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15966ORDINANCE NO. 15,966 AN ORDINANCE AUTHORIZING THE CONSTRUCTION OF EXTENSIONS, BETTERMENTS AND IMPROVEMENTS TO THE SEWER SYSTEM OF THE CITY OF LITTLE ROCK, ARKANSAS; AUTHORIZING THE ISSUANCE OF SEWER REVENUE BONDS FOR THE PURPOSE OF FINANCING THE CONSTRUCTION; PROVIDING FOR THE PAYMENT OF THE PRINCIPAL AND INTEREST ON THE BONDS; PRESCRIBING OTHER MATTERS RELATING THERETO; AND DECLARING AN EMERGENCY. 456 WHEREAS, the City of Little Rock, Arkansas (the "City ") owns and operates a sewer system (the "System ") , and has determined that extensions, betterments and improvements to the wastewater treatment facilities of the System (the "Improvements ") should be made in order that the City and its inhabitants may have adequate and proper sewer facilities; and WHEREAS, the Sewer Committee of the City (the "Committee") has had prepared an engineering report for the Improvements and has obtained estimates of cost totalling $7,000,000 for the Improvements; and WHEREAS, the City is making arrangements for the sale of $7,000,000 in aggregate principal amount of bonds to the Arkansas Development Finance Authority (the "Bondholder ") at a price of par for bonds bearing interest at the rate of 4% per annum pursuant to a Bond Purchase Agreement (the "Agreement ") among the City, the Bondholder and the Arkansas Department of Pollution Control and Ecology (the "Department ") , which has been presented to and is before this meeting; and WHEREAS, there are outstanding City of Little Rock, Arkansas Sewer Revenue Bonds, dated February 1, 1966 (the 111966 Bonds "), issued under the authority of Ordinance No. 11,695 of the City duly adopted and passed December 20, 1965; Department of Pollution Control and Ecology of the State of Arkansas Pollution Control Revenue Bonds, dated June 1, 1972 (the 111972 Bonds "), issued under the authority of State of Arkansas Resolution No. 19 -B duly adopted and passed September 22, 1972, and which are secured by a pledge of revenues of the System derived from a Water Quality Control Charge levied by the City under the authority of Ordinance No. 12,632 of the City, duly adopted and passed April 4, 1972; and City of Little Rock, Arkansas Sewer Construction and Refunding Revenue Bonds, Series 1987, dated May 1, 1987 (the 111987 Bonds "), issued under the authority of Ordinance No. 15,260 of the City duly adopted and passed March 17, 1987 (the 111987 Ordinance "); and WHEREAS, the City is authorized, under the provisions of Title 14, Chapter 235, Subchapter 2 of the Arkansas Code of 1987 Annotated (the "Authorizing Legislation "), to enter into the Agreement and to issue the bonds; and D -��o 457 WHEREAS, the Bondholder proposes to pledge the bonds as collateral for the payment of its Wastewater System Development Bonds, 1991 Series (the "ADFA Bonds ") pursuant to a trust indenture between the Bondholder and the bank or trust company to be named as trustee thereunder (the "ADFA Trustee "); NOW, THEREFORE, BE IT ORDAINED by the Board of Directors of the City of Little Rock, Arkansas: Section 1. That the Improvements be accomplished. The accomplishment of the Improvements shall be under the control and supervision of, and all details in connection therewith shall be handled by, the Committee, and the Committee shall make all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers. The Committee shall let all construction contracts pursuant to and in accordance with existing laws and shall require such performance bonds and insurance from the contractors as, in the judgment of the Committee, will fully insure the completion of the Improvements in accordance with the plans and specifications therefor. Section 2. That the sale to the Bondholder of up to $7,000,000 in principal amount of bonds by the City at a price of par for bonds bearing interest at the rate of 4% per annum and otherwise subject to the terms and provisions hereafter in this Ordinance set forth in detail be, and is hereby approved and the bonds are hereby sold to the Bondholder. The Mayor is hereby authorized and directed to execute and deliver the Agreement on behalf of the City and to take all action required on the part of the City to fulfill its obligations under the Agreement. The Agreement is hereby approved in substantially the form submitted to this meeting with such changes as may be approved by the Mayor, his execution to constitute complete evidence of such approval. Section 3. That the Board of Directors hereby finds and declares that the period of usefulness of the System after completion of the Improvements will be more than twenty -five (25) years, which is longer than the term of the bonds. Section 4. That under the authority of the Constitution and laws of the State of Arkansas, including particularly the Authorizing Legislation, City of Little Rock, Arkansas Sewer Revenue Bonds, Series 1990 (the "bonds ") are hereby authorized and ordered issued in the principal amount of $7,000,000, the proceeds of the sale of which are necessary to provide sufficient funds for accomplishing the Improvements, paying expenses incidental thereto, paying expenses of issuing the bonds and paying interest during