HomeMy WebLinkAboutResolution 022-2014 Resolution No.22-14
Resolution giving approval to certain Storm Drainage Facilities Improvements;Giving
approval to the issuance and sale of a Revenue Bond to Finance,directly or indirect(y,the
improvements to the facilities;Approving the form of the Loan Agreement and the
Revenue Bond and pledging revenues and collateral to secure the payment of the Revenue
Bond;and Creating Special Funds and Accounts for the administration of funds for operation
of the system and retirement of the Revenue Bond.
Whereas, one of the purposes of SDCL Chapter 9-40(the "Act")as found and determined by the
Legislature is to provide for financing the acquisition, maintenance,operation, extension or
improvement of any system or part of any system for the collection,treatment and disposal of
sewage and other domestic,commercial and industrial wastes;or any system for the control of
floods and drainage;or any combination thereof,together with extensions, additions,and
necessary appurtenances; and,
Whereas,a municipality is authorized to issue revenue bonds to defray the cost of extensions,
additions and improvements to any utility previously owned and is authorized to pledge the net
income or revenues from the system in accordance with Section 15 of the Act; and,
Whereas,the City of Brookings(the"City")currently operates a storm drainage system for the
control of floods and other storm water drainage and has determined that improvements to
the storm drainage system are necessary for the conduct of its governmental programs and
qualifies as an improvement, extension or addition to its storm drainage and has determined
that improvements to the storm drainage system are necessary for the conduct of its
governmental programs and qualifies as an improvement, extension or addition to its storm
drainage system; and,
Whereas,the City has determined to issue its revenue bonds to finance the improvements to its
storm drainage system for the purpose of storm water management (the "System") and has
applied to the South Dakota Conservancy District (the "District")for a Clean Water State
Revolving Fund Loan to finance the improvements;
Whereas,the City shall adopt special rates or surcharges for the improvements to be pledged,
segregated and used for the payment of the Bonds.
Now Therefore Be It Resolved by the City as follows:
SECTION 1. Definitions. The terms when used in this Resolution shall have the following
meanings set forth in this section unless the context clearly requires otherwise. All terms used in
this Resolution which are not defined herein shall have the meanings assigned to them in the
Loan Agreement unless the context clearly otherwise requires.
"Act" means South Dakota Codified Laws Chapter 9-40.
"Loan" means the Loan made by the South Dakota Conservancy District to the City pursuant to
the terms of the Loan Agreement and as evidenced by the Revenue Bond.
"Project" means the City of Brookings Division Avenue Drainage Improvement Project.
"Revenue Bond" means the revenue bond or bonds issued the date of the Loan Agreement by
the City to the South Dakota Conservancy District to evidence the City's obligation to repay the
principal of and pay interest and Administrative Expense Surcharge on the Loan.
"System" means the City's system of collection and management of storm water drainage.
SECTION 2. Declaration of Necessitv and Findin�s.
2.1. Declaration of Necessity. The City hereby determines and declares it is
necessary to construct and finance improvements to its System described as the Project.
2.2. Findin�s. The City does hereby find as follows:
2.2.1. The City hereby expressly finds that if the Project is not undertaken,the
System will pose a health hazard to the City and its inhabitants, and will make the City
unable to comply with state and federal law.
2.2.2. Because of the functional interdependence of the various portions of the
System,the fact that the System may not lawfully operate unless it complies with State
and federal laws, including SDCL Chapter 34A-2, and the federal Clean Water Act, and
the nature of the improvements financed,the City hereby finds and determines that the
Project will substantially benefit the entire System and all of its users within the
meaning of Sections 15 and 17 of the Act.
2.2.3. The City hereby determines and finds that for the purposes of the Act,
including, in particular, Sections 15 and 17 of the Act,that only the net income from the
system as improved,financed by the Revenue Bond, be pledged for its payment.
SECTION 3. Authorization of Loan, Pled�e of Revenue and Securitv.
3.1. Authorization of Loan. The City hereby determines and declares it necessary
to finance up to $1,570,000 of the costs of the Project through the issuance of bonds
payable from net revenues of the system and other funds secured by the City. The City
hereby determines that because the Revenue Bond is issued in connection with a financing
agreement described in SDCL 46A-1-49, pursuant to Section 15 of the Act no election is
required to issue the Revenue Bond.
