Loading...
ORD 98-54 GENERAL OBLIGATION BONDSCITY OF BAINBRIDGE ISLAND, WASHINGTON ORDINANCE NO. 98-54 AN ORDINANCE of the City of Bainbridge Island, Washin~on, relating to contracting indebtedness; providing for the issuance, specifying the maturities, interest rates, terms and covenants of $9,900,000 par value of Limited Tax General Obligation Improvement and Refunding Bonds, 1998, for the purpose of providing funds with which to (a) pay part of the cost of constructing a new City Hall; (b) pay the cost of road construction within the City; (c) purchase open space property or development fights therein to maintain urban agriculture land; (d) pay the cost of refunding, paying and redeeming the callable portion of the City's outstanding Limited Tax General Obligation Bonds, 1994; and (e) pay the administrative costs of such refunding and the costs of issuance and sale of such bonds; establishing a bond redemption fund and project funds; providing for and authorizing the purchase of certain obligations out of the proceeds of the sale of the refunding bonds herein authorized and for the use and application of the money derived from those investments; authorizing the execution of an agreement with The Bank of New York of New York, New York, as refunding trustee; providing for the call, payment and redemption of the outstanding bonds to be refunded; providing for bond insurance; and approving the sale and providing for the delivery of the bonds to McDonald Investments Inc., a KeyCorp Company, Seattle, Washington. WHEREAS, the City of Bainbridge Island, Washington (the "City"), is in need of completing construction of its City Hall, constructing roads within the City and purchasing open space property or development fights therein to maintain urban agriculture land (collectively, the "Projects"), the estimated cost of which is $8,900,000, and the City does not have available sufficient funds to pay the cost; and WHEREAS, pursuant to Ordinance No. 94-33, the City heretofore issued its $1,425,000 par value Limited Tax General Obligation Bonds, 1994 (the "1994 Bonds"), for the purpose of providing funds with which to pay part of the cost of improvements to the City's Sewage Treatment Plant; and 50060084.02 WHEREAS, by Ordinance No. 94-33 the City reserved the fight to redeem the 1994 Bonds maturing in 2014 prior to their maturity on December 1, 2004, at a price of par plus accrued interest to the date fixed for redemption; and WHEREAS, there are presently outstanding $1,000,000 par value of 1994 Bonds maturing on December 1, 2014, and bearing interest at the rate of 6.80% per annum (the "Refunded Bonds"); and WHEREAS, after due consideration, it appears to the City Council that the Refunded Bonds may be refunded by the issuance and sale of the limited tax general obligation improvement and refunding bonds authorized herein (the "Bonds") so that a substantial savings will be effected by the difference between the allocable portion of principal and interest cost over the life of the Bonds and the principal and interest cost over the life of the Refunded Bonds but for such refunding, which refunding will be effected by: (a) The issuance of the Bonds and the payment of the costs of the issuance of the Bonds and the costs of the refunding; and (b) The payment of the interest on the Refunded Bonds when due up to and including December 1, 2004, and the call, payment and redemption on December 1, 2004, of all of the Refunded Bonds at a price of par; and WHEREAS, to effect that refunding in the manner that will be most advantageous to the City and its taxpayers it is found necessary and advisable that certain Acquired Obligations (hereinafter defined) bearing interest and maturing at such time or times as necessary to accomplish the refunding as aforesaid be purchased out of a portion of the proceeds of the Bonds; and WHEKEAS, the City Council deems it to be in the best interests of the City to issue and sell the Bonds to pay (a) the costs of the Projects: (b) the cost of advance refunding the Refunded 50060084.02 -2- Bonds; and (c) the administrative costs of such refunding and the costs of issuance and sale of the Bonds; and WHEREAS, MBIA Insurance Corporation of Armonk, New York, has made a commitment to issue an insurance policy (the "Municipal Bond Insurance Policy") insuring the payment when due of the principal of and interest on the Bonds as provided therein, and the City Council deems that the purchase of the Municipal Bond Insurance Policy is in the best interest of the City; and WHEKEAS, McDonald Investments Inc., a KeyCorp Company, Seattle, Washington, has offered to purchase the Bonds under the terms and conditions hereinafter set forth in the form of a bond purchase contract; NOW, THEKEFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DO ORDAIN as follows: Section 1.. Definitions. As used in this ordinance, the following words shall have the following meanings: "Acquired Obligations" means those United States Treasury Certificates of Indebtedness, Notes and Bonds--State and Local Government Series and other direct, noncallable obligations of the United States of America purchased to accomplish the refunding of the Refunded Bonds as authorized by this ordinance. "Bond Fund" means that special fund of the City known as the Limited Tax General Obligation Improvement and Refunding Bond Fund, 1998, created by this ordinance for the payment of the principal of and interest on the Bonds. "Bond Insurer" means MBIA Insurance Corporation of Armonk, New York. "Bond Register" means the registration books of the Bond Registrar on which are recorded the names of the owners of the Bonds. 50060084.02 -3- "Bond Registrar" means the fiscal agencies of the State of Washington as the same may be designated from time to time. "Bonds" means the $9,900,000 par value of Limited Tax General Obligation Improvement and Refunding Bonds, 1998, authorized to be issued by this ordinance. "City" means the City of Bainbridge Island, Washington, a duly organized code city of the State of Washington. "Code" means the Internal Revenue Code of 1986, as amended. "DTC" means The Depository Trust Company, New York, New York. "Letter of Representations" means the Blanket Issuer Letter of Representations between the City and DTC authorized to be issued by this ordinance. "Municipal Bond Insurance Policy" means the policy issued by the Bond Insurer insuring the payment when due of the principal of and interest on the Bonds as provided therein. "Projects" means the general City purposes for which the new money portion of the Bonds will be used, which include, the completion of construction of the City Hall, construction of City roads and the purchase of open space property or development rights therein to maintain urban agriculture land. "Refunded Bonds" means the outstanding Limited Tax General Obligation Bonds, 1994, of the City maturing in 2014 issued pursuant to Ordinance No. 94-33, the refunding of which has been provided for by this ordinance. "Refunding Plan" means: (a) the placement of sufficient proceeds of the Bonds which, with other money of the City, if necessary, will acquire the Acquired Obligations to be deposited, with cash, if necessary, with the Refunding Trustee; (b) the payment of the interest on the Refunded Bonds when due up to and including December 1, 2004, and the call, payment and redemption on December 1, 2004, of all of the Refunded Bonds at a price of par; and 