FY2020-30 Authorizing The Borough To Issue A Refunding Revenue Bond To RefundCERTIFICATE OF CLERK
I, TARA WELINSKY, Clerk of the Kodiak Island Borough (the "Borough"), HEREBY CERTIFY
that the document attached hereto is an accurate and complete copy of Resolution No. FY2020-30 of
the Borough adopted by the Borough Assembly at a meeting duly called and held on May 7, 2020, and
that Resolution No. FY2020-30 has not been modified, amended, repealed, or rescinded, but is in full
force and effect on the date hereof.
IN WITNESS WHEREOF, I have executed this certificate this eighth day of May, 2020.
1
T WELINSKY
Borough Clerk
Kodiak Island Borough
1 Introduced by: Borough Manager
2 Requested by: Finance Director
3 Drafted by: Bond Counsel
4 Introduced on: 05/07/2020
5 Adopted on: 05/07/2020
9 KODIAK ISLAND BOROUGH
10 RESOLUTION NO. FY2020-30
11
12 A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY AUTHORIZING
13 THE BOROUGH TO ISSUE A REFUNDING REVENUE BOND TO REFUND ALL OR A
14 PORTION OF THE PRINCIPAL INSTALLMENTS OF THE OUTSTANDING SOLID
15 WASTE DISPOSAL FACILITY REVENUE BOND, 2011, OF THE BOROUGH AND TO
16 PAY COSTS OF ISSUING THE BOND; FIXING CERTAIN DETAILS OF SUCH BOND;
17 AUTHORIZING ITS SALE; AND PROVIDING FOR RELATED MATTERS
18
19 WHEREAS, pursuant to Resolution No. FY2012-06, adopted by the Assembly on
20 August 4, 2011 (the "2011 Bond Resolution"), the Borough issued its Solid Waste Disposal
21 Facility Revenue Bond, 2011 (the "2011 Bond"), maturing on June 1, 2033, with principal
22 installments due on September 1 of each of the years 2012 through 2026, inclusive, in the
23 original principal amount of $3,275,000, of which ; and
24
25 WHEREAS, the principal installments of the 2011 Bond due in each of the years 2022
26 through 2026, inclusive, currently outstanding in the aggregate principal amount of
27 $1,355,000 (the "Refundable Principal Installments"), are subject to prepayment in whole
28 or in part at the option of the Borough on any date on or after September 1, 2021, at a
29 price of 100% of the principal amount thereof to be prepaid, plus accrued interest to the
30 date of prepayment; and
31
32 WHEREAS, under AS 29.47.300, if the Borough has outstanding revenue bonds and
33 the Assembly determines it would be financially advantageous to refund those bonds, the
34 Borough may provide by resolution for the issuance of revenue refunding bonds, and
35 under AS 29.47.320, no election is required to authorize the issuance and sale of
36 refunding bonds; and
37
38 WHEREAS, under AS 29.47.340, refunding bonds may be exchanged for the bonds
39 being refunded; and
40
41 WHEREAS, the Borough sold the 2011 Bond to the Alaska Municipal Bond Bank (the
42 "Bond Bank'), as authorized by the 2011 Bond Resolution, on the terms and conditions
43 set forth in the 2011 Bond Resolution and in the loan agreement between the Borough
44 and the Bond Bank dated as of September 1, 2011 (the "2011 Loan Agreement'); and
45
Kodiak Island Borough, Alaska
FG:53728747.1
Resolution No. FY2020-30
Page 1 of 21
46 WHEREAS, the Bond Bank issued its General Obligation and Refunding Bonds, 2011
47 Series Three (the 'Bond Bank Bonds'), among other purposes, to provide funds to
48 purchase the 2011 Bond, as provided in the 2011 Loan Agreement; and
49
50 WHEREAS, the Bond Bank has expressed its intent to issue refunding bonds (the "Bond
51 Bank Refunding Bonds') for the purpose of refunding a portion of the Bond Bank Bonds
52 and achieving a debt service savings; and
53
54 WHEREAS, Section 6 of the 2011 Loan Agreement provides that payments of principal
55 of and interest on the 2011 Bond may be adjusted to reduce debt service on the 2011
56 Bond if the Bond Bank is able to achieve debt service savings by refunding the Bond Bank
57 Bonds; and
58
59 WHEREAS, the Bond Bank has offered to enter into an Amendatory Loan Agreement
60 (the "Amendatory Loan Agreement') to effect a reduction in debt service on all or a portion
61 of the Refundable Principal Installments; and
62
63 WHEREAS, the Assembly wishes to effect a reduction in debt service on all or a portion
64 of the Refundable Principal Installments by entering into the Amendatory Loan Agreement,
65 issuing a refunding bond (and a replacement 2011 Bond) in exchange for the 2011 Bond,
66 and participating in the refunding of a portion of the Bond Bank Bonds; and
67
68 WHEREAS, the Assembly finds that it is necessary and appropriate to delegate to each
69 of the Borough Manager and Borough Finance Director authority to determine the maturity
70 amounts, interest rates, and other details of the bond, and to determine other matters that
71 are not provided for in this Resolution;
72
73 NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KODIAK ISLAND
74 BOROUGH THAT:
75
76 Section 1: Definitions. In addition to terms which are defined in the recitals above, the
77 following terms shall have the following meanings in this Resolution:
78
79 (a) "2011 Bond" means the Solid Waste Disposal Facility Revenue
80 Bond, 2011, issued by the Borough pursuant to the 2011 Bond Resolution.
81
82 (b) "2011 Bond Resolution" means Resolution No. FY2012-06 of the
83 Borough, adopted by the Assembly on August 4, 2011.
84
85 (c) "2011 Loan Agreement' means the loan agreement between the
86 Borough and the Bond Bank dated as of September 1, 2011.
87
88 (d) "Amendatory Loan Agreement' means the amendatory loan
89 agreement to be entered into between the Borough and the Bond Bank to
90 effect a reduction in debt service on all or a portion of the Refundable
91 Principal Installments.
Kodiak Island Borough, Alaska Resolution No. FY2020-30
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93
(e) "Amended Loan Agreement" means the Loan Agreement as
94
amended by the Amendatory Loan Agreement.
