20074ORDINANCE NO. 20,074
AN ORDINANCE AUTHORIZING THE CONSTRUCTION OF
BETTERMENTS AND IMPROVEMENTS TO THE SEWER
SYSTEM OF THE CITY OF LITTLE ROCK, ARKANSAS;
AUTHORIZING THE ISSUANCE OF A SEWER REVENUE
BOND, SERIES 2009A FOR THE PURPOSE OF
FINANCING THE COST THEREOF; PROVIDING FOR
THE PAYMENT OF THE PRINCIPAL AND INTEREST ON
THE BOND; AND PRESCRIBING OTHER MATTERS
RELATING THERETO.
WHEREAS, the City of Little Rock, Arkansas (the
"City ") owns a sewer system (the "System "), which is operated by
the Sewer Committee of the City (the "Committee "); and
WHEREAS, the Committee has determined that
betterments and improvements to the System (the "Improvements ")
are necessary in order to improve handling of wet weather flows
and the quality of sanitary sewer service in the City; and
WHEREAS, the Committee has caused to be prepared by
the engineering staff of the Little Rock Wastewater Utility a
preliminary report containing a general description and
estimates of cost for the Improvements that have been examined
and approved by the Committee and the Board of Directors and a
copy of which report is on file in the office of the City Clerk
and the Chief Executive Officer of the System (the "CEO ") where
it may be inspected by any interested person; and
WHEREAS, the City does not have available funds to pay
the estimated costs of the Improvements, including bond issuance
costs, contingencies and interest during construction, but can
obtain the same by the issuance of a sewer revenue bond; and
WHEREAS, the City is making arrangements for the sale
of a $8,000,000 principal amount bond to the Arkansas
Development Finance Authority, as purchaser (the "Bondholder "),
at a price of par for a bond bearing interest at the rate of 10
per annum pursuant to a Bond Purchase Agreement (the
"Agreement ") among the City., the Bondholder and the Arkansas
Natural Resources Commission (the "Commission "), which has been
presented to and is before this meeting; and
WHEREAS, the City is authorized under Amendment No. 65
to the Arkansas Constitution and Title 14, Chapter 235,
Subchapter 2 of the Arkansas Code of 1987 Annotated (the
"Authorizing Legislation "), to issue and sell the bond; and
WHEREAS, the City has outstanding (a) its Sewer
Revenue Bond, Series 1990 (the "Series 1990 Bond ") , authorized
by Ordinance No. 15,966, adopted November 20, 1990 (the "1990
Ordinance "); (b) its Sewer Revenue Bond, Series 1991 (the
"Series 1991 Bond "), authorized by Ordinance No. 16,030, adopted
April 2, 1991 (the "1991 Ordinance "); (c) its Sewer Revenue
Bond, Series 1996 (the "Series 1996 Bond "), authorized by
Ordinance No. 17,097, adopted January 16, 1996 (the "1996
Ordinance "); (d) its Sewer Revenue Bond, Series 1999 (the
"Series 1999 Bond "), authorized by Ordinance No. 18,067, adopted
July 20, 1999 (the "1999 Ordinance "); (e) its Sewer Refunding
and Construction Revenue Bonds, Series 2001 (the "Series 2001
Bonds "), authorized by Ordinance 18,557, adopted September 4,
2001 (the "2001 Ordinance "); (f) its Sewer Revenue Bond, Series
2004A (the "Series 2004A Bond "), authorized by Ordinance No.