50060084.02 -4- (c) the payment of the costs of issuing the Bonds and the costs of carrying out the foregoing elements of the Refunding Plan. "Refunding Trust Agreement" means a Refunding Trust Agreement between the City and the Refunding Trustee substantially in the form of that which is on file with the City Clerk and by this reference incorporated herein. "Refunding Trustee" means The Bank of New York of New York, New York, serving as trustee or escrow agent or any successor trustee or escrow agent. "Waterworks Utility" means the City's combined water system, sanitary sewage disposal system and storm and surface water drainage system, and all additions thereto and betterments and extensions thereof at any time made. Section 2. Debt Capacity. The assessed valuation of the taxable property within the City as ascertained by the last preceding assessment for City purposes for the calendar year 1998 is $2,156,635,089, and the City has outstanding general indebtedness evidenced by limited tax general obligation bonds, contracts and loans in the principal amount of $9,935,730 (not including the Refunded Bonds) incurred within the limit of up to 1-1/2% of the value of the taxable property within the City permitted for general municipal purposes without a vote of the qualified voters therein and no unlimited tax general obligation bonds incurred within the limit of up to 2-1/2% of the value of the taxable property within the City for capital purposes only issued pursuant to a vote of the qualified voters of the City and no unlimited tax general obligation bonds for utility purposes or for parks and open space purposes issued pursuant to a vote of the qualified voters of the City. The amount of indebtedness for which the Bonds are authorized herein to be issued is $9,900,000. Section 3. Findings. (a) City Findings with Respect to Refunding. The City Council finds and determines that the issuance and sale of the Bonds at this time will effect a savings to the City and is in the 50060 O84.02 -5- best interest of the City and its taxpayers and in the public interest. In making such fmding and determination, the City Council has given consideration to the fixed maturities of the Bonds and the Refunded Bonds, the costs of issuance of the Bonds and the known earned income from the investment of the proceeds of the issuance and sale of the Bonds pending payment and redemption of the Refunded Bonds. The City Council further finds and determines that the money to be deposited with the Refunding Trustee for the Refunded Bonds in accordance with Section 19 of this ordinance will discharge and satisfy the obligations of the City under Ordinance No. 94-33 with respect to the Refunded Bonds, and the pledges, charges, trusts, covenants and agreements of the City therein made or provided for as to the Refunded Bonds, and that the Refunded Bonds shall no longer be deemed to be outstanding under such ordinance immediately upon the deposit of such money with the Refunding Trustee. (b) City Findings with Respect to Acquisition of Ri.~hts in Urban Farmland and Open Space. City Council finds that: (1) The City is a desirable place to live and visit because of the quality, variety and natural beauty of its open space which contributes a vital ingredient to the quality of life of the people of the City. These open space resources presently include hundreds of acres suitable for farming, and other woodlands, wetlands and open lands adjacent to these farmlands. Such lands provide natural separation between urban developments, furnish unique, aesthetic and economic benefits to the citizens of the City and are an important part of our heritage. (2) Land suitable for farming is an irreplaceable natural resource with soil, topographic characteristics which have been enhanced by generations of agricultural use. When such land is converted to urban or suburban uses which do not require those special fertility and landscape characteristics important community resources are lost permanently to the citizens of the City. (3) The agricultural industry of the City provides the citizens of the City with the opportunity to harvest locally grown berries, fruit, herbs and vegetables at U-pick farms and to purchase locally produced food and farm products through farmer's markets, road side stands and other local outlets throughout the City. 50060084.02 -6- (4) It is the policy of the State of Washington and the City to protect, preserve and enhance agricultural and open space lands as evidenced by the September 1, 1994, Comprehensive Plan of the City and Chapter 84.34 RCW authorizing current use taxation of agricultural and open space land, and RCW 84.34.300 et seq. limiting and deferring road and utility assessments on farm and open space land. (5) However those policies and regulations by themselves have not been effective to provide long-term protection of farm and open space lands under the pressure of increasing urban development. The amount of open space and agricultural use has declined with much of this loss having been caused by actual or prospective urban development. (6) Generally farm and open space lands which are close to urban development have greater market value for future urban development than their market value for commercial farming or other open space uses. This fact encourages the speculative purchase of these lands at high prices for future development, regardless of the current zoning of such lands. Farm lands which have a market value greater than their agricultural value do not attract sustained agricultural investments and eventually these lands are sold by farmers and removed from commercial agricultural uses. (7) The permanent acquisition by the City of voluntarily offered interests in farm and open space land within the County is provided in this ordinance and is authorized by the Constitution and Statutes of the State of Washington will permit these lands to remain in farm and open space uses in a developing urban area and provide long-term protection of the public interests which are served by farm lands and open space lands within the County. (8) An acquisition of interest in farm and open space lands provided in this ordinance is a public purpose of the City and the financing of such acquisition requires that the City issue its general obligation bonds that are included in the authorization in this ordinance. Section 4. Authorization of Bonds. The City shall borrow money on the credit of the City and issue and sell $9,900,000 par value of negotiable limited tax general obligation improvement and refunding bonds for general City purposes to provide funds with which to finance the Projects and to carry out the Refunding Plan. The general indebtedness to be incurred shall be within the limit of up to 1-1/2% of the value of the taxable property within the City permitted for general municipal purposes without a vote of the qualified voters therein. 