construction, all as approved in accordance with the Agreement. The bonds shall bear interest at the rate of 4% per annum based upon a 360 -day year of twelve consecutive 30 -day months compounded semiannually. The bonds shall be dated the date of 2 458 delivery to the Bondholder. Interest shall be payable on April 15, 1991, and on each April 15 and October 15 thereafter. Principal shall be payable on October 15, 1994 and on each April 15 and October 15 thereafter as follows until the unpaid principal is paid in full: Date Amount 10/15/94 $ 115,890.23 04/15/95 118,208.03 10/15/95 120,572.20 04/15/96 122,983.64 10/15/96 125,443.31 04/15/97 127,952.18 10/15/97 130,511.22 04/15/98 133,121.45 10/15/98 135,783.88 04/15/99 138,499.55 10/15/99 141,269.54 04/15/00 144,094.93 10/15/00 146,976.83 04/15/01 149,916.37 10/15/01 152,914.70 04/15/02 155,972.99 10/15/02 159,092.45 04/15/03 162,274.30 10/15/03 165,519.79 04/15/04 168,830.18 10/15/04 172,206.79 04/15/05 175,650.92 10/15/05 179,163.94 04/15/06 182,747.22 10/15/06 186,402.16 04/15/07 190,130.21 10/15/07 193,932.81 04/15/08 197,811.47 10/15/08 201,767.70 04/15/09 205,803.05 10/15/09 209,919.11 04/15/10 214,117.49 10/15/10 218,399.84 04/15/11 222,767.84 10/15/11 227,223.20 04/15/12 231,767.66 10/15/12 236,403.01 04/15/13 241,131.07 10/15/13 245,953.70 04/15/14 250,873.04 The bonds will be issued in the form of a single typewritten bond, registered as to both principal and interest, 3 459 payable to the Bondholder, or registered assigns, as set forth hereinafter in the bond form, and shall be numbered R -1. (Even though a single bond is being issued, reference herein will be to "bonds. ") Payment of principal and interest shall be by check or draft mailed to the Bondholder at its address shown on the bond registration books of the City which shall be maintained by the City Clerk as Bond Registrar, without presentation or surrender of the bonds (except upon final payment) and such payments shall discharge the obligation of the City to the extent thereof. Payment of principal and interest shall be in any coin or currency of the United States of America which, as at the time of payment, shall be legal tender for the payment of debts due the United States of America. When the principal of and interest on any bond has been fully paid, the bond shall be delivered to the City Clerk and shall be canceled. Section 5. That the bonds shall be executed on behalf of the City by the Mayor and City Clerk and shall have impressed thereon the seal of the City. The bonds are not general obligations of the City but are special obligations, the principal of and interest on which are secured by a pledge of and are payable from revenues derived from the System. The pledge of System revenues is subordinate to the pledge in favor of the 1966 Bonds, the 1972 Bonds and the 1987 Bonds (collectively, the "Prior Bonds "). The bonds and interest thereon shall not constitute an indebtedness of the City within any constitutional or statutory limitation. Section 6. That the bonds shall be in substantially the following form and the Mayor and City Clerk are hereby authorized and directed to make all the recitals contained therein: (form of single registered bond) (To be typewritten) UNITED STATES OF AMERICA STATE OF ARKANSAS COUNTY OF PULASKI CITY OF LITTLE ROCK 4% SEWER REVENUE BOND SERIES 1990 No. R -1 KNOW ALL MEN BY THESE PRESENTS: $7,000,000 That the City of Little Rock, Pulaski County, Arkansas (the "City ") , for value received, hereby acknowledges itself to owe 4 460 and promises to pay to the Arkansas Development Finance Authority, or registered assigns, solely from the special source provided as hereinafter set forth, the principal sum of SEVEN MILLION DOLLARS (or the total principal amount outstanding as reflected by the Record of Payment of Advances attached hereto) with interest on the unpaid balance of the total principal amount at the rate of 4% per annum from the date of each advance. The principal and interest shall be payable in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of debts due the United States of America. Interest on the unpaid balance of the total principal amount shall be payable on April 15, 1991 and on each April 15 and October 15 thereafter until the principal of this bond is paid in full. Principal shall be payable on October 15, 1994 and each April 15 and October 15 thereafter until the unpaid principal is paid in full as follows: Date Amount (There will be inserted the schedule set forth in Section 4 of this Ordinance.) Payments of the principal and interest installments due hereon shall be made, except for final payment, without presentation and surrender of this bond, directly to the registered owner at his address shown on the bond registration book of the City maintained by the City Clerk as Bond Registrar, and such payments shall fully discharge the obligation of the City to the extent of the payments so made. This bond is issued for the purpose of providing financing of the costs of constructing extensions, betterments and improvements to the sewer system of the City (the "System "), interest during construction and costs of authorizing and issuing this bond, and is issued pursuant to