HomeMy WebLinkAboutResolution 22-074Resolution 22-074
Resolution Relating to the Improvement of Drinking Water Facilities; Authorizing
and Directing the Issuance and Sale of a Revenue Bond to Pay the Cost of Said
Improvements; Defining the Terms and Manner of Payment of the Bond and the
Security Thereof and Approving the Form of Loan Agreement
Be It Resolved by the City Council of the City of Brookings, South Dakota, As Follows:
Section 1. Authorization and Findings
1.01. The City of Brookings, South Dakota (the "Issuer"), operating through
Brookings Municipal Utility ("BMU") currently operates water distribution system to supply
municipal, industrial and domestic water to its inhabitants (the "Utility"), for municipal,
industrial and domestic purposes.
1.02. The Issuer is authorized to borrow money and issue its revenue bonds under
South Dakota Codified Laws, Chapters 9-40 (the "Act") and 6-8B, in order to finance all
or a portion of the cost of improvements to the Utility, consisting of the construction of a
new 6 MGD lime softening water treatment facility along 34th Avenue (the "Treatment
Facility") which will have the East Well Field and the North Well Field deliver raw water to
the Treatment Facility. A total of 28,500 feet of new 16-inch raw water line will be
constructed along with 19,890 feet of new 16-inch finished water line and six new
municipal wells with 17,400 feet of new 20-inch transmission main (all such financed
projects, the "Improvements"). The Issuer is authorized to issue its obligations in order
to defray the cost thereof, and to make all pledges, covenants and agreements authorized
by law for the protection of the holders of the obligations, including, without limitation,
those covenants set forth in SDCL, Sections 9-40-16 and 9-40-17. The obligations are
payable from the Net Revenues of the Improvements, as defined in 2.03 hereof.
1.03. BMU has, by resolution, covenanted and agreed to adopt and maintain
special rates or surcharges for the Improvements, in order to produce revenues to be
pledged, segregated and used for the operation and maintenance of the Improvements and
payment of the revenue bonds.
1.04. The execution and delivery of the Revenue Obligation Loan Agreement
between South Dakota Conservancy District (the "District") and the Issuer (the "Loan
Agreement"), the form of which has been submitted to this Council, and the pledging of
the loan payments thereunder for the security of the State Revolving Fund revenue bonds
of the Issuer and the interest and administrative fee thereon shall be, and they are, in all
respects, hereby authorized, approved and confirmed, and the Mayor and City Clerk are
hereby authorized and directed to execute and deliver the Loan Agreement in the form
and content submitted to this Council, with such changes that are not substantive as the
Attorney for the Issuer deems appropriate and approves, for and on behalf of the Issuer.
The Mayor and City Clerk are hereby further authorized and directed to implement and
perform the covenants and obligations of the Issuer as set forth in or required by the Loan
Agreement.
1.05. The issuance of a revenue bond of the Issuer of not more than $50,963,200
principal amount (the "Bond") is hereby authorized, approved and confirmed, and the
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Mayor, City Clerk and other appropriate officials of the Issuer shall be authorized to
execute and deliver the Bond to the District, for and on behalf of the Issuer, upon receipt
of the purchase price and to deposit the proceeds thereof in the manner provided for in
the Loan Agreement. The Mayor and City Clerk are hereby authorized to approve the
final terms of the Bond, and their execution and delivery of the Bond shall evidence such
approval. The terms of the Bond, as so executed and delivered, shall be deemed to be
incorporated herein by reference.
1.06. The Issuer hereby determines that because the Bond is issued in connection
with a financing agreement described in SDCL 46A-1-49, pursuant to SDCL 9-40-15, no
election is required to issue the Bond.
Section 2. Funds and Accounts. For the purpose of application and proper allocation of
the income of the Improvements and to secure the payment of principal of and interest
on the Bond, the following funds and accounts shall be used solely for the following
respective purposes until payment in full of the principal of and interest on the Bond:
2.01. Pledge of Net Revenues of the Improvements. The Net Revenues of the
Improvements shall be pledged and appropriated to the payment of the Bond as set forth
in the resolution adopted by BMU.