50060084.02 -7- Section 5. Description of Bonds. The Bonds shall be called Limited Tax General Obligation Improvement and Refunding Bonds, 1998, of the City; shall be in the aggregate principal amount of $9,900,000; shall be dated December 1, 1998; shall be in the denomination of $5,000 or any integral multiple thereof within a single maturity; shall be numbered separately in the manner and with any additional designation as the Bond Registrar deems necessary for purposes of identification; shall bear interest (computed on the basis of a 360-day year of twelve 30-day months) payable semiannually on each June 1 and December 1, commencing June 1, 1999, to the maturity or earlier redemption of the Bonds; and shall mature on December 1 in the years, in the amounts and bear interest at the rates per annum as follows: Maturity Interest Years Amounts Rates 1999 $290,000 2000 300,000 2001 315,000 2002 325,000 2003 345,000 2004 370,000 2005 380,000 2006 395,000 2007 410,000 2008 435,000 2009 450,000 2010 645,000 2011 670,000 2012 700,000 2013 725,000 2014 765,000 2015 555,000 2016 580,000 2017 610,000 2018 635,000 4.00% 4.00 4.00 4.00 4.00 4.00 4.00 4.00 4.10 4.15 4.20 4.25 4.30 4.35 4.40 4 50 4 60 4 60 4.70 4.70 The above maturity amounts are allocated to paying the respective costs of the Project and of carrying out the Refunding Plan, including a ratable share of proceeds used to pay the costs of issuance of the Bonds, in accordance with the schedule attached hereto as Exhibit A and 50060084.02 -8- incorporated herein by this reference. The life of the Projects to be carried out with the new money portion of the Bonds exceeds the term of those Bonds. Section 6. Reo. istration and Transfer of Bonds. The Bonds shall be issued only in registered form as to both principal and interest and shall be recorded on the Bond Register. The Bond Register shall contain the name and mailing address of the owner of each Bond and the principal amount and number of each of the Bonds held by each owner. Bonds surrendered to the Bond Registrar may be exchanged for Bonds in any authorized denomination of an equal agUegate principal amount and of the same interest rate and maturity. Bonds may be transferred only if endorsed in the manner provided thereon and surrendered to the Bond Registrar. Any exchange or transfer shall be without cost to the owner or transferee. The Bond Registrar shall not be obligated to exchange or transfer any Bond during the 15 days preceding any principal payment or redemption date. The Bonds initially shall be registered in the name of CEDE & CO., as the nominee of DTC. The Bonds so registered shall be held in fully immobilized form by DTC as depository in accordance with the provisions of the Letter of Representations. To induce DTC to accept the Bonds as eligible for deposit at DTC, the City approves the Letter of Representations. The Finance Director of the City is authorized and directed to execute and deliver the Letter of ,, Representations, on behalf of the City, to DTC on or before the date of delivery of the Bonds to the purchaser thereof and the payment therefor, with such changes as the Finance Director of the City deems to be in the best interests of the City, and his execution and delivery of the Letter of Representations shall evidence irrevocably the approval of the Letter of Representations by the City. Neither the City nor the Bond Registrar shall have any responsibility or obligation to DTC participants or the persons for whom they act as nominees with respect to the Bonds regarding accuracy of any records maintained by DTC or DTC participants of any amount in respect of 50060084.02 -9- principal of or interest on the Bonds, or any notice that is permitted or required to be given to registered owners hereunder (except such notice as is required to be given by the Bond Kegistrar to DTC). For so long as any Bonds are held in fully immobilized form, DTC or its successor depository shall be deemed to be the registered owner for all purposes hereunder and all references to registered owners, bondowners, bondholders or the like shall mean DTC or its nominees and shall not mean the owners of any beneficial interests in the Bonds. Registered ownership of such Bonds, or any portions thereof, may not thereat~er be transferred except: (i) to any successor of DTC or its nominee, if that successor shall be qualified under any applicable laws to provide the services proposed to be provided by it; (ii) to any substitute depository appointed by the City or such substitute depository's successor; or (iii) to any person if the Bonds are no longer held in immobilized form. Upon the resignation of DTC or its successor (or any substitute depository or its successor) from its functions as depository, or a determination by the City that it no longer wishes to continue the system of book entry transfers through DTC or its successor (or any substitute depository or its successor), the City may appoint a substitute depository. Any such substitute depository shall be qualified under any applicable laws to provide the services proposed to be provided by it. If (i) DTC or its successor (or substitute depository or its successor) resigns from its functions as depository, and no substitute depository can be obtained, or (ii) the City determines that the Bonds are to be in certi~cated form, the ownership of Bonds may be transferred to any person as provided herein and the Bonds no longer shall be held in fully immobilized form. Section 7. Payment of Bonds. Both principal of and interest on the Bonds shall be payable in lawful money of the United States of America. Interest on the Bonds shall be paid by 50060084.02 -10- checks or drafts of the Bond Registrar mailed on the interest payment date to the registered owners at the addresses appearing on the Bond Register on the 15th day of the month preceding the interest payment date. Principal of the Bonds shall be payable upon presentation and surrender of the Bonds by the registered owners at either of the principal offices of the Bond Registrar at the option of the owners. Notwithstanding the foregoing, as long as the Bonds are registered in the name of DTC or its nominee, payment of principal of and interest on the Bonds shall be made in the manner set forth in the Letter of Representations. Section 8. Redemption Provisions and Open Market Purchase of Bonds. Bonds maturing in the years 1999 through 2008, inclusive, shall be issued without the right or option of the City to redeem those Bonds prior to their stated maturity dates. The City reserves the right and option to redeem the Bonds maturing on or after December 1, 2009, prior to their stated maturity dates at any time on or aPter December 1, 2008, as a whole or in part within one or more maturities selected by the City (and randomly within a maturity in such manner as the Bond Registrar shall determine), at par plus accrued interest to the date fixed for redemption. Portions of the principal amount of any Bond, in installments of $5,000 or any integral multiple thereof, may be redeemed. If less than all of the principal amount of any Bond is redeemed, upon surrender of that Bond at either of the principal offices of the Bond Registrar, there shall be issued to the registered owner, without charge therefor, a new Bond (or Bonds, at the option of the registered owner) of the same maturity and interest rate in any of the denominations authorized by this ordinance in the aggregate principal amount remaining unredeemed. The City further reserves the right and option to purchase any or all of the Bonds in the open market at any time at any price acceptable to the City plus accrued interest to the date of purchase. 