and in full compliance with the Constitution and laws of the State of Arkansas, including particularly Title 14, Chapter 235, Subchapter 2 of the Arkansas Code of 1987 Annotated, and pursuant to Ordinance No. of the City, duly adopted and approved on the day of , 1990 (the "Authorizing Ordinance "). Reference is hereby made to the Authorizing Ordinance for the details of the nature and extent of the security and of the rights and obligations of the City and the registered owner of this bond. This bond may be assigned with the written approval of the Arkansas Department of Pollution Control and Ecology (the "Department "), and in order to effect such assignment the assignor 5 • 461 shall promptly notify the City Clerk by registered mail, and the assignee shall surrender this bond along with a written assignment and written approval of the Department to the City Clerk for transfer on the registration records. Every assignee shall take this bond subject to all payments and prepayments of principal and interest prior to such surrender for transfer. This bond may be prepaid at the option of the City from funds from any source, in whole but not in part, at any time on and after May 1, 2001, at a prepayment price equal to the principal amount outstanding, plus accrued interest to the prepayment date. Notice shall be given of such prepayment to the owner of this bond or registered assigns at least 90 days prior to the prepayment date. Such notice shall be in writing mailed to the address of the owner of this bond or registered assigns at the address as reflected on the bond registration books of the City Clerk. This bond does not constitute an indebtedness of the City within any constitutional or statutory limitation or provision, and the taxing power of the City is not pledged to the payment of the principal of or interest on this bond. This bond is a special obligation payable solely from revenues derived from the operation of the System. In this regard, the pledge of System revenues is subordinate to the pledge of System revenues to an issue of Sewer Revenue Bonds, dated February 1, 1966, Department of Pollution Control and Ecology of the State of Arkansas Pollution Control Revenue Bonds, dated June 1, 1972, and Sewer Construction and Refunding Bonds, dated May 1, 1987, so long as any of such bonds are outstanding. In addition, the City may issue additional bonds in accordance with the Authorizing Ordinance on a parity with or having a priority on System revenues over the pledge securing these bonds. A sufficient amount of System revenues to pay principal and interest has been duly set aside and pledged as a special source for that purpose by the Authorizing Ordinance. The City has fixed and has covenanted and agreed to maintain rates for use of the System which shall be sufficient at all times to at least provide for the payment of the reasonable expenses of operation and maintenance of the System, provide for the payment of the principal of and interest on all the outstanding bonds to which System revenues are pledged as the same become due, to establish and maintain debt service reserves and to provide a depreciation fund, all as set forth in the Authorizing Ordinance. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required by the Constitution and statutes of the State of Arkansas to exist, happen and be performed precedent to and in the issuance of this bond do exist, have happened and have been performed in regular and due time, form and manner as required by law; that this bond does not exceed any constitutional or statutory limitation of indebtedness, and that provision has been made for the payment of the principal of and interest on this bond, as provided in the Authorizing Ordinance. E �i-S 462 IN WITNESS WHEREOF, the City of Little Rock, Arkansas has caused this bond to be executed in its name by its Mayor and City Clerk, thereunto duly authorized, with the manual signatures of the Mayor and City Clerk, and its corporate seal to be affixed, all as of the day of , 1990. CITY OF LITTLE ROCK, ARKANSAS ATTEST: By Mayor City Clerk (SEAL) REGISTRATION CERTIFICATE 0 Signature of Date of Registration•Name of Registered Owner: City Clerk RECORD OF PAYMENT OF ADVANCES Signature of Vice President of Arkansas Amount of Total Principal Development Finance Date of Advance* Advance Outstanding Authority *The date of each advance shall be the interest commencement date from which the principal amount of such advance bears interest. 