2.02. Water Utility Fund; Bond Proceeds and Revenues Pledged and
Appropriated. A fund designated as the Water Utility Fund (the "Fund") has been
established and shall be maintained as a separate and special bookkeeping account on
the official books of the Issuer until the Bond and any additional bonds (together referred
to as the "Bonds") payable from the Net Revenues of the Improvements, as provided in
Sections 3.02 through 3.04 hereof and interest, Administrative Expense Surcharge and
redemption premiums due thereon have been fully paid, or the Issuer's obligation with
reference to the Bond has been discharged as provided in this resolution. All proceeds
of the Bond and all other funds hereafter received or appropriated for purposes of the
Improvements are appropriated to the Fund. All gross revenues derived from the
operation of the Improvements are irrevocably pledged and appropriated and shall be
credited to the Fund as received. As described in Section 3.04 hereof, BMU shall impose
a separate surcharge for the availability, benefit and use of the Improvements as part of
the Utility and shall aggregate the gross revenues derived from such surcharge and the
Improvements, together with the expenses of operation and maintenance of the
Improvements and shall account for them as provided in this Resolution; except as
expressly stated in this Resolution, the pledges, appropriations, covenants and
agreements of the City and the Accounts established within the Fund by the Resolution
apply only to the Improvements, its operations, revenues and expenses. The City finds
that acquisition and construction of the Improvements will benefit all present and future
users of the Utility, therefore the surcharge described in Section 3.04 shall be imposed
on all current and future users of the Utility. Such gross revenues shall include all gross
income and receipts from rates and charges imposed for the availability, benefit and use
of the Improvements as now constituted and of all replacements and improvements
thereof and additions thereto, and from penalties and interest thereon, and from any sales
of property acquired for the Improvements and all income received from the investment
of such gross revenues; but not any taxes levied or amounts borrowed or received as
grants for construction of any part of the Improvements. The Fund shall be subdivided
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into separate accounts as designated and described in Sections 2.03 to 2.07, to
segregate income and expenses received, paid and accrued for the respective purposes
described in those sections. The gross revenues received in the Fund shall be
apportioned monthly or as soon as possible after the first day of each month, commencing
the first calendar month following the delivery of the Bond, which apportionment is
hereinafter referred to as the "monthly apportionment."
2.02. Construction Account. The Construction Account shall be used only to pay
as incurred and allowed costs which under financial and reporting standards as
promulgated by the Governmental Accounting Standards Board, the Financial Accounting
Standards Board, or an Other Comprehensive Basis of Accounting, as applicable
(referred to herein as Financial and Reporting Standards), are capital costs of the
Improvements, and of such future reconstructions, improvements, betterments or
extensions of the Improvements as may be authorized in accordance with law; including
but not limited to payments due for work and materials performed and delivered under
construction contracts, architectural, engineering, inspection, supervision, fiscal and legal
expenses, the cost of lands and easements, interest accruing on the Bond during the first
year following the date of its delivery, if and to the extent that the Revenue Bond Account
is not sufficient for payment of such interest, reimbursement of any advances made from
other Issuer funds, and all other expenses incurred in connection with the construction
and financing of any such undertaking. To the Construction Account shall be credited as
received all proceeds of the Bond, except amounts appropriated to the Revenue Bond
Account under Section 2.04, all other funds appropriated by the Issuer for the
Improvements, and all income received from the investment of the Construction Account.
2.03. Operating Account. On each monthly apportionment there shall first be set
aside and credited to the Operating Account, as a first charge on the gross revenues,
such amount as may be required over and above the balance then held in the Operating
Account to pay the reasonable and necessary operating expenses of the Improvements
which are then due and payable, or are to be paid prior to the next monthly apportionment.
The term "operating expenses" shall mean the current expenses, paid or accrued, of
operation, maintenance and current repair of the Improvements, calculated in accordance
with generally accepted accounting principles, and shall include, without limitation,
administrative expenses of the Issuer relating solely to the Improvements, premiums for
insurance on the properties thereof, labor and the cost of materials and supplies used for
current operation and for maintenance, and charges for the accumulation of appropriate
reserves for current expenses which are not recurrent monthly but may reasonably be
expected to be incurred in accordance with generally accepted accounting principles.