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96
(f) "Annual Debt Service Requirement' means, with respect to any
97
particular Fiscal Year and to any specified bonds, an amount equal to (i)
98
interest accruing during such Fiscal Year on such bonds, except to the
99
extent such interest is to be paid from deposits in the Debt Service
100
Subaccount from bond proceeds; (ii) the principal amount of such bonds
101
due during such Fiscal Year for which no sinking fund installments have
102
been established; plus (iii) the unsatisfied balance of any sinking fund
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installment for such bonds due during such Fiscal Year.
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(g) "Assembly" means the Assembly of the Kodiak Island Borough, as
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the general legislative authority of the Kodiak Island Borough, as the same
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shall be duly and regularly constituted from time to time.
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(h) "Bond" means the "Solid Waste Disposal Facility Refunding
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Revenue Bond" of the Kodiak Island Borough, the issuance and sale of
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which are authorized herein.
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(i) "Bond Account" means the Solid Waste Disposal Revenue Bond
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Account created by Section 12 of the 2011 Bond Resolution.
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Q) "Bond Bank" means the Alaska Municipal Bond Bank.
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118
(k) "Bond Bank Bonds" means the General Obligation and Refunding
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Bonds, 2011 Series Three, issued by the Bond Bank.
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(1) "Bond Bank Refunding Bonds' means the series of general
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obligation bonds issued by the Bond Bank, a portion of the proceeds of
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which are used to purchase the Bond.
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(m) "Bond Register" means the registration books maintained by the
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Registrar, which include the names and addresses of the Registered
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Owners of the Bond or their nominees.
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129
(n) "Borough' means the Kodiak Island Borough, a municipal
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corporation of the State of Alaska, organized as a second class borough
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under Title 29 of the Alaska Statutes.
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133
(o) "Borough Manager" means the Manager or Administrative Official
134
of the Borough.
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(p) "Code' means the Internal Revenue Code of 1986, as amended
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from time to time, together with all regulations applicable thereto.
Kodiak Island Borough, Alaska Resolution No. FY2020-30
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(q) "Consulting Engineer" means an independent consulting engineer
140
or engineering firm licensed to practice in the State of Alaska, retained and
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appointed pursuant to Section 14(F) (and, so long as the 2011 Bond is
142
outstanding, pursuant to Section 15(F) of the 2011 Resolution).
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(r) "Debt Service Subaccount" means the Debt Service Subaccount
145
created in the Bond Account by Section 12 of the 2011 Bond Resolution.
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(s) "Facility' means the Borough's solid waste disposal facility.
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(t) "Fiscal Year' means the 12 -month period commencing on July 1
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each year through and including June 30 of the following calendar year.
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(u) "Future Parity Bonds' means any solid waste disposal revenue
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bonds, notes, or other obligations of the Borough, other than the 2011 Bond
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and the Bond, issued under a resolution wherein the Borough pledges that
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the payments to be made out of the Pledged Revenues into the Bond
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Account and Reserve Subaccount therein to pay and secure the payment
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of the principal of and interest on such revenue bonds, notes, or other
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obligations will be on a parity with the payments required by this Resolution
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to be made out of such Pledged Revenues into such Bond Account and
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Reserve Subaccount to pay and secure the payment of the principal of and
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interest on the 2011 Bond and the Bond.
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(v) "Government Obligations' means obligations that are either
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(i) direct obligations of the United States of America or (ii) obligations of an
165
agency or instrumentality of the United States of America the timely
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payment of the principal of and interest on which are unconditionally
167
guaranteed by the United States of America.
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(w) "Net Revenues' means, for any Fiscal Year, all amounts received
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by the Borough and deposited in the Solid Waste Disposal Fund and
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interest and profits derived from the investment of money held in the Solid
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Waste Disposal Fund during such period, less Operating Expenses for
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such period.
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(x) "Operating Expenses" means, for any Fiscal Year, the expenses
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incurred for operation, maintenance, or repair of the Facility. Operating
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Expenses shall not include any allowances for depreciation or amortization
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or any principal, redemption price, or purchase price of, or interest on, any
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obligations of the Borough incurred in connection with and payable from
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Pledged Revenues or any fee or charge in lieu of Borough taxes.
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(y) "Parity Bonds" means the 2011 Bond, the Bond, and any Future
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Parity Bonds.
Kodiak Island Borough, Alaska Resolution No. FY2020-30
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(z) "Pledged Revenues" means Net Revenues and interest received
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and profits derived from the investment of money obtained from money
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held in any fund solely to pay or secure the payment of the 2011 Bond and
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the Bond.
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(aa) "Refundable Principal Installments" means the principal
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installments of the 2011 Bond due in each of the years 2022 through 2026,
192
inclusive, currently outstanding in the aggregate principal amount of
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$1,355,000.
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(bb) "Registered Owner" means the person named as the registered
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owner of a Parity Bond in the Bond Register.
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(cc) "Registrar" means the Borough Finance Director, or any successor
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that the Borough may appoint by resolution.
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(dd) "Reserve Subaccount" means the Reserve Subaccount created in
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the Bond Account by Section 12 of the 2011 Bond Resolution.
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(ee) "Reserve Subaccount Requirement' means an amount equal to the
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least of (i) 10% of the initial principal amount of all outstanding Parity
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Bonds; (ii) 125% of the average Annual Debt Service Requirement for all
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outstanding Parity Bonds; and (iii) the maximum Annual Debt Service
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Requirement on all outstanding Parity Bonds.
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(ff) "Resolution" means this Resolution No. FY2020-30 of the Borough.
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212 Section 2:
Authorization of Bond and Purpose of Issuance. The Assembly hereby
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determines it would be financially advantageous to refund all or a portion
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of the Refundable Principal Installments by issuing the Bond (and a
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replacement 2011 Bond) on the terms and conditions provided in this
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Resolution. For the purpose of providing the funds required to refund all or
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a portion of the Refundable Principal Installments and to pay all costs
218
incidental thereto and to the issuance of the Bond, the Borough hereby
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authorizes and determines to issue and sell the Bond. The Bond shall be
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designated "Solid Waste Disposal Facility Refunding Revenue Bond," with
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such additional series and year designation as the Borough Manager or the
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Borough Finance Director may fix and determine.
