18556ORDINANCE NO. 18,556
AN ORDINANCE REPEALING ORDINANCE NO.
15,302 AND ENACTING IN LIEU THEREOF A NEW
FLOOD DAMAGE PREVENTION ORDINANCE
ENTITLED "AN ORDINANCE ESTABLISHING
MINIMUM FLOOD CONTROL MEASURES
PREPARED BY THE FEDERAL INSURANCE
ADMINISTRATION FOR THE CITY OF LITTLE
ROCK TO COMPLY WITH THE `FULL PROGRAM'
REQUIREMENTS OF THE NATIONAL FLOOD
INSURANCE PROGRAM; TO ESTABLISH THE RATE
ZONES FOR PROPERTIES LYING WITHIN THE
SAME; TO PROVIDE FOR A DEVELOPMENT
PERMIT PROCESS FOR CONSTRUCTION WITHIN
THAT AREA; TO PROVIDE FOR THE
ADMINISTRATION AND ENFORCEMENT OF
SAME;" AND DECLARING AN EMERGENCY.
Whereas, severe flooding has occurred in the past within City's jurisdiction and will
certainly occur within the future; that flooding is likely to result in infliction of serious personal
injury or death, and is likely to result in substantial injury or destruction of property within its
jurisdiction; in order to effectively comply with minimum standards for coverage under the
National Flood Insurance Program; and in order to effectively remedy the situation described
herein, it is necessary that this ordinance become effective immediately.
BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF
LITTLE ROCK, ARKANSAS:
SECTION 1. That Ordinance No. 15,302 is hereby repealed and the following
provisions are hereby enacted:
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FLOOD DAMAGE PREVENTION ORDINANCE
OUTLINE
PAGE
ARTICLE I
STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSE
AND METHODS
I
SECTION A
STATUTORY AUTHORIZATION
I
SECTION B.
FINDINGS OF FACT
I
SECTION C.
STATEMENT OF PURPOSE
I
SECTION D.
METHODS OF REDUCING FLOOD LOSSES
2
ARTICLE 2
DEFINITIONS
3
ARTICLE 3
GENERAL PROVISIONS
9
SECTION A.
LANDS TO WHICH THIS ORDINANCE APPLIES
9
SECTION B.
BASIS FOR ESTABLISHING THE AREAS OF SPECIAL FLOOD
HAZARD
9
SECTION C.
ESTABLISHMENT OF DEVELOPMENT PERMIT
9
SECTION D.
COMPLIANCE
9
SECTION E.
ABROGATION AND GREATER RESTRICTIONS
9
SECTION F.
INTERPRETATION
9
SECTION G.
WARNING AND DISCLAIMER OR LIABILITY
9
ARTICLE 4
ADMINISTRATION
I 1
SECTION A.
DESIGNATION OF THE FLOODPLAIN ADMINISTRATOR
1 I
SECTION B.
DUTIES & RESPONSIBILITIES OF THE FLOODPLAIN
ADMINISTRATOR
I 1
SECTION C.
PERMIT PROCEDURES
12
SECTION D.
VARIANCE PROCEDURES
13
ARTICLE 5
PROVISIONS FOR FLOOD HAZARD REDUCTION
15
SECTION A. GENERAL STANDARDS 15
SECTION B. SPECIFIC STANDARDS 15
SECTION C. STANDARDS FOR SUBDIVISION PROPOSALS 17
SECTION D. STANDARDS FOR AREAS OF SHALLOW FLOODING (AO /AH
ZONES) 18
SECTION E. FLOODWAYS 18
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WHEREAS, the Preliminary Official Statement, dated
August 22, 2001, offering the bonds for sale (the "Preliminary
Official Statement ") has been presented to and is before this
meeting; and
WHEREAS, the Continuing Disclosure Agreement between the
City and Regions Bank, Little Rock, Arkansas, as Dissemination
Agent (the "Disclosure Agreement "), providing for the ongoing
disclosure obligations of the City with respect to the bonds has
been presented to and is before this meeting; and
WHEREAS, the City has outstanding a Sewer Revenue Bond,
Series 1990 (the "1990 Bond ") authorized by Ordinance No. 15,966,
adopted November 20, 1990 (the 111990 Ordinance "); and
WHEREAS, the City has outstanding a Sewer Revenue Bond,
Series 1991 (the 111991 Bond "), authorized by Ordinance No. 16,030,
adopted April 2, 1991 (the 111991 Ordinance "); and
WHEREAS, the City has outstanding a Sewer Revenue Bond,
Series 1996 (the 111996 Bond ") authorized by Ordinance No. 17,097,
adopted January 16, 1996 (the 111996 Ordinance "); and
WHEREAS, the City has outstanding a Sewer Revenue Bond,
Series 1999 (the 111999 Bond ") authorized by Ordinance No. 18,067,
adopted July 20, 1999 (the 111999 Ordinance "); and
WHEREAS, the coverage test in the 1990 Ordinance, the
1991 Ordinance, the 1996 Ordinance and the 1999 Ordinance for
securing the bonds with a lien on revenues of the System prior to
the lien on System revenues in favor of the 1990 Bond, the 1991
Bond, the 1996 Bond and the 1999 Bond (collectively, the
"Subordinate Bonds ") has been or will be met;
NOW, THEREFORE, BE IT ORDAINED by the Board of Directors
of the City of Little Rock, Arkansas:
Section 1. The improvements and the refunding of the
1993 Bonds shall be accomplished. The Mayor and City Clerk are
hereby authorized to take, or cause to be taken, all action
necessary to accomplish the refunding of the 1993 Bonds and to
execute all required contracts. The 1993 Bonds shall be redeemed
on December 1, 2001 at 101 %. 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
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the improvements in accordance with the plans and specifications
therefor.
Section 2. The Board of Directors hereby finds and
declares that the period of usefulness of the improvements will be
more than 25 years, which is longer than the term of the bonds.
Section 3. The offer of the Purchaser for the purchase
of the bonds from the City at the Purchase Price for bonds bearing
interest at the rates per annum, maturing and otherwise subject to
the terms and provisions hereafter in this Ordinance set forth in
detail be, and is hereby accepted, and the Agreement, in
substantially the form submitted to this meeting, is approved and
the bonds are hereby sold to the Purchaser. 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.
Section 4. The Preliminary Official Statement is hereby
approved and the previous use of the Preliminary Official Statement
by the Purchaser in connection with the sale of the bonds is hereby
in all respects authorized and approved, and the Mayor be, and he
is hereby authorized and directed, for and on behalf of the City,
to execute the Preliminary official Statement and the final
Official Statement as set forth in the Agreement.
Section S. The Disclosure Agreement, in substantially
the form submitted to this meeting, is approved, and the Mayor is
hereby authorized and directed to execute and deliver the
Disclosure Agreement on behalf of the City. The Mayor and the
Manager of the Little Rock Wastewater Utility (the "Manager ") are
each authorized and directed to take all action required on the
part of the City to fulfill the City's obligations under the
Disclosure Agreement.
Section 6. Under the authority of the Constitution and
laws of the State of Arkansas (the "State ") , including particularly
Title 14, Chapter 164, Subchapter 4, and Title 14, Chapter 235,
Subchapter 2 of the Arkansas Code of 1987 Annotated, City of Little
Rock, Arkansas Sewer Refunding and Construction Revenue Bonds,
Series 2001, are hereby authorized and ordered issued in the
principal amount of $22,680,000 for the purpose of financing all or
a portion of the costs of the improvements, refunding the 1993
Bonds, costs incidental thereto and expenses of issuing the bonds
and funding a debt service reserve. The bonds shall bear interest
at the rates and shall mature on the dates and in the amounts as
follows:
The bonds shall be dated October 1, 2001 and shall be
issuable only as fully registered bonds without coupons in the
denomination of $5,000 or any integral multiple thereof. Unless
the City shall otherwise direct, the bonds shall be numbered from
1 upward in order of issuance. Each bond shall have a CUSIP
number.