7 0 0 M M M 463 Section 7. That the City has heretofore fixed sewer rates by ordinance No. 13,982, adopted on February 17, 1981 and Ordinance No. 15,242 adopted on February 3, 1987. Reference is hereby made to such ordinances fixing the rates for the details thereof and other provisions pertaining thereto, which sewer rates are hereby confirmed and continued. The City covenants and agrees that the rates established will produce gross revenues at least sufficient to pay monthly operation, maintenance and funded depreciation expenses of the System, pay the principal of and interest on all outstanding bonds to which System revenues are pledged, as the same become due, and create and maintain any required debt service reserves ( "Required Payments ") . The City covenants always to maintain rates (including increases as necessary) which will provide for the Required Payments. None of the facilities or services afforded by the System shall be furnished without a charge being made therefor. In the event that the City or any department, agency or instrumentality thereof shall avail itself of the facilities and services afforded by the System, the reasonable value of the service or facilities so afforded shall be charged against the City or such department, agency or instrumentality and shall be paid for as the charges accrue. The revenues so received shall be deemed to be revenues derived from the operation of the System and shall be used and accounted for in the same manner as the other revenues derived from the operation of the System. Section S. That the provisions of the 1987 Ordinance (including those incorporated therein by reference), as now in effect, and except those provisions that are clearly inapplicable hereto (including, without limitation, the provisions for parity indebtedness), pertaining to the collection, investment and the handling of revenues and funds, to the operation, maintenance and care of the System, and to the depreciation of the System, are hereby made applicable hereto and are incorporated herein by reference as though fully set forth at this point. The effect of the above covenant shall be to continue the applicable provisions in full force and effect even after the payment of the Prior Bonds and until the bonds are paid, or provision made therefor. Section 9. That the City covenants that it will continuously operate the System as a revenue - producing undertaking and will not sell or lease the same, or any substantial portion thereof, without the prior written approval of the Bondholder and the Department; provided, however, that nothing herein shall be construed to prohibit the City from making such dispositions of properties of the System and such replacements and substitutions for properties of the System as shall be necessary or incidental to the efficient operation of the System as a revenue - producing undertaking. 19 464 Section 10. (a) That after making the required payments into the Sewer Operation and Maintenance Fund and the bond funds for the Prior Bonds and any additional bonds having.a priority on the pledge of System revenues over the pledge in favor of the bonds in accordance with Section 14 hereof, the Committee shall set aside and make provision as set forth in (b) below from System revenues for the payment of the principal of and interest on the bonds by making a deposit as set forth in (b) below into an account of the City in a special fund to be created by the Bondholder (the "ADFA Bond Fund ") for the purpose of paying the principal of and interest on the bonds. (b) In order to pay interest on the Bonds, there shall be deposited into the ADFA Bond Fund on April 15, 1991 and on each April 15 and October 15 thereafter until April 15, 1994 the interest due on the Bonds on such date. Commencing on the first business day of each month thereafter, there shall be deposited into the ADFA Bond Fund an amount equal to 1/6 of the amount of interest on the bonds next due and 1/6 of the amount of the principal.of the bonds next due. (c) If the revenues of the System are insufficient to make the required payment on or before the first business day of the following month into the ADFA Bond Fund, then the amount of any such deficiency in the payment made shall be added to the amount otherwise required to be paid into the ADFA Bond Fund on the first business day of the next month. (d) When the moneys held in the ADFA Bond Fund which represent payments by the City and interest earnings thereon or proceeds of investments therefrom (collectively, "City Funds ") shall be and remain sufficient to pay the principal of and interest on all of the bonds then outstanding, the City shall not be obligated to make any further payments into the ADFA Bond Fund. (e) All moneys in the ADFA Bond Fund representing City Funds shall be used solely for the purpose of paying the principal of and interest on the bonds and the City shall automatically receive a credit for the amount of such City Funds on hand in the ADFA Bond Fund and available for the payment of any principal and interest currently due on an interest or principal payment date irrespective of whether the Bondholder has applied or caused to be applied such funds on that date for such purpose. The City shall receive a credit for all earnings and income derived from the investment of the City's Funds each April 15 and October 15, and such earnings and income shall be credited against the next six monthly payments. (f) The bonds shall be specifically secured by a pledge of all the revenues required to be placed into the ADFA Bond Fund. This pledge in favor of the bonds is hereby irrevocably made according to the terms of this Ordinance, and the City and its 9 L� M M M n M M M M M officers and employees shall execute, perform and carry out the terms thereof in strict conformity with the provisions of this Ordinance. 