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224
The Borough Manager and/or the Borough Finance Director are hereby
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authorized to fix and determine which of the Refundable Principal
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Installments are to be refunded by issuing the Bond (and a replacement
227
2011 Bond) in exchange therefor.
228
Kodiak Island Borough, Alaska Resolution No.FY2020-30
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229 Section 3: Date, Maturity, Interest Rates. and Other Details of the Bond. Each
230 principal installment of the Bond shall be in the denomination of $5,000 or
231 any integral multiple thereof. The Bond shall be numbered in the manner
232 and with such additional designation as the Registrar deems necessary for
233 purposes of identification, and may have endorsed thereon such legends
234 or text as may be necessary or appropriate to conform to the rules and
235 regulations of any governmental authority or any usage or requirement of
236 law with respect thereto.
237
238 The Bond shall bear interest payable semi-annually on the dates and shall
239 mature on the date and each principal installment shall be payable annually
240 in the amount and on the dates, all as shall be set forth in the Amendatory
241 Loan Agreement. Interest will be computed on the basis of a 360-day year
242 consisting of twelve 30-day months.
243
244 Subject to Section 2 and the remainder of this Section, the dated date, the
245 principal installment and interest payment dates, the record dates for
246 interest payments, the aggregate principal amount, the amount of each
247 principal installment, and the interest rate on each principal installment
248 shall be determined at the time of execution of the Amendatory Loan
249 Agreement under Section 18, provided that (i) no rate of interest on any
250 principal installment shall exceed the rate of interest on the corresponding
251 maturity of the Bond Bank Refunding Bonds; and (ii) the net present value
252 of the savings to the Borough effected by issuing the Bond (and a
253 replacement 2011 Bond) and refunding the Refundable Principal
254 Installments that are refunded shall be at least 3 percent of the aggregate
255 principal amount of the Refundable Principal Installments that are
256 refunded; and (iii) the Bond shall mature on or before the date that is six
257 months after the date on which the last Refundable Principal Installment
258 that is refunded is payable.
259
260 Section 4: Optional Prepayment. The principal installments of the Bond shall be
261 subject to prepayment, at the Borough's option, on the dates and at the
262 prices to be set forth in the Amendatory Loan Agreement. If fewer than all
263 of the principal installments of the Bond are to be prepaid, the principal
264 installments to be prepaid shall be determined by the Borough. Notice of
265 any such prepayment shall be sent by the Borough not less than 50 days
266 prior to the date fixed for prepayment by first class mail to the Registered
267 Owner at the Registered Owner's address as it then appears on the Bond
268 Register. Notice of prepayment having been duly given and the
269 prepayment having been duly effected, interest on the principal
270 installments to be prepaid shall cease to accrue on the date fixed for
271 prepayment.
272
273 Section 5: Form of Bond. The Bond shall be in substantially the following form, subject
274 to the provisions of the Amendatory Loan Agreement and with such
Kodiak Island Borough, Alaska Resolution No. FY2020-30
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275
variations, omissions, and insertions as may be required or permitted by
276
this Resolution:
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278
UNITED STATES OF AMERICA
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280
KODIAK ISLAND BOROUGH, ALASKA
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282
NO. $
283
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SOLID WASTE DISPOSAL FACILITY REFUNDING REVENUE BOND
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REGISTERED OWNER: ALASKA MUNICIPAL BOND BANK
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288
PRINCIPAL AMOUNT:
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290
The Kodiak Island Borough (the "Borough"), a municipal
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corporation of the State of Alaska, hereby acknowledges itself to owe and
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for value received promises to pay to the Registered Owner identified
293
above, or its registered assigns, but only from the sources stated herein,
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the principal amount identified above in the following installments in each
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of the following years, and to pay, from the sources stated herein, interest
296
on such installments from the date hereof, payable on _ 1, 20_, and
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semiannually thereafter on 1, and 1, of each year, at the rates
298
per annum as follows:
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300
Maturity Principal Interest
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Date Amount Rate
302
303
304
305
For so long as the Alaska Municipal Bond Bank (the `Bond Bank")
306
is the Registered Owner, payment of principal and interest shall be made
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as provided in the Loan Agreement between the Bond Bank and the
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Borough, as amended (the "Amended Loan Agreement"). When and if this
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Bond is not owned by the Bond Bank, installments of principal of and
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interest on this Bond shall be paid by check or draft mailed by first class
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mail to the Registered Owner as of the close of business on the 15th day
312
of the month before each installment payment date; provided, that the final
313
installment of principal of and interest on this Bond shall be payable upon
314
presentation and surrender of this Bond by the Registered Owner at the
315
office of the Registrar. Interest will be computed on the basis of a 360 -day
316
year consisting of twelve 30 -day months. Both principal of and interest on
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this Bond are payable in lawful money of the United States of America
318
which, on the respective dates of payment thereof, shall be legal tender for
319
the payment of public and private debts, solely out of the special fund of
Kodiak Island Borough, Alaska Resolution No. FY2020-30
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the Borough known as the "Solid Waste Disposal Revenue Bond Account"
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created by Section 12 of Resolution No. FY2012-06.
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323
This Bond is the Solid Waste Disposal Facility Refunding Revenue
324
Bond issued by the Borough, and is authorized for the purpose of refunding
325
certain principal installments of an outstanding revenue bond of the
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Borough under Resolution No. FY2020-30 of the Borough entitled:
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328
A RESOLUTION OF THE KODIAK ISLAND BOROUGH
329
ASSEMBLY AUTHORIZING THE BOROUGH TO ISSUE A
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REFUNDING REVENUE BOND TO REFUND ALL OR A
331
PORTION OF THE PRINCIPAL INSTALLMENTS OF THE
332
OUTSTANDING SOLID WASTE DISPOSAL FACILITY
333
REVENUE BOND, 2011, OF THE BOROUGH AND TO PAY
334
COSTS OF ISSUING THE BOND; FIXING CERTAIN
335
DETAILS OF SUCH BOND; AUTHORIZING ITS SALE; AND
336
PROVIDING FOR RELATED MATTERS
337
338
(the "Resolution").