50060084.02 -11- All Bonds purchased or redeemed under this section shah be cancelled. Notwithstanding the foregoing, for so long as the Bonds are registered in the name of Cede & Co., as nominee of DTC, selection of Bonds for redemption shall be in accordance with the Letter of Representations. Section 9. Notice of Redemption. The City shall cause notice of any intended redemption of Bonds to be given not less than 30 nor more than 60 days prior to the date fixed for redemption by first-class mail, postage prepaid, to the registered owner of any Bond to be redeemed at the address appearing on the Bond Register at the time the Bond Registrar prepares the notice, and the requirements of this sentence shall be deemed to have been ful~lled when notice has been mailed as so provided, whether or not it is actually received by the owner of any Bond. Interest on Bonds called for redemption shall cease to accrue on the date fixed for redemption unless the Bond or Bonds called are not redeemed when presented pursuant to the call. In addition, the redemption notice shall be mailed within the same period, postage prepaid, to Moody's Investors Service, Inc., and to Standard & Poor's at their offices in New York, New York, or their successors, to McDonald Investments Inc., a KeyCorp Company, at its principal office in Seattle, Washin~on, or its successor, to the Bond Insurer at its principal office in Armonk, New York, or its successor, and to such other persons, including registered securities depositories, and with such additional information as the City shall determine, but these additional mailings shall not be a condition precedent to the redemption of Bonds. Notwithstanding the foregoing_,, for so long as the Bonds are registered in the name of Cede & Co., as nominee of DTC, notice of redemption shall be given in accordance with the Letter of Representations. Section 10. Failure to Redeem Bonds. If any Bond is not redeemed xvhen properly presented at its maturity or call date, the City shall be obligated to pay interest on that Bond at 50060084.02 -12- the same rate provided in the Bond from and after its maturity or call date until that Bond, both principal and interest, is paid in full or until sufficient money for its payment in full is on deposit in the bond redemption fund hereinafter created and the Bond has been called for payment by giving notice of that call to the registered owner thereof. Section 11. Pled.~e of Taxes. For as long as any of the Bonds are outstanding, the City irrevocably pledges to include in its budget and levy taxes annually within the constitutional and statutory tax limitations provided by law without a vote of the electors of the City on all of the taxable property within the City in an amount sufficient, together with other money legally available and to be used therefor, to pay when due the principal of and interest on the Bonds, and the full faith, credit and resources of the City are pledged irrevocably for the annual levy and collection of those taxes and the prompt payment of that principal and interest. The City may use available net revenue of the City' s Waterworks Utility to pay the principal of and interest on the Bonds allocated to the Refunding Plan. Section 12. Form and Execution of Bonds. The Bonds shall be printed or lithographed on good bond paper in a form consistent with the provisions of this ordinance and state law, shall be signed by the Mayor and City Clerk, either or both of whose signatures may be manual or in facsimile, and the seal of the City or a facsimile reproduction thereof shall be impressed or printed thereon. Only Bonds bearing a Certificate of Authentication in the following form, manually signed by the Bond Registrar, shall be valid or obligatory for any purpose or entitled to the benefits of this ordinance: CERTIFICATE OF AUTHENTICATION This Bond is one of the fully registered City of Bainbridge Island, Washington, Limited Tax General Obligation Improvement and Refunding Bonds, 1998, described in the Bond Ordinance. 50060084.02 -13- WASHINGTON STATE FISCAL AGENCY Bond Registrar By Authorized Signer The authorized signing of a Certificate of Authentication shall be conclusive evidence that the Bond so authenticated has been duly executed, authenticated and delivered and is entitled to the benefits of this ordinance. If any officer whose facsimile signature appears on the Bonds ceases to be an officer of the City authorized to sign bonds before the Bonds bearing his or her facsimile signature are authenticated or delivered by the Bond Registrar or issued by the City, those Bonds nevertheless may be authenticated, issued and delivered and, when authenticated, issued and delivered, shall be as binding on the City as though that person had continued to be an officer of the City authorized to sign bonds. Any Bond also may be signed on behalf of the City by any person who, on the actual date of signing of the Bond, is an officer of the City authorized to sign bonds, although he or she did not hold the required office on the date of issuance of the Bonds. Section 13. Bond Reaistrar. The Bond Registrar shah keep, or cause to be kept, at its principal corporate trust office, sufficient books for the registration and transfer of the Bonds, which shall be open to inspection by the City at all times. The Bond Registrar is authorized, on behalf of the City, to authenticate and deliver Bonds transferred or exchanged in accordance with the provisions of the Bonds and this ordinance, to serve as the City's paying agent for the Bonds and to carry out all of the Bond Registrar's powers and duties under this ordinance and City Ordinance No. 83-10 establishing a system of registration for the City's bonds and obligations. The Bond Registrar shall be responsible for its representations contained in the Bond Registrar's Certificate of Authentication on the Bonds. The Bond Registrar may become the owner of Bonds with the same rights it would have if it were not the Bond Registrar and, to the 50060084.02 -14- extent permitted by law, may act as depository for and permit any of its officers or directors to act as members of, or in any other capacity with respect to, any committee formed to protect the rights of Bond owners. Section 14. Preservation of Tax Exemption for Interest on Bonds. The City covenants that it will take all actions necessary to prevent interest on the Bonds from being included in gross income for federal income tax purposes, and it will neither take any action nor make or permit any use of proceeds of the Bonds or other funds of the City treated as proceeds of the Bonds at any time during the term of the Bonds, which will cause interest on the Bonds to be included in gross income for federal income tax purposes. The City also covenants that it will, to the extent the arbitrage rebate requirement of Section 148 of the Code is applicable to the Bonds, take all actions necessary to comply (or to be treated as having complied) with that requirement in connection with the Bonds, including the calculation and payment of any penalties that the City has elected to pay as an alternative to calculating rebatable arbitrage, and the payment of any other penalties if required under Section 148 of the Code to prevent interest on the Bonds from being included in gross income for federal income tax purposes. The City certifies that it has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be relied upon. Section 15. Designation of Bonds as "Ouali~ed Tax-Exempt Obli.