3.2. Approval of Loan Agreement. The execution and delivery of the Revenue
Obligation Loan Agreement (the "Loan Agreement"),the form of which is on file with the
City Clerk and open to public inspection, between the City as Borrower and the District,
are hereby in all respects authorized, approved and confirmed, and the Mayor, City Clerk
and Finance Officer are hereby authorized and directed to execute and deliver the Loan
Agreement in the form and content attached hereto,with such changes as the attorney
for the City deems appropriate and approves,for and on behalf of the City. The Mayor,
City Clerk and Finance OfFicer are hereby further authorized and directed to implement
and perform the covenants and obligations of the City set forth in or required by the
Loan Agreement. The Loan Agreement herein referred to and made a part of this
Resolution is on file in the office of the City Clerk and is available for inspection by any
interested party.
3.3. Approval of Revenue Bond. The issuance of a revenue bond in a principal
amount not to exceed $1,570,000 as determined according to the Loan Agreement in the
form and content set forth in Appendix B attached to the form of Loan Agreement (the
"Revenue Bond") shall be and the same is, in all respects, hereby authorized, approved,
and confirmed and the Mayor, City Clerk, Finance Officer, and other appropriate officials
shall be and are hereby authorized and directed to execute and seal the Revenue Bond
and deliver the Revenue Bond to the District, for and on behalf of the City, upon receipt
of the purchase price, and to use the proceeds thereof in the manner set forth in the
Loan Agreement. The Mayor, City Clerk and Finance Officer are hereby authorized to
approve the final terms of the Revenue Bond and their execution and delivery thereof
shall evidence that approval. The Revenue Bond shal( be issued under the authority of
SDCL Chapter 9-40 and SDCL Chapter 6-86, and the provisions of the Act are hereby
expressly incorporated herein as provided in Section 19 of the Act.
3.4. Pled�e of Revenues. The Revenue Bond together with the interest thereon,
shall not constitute a charge against the City's general credit or taxing power, but shall be
a limited obligation of the City payable solely out of the Project Debt Service Account,
which payments, revenues and receipts are hereby and in the Loan Agreement pledged
and assigned for the equal and ratable payments of the Revenue Bond and shall be used
for no other purpose than to pay the principal of, interest and Administrative Surcharge
on the Revenue Bond, except as may be otherwise expressly authorized in the Loan
Agreement (including the purpose of securing Additional Bonds issued as permitted by
the terms thereof). The City hereby irrevocably pledges to the South Dakota
Conservancy District all income and revenues of the System, including, without
limitation,fees, charges to users of the System, penalties and hook-up fees, sign-up fees,
proceeds of business interruption insurance, proceeds from the sale of property
constituting part of the System and investment income on all such revenues, but only to
the extent that the revenues exceed the amounts necessary to operate and maintain the
System, provided there shall be excluded from this piedge the proceeds of any federal or
state grant or loan, and the investment income therefrom,to the extent such exclusion is
a condition of such grant or loan. The City covenants and agrees to charge rates for all
services from the System or establish charges or rates which will be sufficient to provide
for the payments upon the Revenue Bond issued hereunder as and when the same
become due, and as may be necessary to provide for the operation and maintenance and
repairs of the System, and depreciation, and the Rate Ordinance shall be revised from
time to time so as to produce these amounts. The City hereby reserves the right to
determine on a periodic basis the appropriate allocation of operation and maintenance
expenses, depreciation, repair and reserves associated with the facilities financed with
the Revenue Bond, provided that such determination of allocable operation and
maintenance expenses shall in no event abrogate, abridge or otherwise contravene the
covenant of the City set forth in this Section 3 or any other covenant or agreement in the
Loan Agreement.
SECTION 4. Rates, Certification, Se�re�ation and Review.
4.1. Rates and collection There shall be charged rates for each fiscal year which
shall ensure that its Net Revenues Available for Debt Service will equal at least 110%of
its System Debt Service for such fiscal year.
4.2. Certification. In each fiscal year, or as soon as practicable, and in any event
by the date of the delivery of the unaudited financia!statements required in the Loan
Agreement,the City shall (a) calculate its Net Revenues Available for Debt Service and
System Debt Service for the fiscal year, and (b) certify such figures to the South Dakota
Conservancy District. The certification described in clause (b) of the preceding sentence
shall be substantially in the form of the certificate attached as Appendix E to the Loan
Agreement. If the City fails to meet the Rate Covenant set forth in Section 6.4 of the
Loan Agreement,the City shall supply the District with quarterly reports on the actions it
is taking to correct its coverage deficiency until it delivers an annual coverage certificate
showing compliance with the first sentence of this Section.