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340
Installments of principal of this Bond maturing on and after
341
1, 20_, shall be subject to prepayment on and after 1, 20 , at the
342
option of the Borough (subject to any applicable provisions of the Amended
343
Loan Agreement), in such principal amounts and from such maturities as
344
the Borough may determine, and by lot within a maturity, at a redemption
345
price equal to the principal amount to be prepaid, plus accrued interest to
346
the date of prepayment.
347
348
This Bond is transferable as provided in the Resolution, (i) only
349
upon the Bond Register of the Borough, and (ii) upon surrender of this Bond
350
together with a written instrument of transfer duly executed by the
351
Registered Owner or the duly authorized attorney of the Registered Owner,
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and thereupon a new fully registered Bond in the same aggregate principal
353
amount and maturity shall be issued to the transferee in exchange therefor
354
as provided in the Resolution and upon the payment of charges, if any, as
355
therein prescribed. The Borough may treat and consider the person in
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whose name this Bond is registered as the absolute owner hereof for the
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purpose of receiving payment of, or on account of, the principal or
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redemption price, if any, hereof and interest due hereon and for all other
359
purposes whatsoever.
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361
This Bond is a special, limited obligation of the Borough giving rise
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to no charge against the Borough's general credit, and is payable solely
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from, and constitute a claim of the owner hereof against, only the revenues,
364
funds, and assets of the Borough pledged under the Resolution. This Bond
365
shall never constitute a debt or indebtedness of the State of Alaska within
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 8 of 21
366 the meaning of any provision or limitation of the Constitution or statutes of
367 the State of Alaska or the Borough, or of any political subdivision thereof,
368 and shall never constitute nor give rise to a general pecuniary liability of the
369 State or the Borough or a charge against their general credit or taxing
370 powers.
371
372 No officer, agent, or employee of the Borough, and no officer,
373 official, agent, or employee of the State of Alaska, nor any person executing
374 this Bond, shall in any event be subject to any personal liability or
375 accountability by reason of the issuance of this Bond.
376
377 IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts
378 or things required by the constitution or statutes of the State of Alaska to
379 exist, to have happened or to have been performed precedent to or in the
380 issuance of this Bond exist, have happened and have been performed, and
381 that this Bond, together with ail other indebtedness of the Borough, is within
382 every debt and other limit prescribed by such constitution or statutes.
383
384 IN WITNESS WHEREOF, THE KODIAK ISLAND BOROUGH,
385 ALASKA, has caused this Bond to be signed in its name and on its behalf
386 by the manual or facsimile signature of its Mayor and its corporate seal (or
387 a facsimile thereof) to be impressed or otherwise reproduced hereon and
388 attested by the manual or facsimile signature of its Clerk, all as of the
389 day of
390
391 KODIAK ISLAND BOROUGH
392
393 /specimen/
394 Borough Mayor
395
396 ATTEST:
397
398 /specimen/
399 Borough Clerk
400
401 Section 6: Execution. The Bond shall be executed in the name of the Borough by the
402 manual or facsimile signature of the Mayor, and its corporate seal (or a
403 facsimile thereof) shall be impressed or otherwise reproduced thereon and
404 attested by the manual or facsimile signature of the Borough Clerk. The
405 execution of the Bond on behalf of the Borough by persons who at the time
406 of the execution are duly authorized to hold the proper offices shall be valid
407 and sufficient for all purposes, although any such person shall have ceased
408 to hold office at the time of delivery of the Bond or shall not have held office
409 on the date of the Bond.
410
Kodiak Island Borough, Alaska Resolution No. FY2020-30
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411
Section 7:
Payment of Principal Installments and Interest. The Bond shall be payable
412
in lawful money of the United States of America which at the time of
413
payment is legal tender for the payment of public and private debts. For so
414
long as the Bond Bank is the Registered Owner of the Bond, payment of
415
principal installments of and interest on the Bond shall be made as provided
416
in the Amended Loan Agreement. When and if the Bond Bank is not the
417
Registered Owner of the Bond, installments of principal of and interest on
418
the Bond shall be paid by check mailed by first class mail to the Registered
419
Owner as of the record date for the installment payment at the address
420
appearing on the Bond Register; provided, that the final installment of
421
principal and interest on the Bond shall be payable upon presentation and
422
surrender of the Bond by the Registered Owner at the office of the
423
Registrar.
424
425
Section 8:
Registration. The Bond shall be issued only in registered form as to both
426
principal and interest. The Borough designates the Borough Finance
427
Director as Registrar for the Bond. The Registrar shall keep, or cause to be
428
kept, the Bond Register at the principal office of the Borough. The Borough
429
covenants that, until the Bond has been surrendered and canceled, it will
430
maintain a system for recording the ownership of the Bond that complies
431
with the provisions of Section 149 of the Code. The Borough and the
432
Registrar may treat the person in whose name the Bond shall be registered
433
as the absolute owner of such Bond for all purposes, whether or not the
434
Bond shall be overdue, and all payments of principal of and interest on the
435
Bond made to the Registered Owner thereof or upon its order shall be valid
436
and effectual to satisfy and discharge the liability upon such Bond to the
437
extent of the sum or sums so paid, and neither the Borough nor the
438
Registrar shall be affected by any notice to the contrary.
439
440
Section 9:
Transfer and Exchange. The Bond shall be transferred only upon the Bond
441
Register. Upon surrender for transfer or exchange of the Bond at the office
442
of the Registrar, together with a written instrument of transfer or
443
authorization for exchange in form and with guaranty of signature
444
satisfactory to the Registrar, duly executed by the Registered Owner or the
445
duly authorized attorney of the Registered Owner, the Borough shall
446
execute and deliver a replacement Bond in equal aggregate principal
447
amount, subject to such reasonable regulations as the Borough may
448
prescribe and upon payment sufficient to reimburse it for any tax, fee, or
449
other governmental charge required to be paid in connection with such
450
transfer or exchange. If the Bond is surrendered for transfer or exchange it
451
shall be canceled by the Registrar.
