883 LID BOND KILLION ROADCITY OF YELM, WASHINGTON
KILLION ROAD LOCAL IMPROVEMENT DISTRICT
BOND ANTICIPATION NOTES, 2007
ORDINANCE NO. 883
AN ORDINANCE OF THE CITY OF YELM, WASHINGTON,
PROVIDING FOR THE ISSUANCE AND SALE OF BOND
ANTICIPATION NOTES FOR THE PURPOSE OF PROVIDING
INTERIM FINANCING FOR IMPROVEMENTS WITHIN THE
KILLION ROAD LOCAL IMPROVEMENT DISTRICT IN THE
AGGREGATE PRINCIPAL AMOUNT OF $4,300,000;
PROVIDING THE FORM, TERMS AND MATURITY OF SAID
NOTES; AUTHORIZING A PRELIMINARY OFFICIAL
STATEMENT; AND APPROVING THE SALE OF SUCH NOTES.
APPROVED ON OCTOBER 23, 2007
PREPARED BY:
K&L PRESTON GATES ELLIS LLP
Seattle, Washington
CITY OF YELM, WASHINGTON
ORDINANCE NO. 883
TABLE OF CONTENTS*
Page
Section 1. Definitions .............................................................................................................2
Section 2. Authorization of Notes ........................................................................................ .. 6
Section 3. Redemption ......................................................................................................... ..7
Section 4. Registration, Exchange and Payments ................................................................ .. 9
Section 5. Repayment Fund-Security and Sources of Payment of Notes ............................ 14
Section 6. Execution and Delivery of Notes ........................................................................ 14
Section 7. Sale of the Notes ................................................................................................. 15
Section 8. Application of Note Proceeds ............................................................................. 15
Section 9. Defeasance .......................................................................................................... 16
Section 10. Lost, Destroyed or Mutilated Notes .................................................................... 17
Section 11. Representations and Warranties .......................................................................... 17
Section 12. Covenants of the City .......................................................................................... 18
Section 13. Form of Notes and Certificate of Authentication ................................................ 19
Section 14. Tax Designation ............................................................................................:..... 21
Section 15. General Authorization ......................................................................................... 23
Section 16. Effect of Partial Invalidity ................................................................................... 23
Section 17. Effect of Covenants, Etc ..................................................................................... 23
Section 18. Undertaking to Provide Ongoing Disclosure ...................................................... 24
Section 19. Ordinance to Constitute Contract ........................................................................ 26
* This Table of Content and the cover page are provided for convenience only and are not a part
of this ordinance.
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ORDINANCE NO. 883
AN ORDINANCE OF THE CITY OF YELM, WASHINGTON,
PROVIDING FOR THE ISSUANCE AND SALE OF BOND
ANTICIl'ATION NOTES FOR THE PURPOSE OF PROVIDING
INTERIM FINANCING FOR IMPROVEMENTS WITHIN THE
KILLION ROAD LOCAL IMPROVEMENT DISTRICT IN THE
AGGREGATE PRINCIl'AL AMOUNT OF $4,300,000;
PROVIDING THE FORM, TERMS AND MATURITY OF SAID
NOTES; AUTHORIZING A PRELIMINARY OFFICIAL
STATEMENT; AND APPROVING THE SALE OF SUCH NOTES.
WHEREAS, the City Council of the City of Yelm, Washington (the "City"), by
Ordinance No. 847, approved on June 14, 2006, created Local Improvement District No. 2, also
known as and referred to herein as the Killian Road Local Improvement District (the "District")
and provided for the issuance of local improvement district bonds and interim short-term
obligations to pay the cost of improvements in the District and the expenses incidental thereto;
and
WHEREAS, pursuant to RCW Ch. 35.45, the City is authorized to issue local.
improvement district bonds to provide financing for improvements to be made in the District;
and
WHEREAS, pursuant to RCW Ch. 39.50, the City is authorized to issue short term
obligations in anticipation of the issuance of such local improvement district bonds; and
WHEREAS, a first series of such authorized notes in the aggregate principal amount of
$5,100,000 was issued under date of November 7, 2006, pursuant to Ordinance No. 859 of the
Council passed on October 24, 2006; and
WHEREAS, it is deemed necessary and desirable that the City, in order to pay the costs
of the improvements in the District, issue and sell a second series of short-term obligations in the
form of local improvement district bond anticipation notes; and
WHEREAS, this City Council has received the offer of Martin Nelson & Company, Inc.
to purchase the notes authorized herein, which offer the City Council deems acceptable;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF YELM,
WASHINGTON, DOES ORDAIN, as follows:
Section 1. Definitions. As used in this ordinance, the following words shall have the
following meanings:
Act means Chapter 39.50 RCW.
Beneficial Owner means any person that has or shares the power, directly or indirectly, to
make investment decisions concerning ownership of any Note (including persons holding Notes
through nominees, depositories or other intermediaries).
Bonds mean the local improvement district bonds of the City to be issued for the purpose
of providing permanent financing for the Improvements.
City means City of Yelm, Washington, a municipal corporation duly organized and
existing under and by virtue of the laws of the State of Washington.
Code means the federal Internal Revenue Code of 1986, as amended from time to time,
and the applicable regulations thereunder.
Council means the duly constituted City Council as the general legislative body of the
City.