4.3. Se�regation. The Finance Officer shall set up bookkeeping accounts in
accordance with South Dakota Legislative Audit guidelines for the segregation of the
revenue.
4.4. Periodic review. The sewer rates shall be reviewed from time to time, not
less than yearly, and shall be modified in order to produce such funds as are necessary
and required to comply with the Loan Agreement's rate covenant and to pay principal
of, interest and Administrative Surcharge on the Revenue Bond when due. The rates
may be set by ordinance or resolution in accordance with this Section. The rate
ordinance or resolution shall be necessary for the support of government and shall be
effective upon passage.
SECTION 5. Additional Bonds. As permitted by Sections 8 and 9 of the Act, Additional Bonds
payable from revenues and income of the System may be issued, as permitted in the Loan
Agreement, and no provision of this Resolution shall have the effect of restricting the issuance
of, or impairing the lien of, such additional parity bonds with respect to the net revenues or
income from the extensions, additions or improvements. The City shall have the right to issue
additional bonds secured by a lien subordinate to the lien from the Revenue Bond pursuant to
the Loan Agreement.
SECTION 6. Proiect Fund Accounts. For the purpose of application and proper allocation of net
income of the System and to secure the payment of principal,Administrative Surcharge and
interest on the Revenue Bond,the following mandatory asset segregations shall be included in
the sewer system account of the City and shall be used solely for the following respective
purposes until payment in full of the principal of and interest on the Revenue Bond:
6.1. Proiect Revenue Account. There shall be deposited periodically into the
Project Revenue Account the net revenues as defined in Section 17 of the Act derived
from the operation of the Project collected pursuant to the Ordinances and resolutions
of the City of Brookings, South Dakota (collectively the "Rate Ordinance"). Moneys from
the Project Revenue Account shall be transferred periodically into separate funds and
accounts as provided below.
6.2. Proiect Debt Service Account. Out of the revenues in the Project Revenue
Account,there shall be set aside no later than the 25th day of each month into the
account designated Project Debt Service Account, a sum sufficient to provide for the
payment as the same become due of the next maturing principal of, interest and
Administrative Surcharge on the Revenue Bonds and any reserve determined by the
City's governing body to be necessary. The amount set aside monthly shall be not less
than one-third of the total principal, interest, and Administrative Surcharge payable on
the following January 15,April 15,July 15, or October 15 and if there shall be any
deficiency in the amount previously set aside,then the amount of such deficiency shall
be added to the current requirement.
6.3. Depreciation Account. There shall be established a General Depreciation
Account. Out of the revenues of the Project Revenue Account there shall be set aside
each month into the General Depreciation Account an amount determined by the
Common Council to be a proper and adequate amount for repair and depreciation of the
Project.
6.4. Proiect Surplus Account. There shall be established the Project Surplus
Account. Revenues remaining in the Project Revenue Account at the end of any fiscal
year after all periodic transfers have been made therefrom as above required, shall be
deemed to be surplus and shall be transferred to the Project Surplus Account. If at any
time there shall exist any default in making any periodic transfer to the Project Debt
Service Account,the Common Council shall authorize the City Finance Officer to rectify
such default so far as possible by the transfer of money from the Project Surplus
Account. If any such default shall exist as to more than one account or fund at any time,
then such transfer shall be made in the order such funds and accounts are listed above.
When not required to restore a current deficiency in the Project Debt Service Account,
moneys in the Project Surplus Account from time to time may be used for any of the
fo(lowing purposes and not otherwise:
(a) To redeem and prepay the Revenue Bond when and as such Revenue Bond
becomes prepayable according to its terms;
(b) To pay for repairs of or for the construction and installation of
improvements or additions to the System; and, if the balances in the Project
Debt Service Account and the Project Depreciation Account are sufficient to
meet all payments required or reasonably anticipated to be made there from
prior to the end of the then current fiscal year,then:
(c) To be held as a reserve for redemption and prepayment of any bonds of the
System which are not then but will later be prepayable according to their terms;
or
(d) To be used for any other authorized municipal purpose designated by the
Common Council.
(e) No moneys shall at any time be transferred from the Project Surplus Account
or any other account of the Fund to any other fund of the City, nor shall such
moneys at any time be loaned to other municipal funds or invested in warrants,
special improvements bonds or other obligations payable from other funds,
except as provided in this Section.