~ations." The City has determined and certifies that (a) the Bonds are not "private activity bonds" within the meaning of Section 141 of the Code; (b) the reasonably anticipated amount of tax-exempt obligations (other than private activity bonds and other obligations not required to be included in such calculation) which the City and any entity subordinate to the City (including any entity that the City controls, that derives its authority to issue tax-exempt obligations from the City, or that issues tax-exempt obligations on behalf of the City) will issue during the calendar year in which the Bonds are 50060084.02 -15- issued will not exceed $10,000,000; and (c)the amount of tax-exempt obligations, including the Bonds, designated by the City as "qualified tax-exempt obligations" for the purposes of Section 265(b)(3) of the Code during the calendar year in which the Bonds are issued does not exceed $10,000,000. The City designates the Bonds as "qualified tax-exempt obligations" for the purposes of Section 265(b)(3) of the Code. Section 16. Bonds Negotiable. The Bonds shall be negotiable instruments to the extent provided by RCW 62A.8-102 and 62A. 8-105. Section 17. Refundin~ or Defeasance of the Bonds. The City may issue refunding bonds pursuant to the laws of the State of Washington or use money available from any other lawful source to pay when due the principal of and interest on the Bonds, or any portion thereof included in a refunding or defeasance plan, and to redeem and retire, refund or defease all such then-outstanding Bonds (hereinafter collectively called the "defeased Bonds") and to pay the costs of the refunding or defeasance. If money and/or direct obligations of the United States of America maturing at a time or times and. bearing interest in amounts (together with money, if necessary) sufficient to redeem and retire, refund or defease the defeased Bonds in accordance with their terms are set aside in a special trust fund or escrow account irrevocably pledged to that redemption, retirement or defeasance of defeased Bonds (hereinafter called the "trust account"), then all right and interest of the owners of the defeased Bonds in the covenants of this ordinance and in the funds and accounts obligated to the payment of the defeased Bonds shall cease and become void. The owners of defeased Bonds shall have the right to receive payment of the principal of and interest on the defeased Bonds from the trust account. The City shall include in the refunding or defeasance plan such provisions as the City deems necessary for the random selection of any defeased Bonds that constitute less than all of a particular maturity of the Bonds, for notice of the defeasance to be given to the owners of the defeased Bonds and to such other 50060084.02 -16- persons as the City shall determine, and for any required replacement of Bond certificates for defeased Bonds. The defeased Bonds shall be deemed no longer outstanding, and the City may apply any money in any other fund or account established for the payment or redemption of the defeased Bonds to any lawful purposes as it shall determine. If the Bonds are registered in the name of DTC or its nominee, notice of any defeasance of Bonds shall be given to DTC in the manner prescribed in the Letter of Representations for notices of redemption of Bonds. Notwithstanding anything in this section to the contrary, if the principal of and/or interest due on the Bonds is paid by the Bond Insurer pursuant to the Municipal Bond Insurance Policy, the Bonds shall be treated as remaining outstanding for all purposes, not defeased or otherwise satisfied and shall not be considered paid by the City, and the covenants, agreements and other obligations of the City to the registered owners of the Bonds shall continue to exist and shah run to the benefit of the Bond Insurer, and the Bond Insurer shall be subrogated to the rights of those registered owners. Section 18. Bond Fund and Deposit of Bond Proceeds. The Bond Fund is created and established in the office of the Finance Director of the City as special fund designated the Limited Tax General Obligation Improvement and Refunding Bond Fund, 1998. Accrued interest on the Bonds, if any, received from the sale and delivery of the Bonds shall be paid into the Bond Fund. All taxes collected for and allocated to the payment of the principal of and interest on the Bonds shall be deposited in the Bond Fund. The portion of the proceeds of the Bonds allocated to carry out the Refunding Plan shall be deposited in accordance with the provisions of Section 19 of this ordinance. The remaining proceeds received from the sale and delivery of the Bonds shall be paid into the Capital Construction Fund previously created in the office of the Finance Director and used to pay the 50060084.02 -17- costs of the Projects. Until needed to pay the costs of the Projects, the City may invest principal proceeds temporarily in any legal investment, and the investment earnings may be retained in the Capital Construction Fund and be spent for the purposes of that fund, except that earnings subject to a federal tax or rebate requirement may be withdrawn from the Capital Construction Fund and used for those tax or rebate purposes.. Section 19. Refundin~ of the Refunded Bonds. (a) Appointment of Refundin~ Trustee. The Bank of New York of New York, New York, is appointed Refunding Trustee. (b) Use of Bond Proceeds: Acquisition of Acquired Obli.~ations. A sufficient amount of the proceeds of the sale of the Bonds, exclusive of the accrued interest thereon which shall be paid into the Bond Fund, shall be deposited immediately upon the receipt thereof with the Refunding Trustee and used to discharge the obligations of the City relating to the Refunded Bonds under Ordinance No. 94-33 by providing for the payment of the amounts required to be paid by the Refunding Plan. To the extent practicable, such obligations shall be discharged fully by the Refunding Trustee's simultaneous purchase of the Acquired Obligations, bearing such interest and maturing as to principal and interest in such amounts and at such times so as to provide, together with a beginning cash balance, if necessary, for the payment of the amount required to be paid by the Refunding Plan. The Acquired Obligations are listed and more particularly described in Schedule A attached to the Refunding Trust Agreement between the City and the Refunding Trustee, but are subject to substitution as set forth below. Any Bond proceeds or other money deposited with the Refunding Trustee not needed to purchase the Acquired Obligations and provide a beginning cash balance, if any, and pay the costs of issuance of the Bonds shall be returned to the City at the time of delivery of the Bonds to the initial 50060084.02 -18- purchaser thereof and deposited in the Bond Fund to pay interest on the Bonds on the first interest payment date. (c) Substitution of Acquired Obli.