452
453
Section 10:
Bond Mutilated. Destroyed, Stolen, or Lost. Upon surrender to the
454
Registrar of a mutilated Bond, the Borough shall execute and deliver a new
455
Bond of like maturity and principal amount. Upon filing with the Registrar of
456
evidence satisfactory to the Borough that the Bond has been destroyed,
Kodiak Island Borough, Alaska Resolution No. FY2020-30
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457
stolen, or lost and of the ownership thereof, and upon furnishing the
458
Borough with indemnity satisfactory to it, the Borough shall execute and
459
deliver a new Bond of like maturity and principal amount. The person
460
requesting the execution and delivery of a new Bond under this Section
461
shall comply with such other reasonable regulations as the Borough may
462
prescribe and shall pay such expenses as the Borough may incur in
463
connection therewith.
464
465 Section 11:
Priority of Use of Pledged Revenues. Pledged Revenues are hereby
466
pledged to and shall be used only for the following purposes and in the
467
following order of priority:
468
469
First, to make all payments, including sinking fund payments,
470
required to be made into the Debt Service Subaccount for the payment of
471
the principal of and interest on Parity Bonds;
472
473
Second, to make all payments required to be made into the Reserve
474
Subaccount;
475
476
Third, to make all payments, including sinking fund payments,
477
required to be made into a subordinate lien debt service account for the
478
payment of the principal of and interest on any subordinate lien bonds;
479
480
Fourth, to make all payments required to be made into a reserve
481
account for any subordinate lien bonds; and
482
483
Fifth, to pay the costs of additions, betterments, improvements, and
484
repairs to and extensions and replacements of the Facility, to purchase or
485
redeem Facility improvement revenue bonds or notes of the Borough, or
486
for any other proper purpose in connection with the operation of the Facility.
487
488 Section 12:
Solid Waste Disposal Revenue Bond Account and Accounts Therein.
489
There has been heretofore created by Section 12 of the 2011 Bond
490
Resolution a special restricted account within the Solid Waste Fund of the
491
Borough known as the "Solid Waste Disposal Revenue Bond Account' (the
492
"Bond Account'), which account is to be drawn upon for the sole purpose
493
of paying the principal of and interest and premium, if any, on all Parity
494
Bonds. The Bond Account consists of two subaccounts, the Debt Service
495
Subaccount and the Reserve Subaccount. Amounts pledged to be paid into
496
the Bond Account are hereby declared to be a lien and charge upon
497
Pledged Revenues superior to all other charges of any kind or nature and
498
equal in rank to the charge thereon to pay and secure the payment of the
499
principal of and interest on all Parity Bonds.
-felt,
Kodiak Island Borough, Alaska Resolution No. FY2020-30
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501 The Borough hereby irrevocably obligates and binds itself to set aside and
502 pay into the Debt Service Subaccount out of Pledged Revenues on or
503 before the date due:
504
505 A. Such amounts, in approximately equal monthly installments,
506 as will be sufficient to accumulate the amount required to pay the interest
507 scheduled to become due on Parity Bonds on the next interest payment
508 date; and
509
510 B. Such amounts, in approximately equal monthly installments,
511 as will be sufficient to accumulate (i) the principal amount of Parity Bonds
512 due for which no sinking fund installments have been established; plus (ii)
513 the unsatisfied balance of any sinking fund installment for Parity Bonds, in
514 each case during the next 12 months.
515
516 C. For so long as Parity Bonds are held by the Bond Bank, the
517 Borough will pay such amounts into the Debt Service Subaccount out of
518 Pledged Revenues as may be required by the Amended Loan Agreement.
519
520 Money in the Debt Service Subaccount may be held in cash or invested in
521 accordance with Borough policy such that investments will mature prior to
522 the time such money is required for the payment of the principal of or
523 interest on the Parity Bonds. All interest earned on and profits derived from
524 such investments shall remain in and become part of the Debt Service
525 Subaccount.
526
527 Section 13: Reserve Subaccount. The Borough hereby covenants and agrees that it
528 will, at the time of issuance of the Bond, cause amounts to be paid into the
529 Reserve Subaccount such that the total amount in the Reserve Subaccount
530 will be equal he Reserve Subaccount Requirement.
531
532 The Borough further covenants and agrees that it will set aside and pay
533 into the Reserve Subaccount amounts from Pledged Revenues,
534 commencing with the first month following the closing and delivery of the
535 Bond, so that the amount on deposit in the Reserve Subaccount will at all
536 times be at least equal to the Reserve Subaccount Requirement.
537
538 The Borough further covenants and agrees that in the event it issues any
539 Future Panty Bonds hereafter it will provide in each resolution authorizing
540 the same that at the time of issuance of such Future Parity Bonds payments
541 will be made into the Reserve Subaccount such that the total amount of
542 such payments together with the money already in the Reserve
543 Subaccount will be equal to the Reserve Subaccount Requirement.
544
545 The Borough further covenants and agrees that it will at all times maintain
546 therein an amount at least equal to the Reserve Subaccount Requirement
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 12 of 21
547 until there is a sufficient amount in the Bond Account and Reserve
548 Subaccount to pay the principal of, premium, if any, and interest on all
549 outstanding Parity Bonds, at which time the money in the Reserve
550 Subaccount may be used to pay such principal, premium, if any, and
551 interest; provided, however, that money in the Reserve Subaccount may
552 be withdrawn or set aside in a special account in the Bond Account
553 pursuant to Section 19 to pay (with or without other available funds) the
554 principal, premium, if any, and interest on all of the outstanding Parity
555 Bonds of any single issue or series of Parity Bonds, so long as the money
556 remaining on deposit in the Reserve Subaccount is at least equal to the
557 Reserve Subaccount Requirement for all of the remaining outstanding
558 Parity Bonds. The Borough may, from time to time, transfer from the
559 Reserve Subaccount to the Debt Service Subaccount amounts in excess
560 of the Reserve Subaccount Requirement.
561
562 In the event there shall be a deficiency in the Debt Service Subaccount for
563 meeting maturing installments of either principal of or interest on Parity
564 Bonds, such deficiency shall be made up from the Reserve Subaccount by
565 the withdrawal of cash therefrom. Any deficiency created in the Reserve
566 Subaccount by reason of any such withdrawal shall then be made up from
567 Pledged Revenues first available therefor after making necessary provision
568 for the required payments into the Debt Service Subaccount.