District means Local Improvement District No. 2 of the City, also known as and referred
to herein as the Killion Road Local Improvement District.
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DTC means The Depository Company, New York, New York, a limited purpose trust
company organized under the laws of the State of New York, as depository for the Notes
pursuant to Section 4 hereof.
Government Obligations means those obligations now or hereafter defined as such in
chapter 39.53 RCW.
Improvements mean the improvements to be undertaken within the District, as authorized
by Ordinance No. 847.
Killion Road Improvements Fund means the Killion Road Improvements Fund created
in the office of the Treasurer by Section 8 of Ordinance No. 859.
Killion Road LID No. 2 Repayment Fund means the Killion Road LID No. 2 Repayment
Fund, created in the office of the Treasurer by Section 5 of Ordinance No. 859.
Letter of Representations means the blanket issuer letter of representations from the City
to DTC.
MSRB means the Municipal Securities Rulemaking Board or any successor to its
functions.
Net Proceeds, when used with reference to the Notes, means the principal amount of the
Notes, plus accrued interest and original issue premium, if any, and less original issue discount.
Note Register means the registration books showing the name, address and tax
identification number of each registered owner of the Notes, maintained pursuant to
Section 149(a) of the Code.
Note Registrar means the fiscal agency of the State of Washington for the purposes of
registering and authenticating the Notes, maintaining the Note Register, effecting transfer of
ownership of the Notes and paying interest on and principal of the Notes.
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Notes means the City of Yelm, Washington Killion Road Local Improvement District
Bond Anticipation Notes, 2007, the sale and issuance of which are authorized herein.
Note Year means each one-year period that ends on the date selected by the City. The
first and last Note Years maybe short periods. If no day is selected by the City before the earlier
of the final maturity date of the Notes or the date that is five years after the date of issuance of the
Notes, Note Years end on each anniversary of the date of issue and on the final maturity date of
the Notes.
NRMSIR means a nationally recognized municipal securities information repository.
Private Person means any natural person engaged in a trade or business or any trust,
estate, partnership, association, company or corporation.
Private Person Use means the use of property in a trade or business by a Private Person if
such use is other than as a member of the general public. Private Person Use includes ownership
of the property by the Private Person as well as other arrangements that transfer to the Private
Person the actual or beneficial use of the property (such as a lease, management or incentive
payment contract or other special arrangement) in such a manner as to set the Private Person
apart from the general public. Use of property as a member of the general public includes
attendance by the Private Person at municipal meetings or business rental of property to the
Private Person on a day-to-day basis if the rental paid by such Private Person is the same as the
rental paid by any Private Person who desires to rent the property. Use of properly by nonprofit
community groups or community recreational groups is not treated as Private Person Use if such
use is incidental to the governmental uses of property, the property is made available for such use
by all such community groups on an equal basis and such community groups are charged only a
de minimis fee to cover custodial expenses.
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Registered Owner means the person named as the registered owner of a Note in the Note
Register. For so long as the Notes are held in book-entry form, DTC shall be deemed to be the
sole Registered Owner of the Notes.
Rule means the SEC's Rule 15c2-12 under the Securities and Exchange Act of 1934, as
the same maybe amended from time to time.
SEC means the Securities and Exchange Commission.
SID means a state information depository for the State of Washington if one is hereafter
created.
Treasurer means the Finance & Administrative Services Director, or any successor to the
functions of the Treasurer.
Underwriter means Martin Nelson & Company, Inc., Seattle, Washington.
Rules of Interpretation. In this ordinance, unless the context otherwise requires:
(a) The terms "hereby," "hereof," "hereto," "herein, "hereunder" and any similar
terms, as used in this ordinance, refer to this ordinance as a whole and not to any particular
article, section, subdivision or clause hereof, and the term "hereafter" shall mean after, and the
term "heretofore" shall mean before, the date of this ordinance;
(b) Words of the masculine gender shall mean and include correlative words of the
feminine and neuter genders and words importing the singular number shall mean and include
the plural number and vice versa;
(c) Words importing persons shall include firms, associations, partnerships (including
limited partnerships), trusts, corporations and other legal entities, including public bodies, as well
as natural persons;
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(d) Any headings preceding the text of the several articles and sections of this
ordinance, and any table of contents or marginal notes appended to copies hereof, shall be solely
for convenience of reference and shall not constitute a part of this ordinance, nor shall they affect
its meaning, construction or effect; and
(e) All references herein to "articles," "sections" and other subdivisions or clauses are
to the corresponding articles, sections, subdivisions or clauses hereof.
Section 2. Authorization of Notes.. For the purpose of providing interim financing of
the Improvements pending their completion and the issuance of the Bonds, the Council hereby
authorizes the issuance and sale of a second series of bond anticipation notes in the aggregate
principal amount of $4,300,000 (the "Notes"}. The Notes shall be designated as the "City of
Yelm, Washington Killion Road Local Improvement District Bond Anticipation Notes, 2007,"
shall be dated as of the date of their initial issuance and delivery, shall be issued in fully
registered form in the denomination of $5,000 each or any integral multiple thereof, shall bear
interest at a per annum rate of 4.00%, payable at maturity and shall mature on October 1, 2009.
Interest on the Notes shall be calculated on the basis of a 360-day year with 30-day months.