~ations. Prior to the purchase of any Acquired Obligations, the City reserves the right to substitute other direct, noncallable obligations of the United States of America anti/or obligations unconditionally guaranteed by the United States of America as to full and timely payment of principal and interest ("Government Obligations") for any of the Acquired Obligations and to use any savings created thereby for any lawful City purpose if, (a) in the opinion of Foster Pepper & Shefelman PLLC, the City's bond counsel, the interest on the Bonds and the Refunded Bonds will remain excluded from gross income for federal income tax purposes under Sections 103, 148 and 149(d) of the Code, and (b)such substitution shall not impair the timely payment of the amounts required to be paid by the Refunding Plan, as verified by a nationally recognized independent certified public accounting firm. After the purchase of the Acquired Obligations by the Refunding Trustee, the City reserves the right to substitute therefor cash or Government Obligations subject to the conditions that such money or securities held by the Refunding Trustee shall be sufficient to carry out the Refunding Plan, that such substitution will not cause the Bonds and the Refunded Bonds to be arbitrage bonds within the meaning of Section 148 of the Code and regulations thereunder in effect on the date of such sub~itution and applicable to obligations issued on the issue date of the Bonds, and that the City obtain, at its expense: (1) a verification by a nationally recognized independent certified public accounting firm acceptable to the Refunding Trustee confirming that the payments of principal Of and interest on the substitute securities, if paid when due, and any other money held by the Refunding Trustee will be sufficient to carry out the Refunding Plan; and (2)an opinion from Foster Pepper & Shefelman PLLC, bond counsel to the City, its 50060684.02 -19- successor, or other nationally recognized bond counsel to the City, to the effect that the disposition and substitution or purchase of such securities, under the statutes, rules and regulations then in force and applicable to the Bonds, will not cause the interest on the Bonds or the Refunded Bonds to be included in gross income for federal income tax purposes and that such disposition and substitution or purchase is in compliance with the statutes and regulations applicable to the Bonds. Any surplus money resulting from the sale, transfer, other disposition or redemption of the Acquired Obligations and the substitutions therefor shall be released from the trust estate and transferred to the City to be used for any lawful City purpose. (d) Administration of Refundin.~ Plan. The Refunding Trustee is authorized and directed to purchase the Acquired Obligations (or substitute obligations) and to make the payments required to be made by the Refunding Plan from the Acquired Obligations (or substitute obligations) and money deposited with the Refunding Trustee pursuant to this ordinance. All Acquired Obligations (or substitute obligations) and the money deposited with the Refunding Trustee and any income therefrom shall be held irrevocably, invested and applied in accordance with the provisions of Ordinance No. 94-33, this ordinance, chapter 39.53 RCW and other applicable statutes of the State of Washington and the Refunding Trust Agreement. All necessary and proper fees, compensation and expenses of the Refunding Trustee for the Bonds and all other costs incidental io the setting up of the escrow to accomplish the refunding of the Refunded Bonds and certain costs related to the issuance and delivery of the Bonds as specified in Schedule B attached to the Refunding Trust Agreement shall be paid out of the proceeds of the Bonds. (e) Authorization for Refunding Trust Agreement. To carry out the Refunding Plan provided for by this ordinance, the Mayor or Finance Director of the City is authorized and directed to execute and deliver to the Refunding Trustee a Refunding Trust Agreement 50060084.02 -20- substantially in the form on file with the City Clerk and by this reference made a part hereof setting forth the duties, obligations and responsibilities of the Refunding Trustee in connection with the payment, redemption and retirement of the Refunded Bonds as provided herein and stating that the provisions for payment of the fees, compensation and expenses of such Refunding Trustee set forth therein are satisfactory to it. Prior to executing the Refunding Trust Agreement, the Mayor or Finance Director of the City is authorized to make such changes therein which do not change the substance and purpose thereof or which assure that the escrow provided therein and the Bonds are in compliance with the requirements of federal law governing the exclusion of interest on the Bonds from gross income for federal income tax purposes. Section 20. Call for Redemption of the Refunded Bonds. The City calls for redemption on December 1, 2004, all of the Refunded Bonds at par plus accrued interest. Such call for redemption shall be irrevocable after the delivery of the Bonds to the initial purchaser thereof. The date on which the Refunded Bonds are herein called for redemption is the first date on which those bonds may be called. The proper City officials are authorized and directed to give or cause to be given such notices as required, at the times and in the manner required, pursuant to Ordinance No. 94-33 in order to effect the redemption prior to their maturity of the Refunded Bonds. Section 21. Approval of Bond Purchase Contract. McDonald Investments Inc., a KeyCorp Company, Seattle, Washington, has presented a purchase contract (the "Bond Purchase Contract") to the City offering to purchase the Bonds under the terms and conditions provided in the Bond Purchase Contract, which written Bond Purchase Contract is on file with the City Clerk and is incorporated herein by this reference. The City Council finds that entering into the Bond Purchase Contract is in the City's best interest and therefore accepts the offer contained therein and authorizes its execution by City officials. 50060084.02 -21- The Bonds will be printed at City expense and will be delivered to the purchaser in accordance with the Bond Purchase Contract, together with the approving legal opinion of Foster Pepper & Shefelman PLLC, municipal bond counsel of Seattle, Washington, regarding the Bonds. Bond counsel shall not be required to review and shall express no opinion concerning the completeness or accuracy of any official statement, offering circular or other sales or disclosure material issued or used in connection with the Bonds, and bond counsel's opinion shall so state. The proper City officials are authorized and directed to do everything necessary for the prompt delivery of the Bonds to the purchaser, including approving and executing the final official statement, and for the proper application and use of the proceeds of the sale thereof. Section 22. Preliminary Official Statement Deemed Final. The City Council has been provided with copies of a preliminary official statement dated December 1, 1998 (the "Preliminary Official Statement"), prepared in connection with the sale of the Bonds. For the sole purpose of the Bond purchaser's compliance with Securities and Exchange Commission ("SEC") Rule 15c2-12(b)(1), the City "deems final" that Preliminary Official Statement as of its date, except for the omission of information as to offering prices, interest rates, selling compensation, aggregate principal amount, principal amount per maturity, maturity dates, options of redemption, delivery dates, ratings and other terms of the Bonds dependent on such matters. The City approves the Preliminary Official Statement and ratifies its use and distribution by the Underwriter in connection with the public offering and sale of the Bonds. Section 23. Undertaking to Provide Continuing Disclosure. To meet the requirements of SEC Rule 15c2-12(b)(5) (the "Rule"), as applicable to a participating underwriter for the Bonds, the City makes the following written undertaking (the "Undertaking") for the benefit of holders of the Bonds: 