The bonds shall be registered initially in the name of
Cede & Co., as nominee for the Depository Trust Company ( "DTC "),
which shall be considered to be the registered owner of the bonds
for all purposes under this Ordinance, including, without
limitation, payment by the City of principal of, redemption price,
premium, if any, and interest on the bonds, and receipt of notices
and exercise of rights of registered owners. There shall be one
certificated, typewritten bond for each stated maturity date which
shall be immobilized in the custody of DTC with the beneficial
owners having no right to receive the bonds in the form of physical
securities or certificates. DTC and its participants shall be
responsible for maintenance of records of the ownership of
beneficial interests in the bonds by book -entry on the system
maintained and operated by DTC and its participants, and transfers
of ownership of beneficial interests shall be made only by DTC and
its participants, by book - entry, the City having no responsibility
therefor. DTC is expected to maintain records of the positions of
participants in the bonds, and the participants and persons acting
through participants are expected to maintain records of the
purchasers of beneficial interests in the bonds. The bonds as such
shall not be transferable or exchangeable, except for transfer to
another securities depository or to another nominee of a securities
depository, without further action by the City.
If any securities depository determines not to continue
to act as a securities depository for the bonds for use in a book -
entry system, the City may establish a securities depository /book-
entry system relationship with another securities depository. If
Principal
Interest
Principal
Interest
Date
Amount
Rate
Date
Amount
Rate
February
1, 2002
$425,000
4.000%
February
1, 2010
$220,000
4.050%
August 1,
2002
580,000
4.000
August
1,
2010
220,000
4.050
February
1, 2003
165,000
4.000
February
1, 2011
225,000
4.150
August 1,
2003
170,000
4.000
August
1,
2011
230,000
4.150
February
1, 2004
170,000
4.000
February
1, 2012
235,000
4.250
August 1,
2004
175,000
4.000
August
1,
2012
240,000
4.250
February
1, 2005
180,000
4.000
February
1, 2013
245,000
4.350
August 1,
2005
180,000
4.000
August
1,
2013
250,000
4.350
February
1, 2006
185,000
4.000
August
1,
2014
1,000,000
5.125
August 1,
2006
190,000
4.000
August
1,
2015
1,535,000
5.125
February
1, 2007
195,000
4.000
August
1,
2016
1,610,000
4.650
August 1,
2007
1950000
4.000
August
1,
2017
1,685,000
4.750
February
1, 2008
200,000
4.000
August
1,
2018
1,770,000
4.800
August 1,
2008
205,000
4.000
August
1,
2019
2,065,000
4.850
February
1, 2009
210,000
4.000
August
1,
2020
2,380,000
5.000
August 1,
2009
215,000
4.000
August
1,
2022
5,130,000
5.000
The bonds shall be dated October 1, 2001 and shall be
issuable only as fully registered bonds without coupons in the
denomination of $5,000 or any integral multiple thereof. Unless
the City shall otherwise direct, the bonds shall be numbered from
1 upward in order of issuance. Each bond shall have a CUSIP
number.
The bonds shall be registered initially in the name of
Cede & Co., as nominee for the Depository Trust Company ( "DTC "),
which shall be considered to be the registered owner of the bonds
for all purposes under this Ordinance, including, without
limitation, payment by the City of principal of, redemption price,
premium, if any, and interest on the bonds, and receipt of notices
and exercise of rights of registered owners. There shall be one
certificated, typewritten bond for each stated maturity date which
shall be immobilized in the custody of DTC with the beneficial
owners having no right to receive the bonds in the form of physical
securities or certificates. DTC and its participants shall be
responsible for maintenance of records of the ownership of
beneficial interests in the bonds by book -entry on the system
maintained and operated by DTC and its participants, and transfers
of ownership of beneficial interests shall be made only by DTC and
its participants, by book - entry, the City having no responsibility
therefor. DTC is expected to maintain records of the positions of
participants in the bonds, and the participants and persons acting
through participants are expected to maintain records of the
purchasers of beneficial interests in the bonds. The bonds as such
shall not be transferable or exchangeable, except for transfer to
another securities depository or to another nominee of a securities
depository, without further action by the City.
If any securities depository determines not to continue
to act as a securities depository for the bonds for use in a book -
entry system, the City may establish a securities depository /book-
entry system relationship with another securities depository. If
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the City does not or is unable to do so, or upon request of the
beneficial owners of all outstanding bonds, the City and the
Trustee (hereinafter identified) , after the Trustee has made
provision for notification of the beneficial owners by the then
securities depository, shall permit withdrawal of the bonds from
the securities depository, and authenticate and deliver bond
certificates in fully registered form (in denominations of $5,000
or integral multiples thereof) to the assigns of the securities
depository or its nominee, all at the cost and expense (including
costs of printing definitive bonds) of the City, if the City fails
to maintain a securities depository /book -entry system, or of the
beneficial owners, if they request termination of the system.
Prior to issuance of the bonds, the City shall have
executed and delivered to DTC a written agreement (the
"Representation Letter ") setting forth (or incorporating therein by
reference) certain undertakings and responsibilities of the City
with respect to the bonds so long as the bonds or a portion thereof
are registered in the name of Cede & Co. (or a substitute nominee)
and held by DTC. Notwithstanding such execution and delivery of
the Representation Letter, the terms thereof shall not in any way
limit the provisions of this Section or in any other way impose
upon the City any obligation whatsoever with respect to persons
having interests in the bonds other than the registered owners, as
shown on the registration books kept by the Trustee. The Trustee
shall take all action necessary for all representations of the City
in the Representation Letter with respect to the Trustee to at all
times be complied with.
The authorized officers of the Trustee and the City shall
do or perform such acts and execute all such certificates,
documents and other instruments as they or any of them deem
necessary or advisable to facilitate the efficient use of a
securities depository for all or any portion of the bonds; provided
that neither the Trustee nor the City may assume any obligations to
such securities depository or beneficial owners of bonds that are
inconsistent with their obligations to any registered owner under
this Ordinance.
Interest on the bonds shall be payable on February 1,
2002, and semiannually thereafter on February 1 and August 1 of
each year. Payment of each installment of interest shall be made
to the person in whose name the bond is registered on the
registration books of the City maintained by Regions Bank, Little
Rock, Arkansas, as Trustee and Paying Agent (the "Trustee ") , at the
close of business on the fifteenth day of the month (whether or not
a business day) next preceding each interest payment date (the
"Record Date ,,) , irrespective of any transfer or exchange of any
such bond subsequent to such Record Date and prior to such interest
payment date.
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Each bond shall bear interest from the payment date next
preceding the date on which it is authenticated unless it is
authenticated on an interest payment date, in which event it shall
bear interest from such date, or unless it is authenticated prior
to the first interest payment date, in which event it shall bear
interest from October 1, 2001, or unless it is authenticated during
the period from the Record Date to the next interest payment date,
in which case it shall bear interest from such interest payment
date, or unless at the time of authentication thereof interest is
in default thereon, in which event it shall bear interest from the
date to which interest has been paid.
