASSED DECEMBER 15,2015 FOURTH SUPPLEMENTAL WATER SI]PPLY AI\D WASTEWATER SERVICE AGREEMENT CHISIIOLM CREEK UTILITY AUTHORITY KMC\6011 16.7001l\Ordinance - Bel Aire TABLE OF CONTENTS ARTICLE I DEFINITIONS Section 101. Definitions of Words and Terms......... ..........................2 ARTICLE II AUTHORIZATION OF TIIE FOURTH SUPPLEMENTAL AGREEMENT section 201. Authorization of the Fourth supplemental Agreement................ .....................5 Section 202. Pretiminary and Finat Offrcial Statement.................. .....................5 ARTICLE III TAX COVENANTS Section 301. General Covenants .................6 ARTICLE IV CONTII\UING DISCLOST]RE REQUIREMENTS Section 401. Disclosure Requirements ...........................6 Section 402. Failure to comply with continuing Disclosure Requirements......... ................6 ARTICLE V PROVISIONS RELATING TO THE BOND INSTJRANCE POLICY Section 501. Consent of Bond Insurer....... .....................7 Section 503. Exercise of Rights by Bond Insurer....... .......................g Section 504. Bond Insurance Provisions of Ordinance Nos. 365, 417,457 anil517 .................................g ARTICLE VI MISCELLAI\'EOUS PROVISIONS Section 601. Inconsistent Provisions ...........g Section 602. Electronic Transactions .........g Section 603. Further Authority.. .................g Section 605. Governing Law........... ............gSection 606. EXHIBIT A - FORM OF FOURTH STJPPLEMENTAL WATER STJPPLY AND WASTEWATER SERVICE AGREEMENT.............. .............. A-I KMC\6011l6 7001l\Ordinance - Bet Aire (PUBLTSHEDTN THE ARK VALLEY NEWS ON DECEMBER 17,2015 ORDINANCE NO.586 AI\ ORDINANCE STJPPLEMENTING ORDINANCE NOS. 365,417,457 AND 517 OF THE CITY OF BEL AIRE, KANSAS; AUTHORIZING THE EXECUTION OFA F'OT]RTH ST]PPLEMENTAL WATER ST]PPLY AI\D WASTEWATER SERVICE AGREEMENT WITH CHISHOLM CRBEK UTILITY AUTHORITY: AI\D AUTHORIZING ALL OTHER NECESSARY DOCUMENTS AI{D 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 "Initial 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 pafticipating in the Initial Project (the "Contracting Members"); and WHEREAS, the Authority financed the costs of the Initial 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 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 has heretofore issued its Water and Wastewater Facilities Refunding Revenue Bonds, Series 2004 (Cities of Bel Aire and Park City, Kansas Project), in the principal amount of $7,235,000 (the "Series 2004 Bonds"), to refund in advance of their stated maturities certain of the Series 2002 Bonds; and WHERBAS, the Authority has heretofore issued its Water and Wastewater Facilities Refunding Revenue Bonds, Series 2007 (Cities of Bel Aire and Park City, Kansas Project), in the principal amount of $19,415,000 (the "Series 2007 Bonds"), to refund in advance of their stated maturities certain of the Series 2002 Bonds WHEREAS, the Authority has heretofore issued its Water and Wastewater Facilities Refunding and Improvement Revenue Bonds, Series 2012 (Cities of BelAire and Park Ciry Kansas Project), in the principal amount of $6,400,000 (the "Series 2012 Bonds"), for the purposes ofi (a) paying a portion of the costs of certain ProjectAdditions; and (b) to refund in advance of their stated maturities certain of the Series 2004 Bonds; and WHEREAS, the Authority's governing body proposes to make energy conservation and other improvements to the Authority's water and wastewater treatment facilities and appurtenances thereto, including well field pump upgrades, water treatment plant chemical feed, lighting and thermostat improvements, wastewater treatment plant headwork repairs, odor/corrosion controls, plant control KMC\601 I l6 7001 l\Ordinance - Bel Aire upgrades, effluent utilization upgrades, bypass piping, electric heat to natural gas conversion, thermostat improvements and metering improvements (the "2015 Project Additions," and, with the Initial project and Project Additions financed by the Series 2012 Bonds, collectively, the "project"); and WHEREAS, to pay a portion of the costs of the 2015 Project Addition, required reserves and Costs of Issuance, the Authority has authorized the issuance of its Water and Wastewater Facilities Revenue Bonds (Cities of Bel Aire and Park City, Kansas Project), Series 2015 in an approxim ate aggregate principal amount $1,925,000* (the "Series 2015 Bonds"); and WHEREAS, in connection with the issuance of the Series 2015 Bonds, it is necessary and advisable for the City to amend and supplement its Ordinance Nos. 365, 4l7,4Si and 5I7 and its Water Supply and Wastewater Service Agreement, as amended and supplemented by a First Supplemental Water Supply and Wastewater Service Agreement, by a Second Supplemental Water Supply and Wastewater Service Agreement, and by a Third Supplemental Water Supply and Wastewater Service Agreement all with the Authority; 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 change therein which is not materially adverse to the interests of the Authority; and WHEREAS, the City hereby finds that this Ordinance, which relates to additional Agreement Obligations, as