50060084.02 -22- (a) Undertakin~ to Provide Annual Financial Information and Notice of Material Events. The City undertakes to provide or cause to be provided, either directly or through a designated agent: (i) To each nationally recognized municipal securities information repository designated by the SEC in accordance with the Rule ("NRMSIR") and to a state information depository, if any, established in the State of Washin~on (the "SID") annual financial information and operating data of the type included in the final official statement for the Bonds and described in subsection (b) of this section ("annual financial information"); (ii) To each NRMSIR or the Municipal Securities Rulemaking Board CMSRB"), and to the SID, timely notice of the occurrence of any of the following events with respect to the Bonds, if material: (1) principal and interest payment delinquencies; (2) non-payment related defaults; (3) unscheduled draws on debt service reserves reflecting financial difficulties; (4) unscheduled draws on credit enhancements reflecting financial difficulties; (5) substitution of credit or liquidity providers, or their failure to perform; (6) adverse tax opinions or events affecting the tax-exempt status of the Bonds; (7) modifications to rights of holders of the Bonds; (8) Bond calls (other than scheduled mandatory redemptions of Term Bonds); (9) defeasances; (10) release, substitution, or sale of property securing repayment of the Bonds; and (11 ) rating changes; and (iii) To each NRMSIR or to the MSRB, and to the SID, timely notice of a failure by the City to provide required annual financial information on or before the date specified in subsection (b) of this section. (b) Type of Annual Financial Information Undertaken to be Provided. The annual financial information that the City undertakes to provide in subsection (a) of this section: (i) Shall consist of (1) annual financial statements prepared (except as noted in the financial statements) in accordance with applicable generally accepted accounting principles promulgated by the Government Accounting Standards Board CGASB"), as such principles may be changed from time to time, which statements shall not be audited, except, however, that if and when audited financial statements are otherwise prepared and available to the City they will be provided; (2) authorized, issued and outstanding balance of limited tax general obligation bonds; (3) assessed valuation for the fiscal year; and (4) regular property tax levy rate and regular property tax levy rate limit for the fiscal year; (ii) Shall be provided to each NRMSIR and the SID, not later than the last day of the ninth month after the end of each fiscal year of the City (currently, a fiscal year ending December 3 1), as such fiscal year may be changed as required or permitted by State law, commencing with the City' s fiscal year ending December 31, 1998; and 50060084.02 -23 - (iii) May be provided in a single or mukip le documents, and may be incorporated by reference to other documents that have been filed with each NR~MSIR and the SID, or, if the document incorporated by reference is a "final official statement" with respect to other obligations of the City, that has been filed with the MSRB. (c) Amendment of Undertaking. The Undertaking is subject to amendment after 'the primary offering of the Bonds without the consent of any holder of any Bond, or of any broker, dealer, municipal securities dealer, participating underwriter, rating agency, NRMSIK the SID or the MSRB, under the circumstances and in the manner permitted by the Rule. The City will ~ve notice to each NRMSIR or the MSRB, and the SID, of the substance (or provide a copy) of any amendment to the Undertaking and a brief statement of the reasons for the amendment. If the amendment changes the type of annual financial information to be provided, the annual financial information containing the amended financial information will include a narrative explanation of the effect of that change on the type of information to be provided. (d) Beneficiaries. The Undertaking evidenced by this section shall inure to the benefit of the City and any holder of Bonds, and shall not inure to the benefit of or create any rights in any other person. (e) Termination of Undertaking. The City's obligations under this Undertaking shall terminate upon the legal defeasance of all of the Bonds. In addition, the C ity's obligations under this Undertaking shall terminate if those provisions of the Rule which require the City to comply with this Undertaking become legally inapplicable in respect of the Bonds for any reason, as confirmed by an opinion of nationally recognized bond counsel or other counsel familiar with federal securities laws delivered to the City, and the City provides timely notice of such termination to each NRMSIR or the MSRB and the SID. (f) Remedy for Failure to Comply with Undertaking. As soon as practicable after the City learns of any failure to comply with the Undertaking, the City will proceed with due diligence to cause such noncompliance to be corrected. No failure by the City or other obligated person to comply with the Undertaking shall constitute a default in respect of the Bonds. The sole remedy of any holder of a Bond shall be to take such actions as that holder deems necessary, including seeking an order of specific performance from an appropriate court, to compel the City or other obligated person to comply with the Undertaking. (g) Designation of Official Responsible to Administer Undertaking. The Finance Director of the City (or such other officer of the City who may in the future perform the duties of the Finance Director) or his or her designee is authorized and directed in his or her discretion to take such further actions as may be necessary, appropriate or convenient to carry out the Undertaking of the City in respect of the 50060084,02 -24- Bonds set forth in this section and in accordance with the Rule, including, without limitation, the following actions: (i) Preparing undertaken to be provided; and filing the annual financial information (ii) Determining whether any event specified in subsection (a) has occurred, assessing its materiality with respect to the Bonds, and, if material, preparing and disseminating notice of its occurrence; (iii) Determining whether any person other than the City is an "obligated person" within the meaning of the Rule with respect to the Bonds, and obtaining from such person an undertaking to provide any annual financial information and notice of material events for that person in accordance with the Rule; (iv) Selecting, engaging and compensating' designated agents and consultants, including but not limited to financial advisors and legal counsel, to assist and advise the City in carrying out the Undertaking; and (v) Effecting any necessary amendment of the Undertaking. Section 24. Bond Insurance. The City Council finds that it is in the City' s best interest to purchase, and that a savings will result from purchasing, the Municipal Bond Insurance Policy for the Bonds. The City shall purchase from the Bond Insurer the Municipal Bond Insurance Policy insuring the prompt payment of the principal of and interest on the Bonds and agrees to the conditions for obtaining that policy, including the payment of the premium therefor and the following provisions entitled "Payments under the Policy" required by the Bond Insurer to be included in this ordinance: "A. In the event that, on the second Business Day, and again on the Business Day, prior to the payment date on the Obligations, the Paying Agent [the Bond Registrar] has not received sufficient moneys to pay all principal of and interest on the Obligations due on the second following or following, as the case may be, Business Day, the Paying Agent shall immediately notify the Insurer or its designee on the same Business Day by telephone or telegraph, confirmed in writing by registered or certified mail, of the amount of the deficiency. payment date, If the deficiency is made up in whole or in part prior to or on the the Paying Agent shall so notify the Insurer or its designee. 