The Notes shall be an obligation only of the Killion Road LID No. 2 Repayment Fund
and shall be payable and secured as provided herein. The Notes shall not be deemed to constitute
a general obligation or a pledge of the faith and credit or taxing power of the City or the State of
Washington.
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Section 3. Redemption.
(a} ,Optional Redemption. The Notes are subject to redemption at the option of the
City in whole on October 1, 2008 and on the first business day of any month thereafter, at a price
of par plus accrued interest, if any, to the date of redemption.
(b) Purchase of Notes. The City also reserves the right to purchase any of the Notes
offered to the City at any time at a price deemed reasonable by the City.
(c) Selection of Notes for Redemption. If any Notes are to be redeemed, the selection
of Notes to be redeemed shall be made in accordance with the operational arrangements then in
effect at DTC.
(d) Notice of Redemption. Written notice of any redemption of Notes prior to
maturity shall be given by the Note Registrar on behalf of the City by first class mail, postage
prepaid, not less than 30 days nor more than 60 days before the date fixed for redemption to the
Registered Owners of Notes that are to be redeemed at their last addresses shown on the Note
Register. This requirement shall be deemed complied with when notice is mailed to the
Registered Owners at their last addresses shown on the Note Register, whether or not such notice
is actually received by the Registered Owners.
So long as the Notes are in book-entry only form, notice of redemption shall be given to
Beneficial Owners of Notes to be redeemed in accordance with the operational arrangements
then in effect at DTC, and neither the City nor the Registrar shall be obligated or responsible to
confirm that any notice of redemption is, in fact, provided to Beneficial Owners.
Each notice of redemption prepared and given by the Note Registrar to Registered
Owners of Notes shall contain the following information: (1) the redemption date, (2) the
redemption price, (3) that (unless the notice of redemption is a conditional notice, in which case
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the notice shall state that interest shall cease to accrue from the date fixed for redemption if and
to the extent that funds have been provided to the Note Registrar for the redemption of Notes) on
the date fixed for redemption the redemption price will become due and payable upon each Note
or portion called for redemption, and that interest shall cease to accrue from the date fixed for
redemption, (4) that the Notes are to be surrendered for payment at the principal office of the
Note Registrar, (5) the CUSIP numbers of all Notes being redeemed, (6) the date of the notice,
and (7) any other information deemed necessary by the Note Registrar to identify the Notes being
redeemed.
Upon the payment of the redemptian price of Notes being redeemed, each check or other
transfer of funds issued for such purpose shall bear the CUSIP number identifying, by issue and
maturity, the Notes being redeemed with the proceeds of such check or other transfer.
(e) Effect of Redemption. Notice of an optional redemption may be conditional upon
the conditions set forth in set forth in the redemption notice. Unless the City has revoked a
notice of redemption (or unless the City provided a conditional notice and the conditions for
redemption set forth therein are not satisfied), the City shall transfer to the Note Registrar
amounts that, in addition to other money, if any, held by the Note Registrar for such purpose, will
be sufficient to redeem, on the date fixed for redemption, all the Notes to be redeemed. If and to
the extent that funds have been provided to the Note Registrar for the redemption of Notes then
such Notes shall become due and payable on the date fixed for redemption and interest on such
Note shall cease to accrue from and after such date.
(f) Amendment of Notice Provisions. The foregoing notice provisions of this section,
including but not limited to the information to be included in redemption notices and the persons
designated to receive notices, may be amended by additions, deletions and changes to maintain
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compliance with duly promulgated regulations and recommendations regarding notices of
redemption of municipal securities.
Section 4. Registration, Exchange and Payments.
(a) Note Registrar/Note Register. The City hereby specifies and adopts the system of
registration approved by the Washington State Finance Committee from time to time through the
appointment of state fiscal agencies. The City shall cause a note register to be maintained by the
Note Registrar. So long as any Notes remain outstanding, the Note Registrar shall make all
necessary provisions to permit the exchange or registration or transfer of Notes at its principal
corporate trust office. The Note Registrar may be removed at any time at the option of the
Treasurer upon prior notice to the Note Registrar and a successor Note Registrar appointed by the
Treasurer. No resignation or removal of the Note Registrar shall be effective until a successor
shall have been appointed and until the successor Note Registrar shall have accepted the duties of
the Note Registrar hereunder. The Note Registrar is authorized, on behalf of the City, to
authenticate and deliver Notes transferred or exchanged in accordance with the provisions of
such Notes and this ordinance and to carry out all of the Note Registrar's powers and duties
under this ordinance. The Note Registrar shall be responsible for its representations contained in
the Certificate of Authentication of the Notes.
(b) Registered Ownership. The City and the Note Registrar, each in its discretion,
may deem and treat the Registered Owner of each Note as the absolute owner thereof for all
purposes (except as provided in Section 18 of this ordinance), and neither the City nor the Note
Registrar shall be affected by any notice to the contrary. Payment of any such Note shall be
made only as described in Section 4(h) hereof, but such Note may be transferred as herein
provided. All such payments made as described in Section 4(h) shall be valid and shall satisfy
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and discharge the liability of the City upon such Note to the extent of the amount or amounts so
paid.