19,006, adopted December 16,2003 (the "2004A Ordinance "); (g)
its Sewer Revenue Bond, Series 2004B (the "Series 2004B Bond "),
authorized by Ordinance 19,007, adopted December 16, 2003 (the
"2004B Ordinance ") ; (h) its Sewer Revenue Bond, Series 2004C
(the "Series 2004C Bond ") , authorized by Ordinance No. 19,229,
adopted November 1, 2004 (the "2004C Ordinance ") ; (i) its Sewer
Refunding and Construction Revenue Bonds, Series 2005 (the
"Series 2005 Bonds ") , authorized by Ordinance 19,307, adopted
April 19,2005 (the "2005 Ordinance "); (j) its Sewer Construction
Revenue Bonds, Series 2007A (the "Series 2007A Bonds ")
authorized by Ordinance No. 19,746, adopted May 15, 2007 (the
"2007A Ordinance"); (k) its Sewer Revenue Bond, Series 2007B
(the "Series 2007B Bond "), authorized by Ordinance No. 19,769,
adopted June 19,2007 (the "2007B Ordinance "); (1) its Sewer
Construction Revenue Bonds, Series 2007C (the "Series 2007C
Bonds ") authorized by Ordinance No. 19,814, adopted September
18, 2007 (the "2007C Ordinance "); and (m) its Sewer Revenue
Bonds, Series 2008 (the "Series 2008 Bonds "), authorized by
Ordinance No. 20,046, adopted November 18, 2008; and
WHEREAS, the Bondholder proposes to pledge the bond as
collateral for the payment of its revolving loan fund revenue
bonds (the "ADFA Bonds ") pursuant to its general bond
resolution, as amended or supplemented from time to time, to the
bank or trust company to be named as trustee thereunder (the
"ADFA Trustee "); and
WHEREAS, the City is required to pay to the Arkansas
Development Finance Authority, as servicer (the "Authority ") , a
financing fee equal to to per annum of the outstanding principal
amount of the bond (the "Financing Fee ");
NOW, THEREFORE, BE IT ORDAINED by the Board of
Directors of the City of Little Rock, Arkansas:
Section 1. The Improvements shall 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. The sale to the Bondholder of up to
$8,000,000 in principal amount of a bond from the City at a
price of par for a bond bearing interest at the rate of to 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 bond is 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. 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
bond.
Section 4. Under the authority of the Constitution
and laws of the State of Arkansas (the "State "), including
particularly the Authorizing Legislation, City of Little Rock,
Arkansas Sewer Revenue Bond, Series 2009A (the "bond ") is hereby
authorized and ordered issued in the principal amount of
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$8,000,000, the proceeds of the sale of which are necessary to
provide sufficient funds for accomplishing the Improvements,
paying expenses incidental thereto and expenses of issuing the
bond, and funding interest during construction.
The bond shall bear interest at the rate of to per
annum based upon a 360 -day year of twelve consecutive 30 -day
months. The bond shall be dated the date of delivery to the
Bondholder. Interest shall be payable on October 15, 2009 and
on each April 15 and October 15 thereafter. Principal shall be
payable in installments on October 15, 2012 and each October 15
and April 15 thereafter until the unpaid principal is paid in
full as follows:
Date Amount Date Amount
10/15/12
$163,645
10/15/22
$199,677
04/15/13
165,281
04/15/23
201,675
10/15/13
166,935
10/15/23
203,691
04/15/14
168,603
04/15/24
205,729
10/15/14
170,289
10/15/24
207,785
04/15/15
171,993
04/15/25
209,863
10/15/15
173,713
10/15/25
211,963
04/15/16
175,449
04/15/26
214,081
10/15/16
177,205
10/15/26
216,223
04/15/17
178,977
04/15/27
218,385
10/15/17
180,765
10/15/27
220,569
04/15/18
182,573
04/15/28
222,775
10/15/18
184,399
10/15/28
225,003
04/15/19
186,243
04/15/29
227,253
10/15/19
188,105
10/15/29
229,525
04/15/20
189,987
04/15/30
231,819
10/15/20
191,887
10/15/30
234,139
04/15/21
193,805
04/15/31
236,479
10/15/21
195,743
10/15/31
238,845
04/15/22
197,701
04/15/32
241,223
The bond will be registered as to both principal and
interest, payable to the Bondholder, or registered assigns, as
set forth hereinafter in the bond form, and shall be numbered
R -1.
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
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of the bond (except upon final payment) and such payments shall
discharge the obligation of the City to the extent thereof. The
City Clerk shall keep a payment record and make proper notations
thereon of all payments of principal and interest.
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 the bond have been fully paid, it shall be canceled
and delivered to the City Clerk.
Section 5. The bond 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 bond is not a general
obligation of the City but is a special obligation, the
principal of and interest on which, and Financing Fee in
connection therewith, are secured by a pledge of and are payable
from revenues derived from the System ( "Revenues ") . The pledge
of Revenues is subordinate to the pledge in favor of the 1990
Bond, the 1991 Bond, the 1996 Bond, the 1999 Bond, the 2001
Bonds, the 2004A Bond, the 2004B Bond, the 2004C Bond, the 2005
Bonds, the 2007A Bonds, the Series 2007B Bond, the Series 2007C
Bonds and the 2008 Bonds (collectively, the "Prior Bonds "). The
bond and interest thereon shall not constitute an indebtedness
of the City within any constitutional or statutory limitation.