Only such bonds as shall have endorsed thereon a
Certificate of Authentication substantially in the form set forth
in Section 8 hereof (the "Certificate ") duly executed by the
Trustee shall be entitled to any right or benefit under this
ordinance. No bond shall be valid and obligatory for any purpose
unless and until the Certificate shall have been duly executed by
the Trustee, and the Certificate upon any such bond shall be
conclusive evidence that such bond has been authenticated and
delivered under this ordinance. The Certificate on any bond shall
be deemed to have been executed if signed by an authorized officer
of the Trustee, but it shall not be necessary that the same officer
sign the Certificate on all of the bonds.
In case any bond shall become mutilated or be destroyed
or lost, the City shall, if not then prohibited by law, cause to be
executed and the Trustee may authenticate and deliver a new bond of
like date, number, maturity and tenor in exchange and substitution
for and upon cancellation of such mutilated bond, or in lieu of and
in substitution for such bond destroyed or lost, upon the owner
paying the reasonable expenses and charges of the City and Trustee
in connection therewith, and, in the case of a bond destroyed or
lost, his filing with the Trustee evidence satisfactory to it that
such bond was destroyed or lost, and of his ownership thereof, and
furnishing the City and Trustee with indemnity satisfactory to
them. The Trustee is hereby authorized to authenticate any such
new bond. In the event any such bond shall have matured, instead
of issuing a new bond, the City may pay the same without the
surrender thereof. Upon the issuance of a new bond under this
Section 6, the City may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
The City shall cause books for the registration and for
the transfer of the bonds as provided herein and in the bonds. The
Trustee shall act as the bond registrar. Each bond is transferable
by the registered owner thereof or by his attorney duly authorized
in writing at the principal office of the Trustee. Upon such
transfer a new fully registered bond or bonds of the same maturity,
of authorized denomination or denominations, for the same aggregate
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principal amount will be issued to the transferee in exchange
therefor.
No charge shall be made to any owner of any bond for the
privilege of transfer or exchange, but any owner of any bond
requesting any such transfer or exchange shall pay any tax or other
governmental charge required to be paid with respect thereto.
Except as otherwise provided in the immediately preceding sentence,
the cost of preparing each new bond upon each exchange or transfer
and any other expenses of the City or the Trustee incurred in
connection therewith shall be paid by the City. The City shall not
be required to transfer or exchange any bonds selected for
redemption in whole or in part.
The person in whose name any bond shall be registered
shall be deemed and regarded as the absolute owner thereof for all
purposes, and payment of or on account of the principal or premium,
if any, or interest on any bond shall be made only to or upon the
order of the registered owner thereof or his legal representative,
but such registration may be changed as hereinabove provided. All
such payments shall be valid and effectual to satisfy and discharge
the liability upon such bond to the extent of the sum or sums so
paid.
In any case where the date of maturity of interest on or
principal of the bonds or the date fixed for redemption of any
bonds shall be a Saturday or Sunday or shall be in the State a
legal holiday or a day on which banking institutions are authorized
by law to close, then payment of interest or principal (and
premium, if any) need not be made on such date but may be made on
the next succeeding business day with the same force and effect as
if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after the date of
maturity or date fixed for redemption.
Section 7. The bonds shall be executed on behalf of the
City by the manual or facsimile signatures of the Mayor and City
Clerk and shall have impressed or imprinted thereon the seal of the
City. The bonds, together with interest thereon, are secured by
and are payable solely from the net revenues derived from the
System ( "Revenues ") which are hereby pledged and mortgaged for the
equal and ratable payment of the bonds. The pledge of net Revenues
in favor of the bonds shall be prior to the pledge in favor of the
Subordinate Bonds. The bonds and interest thereon shall not
constitute an indebtedness of the City within any constitutional or
statutory limitation.
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Section S. The bonds and the Certificate shall be in
substantially the following form and the Mayor and City Clerk are
hereby expressly authorized and directed to make all recitals
contained therein:
(Form of Bond)
REGISTERED REGISTERED
IQ1 rom
Interest Rate:
Dated Date
Registered
Principal
CUSIP No.:
UNITED STATES OF AMERICA
STATE OF ARKANSAS
COUNTY OF PULASKI
CITY OF LITTLE ROCK
SEWER REFUNDING AND CONSTRUCTION
REVENUE BOND, SERIES 2001
: October 1, 2001
Owner: Cede & Co.
Amount:
KNOW ALL MEN BY THESE PRESENTS:
Maturity Date:
That the City of Little Rock, County of Pulaski, State of
Arkansas (the "City ") , for value received, hereby promises to pay,
but solely from the source as hereinafter provided and not
otherwise, to the Registered Owner shown above upon the
presentation and surrender hereof at the principal corporate office
of Regions Bank, Little Rock, Arkansas, or its successor or
successors, as Trustee and Paying Agent (the "Trustee ") , on the
Maturity Date shown above, the Principal Amount shown above, 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 public and
private debts and to pay by check or draft interest thereon, but
solely from the source as hereinafter provided and not otherwise,
in like coin or currency from the interest commencement date
specified below at the Interest Rate per annum shown above, payable
February 1, 2002 and semiannually thereafter on the first days of
February and August of each year, until payment of such principal
sum or, if this bond or a portion thereof shall be duly called for
redemption, until the date fixed for redemption, and to pay
interest on overdue principal and interest (to the extent legally
enforceable) at the rate borne by this bond. Payment of each
installment of interest shall be made to the person in whose name
this bond is registered on the registration books of the City
maintained by the Trustee at the close of business on the fifteenth
day of the month (whether or not a business day) next preceding
each interest payment date (the "Record Date ") , irrespective of any
transfer or exchange of this bond subsequent to such Record Date
and prior to such interest payment date.
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Unless this bond is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ( "DTC "), to the Trustee for registration of transfer,
exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is required by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This bond shall bear interest from the payment date next
preceding the date on which it is authenticated unless it is
authenticated on an interest payment date, in which event it shall
bear interest from such date, or unless it is authenticated prior
to the first interest payment date, in which event it shall bear
interest from the Dated Date shown above, or unless it is
authenticated during the period from the Record Date to the next
,authenticated payment date, in which case it shall bear interest
from such interest payment date, or unless at the time of
authentication hereof interest is in default hereon, in which event
it shall bear interest from the date to which interest has been
paid.
This bond is one of an issue of City of Little Rock,
Arkansas Sewer Refunding and Construction Revenue Bonds, Series
2001, aggregating Twenty -Two Million Six Hundred Eighty Thousand
Dollars ($22,680,000) in principal amount (the "bonds "), and is
issued for the purpose of refunding certain outstanding bonds of
the City, financing all or a portion of the costs of the
acquisition, construction and equipping by the City of betterments
and improvements to the City's sewer system (the "System "), and
paying expenses incidental thereto and to the authorization and
issuance of the bonds.
The bonds are issued pursuant to and in full compliance
with the Constitution and laws of the State of Arkansas (the
"State ") , including particularly Title 14, Chapter 164, Subchapter
4 and Title 14, Chapter 235, Subchapter 2 of the Arkansas Code of
1987 Annotated, and pursuant to Ordinance No. duly adopted
on September 4, 2001 (the "Authorizing ordinance") , and do not
constitute an indebtedness of the City within any constitutional or
statutory limitation. The bonds are not general obligations of the
City, but are special obligations payable solely from the net
revenues derived from the operation of the System, prior to the
pledge in favor of the City's Sewer Revenue Bonds, Series 1990,
Series 1991, Series 1996 and Series 1999. An amount of net System
revenues sufficient to pay the principal of and interest on the
bonds has been duly pledged and set aside into the 2001 Sewer
Revenue Bond Fund created by the Authorizing Ordinance. Reference
is hereby made to the Authorizing Ordinance for a detailed
statement of the terms and conditions upon which the bonds are
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issued, of the nature and extent of the security for the bonds, and
the rights and obligations of the City, the Trustee and the
registered owners of the bonds. The City has fixed and has
covenanted and agreed to maintain rates for the services of the
System which shall be sufficient at all times to provide for the
proper and reasonable expenses of operation and maintenance of the
System and for the payment of the principal of and interest on the
bonds, including Trustee's fees, as the same become due and
payable, to establish and maintain a debt service reserve and to
make the required deposit for the depreciation of the System.