(c) DTC Acceptance/Letters of Representations. The Notes initially shall be held in
fully immobilized form by DTC acting as depository. To induce DTC to accept the Notes as
eligible for deposit at DTC, the City has executed and delivered to DTC a Blanket Issuer Letter
of Representations. Neither the City nor the Note Registrar will have any responsibility or
obligation to DTC participants or the persons for whom they act as nominees (or any successor
depository) with respect to the Notes in respect of the accuracy of any records maintained by
DTC (or any successor depository) or any DTC participant, the payment by DTC (or any
successor depository) or any DTC participant of any amount in respect of the principal of or
interest on Notes, any notice which is permitted or required to be given to Registered Owners
under this ordinance (except such notices as shall be required to be given by the City to the Note
Registrar or to DTC (or any successor depository)), or any consent given or other action taken by
DTC (or any successor depository) as the Registered Owner. For so long as any Notes are held in
fully-immobilized form hereunder, DTC or its successor depository shall be deemed to be the
Registered Owner for all purposes hereunder, and all references herein to the Registered Owners
shall mean DTC (or any successor depository) or its nominee and shall not mean the owners of
any beneficial interest in such Notes.
If any Note shall be duly presented for payment and funds have not been duly provided by
the City on such applicable date, then interest shall continue to accrue thereafter on the unpaid
principal thereof at the rate stated on such Note until it is paid.
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(d) Use of Depository.
(1) The Notes shall be registered initially in the name of "Cede & Co.", as
nominee of DTC, with one Note maturing on each of the maturity dates for the Notes in a
denomination corresponding to the total principal therein designated to mature on such date.
Registered ownership of such immobilized Notes, or any portions thereof, may not thereafter be
transferred except (A) to any successor of DTC or its nominee, provided that any such successor
shall be qualified under any applicable laws to provide the service proposed to be provided by it;
(B) to any substitute depository appointed by the Treasurer pursuant to subsection (2) below or
such substitute depository's successor; or (C) to any person as provided in subsection (4) below.
(2} 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 Treasurer to
discontinue the system of book entry transfers through DTC or its successor (or any substitute
depository or its successor), the Treasurer may hereafter 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.
(3) In the case of any transfer pursuant to clause (A) or {B) of subsection (1)
above, the Note Registrar shall, upon receipt of all outstanding Notes, together with a written
request of the Treasurer, issue a single new Note, registered in the name of such successor or
such substitute depository, or their nominees, as the case maybe, all as specified in such written
request of the Treasurer.
(4) In the event that (A) DTC or its successor (or substitute depository or its
successor) resigns from its functions as depository, and no substitute depository can be obtained,
or (B) the Treasurer determines that it is in the best interest of the beneficial owners of the Notes
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that such owners be able to obtain the Notes in the form of certificates, the ownership of such
Notes may then be transferred to any person or entity as herein provided, and shall no longer be
held in fully-immobilized form. The Treasurer shall deliver a written request to the Registrar,
together with a supply of definitive Notes, to issue Notes as herein provided in any authorized
denomination. Upon receipt by the Note Registrar of all then outstanding Notes together with a
written request of the Treasurer to the Note Registrar, new Notes shall be issued in the
appropriate denominations and registered in the names of such persons as are requested in such
written request.
(e) Registration of Transfer of Ownership ar Exchange; Change in Denominations.
The transfer of any Note may be registered and Notes may be exchanged, but no transfer of any
such Note shall be valid unless it is surrendered to the Registrar with the assignment form
appearing on such Note duly executed by the Registered Owner or such Registered Owner's duly
authorized agent in a manner satisfactory to the Note Registrar. Upon such surrender, the
Registrar shall cancel the surrendered Note and shall authenticate and deliver, without charge to
the Registered Owner or transferee therefor, a new Note (or Notes at the option of the new
Registered Owner) of the same date and interest rate and for the same aggregate principal amount
in any authorized denomination, naming as Registered Owner the person or persons listed as the
assignee on the assignment form appearing on the surrendered Note, in exchange for such
surrendered and cancelled Note. Any Note may be surrendered to the Note Registrar and
exchanged, without charge, for an equal aggregate principal amount of Notes of the same date,
maturity and interest rate, in any authorized denomination. The Registrar shall not be obligated
to register the transfer or to exchange any Note during the 15 days preceding any interest
payment or principal payment date any such Note is to be redeemed.
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(f} Registrar's Ownership of Notes. The Registrar may become the Registered
Owner of any Note with the same rights it would have if it were not the Registrar, and to the
extent permitted by law, may act as depository for and permit any of its officers or directors to
act as member of, or in any other capacity with. respect to, any committee formed to protect the
right of the Registered Owners of Notes.
(g) Registration Covenant. The City covenants that, until all Notes have been
surrendered and canceled, it will maintain a system for recording the ownership of each Note that
complies with the provisions of Section 149 of the Code.
(h) Place and Medium of Payment. Both principal of and interest on the Notes shall
be payable in lawful money of the United States of America. Interest on the Notes shall be
calculated on the basis of a year of 360 days and twelve 30-day months. For so long as all Notes
are in fully immobilized form, payments of principal and interest thereon shall be made as
provided in accordance with the operational arrangements of DTC referred to in the Letter of
Representations. In the event that the Notes are no longer in fully immobilized form, interest on
the Notes shall be paid by check or draft mailed to the Registered Owners at the addresses for
such Registered Owners appearing on the Note Register on the fifteenth day of the month
preceding the interest payment date, or upon the written request of a Registered Owner of more
than $1,000,000 of Notes (received by the Note Registrar at least 15 days prior to the applicable
payment date), such payment shall be made by the Note Registrar by wire transfer to the account
within the continental United States designated by the Registered Owner. Principal of the Notes
shall be payable upon presentation and surrender of such Notes by the Registered Owners at the
principal office of the Note Registrar.