569
570 All money in the Reserve Subaccount may be kept in cash or invested in
571 accordance with Borough policy. Such investments shall mature not later
572 than the last maturity of the Parity Bonds outstanding at the time of their
573 purchase. Interest on any such investments and/or any profits realized from
574 the sale thereof shall be deposited in and become part of the Debt Service
575 Subaccount.
576
577 Section 14: Specific Covenants. The Borough hereby covenants with the owners of
578 each of the Parity Bonds for so long as any of the same remain outstanding
579 as follows:
580
581 A. The Borough will establish, maintain, and collect Facility
582 fees and Net Revenues in each Fiscal Year that will provide Pledged
583 Revenues in an amount equal to the amount of the Annual Debt Service
584 Requirement for such year on all outstanding Parity Bonds. For so long as
585 the Parity Bonds are held by the Bond Bank, the Borough will establish,
586 maintain, and collect Facility fees and Net Revenues as required by the
587 terms of the Amended Loan Agreement, and the Finance Director will
588 provide a certificate annually to the Bond Bank as to compliance with this
589 covenant.
590
591 B. The Borough will at all times maintain, preserve and keep
592 the Facility and every part and parcel thereof in good repair, working order,
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 13 of 21
593
and condition; will from time to time make or cause to be made all
594
necessary and proper repairs, renewals, and replacements thereto so that
595
the business carried on in connection therewith may be properly and
596
advantageously conducted; and will at all times operate the Facility in an
597
efficient manner and at a reasonable cost.
598
599
C. The Borough will at all times carry such forms of insurance
600
on such of the buildings, equipment, and property of the Facility as are
601
ordinarily insured in such amounts and with such deductibles as under
602
good business practice are ordinarily carried on such facilities. All such
603
insurance shall be carried with responsible insurers and the policies shall
604
be payable to the Borough.
605
606
D. The Borough will keep and maintain proper books and
607
accounts with respect to the operation of the Facility in such manner as
608
prescribed by any authorities having jurisdiction over the Facility; will cause
609
its books and accounts to be audited annually be a certified public
610
accountant not later than 210 days following the end of each Fiscal Year,
611
copies of which audits shall, upon request, be furnished to the owners of
612
the Parity Bonds. The audit shall show whether or not the Borough has in
613
all respects performed and complied with the covenants set forth in this
614
Resolution, including the payments into the Debt Service Subaccount and
615
Reserve Subaccount provided for herein.
616
617
E. All employees and agents of the Borough collecting or
618
handling money of the Borough in connection with the management and
619
operation of the Facility shall be bonded in an amount commensurate with
620
the funds they handle and in an amount sufficient to protect the Borough
621
from loss.
622
623
F. The Borough will not sell or otherwise dispose of the Facility
624
unless contemporaneously with such sale or disposal there shall be paid
625
into the Bond Account a sum sufficient to pay the principal of and interest
626
on all Parity Bonds then outstanding to the date or dates on which they first
627
may be redeemed, nor will it sell or otherwise dispose of any part of the
628
Facility which is material to the production of Pledged Revenues unless, in
629
the opinion of a Consulting Engineer, the remaining Facility will generate
630
Pledged Revenues sufficient to enable the Borough to comply with the
631
requirements of this Resolution and each resolution authorizing the
632
issuance of Future Parity Bonds.
633
634
G. The Borough will not at any time create or permit to accrue
635
or exist any lien or other encumbrance or indebtedness upon the Facility or
636
the Pledged Revenues, or any part thereof, or upon any Account or
637
Subaccount created hereunder, prior or superior to the lien thereon for the
638
payment of the Parity Bonds, and will pay and discharge, or cause to be
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 14 of 21
639
paid and discharged, any and all lawful claims for labor, materials or
640
supplies which, if unpaid, might become a lien or charge upon the Pledged
641
Revenue. or any part thereof, or upon any Account or Subaccount in the
642
hands of the Borough, prior or superior to the lien of the Parity Bonds, or
643
which might impair the security of the Parity Bonds.
644
645
H. The Borough will not expend any of the Pledged Revenues
646
or the proceeds of any indebtedness payable from Pledged Revenues for
647
any additions, betterments or improvements to the Facility which are not
648
economically sound and which will not properly and advantageously
649
contribute to the conduct of the business of the Facility in an efficient and
650
economical manner.
651
652
I. At any and all times the Borough shall, as far as it may be
653
authorized by law, make, do, execute, acknowledge, and deliver all further
654
resolutions, acts, deeds, conveyances, assignments, transfers, and
655
assurances as may be necessary or desirable for better assuring,
656
conveying, granting, pledging, assigning, and confirming all and singular
657
the rights, revenues, and other funds, moneys, and securities pledged or
658
assigned under this Resolution, or intended so to be, or which the Borough
659
may become bound to pledge or assign.
660
661
J. The Borough is duly authorized under all applicable laws to
662
create and issue the Bonds and to adopt this Resolution and to pledge the
663
Pledged Revenues and other funds, moneys, and securities purported to
664
be pledged by this Resolution in the manner and to the extent provided in
665
this Resolution. The Pledged Revenues and other funds, moneys, and
666
securities so pledged are and will be free and clear of any pledge, lien,
667
charge, or encumbrance thereon or with respect thereto prior to, or of equal
668
rank with, the pledge and assignment created by this Resolution, and all
669
corporate or other action on the part of the Borough to that end has been
670
and will be duly and validly taken. The Bonds and the provisions of this
671
Resolution are and will be the valid and legally enforceable obligations of
672
the Borough in accordance with their terms and the terms of this
673
Resolution.
674
675
K. The Borough has, and will have so long as any Parity Bonds
676
are outstanding, good, right, and lawful power to operate, maintain, and
677
repair the Facility and to fix and collect rates, fees, and other charges
678
related to the Facility.
679
680
L. The Borough shall do and perform or cause to be done and
681
performed all acts and things required to be done or performed by or on
682
behalf of the Borough under applicable laws and this Resolution.