465 Section 11. Bonds for the payment or full prepayment of which moneys or direct, non - callable obligations of the United States of America shall have been deposited in escrow with a bank or trust company having a reported capital and surplus in excess of $15,000,000, as escrow agent for the benefit of the Bondholder (the "Agent ") , (whether upon or prior to the maturity or the prepayment date of such Bonds) shall be deemed to be paid and discharged; provided, however, that if the bonds are to be prepaid prior to maturity, notice of such prepayment shall have been duly given or the Agent shall have been irrevocably instructed in writing to give such notice of prepayment in a timely fashion. Section 12. The City and the Committee shall assure that (1) not in excess of ten percent (10 %) of the proceeds of the bonds is used for Private Business Use if, in addition, the payment of more than ten percent (log) of the principal or ten percent (10 %) of the interest due on the bonds during the term thereof is, under the terms of the bonds or any underlying arrangement, directly or indirectly secured by any interest in property used or to be used for a Private Business Use or in payments in respect of property used or to be used for a Private Business Use or is to be derived from payments, whether or not to the City, in respect of property or borrowed moneys used or to be used for a Private Business Use; and (ii) that, in the event that both (A) in excess of five percent (5 %) of the proceeds of the bonds are used for a Private Business Use, and (B) an amount in excess of five percent (5 %) of the principal or five percent (5 %) of the interest due on the bonds during the term thereof is, under the terms of the bonds or any underlying arrangement, directly or indirectly, secured by any interest in property used or to be used for said Private Business use or in payments in respect of property used or to be used for said Private Business Use or is to be derived from payments, whether or not to the City, in respect of property or borrowed money used or to be used for said Private Business Use, then said excess over said five percent (5 %) of proceeds of the bonds used for a Private Business Use shall be used for a private Business Use related to the governmental use of the Improvements. The City shall assure that not in excess of five percent (5 %) of the proceeds of the bonds are used, directly or indirectly, to make or finance a loan to persons other than state or local governmental units. As used in this Section 12, "Private Business Use" means use directly or indirectly in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural person, excluding, however, use by a state or local governmental unit and use as a member of the general public. 10 466 Section 13. That the principal and interest installments shall be prepayable prior to maturity as provided in the bond form in section 6 hereof. Section 14. That as long as any of the bonds are outstanding, the City shall not issue or attempt to issue any bonds having or claimed to be entitled to a priority of or parity with lien on the revenues of the System over the lien securing the bonds, including any and all future extensions, betterments and improvements to the System, except as provided in this Section 14. The City may issue additional revenue bonds to finance or pay the cost of constructing extensions, betterments and improvements to the System or to refund outstanding bonds of the City payable from System revenues issued for such purposes having a priority on or on a parity with the lien on System revenues in favor of the bonds if there shall have been procured and filed with the City Clerk and the Bondholder a statement by a certified public accountant not in the regular employ of the City reciting the opinion that (i) the net revenues (net revenues being gross revenues of the System less operation and maintenance expenses, but not including depreciation) of the System for the fiscal year preceding the year in which such additional bonds are to be issued were not less than 110% of the average annual debt service requirements on all outstanding bonds to which the revenues of the System are pledged and the bonds then proposed to be issued or (ii) the net revenues for the fiscal year succeeding the year in which such additional bonds are to be issued are projected to be sufficient in amount, taking in consideration any enacted increase in revenues, to be not less than 110 percent of the average annual debt service requirements (principal and interest) on all outstanding bonds to which System revenues are pledged and the bonds then proposed to be issued. The additional bonds, the issuance of which is restricted and conditioned by this Section 14, shall not be deemed to mean bonds, the security and source of payment of which are subordinate and subject to the priority of the bonds and such additional bonds may be issued without complying with the terms and conditions of this Section 14. Section 15. That it is covenanted and agreed by the City and the Committee with the Bondholder and the Department that they will faithfully and punctually perform all duties with reference to the System required by the Constitution and laws of the State of Arkansas, by the Agreement and by this Ordinance, including, without limitation, the making and collecting of reasonable and sufficient rates lawfully established for services rendered by the System, segregating the revenues of the System and applying them to the respective funds maintained pursuant to the 1987 Ordinance and this Ordinance. 