Section 6. The bond 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 bond)
UNITED STATES OF AMERICA
STATE OF ARKANSAS
COUNTY OF PULASKI
CITY OF LITTLE ROCK
to SEWER REVENUE BOND, SERIES 2009A
No. R -1 $8,000,000
KNOW ALL MEN BY THESE PRESENTS:
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That the City of Little Rock, Pulaski County,
Arkansas (the "City ") , for value received, hereby acknowledges
itself to owe and promises to pay to the Arkansas Development
Finance Authority, or registered assigns, solely from the
special fund provided as hereinafter set forth, the principal
sum of
EIGHT 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 to 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 October 15, 2009 and on each April 15
and October 15 thereafter. Principal shall be payable in
installments on October 15, 2012 and on each April 15 and
October 15 thereafter until the unpaid principal is paid 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
financing of the
improvements to the
interest during con
issuing this bond,
compliance with the
is issued for the purpose of providing
costs of constructing betterments and
sewer system of the City (the "System "),
struction, and costs of authorizing and
and is issued pursuant to and in full
Constitution and laws of the State of
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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.
a°° -7•t of the City, duly adopted and approved on the r0t4 day
of 2009 (the "Authorizing Ordinance"
Referenc4 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 Natural Resources Commission (the "Commission "),
and in order to effect such assignment the assignor shall
promptly notify the City Clerk by registered mail, and the
assignee shall surrender this bond along with a written approval
of the Commission 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 (as reflected by the Payment Record maintained by the
City Clerk), 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 April 15, 2019, 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 the net
revenues derived from the operation of the System. In this
regard, the pledge of net System revenues is subordinate to the
pledge of System revenues to Sewer Revenue Bonds, Series 1990,
1991, 1996, 1999, 2004A, 2004B, 2004C, 2007B and 2008, Sewer
Construction Revenue Bonds, Series 2007A and 2007C, and Sewer
Refunding and Construction Revenue Bonds, Series 2001 and 2005,
so long as any of such bonds are outstanding. A sufficient
amount of System revenues to pay principal and interest has been
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duly set aside and pledged as a special fund for that purpose,
identified as the "2009A ADFA Bond Fund," in 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. This bond is issued with the intent
that the laws of the State shall govern its construction.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all
acts, conditions and things required by the Constitution and
statutes of the State 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.
IN WITNESS WHEREOF, the City of
has caused this bond to be executed in its
City Clerk, thereunto duly authorized, and
be affixed, all as of the day of
ARKANSAS
ATTEST:
Ci y Cler 61, z
(SEAL)
Little Rock, Arkansas
name by its Mayor and
its corporate seal to
2009.
CITY OF LITTLE
Mayor
[A Registration Certificate and Record of Payment
of Advances shall be attached to the bond.]
ROCK,
Section 7. The City has heretofore fixed sewer rates
by Ordinance No. 19,647, adopted on November 28, 2006.
Reference is hereby made to such Ordinance for the details
thereof and other provisions pertaining thereto, which sewer
rates are hereby confirmed and continued as provided therein.
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 and notes to which Revenues are pledged
(collectively, "System Bonds "), as the same become due, pay the
Financing Fees 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. The
rates in effect for sewer service at this time shall not be
reduced without the prior written consent of the Commission and
the Bondholder.
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 8. All of the provisions of the 1990
Ordinance, the 1991 Ordinance, the 1996 Ordinance, the 1999
Ordinance, the 2001 Ordinance, the 2004A Ordinance, the 2004B
Ordinance, the 2004C Ordinance, the 2005 Ordinance, the 2007A
Ordinance, the 2007B Ordinance, the 2007C Ordinance and the 2008
Ordinance (the "Prior Bond Ordinances ") (including those
incorporated therein by reference), as now in effect, and except
those provisions clearly inapplicable hereto, including, without
limitation, the provisions pertaining to the collection, the
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
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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 bond is
paid, or provision made therefor.
Section 9. 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 Commission; 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.
Section 10. (a) After making the required payments
into the Sewer Operation and Maintenance Fund being maintained
in accordance with the 2001 Ordinance and into the bond funds
for the Prior Bonds and any additional bonds having a priority
on the pledge of Revenues over the pledge in favor of the bond
and after paying the financing and administrative fees in
connection with the Prior Bonds, there shall be paid from the
Sewer Fund being maintained in accordance with the 2001
Ordinance into an account of the City in a special fund to be
created by the Bondholder (the "2009A ADFA Bond Fund ") for the
purpose of paying the principal of and interest on the bond the
amounts specified in (b) below.