683
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 15 of 21
684 Section 15:
Parity Bonds. As described in this Section, the Borough may issue Parity
685
Bonds. The Borough hereby covenants with the owners of each of the
686
Parity Bonds for so long as the same remain outstanding that it will not
687
issue any bonds having a greater or equal lien on Pledged Revenues to
688
pay and secure the payment of the principal of and interest on such bonds
689
than the lien created thereon to pay and secure the payment of the principal
690
of and interest on the Parity Bonds except that the Borough reserves the
691
right to issue future Parity Bonds as follows:
692
693
A. For the purpose of acquiring, constructing, and installing
694
additions, betterments, and improvements to and extensions of, acquiring
695
necessary property and equipment for, or making necessary replacements
696
or repairs to the Facility, for funding interest and reserves and for the
697
purpose of refunding at or prior to their redemption or maturity any
698
outstanding revenue bonds or notes of the Borough that have a lien on
699
Pledged Revenues for the payment of the principal thereof and interest
700
thereon junior and inferior to the lien on Pledged Revenues for the payment
701
of the principal of and interest on the Bonds and upon compliance with the
702
following conditions:
703
704
(1) The Borough will covenant in each resolution
705
authorizing the issuance of Future Parity Bonds that it will pay into and
706
maintain in the Reserve Subaccount the amounts required by Section 13
707
of this Resolution to be paid into and maintained in the Reserve
708
Subaccount in the event Future Parity Bonds are issued.
709
710
(2) At the time of the issuance of such Future Parity
711
Bonds the Borough shall have on file a certificate of the Finance Director
712
showing that the "annual income available for revenue bond debt service,"
713
as hereinafter set forth, shall be at least equal to 1.25 times the maximum
714
Annual Debt Service Requirement on all outstanding Parity Bonds and the
715
Future Parity Bonds being issued.
716
Such "annual income available for revenue bond debt
717
service" shall be determined by adding the following:
718
719
(a) The historical Pledged Revenues for any 12
720
consecutive months out of the 24 months immediately preceding the month
721
of delivery of the Future Parity Bonds being issued.
722
723
(b) The estimated annual Pledged Revenues to
724
be derived from the operation of any additions or improvements to or
725
extensions of the Facility under construction but not completed at the time
726
of such certificate and not being paid for out of the proceeds of sale of such
727
Future Parity Bonds being, issued, and which Pledged Revenues are not
728
otherwise included in any of the sources of Pledged Revenues described
729
in this subparagraph (2).
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 16 of 21
730
731
(c) The estimated Pledged Revenues to be
732
derived from the operation of any additions and improvements to or
733
extensions of the Facility being paid for out of the proceeds of sale of such
734
Future Parity Bonds being issued.
735
736
The computation of "annual income available for revenue
737
bond debt service" shall be adjusted to reflect the Facility fees effective on
738
the date of such certificate or approved by the regulatory authority with
739
jurisdiction to become effective thereafter if there has been any change in
740
such rates and charges put into effect or so approved during or after such
741
12 -consecutive -month base period.
742
743
Notwithstanding the preceding provisions of this
744
subparagraph (2), the certificate referred to above shall not be required if
745
one-half of Pledged Revenues, verified from certain financial statements of
746
the Facility, for a period of any consecutive two out of the three Fiscal Years
747
immediately preceding the issuance and delivery of such Future Parity
748
Bonds, was equal to at least 1.25 times the maximum Annual Debt Service
749
required to be paid in any Fiscal Year succeeding the date of issuance of
750
such Future Parity Bonds on all outstanding Parity Bonds and the Future
751
Parity Bonds being issued.
752
753
Further, notwithstanding the preceding provisions of this
754
subparagraph (2), Future Parity Bonds may be issued if the Borough shall
755
have on file a certificate stating that the Pledged Revenues for the next full
756
Fiscal Year after the initial operation of any additions or improvements to
757
or extensions of the Facility being paid for out of the proceeds of the Future
758
Parity Bonds will be at least equal to 1.25 times the maximum Annual Debt
759
Service Requirement on all outstanding Parity Bonds and the Future Parity
760
Bonds being issued; and that at the time of the issuance of such Future
761
Parity Bonds there is no deficiency in the Debt Service Subaccount or
762
Reserve Subaccount.
763
764
B. For the purpose of refunding at or prior to their redemption
765
or maturity any part or all of the then outstanding Parity Bonds if the
766
issuance of such refunding Future Parity Bonds does not require a greater
767
amount to be paid out of Pledged Revenues for principal and interest over
768
the life of such refunding Future Parity Bonds being refunded, and if the
769
conditions required in subsection (A)(1) of this section are complied with.
770
771
Proceeds of Parity Bonds to be used to fund interest or reserves
772
shall be deposited in the Debt Service Subaccount or the Reserve
773
Subaccount, as the case may be.
774
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 17 of 21
775
776
777
778
779
780
781
782
783
784
785
786
787
788
789
790
791
792
793
794
795
796
797
798
799
800
801
802
803
804
805
806
807
808
809
810
811
812
813
814
815
816
817
818
819
820
Section 16: Subordinate Lien Bonds. Nothing contained herein shall prevent the
Borough from issuing revenue bonds or notes which are a charge upon
Pledged Revenues subordinate or inferior to the payments required herein
to be made therefrom into the Debt Service Subaccount and Reserve
Subaccount, or from issuing long-term care center revenue bonds to refund
maturing bonds for the payment of which moneys are not otherwise
available.
Section 17: Permitted Tax Covenants. The Borough may, but need not, covenant in
the Amended Loan Agreement to comply with any and all applicable
requirements set forth in the Code in effect from time to time to the extent
that such compliance shall be necessary for the exclusion of the interest
on the Bond from gross income for federal income tax purposes. The
Borough may, but need not, covenant in the Amended Loan Agreement
that it will make no use of the proceeds of the Bond which will cause the
Bond to be an "arbitrage bond" subject to federal income taxation by reason
of Section 148 of the Code. The Borough may, but need not, covenant in
the Amended Loan Agreement that it will not take or permit any action that
would cause the Bond to be a "private activity bond" as defined in Section
141 of the Code.
Section 18: Amendatory and Supplemental Resolutions.