SECTION 7. Approval of Payin�A�ent/Re�istrar. The Revenue Bond shall be payable at the
office of The First National Bank in Sioux Falls, Sioux Falls, South Dakota, hereby designated as
paying agent and registrar.
SECTION 8. Approval of Bond Counsel. Meierhenry Sargent LLP is hereby retained as Bond
Counsel with respect to the Revenue Bond.
SECTION 9. Tax Matters. The Interest on the Revenue Bond shall be excludable from gross
income for federal income tax purposes under the Internal Revenue Code of 1986, as amended
("the Code") and applicable Treasury Regulations (the "Regulations").
SECTION 10. Covenants. The City hereby covenants and agrees with the District and other
owners of the Revenue Bond as follows:
10.1. The City will punctually perform all duties with reference to the Project,
the System and the Revenue Bond required by the constitution and laws of the State of
South Dakota and by this Resolution.
10.2. The City agrees and covenants that it will promptly construct the
improvements included in the Project.
10.3. The City covenants and agrees that pursuant to Sections 25 through 27 of
the Act,the lawful holders of the Revenue Bond shall have a statutory mortgage lien
upon the Project and the extensions, additions and improvements thereto acquired
pursuant to the Act, until the payment in full of the principal and interest on the Revenue
Bond, and the City agrees not to sell or otherwise dispose of the System,the Project, 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 distribution of water for municipal, industrial, and
domestic purposes within the City.
10.4. The City covenants and agrees with the District and other owners of the
Revenue Bond that it will maintain the System in good condition and operate the same in an
efficient manner and at a reasonable cost,so long as any portion of the Revenue Bond
remains outstanding;that it will maintain insurance on the System for the benefit of the
holders of the Revenue Bond in an amount which usually would be carried by private
companies in a similar type of business;that it will prepare, keep and file records,
statements and accounts as provided for in this Resolution and the Loan Agreement. The
Revenue Bond shall refer expressly to this Resolution and the Act and shall state that it is
subject to all provisions and limitations thereof pursuant to Section 19 of the Act.
SECTION 11. Depositories. The Finance Officer shall cause all moneys pertaining to the Funds
and Accounts to be deposited as received with one or more banks which are duly qualified
public depositories under the provisions of SDCL Ch. 4-6A, in a deposit account or accounts,
which shall be maintained separate and apart from all other accounts of the City, so long as any
of the Bonds and the interest thereon shall remain unpaid. Any of such moneys not necessary
for immediate use may be deposited with such depository banks in savings or time deposits.
No money shall at any time be withdrawn from such deposit accounts except for the purposes
of the Funds and Accounts as authorized in this Resolution; except that moneys from time to
time on hand in the Funds and Accounts may at any time, in the discretion of the City's
governing body, be invested in securities permitted by the provisions of SDCL 4-5-6; provided,
however,that the Depreciation Fund 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 Fund or 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 therein.
SECTION 12. Consent to Appointment. In the event of mismanagement of the Project, a default
in the payment of the principal or interest of the Revenue Bond, or in any other condition
thereof materially affecting the lawful holder of the Revenue Bond, or if the revenues of the
Project are dissipated, wasted or diverted from their proper application as set forth in the Loan
Agreement, Revenue Bond, or herein,the City hereby consents to the appointment of a
receiver pursuant to Section 33 of the Act, and agrees that the receiver will have the powers set
forth therein, and in Sections 34 and 35 of the Act to operate and administer the Project, and
charge and collect rates as described therein.
SECTION 13. Severabilitv. If any section, paragraph, clause or provision of this Resolution,the
Loan Agreement,the Revenue Bond, or any other Loan Document shall be held invalid,the
invalidity of such section, paragraph, clause or provision shall not affect any of the other provisions
of this Resolution or said Loan Agreement, Revenue Bond, or any other Loan Document.
SECTION 14. Authorization of Citv Officials. The Mayor, City Clerk, Finance Officer,City Attorney
and City officials shall be and they are hereby authorized to execute and deliver for and on behalf
of the City any and all other certificates, documents or other papers and to perform such other
acts as they may deem necessary or appropriate in order to implement and carry out the actions
authorized herein.
SECTION 15. Effective Date. This Resolution shall take effect on the 20th day following its
publication, unless suspended by a referendum.
Adopted at Brookings,South Dakota,this 25th day of February, 2014.
CITY OF BROOKINGS
OS�p J S`J�y.�G
oy;A�f�SYs�"m Tim Reed, Mayor
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Shari Thornes, City Clerk
Published: _ �T�aG��
Effective: 3�ao/ao