The bonds shall be subject to optional and mandatory
sinking fund redemption as follows:
1. The bonds are subject to redemption at the option of
the City, from funds from any source, in whole at any time or in
part on any interest payment date on and after August 1, 2011, at
a redemption price equal to the principal amount being redeemed
plus accrued interest to the redemption date. If fewer than all of
the bonds shall be called for redemption, the particular maturities
of the bonds to be redeemed shall be selected by the City in its
discretion. If fewer than all of the Bonds of any one maturity
shall be called for redemption, the particular bonds or portion
thereof to be redeemed from such maturity shall be selected by lot
by the Trustee.
2. To the extent not previously redeemed, the bonds are
subject to mandatory sinking fund redemption by lot in such manner
as the Trustee shall determine, on the dates and in the amounts set
forth below, at a redemption price equal to the principal amount
being redeemed plus accrued interest to the date of redemption:
Bonds Maturing August 1, 2014
Redemption
Dates
Principal Amounts
February 1,
2014
$490,000
August 1, 2014
(maturity)
510,000
Bonds Maturing
August 1, 2015
Redemption
Dates
Principal Amounts
February 1,
2015
$760,000
August 1, 2015
(maturity)
775,000
Bonds Maturing
August 1, 2016
Redemption
Dates
Principal Amounts
February 1,
2016
$795,000
August 1, 2016 (maturity)
815,000
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Bonds Maturing August 1, 2017
Redemption Dates Principal Amounts
February 1, 2017 $830,000
August 1, 2017 (maturity) 855,000
Bonds Maturing August 1, 2018
Redemption Dates Principal Amounts
February 1, 2018 $875,000
August 1, 2018 (maturity) 895,000
Bonds Maturing August 1, 2019
Redemption Dates Principal Amounts
February 1, 2019 $1,020,000
August 1, 2019 (maturity) 1,045,000
Bonds Maturing August 1, 2020
Redemption Dates Principal Amounts
February 1, 2020 $1,175,000
August 1, 2020 (maturity) 1,205,000
Bonds Maturing August 1, 2022
Redemption Dates Principal Amounts
February 1, 2021 $1,230,000
August 1, 2021 1,270,000
February 1, 2022 1,300,000
August 1, 2022 (maturity) 1,330,000
The provisions for mandatory sinking fund redemption of
the bonds are subject to the provisions of the Authorizing
Ordinance which permit the City to receive credit for bonds
previously redeemed or for bonds acquired by the City and
surrendered to the Trustee.
In case any outstanding bond is in a denomination
greater than $5,000, each $5,000 of face value of such bond shall
be treated as a separate bond of the denomination of $5,000.
Notice of redemption identifying the bonds or portions
thereof (which shall be $5,000 or a multiple thereof) to be
redeemed shall be given by the Trustee, not less than 30 nor more
than 60 days prior to the date fixed for redemption, by mailing a
copy of the redemption notice by first class mail, postage prepaid,
to all registered owners of bonds to be redeemed. Failure to mail
an appropriate notice or any such notice to one or more registered
owners of bonds to be redeemed shall not affect the validity of the
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proceedings for redemption of other bonds as to which notice of
redemption is duly given in proper and timely fashion. All such
bonds or portions thereof thus called for redemption and for the
retirement of which funds are duly provided in accordance with the
Authorizing Ordinance prior to the date fixed for redemption will
cease to bear interest on such redemption date.
This bond is transferable by the registered owner hereof
in person or by his attorney -in -fact duly authorized in writing at
the principal corporate trust office of the Trustee, but only in
the manner, subject to the limitations and upon payment of the
charges provided in the Authorizing Ordinance, and upon surrender
and cancellation of this bond. Upon such transfer a new fully
registered bond or bonds of the same maturity, of authorized
denomination or denominations, for the same aggregate principal
amount, will be issued to the transferee in exchange therefor.
This bond is issued with the intent that the laws of the State
shall govern its construction.
The City and the Trustee may deem and treat the
registered owner hereof as the absolute owner hereof for the
purpose of receiving payment of or on account of principal hereof
and premium, if any, hereon and interest due hereon and for all
other purposes, and neither the City nor the Trustee shall be
affected by any notice to the contrary.
The bonds are issuable only as fully registered bonds in
the denomination of $5,000, and any integral multiple thereof.
Subject to the limitations and upon payment of the charges provided
in the Authorizing ordinance, fully registered bonds may be
exchanged for a like aggregate principal amount of fully registered
bonds of the same maturity of other authorized denominations.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all
acts, conditions and things required to exist, happen and be
performed precedent to and in the issuance of the bonds do exist,
have happened and have been performed in due time, form and manner
as required by law; that the indebtedness represented by the bonds,
together with all obligations of the City, does not exceed any
constitutional or statutory limitation; and that the above referred
to revenues pledged to the payment of the principal of and premium,
if any, and interest on the bonds as the same become due and
payable will be sufficient in amount for that purpose.
This bond shall not be valid or become obligatory for
any purpose or be entitled to any security or benefit under the
Authorizing ordinance until the Certificate of Authentication
hereon shall have been signed by the Trustee.
WE
IN WITNESS WHEREOF, the City of Little Rock, Arkansas
has caused this bond to be executed by its Mayor and City Clerk and
its corporate seal to be impressed or imprinted on this bond, all
as of the Dated Date shown above.
ATTEST:
(SEAL)
City Clerk
CITY OF LITTLE ROCK, ARKANSAS
By
Mayor
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds designated Series 2001 in
and issued under the provisions of the within mentioned Authorizing
Ordinance.
Date of Authentication:
REGIONS BANK
Little Rock, Arkansas
Trustee
By
Authorized Signature
(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED,
("Transferor"), hereby sells, assigns and transfers unto
the within bond and all rights
thereunder, and hereby irrevocably constitutes and appoints
as attorney to transfer the within bond on
the books kept for registration thereof with full power of
substitution in the premises.
DATE:
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Transferor
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GUARANTEED BY:
NOTICE: signature (s) must be guaranteed by a member of or
participant in the Securities Transfer Agents Medallion Program
(STAMP) , or in another signature guaranty program recognized by the
Trustee.
Section 9. The rates charged for services of the System
heretofore fixed by ordinances of the City and the conditions,
rights and obligations pertaining thereto, as set out in those
Ordinances, are hereby ratified, confirmed and continued. 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.