Such operating expenses shall not include any allowance for depreciation or renewals or
replacements of capital assets of the Improvements and shall not include any portion of
the salaries or wages paid to any officer or employee of the Issuer, except such portion
as shall represent reasonable compensation for the performance of duties necessary to
the operation of the Improvements, nor any amount properly payable from any other
account of the Fund. The Net Revenues of the Improvements, as referred to in this
Resolution, are hereby defined to include the entire amount of such gross revenues
remaining after each such monthly apportionment, after crediting to the Operating
Account the amount required hereby, including sums required to maintain an operating
reserve equal to one month's estimated operating expenses.
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2.04. Revenue Bond Account. Upon each monthly apportionment there shall be
set aside and credited to the Revenue Bond Account, out of the Net Revenues of the
Improvements, an amount equal to one-third of the total sum of the principal and interest
and administrative surcharge to become due on the Bond on the next succeeding Loan
Repayment Date (as defined in the Bond). Moneys from time to time held in the Revenue
Bond Account shall be disbursed only to meet payments of principal and interest on the
Bond as such payments become due; provided, that on any date when the outstanding
Bond is due or prepayable by its terms, if the amount then on hand in the Revenue Bond
Account is sufficient, with other moneys available for the purpose, to pay the Bond and
the interest accrued thereon in full, it may be used for that purpose. If any payment of
principal or interest or administrative surcharge becomes due when moneys in the
Revenue Bond Account are temporarily insufficient, such payment shall be advanced out
of any Net Revenues theretofore segregated and then on hand in the Replacement and
Depreciation Account or the Surplus Account. In the event that sufficient moneys are not
available from the aforementioned sources the Issuer, to the extent it may, at the time
legally do so, may, but shall not be required to, temporarily advance moneys to the
Revenue Bond Account from other revenues of the Improvements or from other funds of
the Issuer on hand and legally available for the purpose, but any such advance shall be
repaid from Net Revenues of the Improvements within 24 months.
2.05. Replacement and Depreciation Account. There shall next be set aside and
credited, upon each monthly apportionment, to the Replacement and Depreciation
Account such portion of the Net Revenues, in excess of the current requirements of the
Revenue Bond Account (which portion of the Net Revenues is referred to herein as
Surplus Net Revenues), as BMU shall determine to be required for the accumulation of a
reasonable reserve for renewal of worn out, obsolete or damaged properties and
equipment of the Improvements. Moneys in this account shall be used only for the
purposes above stated or, if so directed by BMU, to redeem Bonds which are prepayable
according to their terms, to pay principal or interest or administrative surcharge when due
thereon as required in Section 2.04 hereof, or to pay the cost of improvements to the
Improvements; provided, that in the event that the Issuer shall hereafter issue bonds for
the purpose of financing the construction and installation of additional improvements or
additions to the Improvements, but which additional bonds cannot, upon the terms and
conditions provided in Section 3, be made payable from the Revenue Bond Account,
Surplus Net Revenues from time to time received may be segregated and paid into one
or more separate and additional accounts for the payment of such bonds and interest
thereon, in advance of payments required to be made into the Replacement and
Depreciation Account.
2.06. Surplus Account. Any amount of the Surplus Net Revenues from time to
time remaining after the above required applications thereof shall be credited to the
Surplus Account, and the moneys from time to time in that account, when not required to
restore a current deficiency in the Revenue Bond Account as provided in Section 2.04
hereof, may be used for any of the following purposes and not otherwise:
(a) to redeem and prepay principal of the Bond when and as such principal
becomes prepayable according to its terms;
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(b) if the balances in the Revenue Bond Account and the Replacement and
Depreciation Account are sufficient to meet all payments required or reasonably
anticipated to be made therefrom prior to the end of the current fiscal year, then;
(i) to pay for repairs or for the construction and installation of
improvements or additions to the Improvements;
(ii) to be held as a reserve for redemption and prepayment of
principal of the Bond which is not then but will later be prepayable according
to its terms;
(iii) with the written consent of the District, transferred to one or more
specified funds of the Issuer.
No moneys shall at any time be transferred from the Surplus Account or any other account
of the Fund to any other fund of the Issuer, nor shall such moneys at any time be invested
in warrants, special improvement bonds or other obligations payable from other funds,
except as provided in this section.