11 0 • M M M M M 467 The City and the Committee covenant and agree that the Bondholder shall have the protection of all the provisions of the Authorizing Legislation, and that the City and the Committee will diligently proceed to enforce those provisions to the end of the Bondholder realizing fully upon its security. And, if the City and the Committee shall fail to proceed within thirty (30) days after written request shall have been filed by the Bondholder, the Bondholder may proceed to enforce all such provisions. If there be any default in the payment of the principal of or interest on any of the bonds, or if the City and the Committee default in any Bond Fund requirement or in the performance of any of the other covenants contained in this Ordinance or in the Agreement, the Bondholder and the Department (with respect to covenants contained in the Agreement) may, by proper suit, compel the performance of the duties of the officials of the City and the Committee under the laws of the State of Arkansas. In the case of a default in the payment of the principal of and interest on the bonds, the Bondholder may apply in a proper action to a court of competent jurisdiction for the appointment of a receiver to administer the System on behalf of the City and the Committee, and the Bondholder with power to charge and collect (or by mandatory injunction or otherwise to cause to be charged and collected) rates sufficient to provide for the payment of the expenses of operation, repair and maintenance and to pay any bonds and interest outstanding and to apply the revenues in conformity with this Ordinance. When all defaults in principal and interest payments have been cured, the custody and operation of the System shall revert to the City and the Committee. No remedy herein conferred upon or reserved to the Bondholder is intended to be exclusive of any other remedy or remedies herein provided or provided by law, and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or given by law. No delay or omission of the Bondholder to exercise any right or power accrued upon any default shall impair any such right or power or shall be construed to be a waiver of any default or an acquiescence therein; and every power and remedy given by this Ordinance to the Bondholder may be exercised from time to time and as often as may be deemed expedient. No waiver of any default shall extend to or affect any other existing or any subsequent default or defaults or impair any rights or remedies consequent thereon. Any costs of enforcement of any of the bonds or of any provision of this Ordinance, including reasonable attorney's fees, shall be paid by the City. Section 16. That when .the bonds have been executed by the Mayor and City Clerk and the seal of the City impressed as herein provided, they shall be delivered to the Bondholder upon 12 F - -1 468 payment of all or a portion of the purchase price in accordance with the Agreement. Sale proceeds in the amount necessary to make the semiannual interest payments due on the bonds on April 15, 1991, and each April 15 and October 15 thereafter to and including April 15, 1994, shall be applied to the payment of interest on the bonds on such dates. The balance of the sale proceeds shall be deposited, as and when received, into the Sewer Construction Fund identified in the 1987 Ordinance (the "Construction Fund "). The moneys in the Construction Fund shall be used for accomplishing the Improvements, paying expenses incidental thereto, paying interest during construction and paying the expenses of issuing the bonds approved in accordance with the Agreement. Moneys may be withdrawn from the Construction Fund by check or requisition signed by the Finance Director of the City and co- signed by either the Manager or Finance Director of the Wastewater Utility. When the Improvements have been completed and all required expenses paid and expenditures made from the Construction Fund for and in connection with the accomplishment of the Improvements and the financing thereof, this fact shall be evidenced by a certificate signed by the Manager of the Wastewater Utility, which certificate shall state, among other things, the date of the completion and that all obligations payable from the Construction Fund have been discharged. A copy of the certificate shall be filed with the depository bank, the Bondholder and the Department. Section 17. That in the event the office of Mayor, City Clerk, Manager of the Wastewater Utility, or Committee shall be abolished, or any two or more of such offices shall be merged or consolidated, or in the event the duties of a particular office shall be transferred to another office or officer, or in the event of a vacancy in any such office by reason of death, resignation, removal from office, or otherwise, or in the event any such officer shall become incapable of performing the duties of his office by reason of sickness, absence from the City, or otherwise, all powers conferred and all obligations and duties imposed upon such office or officer shall be performed by the office or officer succeeding to the principal function thereof, or by the office or officer upon whom such powers, obligations and duties shall be imposed by law. Section 18. That the terms of this Ordinance shall constitute a contract between the City, the Bondholder and the Department and no variation or change in the undertaking herein set forth shall be made while any of the bonds are outstanding unless consented to in writing by the Bondholder and the Department. 