The City covenants and agrees that the rates shall never
be reduced while any of the bonds are outstanding unless there is
obtained from an independent certified public accountant
( "Accountant ") a certificate that the Net Revenues of the System
( "Net Revenues" being defined as gross Revenues less the expenses
of operation and maintenance of the System, including all expense
items properly attributable to the operation and maintenance of the
System under generally accepted accounting principles applicable to
municipal sewer facilities, excluding depreciation, interest and
amortization of deferred bond discount expenses) , with the reduced
rates, will always be equal to the amount required to be set aside
for the Depreciation Fund (hereinafter identified), and leave a
balance equal to at least 130% of the average annual principal and
interest requirements on all outstanding bonds payable from
Revenues ( "System Bonds ") . The City further covenants and agrees
that the rates shall, if and when necessary, from time to time, be
increased in such manner as will produce Revenues at least
sufficient to pay the principal and interest on all System Bonds
when due, to pay the operation and maintenance expenses of the
System, and to deposit the amounts required to be paid into the
Depreciation Fund and the Debt Service Reserve in accordance with
this Ordinance.
The City covenants and agrees that the existing rates
will produce total Revenues at least sufficient to pay the
operation and maintenance expenses of the System, pay the principal
or and premium, if any, and interest on all outstanding System
Bonds and Trustee's fees in connection therewith, and make the
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required deposit into the Debt Service Reserve and the Depreciation
Fund.
Section 10. The System shall be continuously operated
as a revenue producing undertaking and all Revenues shall be paid
into a special fund heretofore created and designated "Sewer Fund"
(the "Revenue Fund "). The Revenues so deposited in the Revenue
Fund are hereby pledged and shall be applied to the payment of the
reasonable and necessary expenses of operation, repair and
maintenance of the System, to the payment of the principal of and
premium, if any, and interest on System Bonds, to the establishment
and maintenance of a debt service reserve, and to the providing of
a Depreciation Fund, as hereafter set forth. The Revenue Fund, and
the other special funds hereafter in this ordinance provided for or
referred to, shall be maintained in such depositories of the City
as shall from time to time be designated by the Committee, with all
such depositories to hold membership in the Federal Deposit
Insurance Corporation (the "FDIC "), to be located in Little Rock,
Arkansas, and to have a capital and surplus of not less than
$15,000,000, and with all deposits in any depository in excess of
the amount insured by the FDIC to be secured by bonds or other
direct or fully guaranteed obligations of the United States of
America unless invested in accordance with Section 27 hereof.
Section 11. There shall be paid from the Revenue Fund
into a fund heretofore created and designated "Sewer Operation and
Maintenance Fund" (the "Operation and Maintenance Fund ") on or
before the tenth day of each month while any bonds are outstanding,
an amount sufficient to pay the reasonable and necessary monthly
expenses of operation, repair and maintenance of the System for
such month and from which disbursements shall be made only for
those purposes. Fixed annual charges such as insurance premiums
and the cost of major repair and maintenance expenses may be
computed and set up on an annual basis, and one - twelfth (1/12) of
the amount thereof may be paid into the Operation and Maintenance
Fund each month.
If in any month for any reason there shall be a failure
to transfer and pay the required amount into Operation and
Maintenance Fund, the amount of any deficiency shall be added to
the amount otherwise required to be transferred and paid into such
fund in the next succeeding month. If in any fiscal year a surplus
shall be accumulated in the Operation and Maintenance Fund over and
above the amount which shall be necessary to defray the reasonable
and necessary cost of operation, repair and maintenance of the
System during the remainder of the then current fiscal year and the
next ensuing fiscal year, such surplus may be transferred and
deposited in the Revenue Fund.
Section 12. (a) After making the required monthly
deposits into the Operation and Maintenance Fund, there shall be
paid from the Revenue Fund into a special fund in the name of the
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City which is hereby created and designated the 112001 Sewer Revenue
Bond Fund" (the "Bond Fund ") on or before the fifteenth day of each
month, commencing in November 2001, until all outstanding bonds,
with interest thereon, have been paid in full or provision made for
such payment a sum equal to 1/6 of the next installment of
principal and interest due on the bonds; provided, however, that
payments made into the Bond Fund for the first three (3) months
shall be increased to 1/3 of the next installment of principal and
interest due on the bonds.
The City shall also pay into the Bond Fund such
additional sums as necessary to provide for the Trustee's fees and
expenses and any arbitrage rebate due the United States Treasury
under Section 148(f) of the Internal Revenue Code of 1986, as
amended (the "Code ") . The City shall realize a credit against
monthly deposits into the Bond Fund from bond proceeds deposited
therein, all interest earnings on moneys in the Bond Fund and all
transfers made from the Debt Service Reserve during the preceding
month.
There is hereby created, as a part of the Bond Fund, a
Debt Service Reserve which shall be maintained by the City in an
amount equal to 75% of the maximum annual principal and interest
requirement on the bonds or 10% of the proceeds of the bonds
(excluding accrued interest but including Underwriter's discount),
whichever is lesser (the "Required Level ") . Should the Debt
Service Reserve become impaired or be reduced below the Required
Level, the City shall make additional monthly payments from the
Revenue Fund until the impairment or reduction is corrected within
a twenty -four month period.
If for any reason the City should fail at any time to
make any of the required payments into the Bond Fund, any sums then
held in the Debt Service Reserve shall be used to the extent
necessary for the payment of principal of or interest on the bonds,
but the Debt Service Reserve shall be reimbursed from the Revenue
Fund before any moneys in the Revenue Fund shall be used for any
other purpose other than the making of payments required to be made
into the Operation and Maintenance Fund and the Bond Fund. The
Debt Service Reserve shall be used solely as provided herein.
If Revenues are insufficient to make the required
payment on the first business day of the following month into the
Bond Fund, the amount of any such deficiency in the payment made
shall be added to the amount otherwise required to be paid into the
Bond Fund on the first business day of the next month.
When the moneys held in the Bond Fund shall be and
remain sufficient to pay the principal of and interest on all of
the bonds then outstanding plus Trustee's fees and any arbitrage
rebate due as provided above, the City shall not be obligated to
make any further payments into the Bond Fund.
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It shall be the duty of the City to cause to be
withdrawn from the Bond Fund and deposited with the Trustee at
least one (1) business day before the due date of any principal
and /or interest on any bond, at maturity or redemption prior to
maturity, and deposited with the Trustee an amount equal to the
amount of such bond and interest due thereon for the sole purpose
of paying the same, together with the Trustee's fee. There shall
also be withdrawn and paid to the United States Treasury any
arbitrage rebate due at the times and in the amounts required by
Section 148(f) of the Code. No withdrawal of funds from the Bond
Fund shall be made for any other purpose except as otherwise
authorized in this Ordinance.
The bonds shall be specifically secured by a pledge of
all net Revenues remaining after the deposits have been made to the
Operation and Maintenance Fund. This pledge in favor of the bonds
is hereby irrevocably made according to the terms of this
Ordinance, and the City and its officers and employees shall
execute, perform and carry out the terms thereof in strict
conformity with the provisions of this Ordinance.
Section 13. After making the deposits into the
Operation and Maintenance Fund and the Bond Fund, there shall be
transferred from the Revenue Fund (a) into (i) the "ADFA Bond Fund"
being maintained in connection with the 1990 Bond and the 1991
Bond, (ii) the 111996 ADFA Bond Fund" being maintained in connection
with the 1996 Bond, and (iii) the 111999 ADFA Bond Fund" being
maintained in connection with the 1999 Bond, the amounts required
by the 1990 Ordinance, the 1991 Ordinance, the 1996 Ordinance and
the 1999 Ordinance, and (b) the administration and servicing fees
due in connection with the Subordinate Bonds.