50060084.02 -25- "C. In addition, if the Paying Agent has notice that any Bondholder has been required to disgorge payments of principal or interest on the Obligation to a trustee in Bankruptcy or creditors or others pursuant to a final judgment by a court of competent jurisdiction that such payment constitutes a voidable preference to such Bondholder within the meaning of any applicable bankruptcy laws, then the Paying Agent shall notify the Insurer or its designee of such fact by telephone or telegraphic notice, confirmed in writing by registered or certified mail. "D. The Paying Agent is hereby irrevocably designated, appointed, directed and authorized to act as attorney-in-fact for Holders of the Obligations as follows: "1. If and to the extent there is a deficiency in amounts required to pay interest on the Obligations, the Paying Agent shall (a) execute and deliver to State Street Bank and Trust Company, N.A., or its successors under the Policy (the "Insurance Paying Agent"), in form satisfactory to the Insurance Paying Agent, an instrument appointing the Insurer as agent for such Holders in any legal proceeding related to the payment of such interest and an assignment to the Insurer of the claims for interest to which such deficiency relates and which are paid by the Insurer, (b) receive as designee of the respective Holders (and not as Paying Agent) in accordance with the tenor of the Policy payment from the Insurance Paying Agent with respect to the' claims for interest so assigned, and (c) disburse the same to such respective Holders; and "2. If and to the extent of a deficiency in amounts required to pay principal of the Obligations, the Paying Agent shall (a) execute and deliver to the Insurance Paying Agent in form satisfactory to the Insurance Paying Agent an instrument appointing the Insurer as agent for such Holder in any legal proceeding relating to the payment of such principal and an assignment to the Insurer of any of the Obligation surrendered to the Insurance Paying agent of so much of the principal amount thereof as has not previously been paid or for which moneys are not held by the Paying Agent and available for such payment (but such assignment shall be delivered only if payment from the Insurance Paying Agent is received), (b) receive as designee of the respective Holders (and not as Paying Agent) in accordance with the tenor of the Policy payment therefor from the Insurance Paying Agent, and (c) disburse the same to such Holders. "E. Payments with respect to claims for interest on and principal of Obligations disbursed by the Paying Agent from proceeds of the Policy shall not be considered to discharge the obligation of the Issuer with respect to such Obligations, and the Insurer shall become the owner of such unpaid Obligations and claims for the interest in accordance with the tenor of the assignment made to it under the provisions of this subsection or otherwise. 50060084.02 -26- "F. Irrespective of whether any such assignment is executed and delivered, the Issuer and the Paying Agent hereby agree for the benefit of the Insurer that: "1. They recognize that to the extent the Insurer makes payments, directly or indirectly (as by paying through the Paying Agent), on account of principal of or interest on the Obligations, the Insurer will be subrogated to the rights of such Holders to receive the amount of such principal and interest from the Issuer, with interest thereon as provided and solely from the sources stated in this Indenture and the Obligations; and "2. They will accordingly pay to the Insurer the amount of such principal and interest (including principal and interest recovered under subparagraph (ii) of the first paragraph of the Policy, which principal and interest shall be deemed past due and not to have been paid), with interest thereon as provided in this Indenture and the Obligations, but only from the sources and in the manner provided herein for the payment of principal of and interest on the Obligations to Holders, and will otherwise treat the Insurer as the owner of such rights to the amount of such principal and interest. "G. In connection with the issuance of additional Obligations, the Issuer shall deliver to the Insurer a copy of the disclosure document, if any, circulated with respect to such additional Obligations. "H. Copies of any amendments made to the documents executed in connection with the issuance of the Obligations which are consented to by the Insurer shall be sent to Standard & Poor' s Corporation. "I. The Insurer shall receive notice of the resignation or removal of the Paying Agent and the appointment of a successor thereto. "J. The Insurer shall receive copies of all notices required to be delivered to Bondholders and, on an annual basis, copies of the Issuer's audited financial statements and Annual Budget. "Notices: Any notice that is required to be given to a holder of the Obligation or to the Paying Agent pursuant to the Indenture shall also be provided to the Insurer. All notices required to be given to the Insurer under the Indenture shall be in writing and shall be sent by registered or certified mail addressed to MBIA Insurance Corporation, 113 King Street, Armonk, New York 10504 Attention: Surveillance." Section 25. Effective Date of Ordinance. This ordinance shall take effect and be in force from and after its passage and five (5) days following its publication as required by law. 50060084.02 -27- PASSED by the City Council and APPROVED by the Mayor of the City of Bainbridge Island, Washington, at a special open public meeting thereof this 10th day of December, 1998, notice of which has been given as required by law. Mayor ATTEST: C iy C 1 erk APPROVED AS TO FORM: City Attorney 50060084.02 -28- EXHIBIT A ALLOCATION OF BONDS Maturity Refunding New Money Years Allocation Allocation 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2OO9 2010 2011 2012 2013 2014 2015 2016 2017 2018 -- $290,000 -- 300,000 -- 315,000 -- 325,000 $ 5,000 340,000 15,000 355,000 15,000 365,000 15,000 380,000 15,000 395,000 20,000 415,000 20,000 430,000 195,000 450,000 200,000 470,000 210,000 490,000 215,000 510,000 235,000 530,000 -- 555,000 -- 580,000 -- 610,000 -- 635,000 Total Principal $290,000 300,000 315,000 325,000 345,000 370,000 380,000 395,000 410,000 435,000 450,000 645,000 670,000 700,000 725,000 765,000 555,000 580,000 610,000 635,000 50060084.02 I, SUSAN P. KASPER, City Clerk of the City of Bainbridge Island, Washington, certify that the attached copy of Ordinance No. 98-54 is a true and correct copy of the original ordinance passed on the 10th day of December, 1998, as such ordinance appears on the Minute Book of the City. DATED this / ~ day of December, 1998. Susan P. Kasper, City~Clerd~~ 50060084.0'2