provided tnder Section 803 of Ordinance No. 365, will amend or supplement Oidinance Nos. 365, 4l'7,457 and 517 in a manner that is not materially adverse to the interests of the Authority. NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF TIIE CITY OF BEL AIRE, KANSAS. AS FOLLOWS: ARTICLE I DBFINITIONS Section 101. Definitions of Words and Terms. In addition to words and terms defined elsewherein Ordinance Nos. 365,417,457 and 517 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. "Additional Indebtedness Resolution" means Ordinance Nos. Ordinance Nos. 365,417,457 and517, this Ordinance and the ordinances or resolutions under which any Additional lndebtedness is authorized. "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, as further amended and supplemented by the Third SupplementaiAgreement, as further amended and supplemented by the Fourth Supplemental Agreement and as further amended and supplemented from time to time. "Agreement Obligations" means the required payment obligations from the City to theAuthority under the Agreement. KMC\601I l6 7001 l\Ordinance - Bel Aire 'AGM" means Assured Guaranty Municipal Cotp., a New York domiciled financial guaranty insurance company, or any successor thereto. "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 Series2002 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, (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, (d) with respect to the Series 2012 Bonds, the municipal bond insurance policy issued by AGM concumently with the delivery of the Series 2012 Bonds guaranteeing the scheduled payment when due of the principal of and interest on the Series 2012 Bonds, and (e) with respect to the Series 2015 Bonds, the municipal bond insurance policy issued by the Bond Insurer concuffently with the delivery of the Series 2015 Bonds guaranteeing the scheduled payment when due of the principal of and interest on the Series 2015 Bonds "Bond Insurer" means (a) with respect to the Series 2004 Bonds, FSA; (b) with respect to the Series 2007 Bonds, Ambac, and (c) with respect to the Series 2012 Bonds and Series 2015 Bonds, AGM. "Bonds" means, collectively, the Series 2004 Bonds, the Series 2007 Bonds, the Series 2012 Bonds, the Series 2015 Bonds and any additional bonds of the Authority issued and Outstanding pursuant to the Indenture, secured in whole or in parl by the Agreement. "Disclosure Agreement" means, jointly, the Continuing Disclosure Agreements relating to the Series 2004 Bonds, the Series 2007 Bonds, Series 2012 Bonds and Series 2015 Bonds and ceftain obligations contained in the SEC Rule. "First Supplemental Agreement" means the First Supplemental Water Supply and Wastewater ServiceAgreement between the City and theAuthority, 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. "Fourth Supplemental Agreement" means the Fourth Supplemental Water Supply and Wastewater Service Agreement between the City and the Authority entered into in connection with the issuance of the Series 2015 Bonds, dated as of December 30,2015, which supplements the Water Supply and Wastewater Service Agreement, as amended and supplemented by a First Supplemental Agreement, Second Supplemental Agreement, and Third Supplemental Agreement. "Notice Address" means with respect to the following entities: (a) To the City at: Ciry Hall 7651 E. Central ParkAve. Bef Aire, Kansas 67220 KMC\601 116.7001 l\Ordinance - Bel Aire (c) To the Authority: Chisholm Creek Utility Authority 5551N. Broadway Park City, Kansas 6'7219 To the Bond Insurer: 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 Series 2012 and Series 2015: Assured Guaranty Municipal Corp. 3l West 52nd Street New York. New York 10019 Te lephone: (212) 826-0 I 00; Fax: (212) 339 -3 529 To the Trustee: The Bank of New York Mellon Trust Company, N.A. 9l I Washington Avenue St. Louis, Missouri 63101 or such other address as is furnished in writing to the other parties referenced herein. "Notice Representative" means, with respect to the Bond Insurer for the Series 2015 Bonds, Attn: Managing Director - Surveillance, with reference to the Bond Insurance Policy number. "Purchaser" means (a) 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; (b) 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; (c) with respect to the Series 2012 Bonds, Piper Jaffray & Co., Leawood, Kansas, the original purchaser of the Series 2012 Bonds, and any successor and assigns; and (d) with respect to the Series 2015 Bonds, Piper Jaffray & Co., Leawood, Kansas, the original purchaser ofthe Series 2015 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 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. (b) (d) KMC\601116 7001l\Ordinance - Bel Aire "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 2012 Bonds" means the Authority's Water and Wastewater Facilities Refunding and Improvement Revenue Bonds, Series 2012 (Cities of Bel Aire and Park City, Kansas Project), dated as of November 27,2012. "Series 2015 Bonds" means the Authority's Water and Wastewater Facilities Revenue Bonds. Series 2015 (Cities of Bel Aire and Park City, Kansas Project), dated as of December 