Section 14. After making the required payments into the
Operation and Maintenance Fund, the Bond Fund, the ADFA Bond Fund,
the 1996 ADFA Bond Fund and the 1999 ADFA Bond Fund, there shall be
paid from the Revenue Fund into a fund heretofore created and
designated the "Sewer Depreciation Fund" (the "Depreciation Fund ")
on or before the loth day of each month while any bonds are
outstanding, three percent (3 %) of the Revenues which remain after
the required payment into the Operation and Maintenance Fund has
been made. The moneys in the Depreciation Fund shall be used
solely for the purpose of paying the cost of replacements made
necessary by the depreciation of the System. If in any fiscal year
a surplus shall be accumulated in the Depreciation Fund over and
above the amount necessary to defray the cost of the probable
replacements during the then current fiscal year and the next
ensuing fiscal year, such surplus may be transferred and paid into
the Revenue Fund.
Section 15. Any surplus in the Revenue Fund, after
making the required monthly deposits into the other funds as set
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forth above, may be used, at the option of the City, for any lawful
purpose of the System, as approved by the Committee.
Section 16. So long as any of the bonds are
outstanding, the City shall not issue or attempt to issue any bonds
claimed to be entitled to a priority of lien on Revenues over the
lien securing the bonds. The City reserves the right to issue
additional bonds to finance or pay the cost of making any future
extensions, betterments or improvements to the System, or to refund
bonds issued for such purposes, but the City shall not authorize or
issue any such additional bonds ranking on a parity with the bonds
unless and until there have been procured and filed with the City
Clerk and the Trustee a statement by an Accountant reciting the
opinion, based upon necessary investigation, that the Net Revenues
of the System for the fiscal year immediately preceding the fiscal
year in which it is proposed to issue such additional bonds shall
equal not less than 120% of the average annual principal and
interest requirements on all the then outstanding System Bonds and
the additional bonds then proposed to be issued. The term "Net
Revenues" means gross Revenues less operation and maintenance
expenses other than depreciation, interest and amortization of
deferred bond discount expenses, determined in accordance with
generally accepted accounting principles. In making the
computation set forth above, the City, and the Accountant on behalf
of the City, may, based upon the opinion or report of a registered
professional engineer not in the regular employ of the City, treat
any increase in rates for the System enacted subsequent to the
first day of such preceding fiscal year as having been in effect
during or throughout such fiscal year and may include in gross
Revenues for such fiscal year the amount that would have been
received, based on such opinion or report, had the increase been in
effect during or throughout such fiscal year.
Section 17. The City covenants and agrees that it will
maintain the System in good condition and operate the same in an
efficient manner and at reasonable cost. While any of the bonds
are outstanding, the City agrees that it will insure and at all
times keep insured, in the amount of the full insurable value
thereof, in a responsible insurance company or companies selected
by the Committee and authorized and qualified under the laws of the
State to assume the risk thereof, all aboveground structures of the
System, to the extent that such structures would be covered by
insurance by private companies engaged in similar types of
businesses, against loss or damage thereto from fire, lightning,
tornados, winds, riot, strike, civil commotion, malicious damage,
explosion and against any other loss or damage from any other
causes customarily insured against by private companies engaged in
similar types of business. The insurance policies are to carry a
clause making them payable to the Committee and the Trustee as
their interests may appear, and satisfactory evidence of said
insurance shall be filed with the Trustee. In the event of loss,
the proceeds of such insurance shall be applied solely toward the
I&I
•
reconstruction, replacement or repair of the System, and in such
event the City 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
Revenue Fund, and if such proceeds shall be insufficient for such
purposes the deficiency shall be supplied first from moneys in the
Depreciation Fund and second from moneys in the Operation and
Maintenance Fund and third from surplus moneys in the Revenue Fund.
Nothing shall be construed as requiring the City to expend any
moneys for operation and maintenance of the System or for premiums
on its insurance which are derived from sources other than the
operation of the System, but nothing shall be construed as
preventing the City from doing so.
Section 18. The bonds shall be subject to redemption
prior to maturity in accordance with the terms set out in the bond
form. The City may acquire bonds by purchase at a price not in
excess of par plus accrued interest, inclusive of brokerage fees,
and surrender to the Trustee any bonds so acquired, in exchange for
which the City shall receive a credit under this Ordinance in an
amount equal to the principal amount of the bonds so acquired and
surrendered, for and of the then next date for mandatory sinking
fund redemption of bonds of the same maturity.
Section 19. The Committee will keep 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 operation of the System, and such
books shall be available for inspection by the registered owner of
any of the bonds at reasonable times and under reasonable
circumstances. The City and the Committee agree to have these
records audited by an Accountant at least once each year, and a
copy of the audit shall be delivered to the Trustee and made
available to interested registered owners requesting the same in
writing. In the event that the City or the Committee fail or
refuse to make the audit, the Trustee, or any registered owner of
the Bonds, may have the audit made, and the cost thereof shall be
charged against the Operation and Maintenance Fund.
Section 20. Any bond shall be deemed to be paid within
the meaning of this Ordinance when payment of the principal of and
interest on such bond (whether at maturity or upon redemption as
provided herein, or otherwise) , either (i) shall have been made or
caused to be made in accordance with the terms thereof, or (ii)
shall have been provided for by irrevocably depositing with the
Trustee, in trust and irrevocably set aside exclusively for such
payment (1) cash sufficient to make such payment and /or (2) direct
obligations of (including obligations issued or held in book entry
form on the books of) the Department of the Treasury of the United
States of America ( "Government Securities ") (provided that such
deposit will not affect the tax exempt status of the interest on
W]
any of the bonds or cause any of the bonds to be classified as
"arbitrage bonds" within the meaning of Section 148 of the Code),
maturing as to principal and interest in such amounts and at such
times as will provide sufficient moneys to make such payment, and
all necessary and proper fees, compensation and expenses of the
Trustee shall have been paid or the payment thereof provided for to
the satisfaction of the Trustee.
On the payment of any such bonds within the meaning of
this Ordinance, the Trustee shall hold in trust, for the benefit of
the owners of such bonds, all such moneys and /or Government
Securities.
When all the bonds shall have been paid within the
meaning of this Ordinance, if the Trustee has been paid its fees
and expenses and if any arbitrage rebate due the United States
Treasury has been paid or provided for to the satisfaction of the
Trustee, the Trustee shall take all appropriate action to cause (i)
the pledge and lien of this Ordinance to be discharged and
cancelled, and (ii) all moneys held by it pursuant to this
Ordinance and which are not required for the payment of such bonds
to be paid over or delivered to or at the direction of the City.
In determining the sufficiency of the deposit of Government
Securities there shall be considered the principal amount of such
Government Securities and interest to be earned thereon until the
maturity of such Government Securities.
Section 21. If there be any default in the payment of
the principal of or interest on any of the bonds, or if the City
defaults in any Bond Fund requirement or in the performance of any
of the other covenants contained in this Ordinance, the Trustee
may, and upon the written request of the registered owners of not
less than 10% in principal amount of the then outstanding bonds,
shall, by proper suit, compel the performance of the duties of the
officials of the City under the laws of Arkansas. And in the case
of a default in the payment of the principal of and interest on any
of the bonds, the Trustee may and upon written request of the
registered owners of not less than 10% in principal amount of the
then outstanding bonds, shall 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 registered
owners of the bonds 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, maintenance and repair and to pay any bonds
and interest outstanding and to apply the Revenues in conformity
with the laws of Arkansas and 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.