2.07. Deposit and Investment of Funds. The Chief Financial Officer shall cause
all moneys pertaining to the Fund to be deposited as received with one or more banks
which are duly qualified public depositories under the provisions of Chapter 4-6A, South
Dakota Codified Laws, in a deposit account or accounts, which shall be maintained so
long as any of the Bonds and the interest thereon shall remain unpaid. The deposit and
investment of all moneys pertaining to the Fund must, on the books and records of the
Issuer, be maintained separate and apart from all other funds of the Issuer. Any of such
moneys not necessary for immediate use may be deposited with such depository banks
in savings or time deposits. No moneys shall at any time be withdrawn from such deposit
accounts except for the purposes of the Fund as authorized in this Resolution; except
that moneys from time to time on hand in the Fund may at any time, in the discretion of
the City Council, be invested in securities permitted by the provisions of South Dakota
Codified Laws, Section 4-5-6; provided, that the Replacement and Depreciation Account
may be invested in such securities maturing not later than ten years from the date of the
investment. Income received from the deposit or investment of moneys shall be credited
to the account from whose moneys the deposit was made or the investment was
purchased, and handled and accounted for in the same manner as other moneys in that
account. The investment of the moneys on deposit in the Revenue Bond Account is
further restricted by the provisions of Section 6.01 hereof. Deposits and securities
described in this Section shall constitute "Qualified Investments."
2.08. Additional Revenues or Collateral. The Issuer reserves the right at any time
to pledge additional moneys, revenues or collateral as security for the Bond and any
additional bonds. Such pledge shall not be effective unless and until the Issuer receives,
and provides to the bond registrar an opinion of, nationally recognized bond counsel
stating that such pledge will not adversely affect the validity or tax exemption of the Bond
and any additional bonds then outstanding.
2.09. Appropriation of Other Moneys. The Issuer reserves the right in any year
while the Bond is outstanding to appropriate from moneys on hand and legally available
for such purpose in its cash reserve accounts such amounts as this Council may specify
and direct that such amounts be used to pay principal and interest and administrative
expense surcharge on the Bond. Any such appropriation shall reduce the obligation of
the Issuer to impose rates and charges under Section 3.04 hereof.
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2.10. Statutory Mortgage. The Issuer covenants and agrees that pursuant to
SDCL 9-40-28 and SDCL 9-40-29, the lawful holders of the Bond shall have a statutory
mortgage lien upon the Improvements and the extensions, additions and improvements
thereto acquired pursuant to the Act, until the payment in full of the principal, interest, and
Administrative Expense Surcharge on the Bond, and the Issuer agrees not sell or
otherwise dispose of the Utility, the Improvements, or any substantial part thereof, except
as provided in the Loan Agreement and shall not establish, authorize or grant a franchise
for the operation of any other utility supplying like products or services in competition
therewith, or permit any person, firm or corporation to compete with it in the collection and
treatment of wastewater for municipal, industrial, and domestic purposes within the
Issuer.
Section 3. Priorities and Additional Bonds.
3.01. Priority of Bond Payments. If at any time the Net Revenues of the
Improvements are insufficient to pay principal and interest and administrative expense
surcharge then due on the Bond, any and all moneys then on hand shall be first used to
pay the interest and administrative expense surcharge accrued on the Bond, and the
balance shall be applied toward payment of the maturing principal of the Bond in order of
their maturities, the earliest maturing principal to be paid first, and pro rata in payment of
principal maturing on the same date.
3.02. Additional Bonds. The Issuer reserves the right to issue additional bonds,
payable from Revenue Bond Account of the Fund, on a parity as to both principal and
interest and administrative expense surcharge with the Bonds in the manner and upon
satisfaction of the conditions and subject to the limitations set forth in the Loan
Agreement, and if any Prior Bonds are then outstanding, subject to the limitations
contained in the resolutions under which such Prior Bonds were issued.
3.03. Compliance with Loan Agreement. The Issuer will comply, so long as the
Bond is outstanding, and unpaid, with all of the provisions of the Loan Agreement, to the
same extent as though such provisions were set forth in this resolution.