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Section 5. Repayment Fund-Security and Sources of Payment of Notes. The
Treasurer has established a special fund of the City known as the "Killion Road LID No. 2
Repayment Fund" (the "Killion Road LID No. 2 Repayment Fund"), which fund shall be a trust
fund and shall be drawn upon only for the payment of the principal of and interest on the Notes.
On the date of issuance of the Notes, the sum of $154,800 shall be deposited into the Killion
Road LID No. 2 Repayment Fund and shall be used to pay the interest on the Notes coming due
on April 1, 2008 and October 1, 2008. The City hereby covenants and agrees that on or before
on or before each day on which payments of interest and/or principal are due, it will deposit
money into the Killion Road LID No. 2 Repayment Fund and then from the proceeds of
additional interim financing notes or from the Bonds, amounts sufficient to pay interest coming
due and the City hereby further covenants and agrees that on or before October 1, 2009, proceeds
of the Bonds or the refunding notes shall be deposited into the Killion Road LID No. 2
Repayment Fund in an amount sufficient to pay the principal of and interest on the Notes as the
same become due.
Money in the Killion Road LID No. 2 Repayment Fund shall be invested by the City in
any investment that is legal for funds of the City, and on or prior to October 1, 2008, the interest
earnings on such investments may, at the option of the Treasurer, be deposited into the Killion
Road Improvements Fund.
The Notes shall be obligations only of the Killion Road LID No. 2 Repayment Fund of
the City.
Section 6. Execution and Delivery of Notes. The Notes shall be executed on behalf
of the City by the manual or facsimile signature of the Mayor and attested by the manual or
facsimile signature of the City Clerk. In case any officer whose signature shall appear on any
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Note shall cease to be an officer before the delivery of such Note, such signature shall
nevertheless be valid and sufficient for all purposes, and such Note may be authenticated and
delivered the same as if such officer had remained in office until such delivery.
Only such Notes as shall bear thereon a Certificate of Authentication in the form
hereinafter specified in Section 13, manually executed by the Note Registrar, shall be valid or
obligatory for any purpose or entitled to the benefits of this ordinance. Such Certificate of
Authentication shall be conclusive evidence that the Notes so authenticated have been duly
executed, authenticated and delivered hereunder and are entitled to the benefits of this ordinance.
Section 7. Sale of the Notes. The City hereby accepts the offer of the Underwriter
delivered to the City Council on this date to purchase the Notes in accordance with the terms
contained in this ordinance and said offer. The City officials are hereby authorized and directed
to do everything necessary to complete such sale and delivery of the Notes to the Underwriter
upon the payment of the purchase price thereof, all in accordance with this ordinance and the
offer of the Underwriter. The Treasurer is hereby authorized to review and approve on behalf of
the City the preliminary and final Official Statements. The proper City officials are hereby
authorized and directed to do everything necessary for the prompt execution and delivery of the
Notes to said purchaser and for the proper application and use of the proceeds of sale thereof.
The preliminary Official Statement for the Notes, dated October 15, 2007, is hereby deemed final
for the purposes of the Rule.
Section 8. Application of Note Proceeds. The Treasurer has established a special
fund of the City known as the Killion Road Improvements Fund (the "Killion Road
Improvements Fund") into which the principal proceeds of the sale of the Notes shall be paid and
applied to payment of the costs of the Improvements and the costs of issuing the Notes (including
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but not limited to engineering, financing, legal or any other incidental costs) and for repaying any
advances heretofore or hereafter made on account of such costs or for redeeming the Notes. All
moneys held in the Killion Road Improvements Fund maybe invested in any legal investment for
the City's funds, and all investments shall be scheduled to mature as costs of the Improvements
are reasonably anticipated to be incurred. Interest earned and income or profits derived by virtue
of investments of moneys in the Killion Road Improvements Fund may remain in the Killion
Road Improvements Fund and may be used for the payment of Improvements costs or may be
transferred to the Killion Road LID No. 2 Repayment Fund. Upon the completion of the
Improvements and the payment of all costs thereof, including the payment of all retainages for
construction, the balance on hand in the Killion Road Improvements Fund shall be transferred to
the Killion Road LID No. 2 Repayment Fund, and the Killion Road Improvements Fund shall be
closed.
Section 9. Defeasance. In the event that money and/or Government Obligations
maturing at such time or times and bearing interest to be earned thereon in amounts sufficient to
redeem and retire any or all of the Notes in accordance with their terms are set aside in a special
account to effect such redemption or retirement and such money and the principal of and interest
on such obligations are irrevocably set aside and pledged for such purpose, then no further
payments need be made into the Killion Road LID No. 2 Repayment Fund for the payment of the
principal of and interest on the Notes so provided for and such Notes shall cease to be entitled to
any lien, benefit or security of this ordinance except the right to receive the funds so set aside and
pledged, and such Notes shall be deemed not to be outstanding hereunder.