(b) There shall be deposited from proceeds of the
bond or, at the direction of the Committee, from moneys in the
Sewer Fund, into the 2009A ADFA Bond Fund on October 15, 2009
and on each April 15 and October 15 thereafter until April 15,
2012, the interest due on the bond on such dates. Commencing on
the first business day of each month thereafter, there shall be
deposited from moneys in the Sewer Fund into the 2009A ADFA Bond
Fund an amount equal to 1/6 of the amount of interest on and
principal of the bond next due.
(c) If Revenues are insufficient to make the
required payment on or before the first business day of the
following month into the 2009A 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 2009A ADFA Bond
Fund on the first business day of the next month.
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(d) When the moneys held in the 2009A 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 in full the
principal of and interest on the bond, the City shall not be
obligated to make any further payments into the 2009A ADFA Bond
Fund.
(e) All moneys in the 2009A ADFA Bond Fund
representing City Funds shall be used solely for the purpose of
paying the principal of and interest on the bond and the City
shall automatically receive a credit for the amount of such City
Funds on hand in the 2009A 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
Funds each April 15 and October 15 and such earnings and income
shall be credited against the next six monthly payments.
(f) The bond shall be specifically secured by a
pledge of all Revenues required to be placed into the 2009A ADFA
Bond Fund. This pledge in favor of the bond 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 11. After making the payments into the 2009A
ADFA Bond Fund required by Section 10 hereof, there shall be
paid from the Sewer Fund the Financing Fee to the Authority.
The Financing Fee shall be payable on each date interest on the
bond is due and shall be calculated on the same basis as
interest on the bond. The payment of the Financing Fee is
expressly made subordinate to the payment of the principal of
and interest on the bond.
Section 12. The City shall assure that (1) not in
excess of 10°
Business Use
the principal
term thereof
arrangement,
of the proceeds of the bond is used for Private
if, in addition, the payment of more than 100 of
or 10% of the interest due on the bond during the
is, under the terms of the bond or any underlying
directly or indirectly secured by any interest in
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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 (2) that, in the
event that both (A) in excess of 5% of the proceeds of the bond
are used for a Private Business Use, and (B) an amount in excess
of 50 of the principal or 50 of the interest due on the bond
during the term thereof is, under the terms of the bond 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 proceeds of the bond 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 5% of the
proceeds of the bond 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, "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.
Section 13. The principal and interest installments
shall be prepayable prior to maturity as provided in the bond
form in Section 6 hereof.
Section 14. As long as the bond is outstanding, the
City shall not issue or attempt to issue any bonds having or
claimed to be entitled to a priority of lien on Revenues over
the lien securing the bond, including any and all future
extensions, betterments and improvements to the System except as
provided in this Section.
The City may issue additional revenue bonds having a
priority on or on a parity with the lien on Revenues in favor of
the bond to finance or pay the cost of constructing betterments
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and improvements to the System or to refund outstanding System
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 (the
"Accountant ") reciting the opinion that (i) in the case of
parity bonds either (A) the Net Revenues (Net Revenues being
gross Revenues less operation and maintenance expenses, but not
including depreciation) for the fiscal year preceding the year
in which such additional bonds are to be issued were not less
than 1100 of Total Annual Debt Service Requirements (Total
Annual Debt Service Requirements being the average annual debt
service requirements (including principal, interest and
financing and administrative fees) on all outstanding System
Bonds and the bonds then proposed to be issued plus the average
annual Financing Fee) or (B) 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 1100 of the Total Annual Debt Service Requirements, or (ii)
in the case of the senior lien bonds, either (A) the Net
Revenues for the fiscal year preceding the year in which such
additional bonds are to be issued were not less than 1200 of the
Total Annual Debt Service Requirements or (B) 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 into consideration any enacted increase in Revenues, to
be not less than 1200 of the Total Annual Debt Service
Requirements.
The additional bonds, the issuance of which is
restricted and conditioned by this Section, shall not be deemed
to mean bonds the security and source of payment of which are
subordinate and subject to the priority of the bond and such
additional bonds may be issued without complying with the terms
and conditions of this Section.
Section 15. It is covenanted and agreed by the City
with the Bondholder, the Authority and the Commission that it
will faithfully and punctually perform all duties with reference
to the System required by the Constitution and laws of the State
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
Revenues and applying them to the respective funds maintained
pursuant to the Prior Bond Ordinances and this Ordinance.
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The City covenants and agrees that the Bondholder
shall have the protection of all the provisions of the
Authorizing Legislation, and that the City will diligently
proceed to enforce those provisions to the end of the Bondholder
realizing fully upon its security. And, if the City shall fail
to proceed within 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 the bond, or if the City defaults in
any 2009A ADFA Bond Fund requirement or in the performance of
any of the other covenants contained in this Ordinance, the
Bondholder may, by proper suit, compel the performance of the
duties of the officials of the City under the laws of the State.