13 M 0 0 Section 19. That the Committee shall keep or cause to be kept proper books of accounts and records (separate from all other records and accounts of the City) in which complete and correct entries shall be made of all transactions relating to the construction of the Improvements and relating to the operation of the System and its revenues. Such books shall be available for inspection by the Bondholder and the Department at reasonable times and under reasonable circumstances. The City and the Committee agree to have these records audited by an independent certified public accountant at least once each year, and a copy of the audit shall be delivered to the Bondholder and the Department. In the event the City and the Committee fail or refuse to make the audit, the Bondholder or the Department may have the audit made, and the cost thereof shall be charged against the Sewer Operation and Maintenance Fund. Section 20. The Committee covenants and agrees that it will maintain the System in good condition and operate it in an efficient manner and at reasonable cost. While any bonds are outstanding, the Committee agrees that it will insure, and at all times keep insured, in the amount of the actual value thereof, in a responsible insurance company or companies authorized and qualified under the laws of the State of Arkansas to assume the risk thereof, all above - ground structures of the System against loss or damage thereto from fire, lightning, tornado, winds, riot, strike, civil commotion, malicious damage, explosion, and against loss or damage from any other causes customarily insured against by private companies engaged in a similar type of business. In the event of loss, the proceeds of such insurance shall be applied solely toward the reconstruction, replacement or repair of the System, and in such event the Committee will, with reasonable promptness, cause to be commenced and completed the reconstruction, replacement and repair work. If such proceeds are more than sufficient for such purposes, the balance remaining shall be deposited to the credit of the Sewer Fund, and if such proceeds shall be insufficient for such purposes, the deficiency shall be supplied, first, from moneys in the Sewer Depreciation Fund, second, from moneys in the Sewer Operation and Maintenance Fund, and third, from available moneys in the Sewer Fund. Nothing herein shall be construed as requiring the City to expend any funds for reconstruction, replacement or repair of the System or for operation and maintenance of the System or for premiums on its insurance which are derived from sources other than insurance proceeds or revenues derived from the operation of the System, but nothing herein shall be construed as preventing the Committee from doing so. Section 21. The City agrees that the Bondholder may pledge the bonds as security for the ADFA Bonds, and the ADFA Trustee and /or the municipal bond insurer for the ADFA Bonds may exercise any rights and remedies available to the Bondholder under this Ordinance or the Agreement while the bonds are pledged and /or 14 469 4"70 insured. In addition, the City agrees that while the bonds are pledged and /or insured, copies of all financial information shall be furnished to the ADFA Trustee and /or the municipal bond insurer. Section 22. That this Ordinance shall not create any right of any kind, and no right of any kind shall arise hereunder pursuant to it, until the bonds shall be issued and delivered. Section 23. That the provisions of this Ordinance are hereby declared to be separable, and if any provision shall for any reason be held illegal or invalid, it shall not affect the validity of the remainder of the Ordinance. Section 24. That reference in this Ordinance to "Bondholder" shall include the original Bondholder or any registered assign thereof. Section 25. That all ordinances and resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. Section 26. That it is hereby ascertained and declared that the Improvements must be accomplished as soon as possible in order to protect the adequacy of the System and in order to alleviate immediate hazards to the health, safety, and welfare of the City, its inhabitants, and their property and that the Improvements can be accomplished only by the issuance of the bonds. It is, therefore, declared that an emergency exists, and this Ordinance being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in force from and after its passage. PASSED: November 20 , 1990. APPROVED: n ATTEST: ayor Floyd G. Vil ines, III ty Cler ane Czech (SEAL) 15