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Section 10. Lost, Destroyed or Mutilated Notes. In the event any Note is lost,
destroyed, or mutilated, the City will cause to be issued a new Note, substantially similar to the
original, to replace the same, in such manner and upon such reasonable terms and conditions as
the Note Registrar may from time to time determine.
Section 11. Representations and Warranties. The City hereby makes the following
representations, warranties and agreements.
(a) The City has full legal right, power and authority (1) to pass this ordinance, (2) to
sell, issue and deliver the Notes as provided herein and (3) to carry out and consummate all other
transactions contemplated by this ordinance.
(b) By all necessary official action prior to or concurrently herewith, the City has duly
authorized and approved the execution and delivery of, and the performance by the City of its
obligations contained in the Notes and this ordinance and the consummation by it of all other
transactions contemplated by this ordinance in connection with the issuance of the Notes, and
such authorizations and approvals are in full force and effect and have not been amended,
modified or supplemented in any material respect.
(c) This ordinance constitutes the legal, valid and binding obligation of the City.
(d) The Notes, when issued, authenticated and delivered, will constitute the legal,
valid and binding obligations of the City, in accordance with their terms.
(e) The City is not in breach of or default under any applicable judgment or decree or
any loan agreement, ordinance, bond, note, ordinance, agreement or other instrument to which
the City is a party or to which the City or any of its property or assets is otherwise subject where
such breach or default would have a material adverse effect on the operations or financial
condition of the City; and (i) the passage of this ordinance, and (ii) the sale, issuance and delivery
-17- P:120287_CMW~20287_7R3 07/10/23
of the Notes, and compliance with the provisions on the City's part contained therein, will not
conflict with or constitute a breach of or default under any constitutional provision, law,
administrative regulation, judgment, decree, loan agreement, indenture, bond, note, ordinance,
agreement or other instrument to which the City is a party or to which the City or any of its
property or assets is otherwise subject, nor will any such passage, execution, delivery, sale,
issuance or compliance result in the creation or imposition of any lien, charge or other security
interest or encumbrance of any nature whatsoever upon any of the property or assets of the City
or under the terms of any such law, regulation or instrument, except as provided by the Notes and
this ordinance.
Section 12. Covenants of the City. The City covenants that amounts on deposit in the
Killion Road LID No. 2 Repayment Fund shall be drawn upon solely for the purpose of paying
the principal of and interest on the Notes. The City further covenants that it will duly and
punctually pay or cause to be paid the principal of and interest on every Note at the place or
places, on the date or dates and in the manner provided in the Notes and herein. The City further
covenants and agrees that it will deposit moneys from the sources herein provided or issue
refunding notes in such amount and at such time as will enable it to make the deposits into the
Killion Road LID No. 2 Repayment Fund required by Section 5 of this ordinance.
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Section 13. Form of Notes and Certificate of Authentication. The Notes shall be in
substantially the following form:
$4,300,000
UNITED STATES OF AMERICA
STATE OF WASHINGTON
No.
CITY OF YELM
KII.LION ROAD LOCAL IMPROVEMENT DISTRICT
BOND ANTICIPATION NOTE, 2007
INTEREST RATE:
4.00%
MATURITY DATE:
OCTOBER 1, 2009
CUSIP NO.:
985816 AB3
REGISTERED OWNER:
PRINCIPAL AMOUNT
CEDE & Co.
FOUR MILLION THREE HUNDRED THOUSAND AND
NO/100 DOLLARS
The City of Yelm, Washington, (the "City"), hereby acknowledges itself to owe and for value
received promises to pay to the Registered Owner identified above, or registered assigns, on the
Maturity Date the Principal Amount specified above and to pay interest thereon from the date
hereof or the most recent date to which interest has been paid or duly provided for until payment
of this note, at the Interest Rate set forth above payable semiannually on the first days of April
and October, commencing April 1, 2008, solely from the Killion Road LID No. 2 Repayment
Fund (the "Killion Road LID No. 2 Repayment Fund") established by Ordinance No. 883 (the
"Note Ordinance") payable on the Maturity Date. Both principal of and interest on this bond are
payable in lawful money of the United States of America. For so long as the bonds of this issue
are held in fully immobilized form, payments of principal and interest thereon shall be made as
provided in accordance with the operational arrangements, of The Depository Trust Company
("DTC") referred to in the Blanket Issuer Letter of Representations (the "Letter of
Representations") from the City to DTC. The fiscal agency of the state of Washington is acting
as the registrar, authenticating agent and paying agent for the bonds of this issue (the "Bond
Registrar").
The City hereby irrevocably covenants and agrees with the Registered Owner of this note
that it will keep and perform all the covenants of this note and of the Note Ordinance to be by it
kept and performed. Reference is hereby made to the Note Ordinance for a complete statement
of such covenants and for the definition of capitalized terms used herein.
This note is one of an authorized issue of notes of like date, interest rate, maturity date
and tenor, except as to number and amount, in the aggregate principal amount of $4,300,000.
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The notes of this issue are issued under and in accordance with the provisions of the Constitution
and applicable statutes of the State of Washington and the Note Ordinance for the purpose of
paying part of the costs of improvements in the Killian Road Local Improvement District of the
City. The notes of this issue are issued in anticipation of the issuance of local improvement
district bonds authorized by the City to be issued.