3.04. Rates and Charges. BMU has covenanted that it will maintain, revise,
charge and collect rates and other charges for all service furnished and made available
by the Improvements, according to schedules such that the gross revenues derived
therefrom will be sufficient, when combined with other available funds, to pay when due
all expenses of the operation and maintenance of the Improvements, and all principal of
and interest and administrative expense surcharge on the Bond, to provide for the
establishment and maintenance of adequate reserves, to provide an allowance adequate
for recurring renewals and replacements of the Improvements, to satisfy the rate covenant
provided in Section 6.4 of the Loan Agreement and to fulfill the terms of all other
agreements with holders of the Issuer's bonds. The rates and charges with respect to
the Improvements shall be in the form of a separately stated surcharge on the municipal
utilities rate schedule; in calculating the surcharge BMU shall allocate to the
Improvements its share of the expenses of operation and maintenance and allowances
for renewal and replacement as well as the requirements to pay principal of and interest
and administrative expense surcharge on the Bond and to repay the Utility or any other
funds of the City for moneys advanced in accordance with Section 2.04 hereof.
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Section4. Amendments.
4.01. Amendments Without Bondholder Consent. The Issuer reserves the right
to amend this resolution from time to time and at any time, for the purpose of curing any
ambiguity or of curing, correcting or supplementing any defective provision contained
herein, or of making such provisions with regard to matters or questions arising hereunder
as this City Council may deem necessary or desirable and not inconsistent with this
resolution, and which shall not adversely affect the interest of the holder of the Bond, or
for the purpose of adding to the covenants and agreements herein contained, or to the
gross revenues herein pledged, other covenants and agreements thereafter to be
observed and additional gross revenues thereafter appropriated to the Fund, for the
purpose of surrendering any right or power herein reserved to or conferred upon the
Issuer, or for the purpose of authorizing the issuance of additional bonds in the manner
and subject to the terms and conditions prescribed in Section 3. Any such amendment
may be adopted by resolution, without the consent of the holder of the Bond
4.02. Amendments with Bondholder Consent. With the consent of the holder of
the Bond as provided in Section 4.03, the Issuer may from time to time and at any time
amend this resolution by adding any provisions hereto or changing in any manner or
eliminating any of the provisions hereof, or of any amending resolution, except that no
amendment shall be adopted at any time without the consent of the holder of the Bond
which are then outstanding, if it would extend the maturities of any Bond, would reduce
the rate or extend the time of payment of interest thereon, would reduce the amount or
extend the time of payment of the principal or redemption premium thereof, would give to
any Bond any privileges over any other Bond, would reduce the sources of gross
revenues appropriated to the Fund, would authorize the creation of a pledge of gross
revenues prior to or on a parity with the Bond (except as is authorized by Section 3), or
would reduce the percentage in principal amount of Bond required to authorize or consent
to any such amendment.
4.03. Notice and Consent. Any amendment adopted pursuant to Section 4.02
shall be made by resolution, mailed to each holder of a Bond affected thereby, and shall
become effective only upon the filing of written consents with the Chief Financial Officer,
signed by the holders of not less than two-thirds in principal amount of the Bonds which
are then outstanding or, in the case of an amendment not equally affecting all outstanding
Bonds, by the holders of not less than two-thirds in principal amount of the Bond adversely
affected by such amendment. Any written consent to an amendment may be embodied
in and evidenced by one or any number of concurrent written instruments of substantially
similar tenor signed by bondholders in person or by agent duly appointed in writing, and
shall become effective when delivered to the Chief Financial Officer. Any consent by the
holder of any Bond shall bind the holder and every future holder of the same Bond with
respect to any amendment adopted by the Issuer pursuant to such consent, provided that
any bondholder may revoke his consent with reference to any Bond by written notice
received by the Chief Financial Officer before the amendment has become effective. In
the event that unrevoked consents of the holders of the required amount of Bonds have
not been received by the Chief Financial Officer within one year after the mailing of any
amendment, the amendment and all consents theretofore received shall be of no further
force and effect.
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4.04. Proof. Proof of the execution of any consent, or of a writing appointing any
agent to execute the same, or of the ownership by any person of a Bond, shall be
sufficient for any purpose of this resolution and shall be conclusive in favor of the Issuer
if made in the manner provided in this section. The fact and date of the execution by any
person of any such consent or appointment may be proved by the affidavit of a witness
of such execution or by the certificate of any notary public or other officer authorized by
law to take acknowledgements that the person signing such writing acknowledged to him
the execution thereof. The amount of Bonds held by any person by or for whom a consent
is given, and the distinguishing numbers of such Bond, and the date of holding the same,
shall be proved by the bond register. The fact and date of execution of any such consent
may also be proved in any other manner which this Council may deem sufficient; but this
City Council may nevertheless, in its discretion, require further proof in cases where it
deems further proof desirable.