30,2015. "Third Supplemental Agreernent" means the Third Supplemental Water Supply and Wastewater Service Agreement between the City and the Authority, dated as of Novemb er 27, 2012, which supplements the Water Supply and Wastewater Service Agreement, as amended and supplemented by a First Supplemental Agreement and a Second Supplemental Agreement, in connection with the issuance oftlre Series 2012 Bonds. "Trust€e" means the trustee designated in the Indenture, which is as of the date of the Series 2015 Bonds, The Bank ofNew York Mellon Trust company, N.A., st. Louis, Missouri. "Water Supply and Wastewater Service Agreement" means the Water Supply and Wastewater Service Agreement between the city and the Authority, dated as of March l, 2002. ARTICLE II AUTHORIZATION OF TIIE FOURTH SI'PPLEMENTAL AGREEMENT Section 201. Authorization of the Fourth Supplemental Agreement. The Fourth Supplemental Agreement is authorized and the Mayor and the Clerk are authorized and directed to execute the Fourth Supplemental Agreement on behalf of the City in substantially the form presented to the governing body this date, with such changes as may be approved by the Mayor and City Attorney, provided that srch authorization, direction and execution is subject to the following parameters: (a) the principal amount of the Series 2015 Bonds shall not exceed $2,000,000; and (b) the true interest cost ("TIC") of the Series 2015 Bonds shall not exceed 4.50%. Section 202. Preliminary and Final Official Statement. The portions of the Preliminary Official Statement relating to the Series 2015 Bonds which set forth City information, including AppendixA-1 thereto, dated December 11, 2015, are hereby ratified and approved. The portions of the final Official Statement relating to the Series 2015 Bonds which set forth City information, including AppendixA-l thereto, are hereby authorized to be prepared by supplementing, amending and completing the Preliminary Official Statement, with such changes and additions thereto as are necessary to conform to and describe the transaction. The use and public distribution of the poftions of the final Official Statement setting forth City information, including Appendix A-I thereto, bythe purchaser in connection with the reoffering of the Series 2015 Bonds is hereby authorized. The propei 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 2015 Bonds. KMC\601 1 16.7001 l\Ordinance - Bel Aire ARTICLE III TAX COVENANTS Section 301. General Covenants. (a) The City covenants and agrees that (l) 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 2015 Bonds and (2) it will not use or permit the use of any proceeds of the Series 2015 Bonds or any other funds of the City, will not take or permit any other action, or fail to take any action, ifany such action or failure to take action would adversely affect the exclusion from gross income of the interest on the Series 2015 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 2015 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 (l) it will use any proceeds of the Series 2015 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 2015 Bonds or any other funds of the City in any manner, or take or omit to take any action, that would cause the Series 2015 Bonds to be "arbitrage bonds" within the meaning of Code $ la8(a). (c) The City covenants and agrees that it will not use any portion of the proceeds of the Series 2015 Bonds, including any investment income earned on such proceeds, directly or indirectly, in a manner that would cause any Series 2015 Bond to be a "private activity bond" within the meaning of Code $ l4l(a), or to make or finance a loan to any Person other than the State or a political subdivision thereof. (d) In connection with the foregoing tax covenants, the Mayor, Clerk and other City officials are authorized to execute any Tax Compliance Agreement or similar agreements or certificates relating to the Series 2015 Bonds. ARTICLE IV CONTINUTNG DISCLOSURE REQUTREMENTS Section 401. Disclosure Requirements. The City hereby covenants with the Purchaser and the Beneficial Owners to provide and disseminate such information as is required by the SEC Rule and as further set forth in the Disclosure Agreement for the Series 2015 Bonds, which are incorporated herein by reference. Such covenant shall be for the benefit of and enforceable bv the Authoritv 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 l0 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 KMC\601I 16.7001l\Ordinance - Bel Aire City under such preceding section. The Authority or Beneficial Owner shall provide a copy of any such demand or notice to the Bond Insurer. ARTICLE V PROVISIONS RELATING TO THE BOND INST'RANCE POLICY Section 501. Consent of Bond Insurer. Any provision of this Ordinance expressly recognizing or granting rights in or to the Bond Insurer may not be amended in any manner which uff".ti the ri-ghts oT the Bond Insurer hereunder without the prior written consent of the Bond Insurer. The Bond Insurer's consent shall be required in addition to Authority consent, when required, for the execution and delivery