In the case of a default in the payment of the principal of and
interest on the bond, 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 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 the bond and
interest outstanding and to apply 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. 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 the bond or of any provision of this Ordinance,
including reasonable attorney's fees, shall be paid by the City.
The Authority may enforce all rights and exercise all remedies
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available to the Bondholder in the event the Financing Fee is
not paid when due.
Section 16. When the bond has been executed and
sealed as herein provided, it shall be delivered to the
Bondholder upon payment of all or a portion of the purchase
price in accordance with the Agreement. Sale proceeds in the
amount necessary to make all or a portion of the semiannual
interest and Financing Fee payments due on each April 15 and
October 15 to and including April 15, 2012 shall be applied,
unless otherwise directed by the Committee, to the payment of
Financing Fees and interest on the bond on such dates. The
balance of the sale proceeds shall be deposited, as and when
received, in an account of the City heretofore created and
designated the "Little Rock Wastewater Utility Construction
Fund" (the "Construction Fund ") . The proceeds of the bond in
the Construction Fund shall be used for directly paying, or
reimbursing the City for, the costs paid in accomplishing the
Improvements, expenses incidental thereto and the expenses of
issuing the bond approved in accordance with the Agreement.
Payments from the Construction Fund shall be by check or voucher
signed by either the CEO or Manager of Finance of the System
(the "Finance Manager "), and drawn on the depository. Each such
check or voucher shall briefly specify the purpose of the
expenditure.
Section 17. The terms of this Ordinance shall
constitute a contract among the City, the Bondholder and the
Commission and no variation or change in the undertaking herein
set forth shall be made while the bond is outstanding unless
consented to in writing by the Bondholder and the Commission.
Section 18. The Committee will keep proper records,
books and accounts relating to the operation of the System,
which shall be kept 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 in
accordance with generally accepted government accounting
standards. Such books shall be available for inspection by the
Bondholder and the Commission, or the agent or the
representative of either, at reasonable times and under
reasonable circumstances. The City agrees to have these records
audited by an Accountant selected by the Committee at least once
each year.
15
In the event the Committee fails or refuses to
furnish or cause such reports to be furnished, the Bondholder
may have the reports made, and the cost thereof shall be charged
against the Sewer Operation and Maintenance Fund.
Section 19. The City covenants and agrees that it
will maintain the System in good condition and operate it in an
efficient manner and at reasonable cost. While the bond is
outstanding, the City 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 selected by the
Committee and authorized and qualified under the laws of the
State 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 in connection with similar
facilities and undertakings as the System. 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 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 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
maintained in accordance with the 2001 Ordinance, 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, but nothing herein shall be construed as
preventing the City from doing so.
Section 20. The City agrees that the Bondholder may
pledge the bond 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 bond is pledged
and /or the ADFA Bonds are insured. In addition, the City agrees
that while the bond is pledged and /or the ADFA Bonds are
d U.,
insured, copies of all financial information shall be furnished
to the ADFA Trustee and /or the municipal bond insurer.
Section 21. In the event the offices of Mayor, City
Clerk, CEO, Finance Manager, Board of Directors, 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 22. It is understood and agreed that the
Committee, acting for and on behalf of the City, has custody of
and control over the System, operates, maintains and repairs the
System and collects and handles Revenues. Therefore, it is
understood and agreed that even though there are some express
references to the Committee, all references herein to the City
shall, when appropriate in view of the authority and
responsibility of the Committee, be construed to mean and
include the Committee. So long as the Committee operates the
System for the City, performance by the Committee of any right
or obligation of the City hereunder shall be deemed performance
by the City. The Committee presently consists of James R.
Pender, Chairman, Dale J. Wintroath, Vice - Chairman, Cindy Miller
Secretary, Ken Griffey and Marilyn K. Perryman.
Section 23. The requirements of Ordinance No.
15,249, as they may relate to the authorization and sale of the
bond, are hereby waived.
Section 24. 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 this Ordinance.
17
Section 25.
"Bondholder" shall include
registered assign thereof.
Reference in this Ordinance to
the original Bondholder or any
Section 26. All ordinances and resolutions
thereof in conflict herewith are hereby repealed to
of such conflict.
ADOPTED: March 10, 2009
ATTEST:
City lerk Nancy Wood
AS TO FORM:
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City Attorne
and parts
the extent