This note is a special obligation of the City and is payable solely from the Killion Road
LID No. 2 Repayment Fund of the City into which the City has covenanted and agreed to deposit
the proceeds of bonds. The City has further covenanted to deposit money in the Killion Road
LID No. 2 Repayment Fund from the proceeds of bonds or refunding notes.
The notes of this issue are subject to redemption prior to maturity as provided in the Note
Ordinance.
This note is not a "private activity bond." The City has designated the notes of this issue
as "qualified tax exempt obligations" for investment by financial institutions pursuant to
Section 265(b) of the Internal Revenue Code of 1986, as amended.
This note shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Note Ordinance until the Certificate of Authentication hereon shall
have been manually signed by or on behalf of the Note Registrar.
It is hereby certified that all acts, conditions and things required by the Constitution and
statutes of the State of Washington to exist, to have happened, been done and performed
precedent to and in the issuance of this note have happened, been done and performed and that
the issuance of this note and the notes of this issue does not violate any constitutional, statutory
or other limitation upon the amount of indebtedness that the City may incur.
IN WITNESS WHEREOF, the City of Yehn, Washington, has caused this note to be
signed with the manual or facsimile signature of the Mayor and attested by the manual or
facsimile signature of the City Clerk, as of this 7th day of November, 2007.
CITY OF YELM, WASHINGTON
By
Mayor
ATTEST:
City Clerk
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The Note Registrar's Certificate of Authentication on the Notes shall be in substantially
the following form:
CERTIFICATE OF AUTHENTICATION
This is the Killion Road Local Improvement District Bond Anticipation Notes, 2007 of the City
of Yelm, Washington, as described in the within mentioned Note Ordinance and dated
November 7, 2007.
WASHINGTON STATE FISCAL AGENCY,
Note Registrar
By
Authorized Signer
Section 14. Tax Covenants.
(a) Designation. The City hereby designates the Notes as "qualified tax-exempt
obligations" for purchase by financial institutions pursuant to Section 265(b) of the Code. The
City does not anticipate that it will issue more than $10,000,000 in "qualified tax-exempt
obligations" during the year 2007.
(b) Notes to Remain Tax Exempt; Nonarbitrage Covenant. The City covenants that it
will not take or permit to be taken on its behalf any action that would adversely affect the
exemption from federal income taxation of the interest on the Notes and will take or require to be
taken such acts as may reasonably be within its ability and as may from time to time be required
under applicable law to continue the exemption from federal income taxation of the interest on
the Notes. Without limiting the generality of the foregoing, the City covenants that it will not
take any action or fail to take any action with respect to the investment of the proceeds of any
Notes or other funds that would result in constituting the Notes as "arbitrage bonds" within the
meaning of such term as used in Section 148 of the Code.
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The City represents 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.
(c) Private Person Use Limitation for Notes. The City covenants that for as long as
the Notes are outstanding, it will not permit:
(1) More than 10% of the Net Proceeds of the Notes to be used for any Private
Person Use; and
(2) More than 10% of the principal or interest payments on the Notes in a note
year to be directly or indirectly: (A) secured by any interest in property used or to be used for any
Private Person Use or secured by payments in respect of property used or to be used for any
Private Person Use, or (B) derived from payments (whether or not made to the City) in respect of
property, or borrowed money, used or to be used for any Private Person Use.
The City further covenants that, i£
(3} More than five percent of the Net Proceeds of the Notes are to be used for
any Private Person Use; and
(4) More than five percent of the principal or interest payments on the Notes
in a Note Year are (under the terms of this ordinance or any underlying arrangement) directly or
indirectly: (A) secured by any interest in property used or to be used for any Private Person Use
or secured by payments in respect of property used or to be used for any Private Person Use, or
(B) derived from payments (whether or not made to the City) in respect of property, or borrowed
money, used or to be used for any Private Person Use, then, (i) any Private Person Use of the
projects described in subsection (3) hereof or Private Person Use payments described in
subsection (4) hereof that is in excess of the five percent limitations described in such
'22' P:120287_CM1M20287_7R3 07110!23
subsections (3} or {4) will be for a Private Person Use that is related to the state or local
governmental use of the projects financed or refinanced with Note proceeds, and (ii) any Private
Person Use will not exceed the amount of Net Proceeds of the Notes used for the state or local
governmental use portion of the projects to which the Private Person Use of such portion of such
projects relates. The City further covenants that it will comply with any limitations on the use of
the projects by other than state and local governmental users that are necessary, in the opinion of
its Note counsel, to preserve the tax exemption of the interest on the Notes. The covenants of
this section are specified solely to assure the continued exemption from regular income taxation
of the interest on the Notes.
Section 15. General Authorization. The officials of the City are hereby authorized to
do and perform from time to time any and all acts and things consistent with this ordinance
necessary or appropriate to carry the same into effect.
Section 16. Effect of Partial Invalidity. In case any one or more of the provisions of
this ordinance or of the Notes shall for any reason be held to be illegal or invalid, such illegality
or invalidity shall not affect any other provision of this ordinance or of said Notes, but this
ordinance and said Notes shall be construed and enforced as if such illegal or invalid provision
had not been contained therein. In case any covenant, obligation or agreement contained in the
Notes or in this ordinance shall for any reason be held to be in violation of law, then such
covenant, obligation or agreement shall be deemed to be the covenant, obligation or agreement of
the City to the full extent permitted by law.