of any supplemental Ordinance, or any amendment, supplement or change to ormodification of other documents relating to the security for the Agreement Obligations. Section 502. Notices. (a)While the Bond lnsurance Policy is in effect, the City shall furnish to the Bond Insurer: (l) As soon as practicable after the filing thereof, a copy of any financial statement of the city and a copy of any audit and annual report of the city; (2) A copy of any notice to be given to the Authority, including, without limitation, notice of defeasance of the Agreement Obligations; and (3) Such additional information it may reasonably request. (b) The City shall notifl, the Bond Insurer of any failure of the City to provide relevant notices, certifi cates, etc. (c) Notwithstanding any other provision of this Ordinance, the City shall immediately notif, the Bond Insurer if at any time there are insuffrcient moneys to make any payments of Agreement Obligations and immediately upon the occurrence of any Event of Default hereunder. (d) The City agrees, and hereby directs the Authority or Trustee, to notify the Bond Insurer of any Event of Default of which any such parly has actual knowledge, such notification to be madewithin five Business Days of such actualknowledge. (e) The City shall noti! the Bond Insurer of the commencement of any proceeding by or against the City commenced under the United States Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an "Insolvency proceeding,,); (f) Copies of any supplement, modification or amendment to this Ordinance or the Agreement shall be sent to Standard & Poor's and Moody's at least l0 days prior to the effective date thereof. (g) All notices required to be given to the Bond Insurer under this Ordinance shall be inwriting and shall be sent by registered or certified mail addressed to the Notice Address. KMC\601 I 16.700 1 l\Ordinance - Bet Aire Section 503. Exercise of Rights by Bond Insurer. The rights granted to the Bond Insurer under this Ordinance or the Agreement to request, consent to or direct any action are rights granted to the Bond Insurer in consideration of its issuance of the Bond Insurance Policy. Any exercise by the Bond Insurer of such rights is merely an exercise of the Bond Insurer's contractual rights and shall not be construed or deemed to be taken for the benefit or on behalf of the Bond holders nor does such action evidence any position of the Bond Insurer, positive or negative, as to whether a Bond holder consent is required in addition to consent of the Bond Insurer. Section 504. Bond Insurance Provisions of Ordinance Nos. 365, 417, 457 and 517 . In addition to the provisions of ^Sections 501 and 502 and all other provisions of this Ordinance that relate to the Bond lnsurance Policy or the Bond Insurer, all provisions of Ordinance Nos. 365, 417,45i and 5li. which relate to the Bond Insurance Policy or the Bond Insurer are made expressly applicable to the Bond Insurer for the Series 2015 Bonds. ARTICLE VI MISCELLANE OUS PROVISIONS Section 601. Inconsistent Provisions. Except with respect to Section 301hercof, the provisions of which shall apply from the Dated Date set forth in Ordinance Nos. 365,411,457 and,5l7 and shall expressly apply in connection with the First Supplemental Agreement, Second Supplemental Agreement, Third Supplemental Agreement, and Fourth Supplemental Agreement, the Series 2004 Bonds, the Series 2007 Bonds, the Series 2012 Bonds, and the Series 2015 Bonds, in case any one or more of the provisions of this Ordinance shall for any reason be inconsistent with the provisions of Ordinance Nos. 365,417,45i.or 577, or any ordinance or resolution authorizing any Additional Indebtedness: (a)the provisions of Ordinance Nos. 365, 417, 457 and 517 shall prevail with respect to Agreement Obligations incurred prior in time to this Ordinance, so long as such Agreement Obligations are Outstanding; and (b) the provisions of this Ordinance shall prevail with respect to any Additional Indebtedness incurred subsequent to this Ordinance, so long as any Agreement Obligations are Outstanding. Section 602. Electronic Transactions. The transactions contemplated by the 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 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 construedin accordance with the applicable laws of the State. Section 606. Effective Date. This Ordinance shall take effect and be in full force from and afterits passage by the governing body of the City. KMC\601 1 16.7001 l\Ordinance - Bet Aire PASSED by the governing body of the City on December 15, 2015, and APPROVED ANDSIGNED by the Mayor. (sEAL) Mayor CERTIFICATE I, the undersigned, hereby certif that the above and foregoing is a true and correct copy of theOrdinance No. 586 (the "Ordinance") of the City of Bel Aire, Kansas, passed by the governingbody onDecember 15, 2015 as the same appears of record in my office, and ihat this Ordinance has not beenmodified, amended or repealed and is in full force and effect as of this date. DATED: December 15, 2015. ATTEST: KMC\601 I 16.7001 l\Ordinance - Bet Aire (Signature Page to Ordinance)