No registered owner of any of the outstanding bonds
shall have any right to institute any suit, action, mandamus or
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other proceeding in equity or at law for the protection or
enforcement of any power or right unless such owner previously
shall have given to the Trustee written notice of the default on
account of which such suit, action or proceeding is to be taken,
and unless the registered owners of not less than 10% in principal
amount of the bonds then outstanding shall have made written
request of the Trustee after the right to exercise such power or
right of action, as the case may be, shall have accrued, and shall
have afforded the Trustee a reasonable opportunity either to
proceed to exercise the powers granted to the Trustee, or to
institute such action, suit or proceeding in its name, and unless,
also, there shall have been offered to the Trustee reasonable
security and indemnity against the costs, expenses and liabilities
to be incurred therein or thereby and the Trustee shall have
refused or neglected to comply with such request within a
reasonable time. Such notification, request and offer of indemnity
are, at the option of the Trustee, conditions precedent to the
execution of any remedy. No one or more registered owners of the
bonds shall have any right in any manner whatever by his or their
action to affect, disturb or prejudice the security of this
Ordinance, or to enforce any right thereunder except the manner
herein described. All proceedings at law or in equity shall be
instituted, had and maintained in the manner herein described and
for the benefit of all registered owners of the outstanding bonds.
No remedy conferred upon or reserved to the Trustee or
to the registered owners of the bonds is intended to be exclusive
of any other remedy or remedies, and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Ordinance or by law.
The Trustee may, and upon the written request of the
registered owners of not less than 50% in principal amount of the
bonds then outstanding shall, waive any default which shall have
been remedied before the entry of final judgment or decree in any
suit, action or proceeding instituted under the provisions of this
Ordinance or before the completion of the enforcement of any other
remedy, but no such waiver shall extend to or affect any other
existing or any subsequent default or defaults or impair any rights
or remedies consequent thereon.
All rights of action under this ordinance or under any
of the bonds, enforceable by the Trustee, may be enforced by it
without the possession of any of the bonds, and any such suit,
action or proceeding instituted by the Trustee shall be brought in
its name for the benefit of all the registered owners of such
bonds, subject to the provisions of this Ordinance.
No delay or omission of the Trustee or of any registered
owners of the bonds 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 such default or an acquiescence therein; and
21
every power and remedy given by this ordinance to the Trustee and
to the registered owners of the bonds, respectively, may be
exercised from time to time and as often as may be deemed
expedient.
In any proceeding in which any plaintiff bondholder
prevails to enforce the provisions of this ordinance, any plaintiff
bondholder shall be entitled to recover from the City all costs of
such proceeding, including reasonable attorneys, fees.
Section 22. (a) The terms of this Ordinance shall
constitute a contract between the City and the registered owners of
the bonds and no variation or change in the undertaking herein set
forth shall be made while any of these bonds are outstanding,
except as hereinafter set forth in subsections (b) and (c).
(b) The Trustee may consent to any variation or change
in this Ordinance without the consent of the owners of the
outstanding bonds (a) in connection with the issuance of additional
parity bonds under this Ordinance, (b) in order to cure any
ambiguity, defect or omission herein or to correct or supplement
any defective or inconsistent provisions contained herein as the
City may deem necessary or desirable and not inconsistent herewith
or (c) in order to make any other variation or change which the
Trustee determines shall not adversely affect the interests of the
owners of the bonds.
(c) The owners of not less than 75% in aggregate
principal amount of the bonds then outstanding shall have the
right, from time to time, anything contained in this ordinance to
the contrary notwithstanding, to consent to and approve the
adoption by the City of such ordinance supplemental hereto as shall
be necessary or desirable for the purpose of modifying, altering,
amending, adding to or rescinding, in any particular, any of the
terms or provisions contained in this ordinance or in any
supplemental ordinance; provided, however, that nothing contained
in this Section shall permit or be construed as permitting (a) an
extension of the maturity of the principal of or the interest on
any bond, or (b) a reduction in the principal amount of any bond or
the rate of interest thereon, or (c) the creation of a lien or
pledge superior to the lien and pledge created by this ordinance,
or (d) a privilege or priority of any bond or bonds over any other
bond or bonds, or (e) a reduction in the aggregate principal amount
of the bonds required for consent to such supplemental ordinance.
Section 23. When the bonds have been executed and
sealed as herein provided, they shall be authenticated by the
Trustee, and the Trustee shall deliver the bonds to the Purchaser
upon payment in cash of the Purchase Price. The accrued interest
shall be remitted to the City for deposit into the Bond Fund. The
expenses of issuing the bonds and accomplishing the refunding as
set forth in the delivery instructions to the Trustee signed by the
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Mayor and City Clerk shall also be paid from the Purchase Price
(the "Delivery Instructions "). The amount necessary to fund the
Debt Service Reserve shall be deposited into the Bond Fund. The
amount necessary from the Purchase Price to refund the 1993 Bonds
as set forth in the Delivery Instructions shall be deposited into
an escrow account (the "Escrow Account ") with the trustee for the
owners of the 1993 Bonds. The remainder of the Purchase Price
shall be remitted to the City for deposit into an account of the
City heretofore created and designated "Little Rock Wastewater
Utility Construction Fund" ( "Construction Fund ") . The moneys
deposited into the Construction Fund, including earnings thereon,
shall be disbursed in payment of the costs of accomplishing the
improvements, paying necessary expenses incidental thereto and
paying expenses of issuing the bonds. Disbursements shall be on the
basis of checks which shall contain at least the following
information: the person to whom payment is being made; the amount
of the payment; and the purpose by general classification of the
payment. Each check must be signed by the Manager or Finance
Director of the Little Rock Wastewater Utility. The Committee
shall be required to keep accurate records of all payments made on
the basis of checks.
Section 24. In the event the office of Mayor, City
Clerk, City Treasurer, Committee or Board of Directors 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 functions thereof, or by the office or officer
upon whom such powers, obligations and duties shall be imposed by
law.
So long as the System is under the control of the
Committee, performance by the Committee of any obligation of the
City hereunder shall be deemed performance by the City. The
Committee presently consists of James R. Pender, Dale J. Wintroath,
Stuart S. Mackey, Charles G. Goss and Patrick D. Miller.
Section 25. (a) The City covenants that it shall not
take any action or suffer or permit any action to be taken or
conditions to exist which causes or may cause the interest payable
on the bonds to be included in gross income for federal income tax
purposes. Without limiting the generality of the foregoing, the
City covenants that the proceeds of the sale of the bonds and
Revenues will not be used directly or indirectly in such manner as
to cause the bonds to be treated as "arbitrage bonds" within the
meaning of Section 148 of the Code.
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(b) The City shall assure that (i) not in excess of 10%
of the Net Proceeds of the bonds is used for Private Business Use
if, in addition, the payment of more than 10% of the principal or
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 5% of the Net Proceeds of the bonds are used for a Private
Business Use, and (B) an amount in excess of 5% of the principal or
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 5% of Net 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 or
the improvements financed or refinanced by the 1993 Bonds.
The City shall assure that not in excess of 5% of the
Net 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 subsection (b) , the following terms
shall have the following meanings:
"Net Proceeds" means the face amount of the bonds, plus
accrued interest and premium, if any, less original issue discount,
if any, less any amounts deposited into the Debt Service Reserve
from bond proceeds.
"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.
(c) The City covenants that it will take no action
which would cause the bonds to be "federally guaranteed" within the
meaning of Section 149(b) of the Code. Nothing in this Section
shall prohibit investments in bonds issued by the United States
Treasury.
(d) The City covenants that it will submit to the
Secretary of the Treasury of the United States, not later than the
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15th day of the second calendar month after the close of the
calendar quarter in which the bonds are issued, a statement
required by Section 149(e) of the Code.