Section 17. Effect of Covenants, Etc. No covenant, obligation or agreement contained
herein shall be deemed to be a covenant, obligation or agreement of any present or future official,
member, agent or employee of the City in his or her individual capacity, and neither the members
'23- P:120287_CMWV20287_7R3 07!10!23
of the City Council nor any officer thereof executing the Notes shall be liable personally on the
Notes or be subject to any personal liability or accountability by reason of the issuance thereof.
No member, officer, agent or employee of the City shall incur any liability in acting or
proceeding or in not acting or proceeding, in good faith in accordance with the terms of this
ordinance.
Section 18. Undertaking to Provide Ongoing Disclosure.
(a) Contract/Undertaking. This section constitutes the City's written undertaking for
the benefit of the owners of the Notes as required by Section (b)(5) of the Rule.
(b) Financial Statements/Operating Data. The City agrees to provide or cause to be
provided to each person upon request or to the SID, if any, in each case as designated by the SEC
in accordance with the Rule, annual financial statements for the prior fiscal year (commencing in
2008 for the fiscal year ended December 31, 2007},.which statements may or may not be audited,
showing ending fund balances for the City's general fund prepared in accordance with the
Budgeting Accounting and Reporting System prescribed by the Washington State Auditor
pursuant to RCW 43.09.200 (or any successor statute).
(c) Material Events. The City agrees to provide or cause to be provided, in a timely
manner, to the SID, if any, and to each NRMSIlZ or to the MSRB notice of the occurrence of any
of the following events with respect to the Notes, if material:
• Principal and interest payment delinquencies;
• Non-payment related defaults;
• Unscheduled draws on debt service reserves reflecting financial difficulties;
• Unscheduled draws on credit enhancements reflecting financial difficulties;
• Substitution of credit or liquidity providers, or their failure to perform;
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• Adverse tax opinions or events affecting the tax-exempt status of the Notes;
• Modifications to the rights of Note owners;
• Note calls (optional, contingent or unscheduled Note calls other than scheduled
sinking fund redemptions for which notice is given pursuant to Exchange Act
Release 34-238560);
• Defeasances;
• Release, substitution or sale of property, securing repayment of the Notes; and
• Rating changes.
(d) Termination/Modification. The City's obligations to provide notices of material
events shall terminate upon the legal defeasance, prior redemption or payment in full of all of the
Notes. Any provision of this section shall be null and void if the City (1) obtains an opinion of
nationally recognized bond counsel to the effect that the portion of the Rule that requires that
provision is invalid, has been repealed retroactively or otherwise does not apply to the Notes and
(2) notifies each NRMSIlZ and the SID, if any, of such opinion and the cancellation of this
section. The City may amend this section with an approving opinion of nationally recognized
bond counsel in accordance with the Rule.
(e) Note Owner's Remedies Under This Section. The right of any bondowner or
beneficial owner of Notes to enforce the provisions of this section shall be limited to a right to
obtain specific enforcement of the City's obligations under this section, and any failure by the
City to comply with the provisions of this undertaking shall not be an event of default with
respect to the Notes. For purposes of this section, "beneficial owner" means any person who has
the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of,
any Notes, including persons holding Notes through nominees or depositories.
'25' P:120287_CMW120287_7R3 07!10/23
(fj Disclosure USA. The City may elect to submit the information required by this
Section 18 to be filed with the NRMSIlZs and the SID, if any, directly to DisclosureUSA.org
unless or until the SEC withdraws its approval of this submission process.
Section 19. Ordinance to Constitute Contract. In consideration of the purchase and
acceptance of any of the Notes authorized to be issued hereunder by those who shall hold the
same from time to time, this ordinance shall be deemed to be and shall constitute a contract
between the City and such owners, and the covenants and agreements set forth in this ordinance
to be performed on behalf of the City shall be for the equal benefit, protection and security of the
owners of any and all of the Notes, all of which shall be of equal rank without preference,
priority or distinction of any of the Notes over any other thereof.
APPROVED by the City Council of City of Yelm, Washington, at a regular meeting
thereof held this 23rd day of October, 2007.
CITY OF YELM, WASH~IG
By
Mayor
ATTEST:
~' GT
City Clerk
-26- P:~20267_CM~M20267_7R3 D7l10123
CERTIFICATE
I, the undersigned, City Clerk of City of Yelm, Washington (the "City") and keeper of the
records of the City Council (the "Council"), DO HEREBY CERTIFY:
1. That the attached ordinance is a true and correct copy of Ordinance No. 883 of the
Council (the "Ordinance"), duly approved at a regular meeting thereof held on the 23rd day of
October, 2007.
2. That said meeting was duly convened and held in all respects in accordance with
law, and to the extent required by law, due and proper notice of such meeting was given; that a
legal quorum was present throughout the meeting and a legally sufficient number of members of
the Council voted in the proper manner for the passage of the Ordinance; that all other
requirements and proceedings incident to the proper passage of the Ordinance have been duly
fulfilled, carried out and otherwise observed; and that I am authorized to execute this certificate.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of October, 2007.
Clerk
P:420287_GMW120287 7R3 07!10123