Section 5. Payment of Bond.
5.01. General. When the liability of the Issuer on the Bond has been discharged
as provided in this section, all pledges, covenants and other rights granted by this
resolution to the holder of the Bond shall cease.
5.02. Payment. The Issuer may discharge its liability with reference to any Bond
which is due on any date by depositing with the holder or holders thereof, or the paying
agent or agents, if any, for such Bond on or before that date a sum sufficient for the
payment thereof in full; or if any Bond shall not be paid when due, the Issuer may
nevertheless discharge its liability with reference thereto by depositing with the holder or
holders thereof, or the paying agent or agents, if any, a sum sufficient for the payment
thereof in full with interest accrued to the date of such deposit.
5.03. Prepayable Bond. The Issuer may also discharge its liability with reference
to any prepayable Bond which is called for redemption on any date in accordance with its
terms, by depositing with the holder or holders thereof, or the paying agent or agents, if
any, on or before that date an amount equal to the principal, interest and redemption
premium, if any, which are then due thereon, provided that notice of such redemption has
been duly given as provided in the resolution authorizing the Bond.
Section 6. Tax Matters and Effective Date.
6.01. Tax Matters.
(a) Covenant. The Issuer covenants and agrees with the holders from time to time
of the Bond that it will not take or permit to be taken by any of its officers, employees or
agents any action which would cause the interest on the Bond to become subject to
taxation under the Internal Revenue Code of 1986, as amended (the "Code"), and
applicable Treasury Regulations (the "Regulations").
(b) Use of Improvements. The Issuer covenants and agrees that it will not, nor
will it permit any of its officers, employees or agents, to enter into any lease, use or other
agreement with any person other than a state or political subdivision or agency or
instrumentality of a state, relating to the use of the Improvements or the security for the
Bond which might cause the Bond to be considered a "private activity bond" within the
meaning of Section 141 of the Code.
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(c) Investment of Moneys on Deposit in Revenue Bond Account. The Chief
Financial Officer shall ascertain monthly the amount on deposit in the Revenue Bond
Account. If the amount on deposit therein ever exceeds by more than $100,000 the
aggregate amount of principal and interest due and payable from the Revenue Bond
Account within 13 months thereafter, such excess shall either (1) not be invested except
at a yield equal to or less than the yield borne by the Bond, or (2) be used to prepay and
redeem principal installments of the Bond.
(d) Certification. The Mayor and City Clerk, being the officers of the Issuer
charged with the responsibility for issuing the obligations pursuant to this resolution, are
authorized and directed to execute and deliver to the purchaser a certification in order to
satisfy the provisions of Section 1.148-2(b) of the Regulations. Such certification shall
state that on the basis of the facts, estimates and circumstances in existence on the date
of issue and delivery of the Bond as therein set forth, it is not expected that the proceeds
of the Bond will be used in such a manner that would cause the Bond to be an arbitrage
bond, and the certification shall further state that to the best of the knowledge and belief
of the officers there are no other facts, estimates or circumstances that would materially
change such expectation.
6.02. Tax -Exempt Status of the Bond and Rebate. The Issuer shall comply with
requirements necessary under the Code to establish and maintain the exclusion from
gross income under Section 103 of the Code of the interest on the Bond, including without
limitation (1) requirements relating to temporary periods for investments, (2) limitations
on amounts invested at a yield greater than the yield on the Bond, and (3) the rebate of
excess investment earnings to the United States.
6.03. Repeal. All provisions of all other ordinances, resolutions and other actions
and proceedings of the Issuer and of this City Council which are in any way inconsistent
with the terms and provisions of this resolution are repealed, amended and rescinded to
the full extent necessary to give full force and effect to the provisions of this resolution.
Passed and Approved this 13t" day of September, 2022.
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QgG'Ec Oster, City Clerk
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Adopted:
4. 13 , 2022
Published:
.. /14 , 2022
Effective:
, 2022
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Niemeyer, Mayor
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