(e) The City covenants that it will not reimburse
itself from proceeds of the bonds for costs paid prior to the date
the bonds are issued except in compliance with United States
Treasury Regulation No. 1.150 -2 (the "Regulation "). This ordinance
shall constitute an "official intent" for the purpose of the
Regulation.
(f) The City covenants that it will, in compliance with
the requirements of Section 148(f) of the Code, pay with moneys in
the Bond Fund to the United States Government in accordance with
the requirements of Section 148(f) of the Code, from time to time,
an amount equal to the sum of (1) the excess of (A) the amount
earned on all Non - purpose Investments (as therein defined)
attributable to the bonds, other than investments attributable to
such excess over (B) the amount which would have been earned if
such Non - purpose Investments attributable to the bonds were
invested at a rate equal to the Yield (as defined in the Code) on
the bonds, plus (2) any income attributable to the excess described
in (1), subject to the exceptions set forth in Section 148 of the
Code. The City further covenants that in order to assure
compliance with its covenants herein, it will employ a qualified
consultant to advise the City in making the determination required
to comply with this subsection (f) . Anything herein to the
contrary notwithstanding this provision may be modified or
rescinded if in the opinion of Bond Counsel such modification or
rescission will not affect the tax - exempt status of the bonds for
federal income tax purposes.
Section 26. The Trustee shall only be responsible for
the exercise of good faith and reasonable prudence in the execution
of its trust. The recitals in this Ordinance and in the face of
the bonds are the recitals of the City and not of the Trustee. The
Trustee shall not be required to take any action as Trustee unless
it shall have been requested to do so in writing by the owners of
not less than 10% in principal amount of the bonds then outstanding
and shall have been offered reasonable security and indemnity
against the costs, expenses and liabilities to be incurred therein
or thereby. The Trustee may resign at any time by 60 days' notice
in writing to the City Clerk and to the registered owners of the
bonds, and the City or the majority in value of the registered
owners of the outstanding bonds at any time, with or without cause,
may remove the Trustee. In the event of a vacancy in the office of
Trustee, either by resignation or by removal, the City shall
appoint a new Trustee, such appointment to be evidenced by a
written instrument or instruments filed with the City Clerk. Every
successor Trustee appointed pursuant to this Section shall be a
trust company or bank in good standing, duly authorized to exercise
trust powers and subject to examination by federal or state
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authority. The original Trustee and any successor Trustee shall
file a written acceptance and agreement to execute the trust
imposed upon it or them by this Ordinance, but only upon the terms
and conditions set forth in this Ordinance and subject to the
provisions of this Ordinance, to all of which the respective owners
of the bonds agree. Such written acceptance shall be filed with
the City Clerk and a copy thereof shall be placed in the bond
transcript. Any successor Trustee shall have all the powers herein
granted to the original Trustee. The Trustee's resignation shall
become effective upon the acceptance of the trusts by the successor
Trustee.
Section 27. (a) Moneys held for the credit of the Bond
Fund shall be continuously invested and reinvested pursuant to the
direction of the Committee in Eligible Investments, all of which
shall mature, or which shall be subject to redemption by the holder
thereof, at the option of such holder, not later than the payment
date for interest or principal and interest.
(b) Moneys held for the credit of the Debt Service
Reserve shall be invested and reinvested at the direction of the
Committee in Eligible Investments, all of which shall mature, or
which shall be subject to redemption by the holder thereof, at the
option of such holder, not later than seven (7) years after the
date of investment or the maturity date of the bonds whichever is
earlier.
(c) Moneys held for the credit of any other fund shall
be continuously invested and reinvested pursuant to the direction
of the Committee in Eligible Investments, which shall mature, or
which shall be subject to redemption by the holder thereof, at the
option of such holder, not later than the date or dates when the
moneys held for the credit of the particular fund will be required
for purposes intended.
(d) "Eligible Investments" means any of the securities
that are at the time legal for investment of City funds pursuant to
Resolution No. 10,609 of the City and Arkansas Code Annotated (1999
Supp.) § 14 -58 -309, as each may be amended from time to time. At
August 15, 2001, "Eligible Investments" includes:
(1) U.S. government obligations, U.S. government
agency obligations, and U.S. government instrumentality
obligations, which have a liquid market with a readily
determinable market value;
(2) Certificates of deposit and other evidences
of deposit at financial institutions, and commercial
paper, rated in the highest tier (e.g., A -1, P -1, F -1,
D -1, or higher) by a nationally recognized rating
agency;
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(3) Investment -grade obligations of state,
provincial, and local governments and public
authorities; and
(4) Money market mutual funds regulated by the
Securities and Exchange Commission and whose portfolios
consist only of dollar- denominated securities.
(e) Obligations so purchased as an investment of moneys
in any fund shall be deemed at all times to be a part of such fund
and the interest accruing thereon and any profit realized from such
investments shall be credited to such fund, and any loss resulting
from such investment shall be charged to such fund, except that
interest earnings and profits on investments of moneys in the Debt
Service Reserve which increase the amount thereof above the
Required Level shall to the extent of any such excess be
transferred from time to time into the Bond Fund.
(f) Moneys so invested in Government Securities or in
certificates of deposit of banks to the extent insured by FDIC,
need not be secured by the depository bank or banks.
(g) All investments and deposits shall have a par value
(or market value when less than par) , exclusive of accrued interest
at all times at least equal to the amount of money credited to such
funds and shall be made in such a manner that the money required to
be expended from any fund will be available at the proper time or
times.
(h) Investments of moneys in all funds shall be valued
in terms of current market value as of the first day of each year,
except that direct obligations of the United States (State and
Local Government Series) in book -entry form shall be continuously
valued at par or face principal amount.
(i) The City covenants that it will make all arbitrage
rebate payments to the United States in accordance with Section
148(f) of the Code.
Section 28. All moneys in the 1993 Sewer Revenue Bond
Fund established pursuant to the 1993 Ordinance, including the debt
service reserve therein, are hereby appropriated and shall be used
to refund the 1993 bonds and shall be deposited into the Escrow
Account, and any balance shall be deposited into the Bond Fund.
Section 29. It is covenanted and agreed by the City
with the registered owners of the bonds, or any of them, that the
City and the Committee will faithfully and punctually perform all
duties with reference to the System required by the Constitution
and laws of the State, including the charging and collecting of
reasonable and sufficient rates lawfully established for services
rendered by the System, the segregating of Revenues as herein
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required, and the applying of Revenues to the respective funds
herein created or referred to.
Section 30. The City covenants that it will not sell or
lease the same, or any substantial portion thereof; 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. All revenues derived
from such dispositions shall be deposited into the Revenue Fund.
Section 31. The requirements of Ordinance No. 15,249,
as they may relate to the sale of the Bonds, are hereby waived.
Section 32. The provisions of this Ordinance are hereby
declared to be separable and if any provision shall for any reason
be held illegal or invalid, such holding shall not affect the
validity of the remainder of this Ordinance.
Section 33. All ordinances and resolutions or parts
thereof, in conflict herewith are hereby repealed to the extent of
such conflict.
Section 34. It is hereby ascertained and declared that
the improvements must be accomplished as soon as possible in order
to make the System adequate for the needs of the City and its
inhabitants, without which the life, health, safety and welfare
thereof are jeopardized, and that the issuance of the bonds and the
taking of the other action authorized by this Ordinance is
necessary for the accomplishment thereof. 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: September 4, 2001.
Nancy Wood, City Clerk
Approved as to form:
Tom Carpenter, City Attorney
ME
Jim Dailey, Mayor