A. The Assembly from time to time and at any time may adopt
a resolution or resolutions supplemental hereto, which resolution or
resolutions thereafter shall become a part of this Resolution, for any one or
more of the following purposes:
(1) To add to the covenants and agreements of the
Borough in this Resolution, other covenants and agreements thereafter to
be observed or to surrender any right or power herein reserved to or
conferred upon the Borough.
(2) To make such provisions for the purpose of curing
any ambiguities or of curing, correcting, or supplementing any defective
provision contained in this Resolution or in regard to matters or questions
arising under this Resolution as the Assembly may deem necessary or
desirable and not inconsistent with this Resolution and which shall not
adversely affect the interests of the owners of Parity Bonds.
Any such supplemental resolution may be adopted without the
consent of the owner of any Parity Bonds at any time outstanding,
notwithstanding any of the provisions of subsection (B) of this Section.
B. With the consent of the owners of not less than 60% in
aggregate principal amount of Parity Bonds at the time outstanding, the
Kodiak Island Borough, Alaska
Resolution No. FY2020-30
Page 18 of 21
821
Assembly may pass a resolution or resolutions supplemental hereto for the
822
purpose of adding any provisions to or changing in any manner or
823
eliminating any of the provisions of this Resolution or of any supplemental
824
resolution; provided, however, that no such supplemental resolution shall:
825
826
(1) Extend the fixed maturity of any of the Parity Bonds,
827
or reduce the rate of interest thereon, or reduce the amount or change the
828
date of any sinking fund installment requirement, or extend the time of
829
payments of interest from their due date, or reduce the amount of the
830
principal thereof, or reduce any premium payable on the redemption
831
thereof, without the consent of the owner of each Parity Bond so affected;
832
or
833
834
(2) Reduce the aforesaid percentage of owners of Parity
835
Bonds required to approve any such supplemental resolution without the
836
consent of the owners of all of the Parity Bonds then outstanding; or
837
838
(3) Remove the pledge and lien of this Resolution on
839
Pledged Revenues.
840
841
It shall not be necessary for the consent of the owners of Parity
842
Bonds under this subsection to approve the particular form of any proposed
843
supplemental resolution, but it shall be sufficient if such consent approves
844
the substance thereof.
845
846
C. Upon the passage of any supplemental resolution adopted
847
pursuant to the provisions of this Section, this Resolution shall be deemed
848
to be modified and amended in accordance therewith, and the respective
849
rights, duties, and obligations of the Borough under this Resolution and all
850
owners of Parity Bonds outstanding shall thereafter be determined,
851
exercised, and enforced thereunder, subject in all respects to such
852
modification and amendment, and all the terms and conditions of any such
853
supplemental resolution shall be deemed to be part of the terms and
854
conditions of this Resolution for any and all purposes.
855
856
D. Parity Bonds executed and delivered after the passage of
857
any supplemental resolution adopted pursuant to the provisions of this
858
Section may bear a notation as to any matter provided for in such
859
supplemental resolution, and if such supplemental resolution shall so
860
provide, new Parity Bonds so modified as to conform, in the opinion of the
861
Assembly, to any modification of this Resolution contained in any such
862
supplemental resolution may be prepared by the Borough and delivered
863
without cost to the owners of Parity Bonds then outstanding, upon
864
surrender for cancellation of such Parity Bonds in an equal aggregate
865
principal amounts.
866
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 19 of 21
867 Section 19:
868
869
870
871
872
873
874
875
876
877 Section 20:
878
879
880
881
882
883
884
885
886
887
888
889
890
891
892
893
894
895
896
897
Defeasance. In the event money and/or non -callable Government
Obligations maturing at such times and bearing interest to be earned
thereon in amounts sufficient to redeem and retire the Bond in accordance
with its terms are set aside in a special trust account to effect such
redemption or retirement and such moneys and the principal of and interest
on such Government Obligations are irrevocably set aside and pledged for
such purpose, then no further payments need be made to pay or secure
the payment of the principal of and interest on the Bond and the Bond shall
be deemed not to be outstanding.
Exchange of the Bond; Amendatory Loan Agreement; Continuing
Disclosure Certificate. The exchange of the Bond for all the Refundable
Principal Installments that are refunded (and the issuance of a replacement
2011 Bond), as provided in the Amendatory Loan Agreement and this
Resolution, is hereby authorized and approved. The Amendatory Loan
Agreement and the Continuing Disclosure Certificate in substantially the
form filed with this Resolution are hereby approved. The Mayor and the
Borough Manager are each hereby authorized to execute and deliver the
Amendatory Loan Agreement and the Continuing Disclosure Certificate in
such forms, together with such changes not inconsistent herewith as may
be approved by the Mayor or the Borough Manager (such approval to be
conclusively evidenced by such official's execution and delivery of such
document).
Section 21: Authority of Officers. The Mayor, the Borough Manager, the Borough
Finance Director, the Borough Clerk, the Borough Attorney, and bond
counsel to the Borough each is authorized and directed to do and perform
all things and determine all matters not determined by this Resolution, to
the end that the Borough may carry out its obligations under the Bond and
this Resolution.
898 Section 22:
Ongoing Disclosure. The Borough acknowledges that under Rule 15c2-12
899
of the Securities and Exchange Commission (the "Rule") the Borough may
900
now or in the future be an "obligated person." In accordance with the Rule,
901
and as the Bond Bank may require, the Borough shall undertake to provide
902
certain annual financial information and operating data as shall be set forth
903
in the Amendatory Loan Agreement.
904
905 Section 23:
Miscellaneous. No recourse shall be had for the payment of the principal
906
of or the interest on the Bond or for any claim based thereon or on this
907
Resolution against any member of the Assembly or officer of the Borough
908
or any person executing the Bond. The Bond is not and shall not be in any
909
way a debt or liability of the State of Alaska or of any political subdivision
910
thereof, except the Borough, and does not and shall not create or constitute
911
an indebtedness or obligation, either legal, moral, or otherwise, of such
912
state or of any political subdivision thereof, except the Borough.
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 20 of 21
913
914 Section 24: Severability. If any one or more of the provisions of this Resolution shall
915 be declared by any court of competent jurisdiction to be contrary to law,
916 then such provision shall be null and void and shall be deemed separable
917 from the remaining provisions of this Resolution and shall in no way affect
918 the validity of the other provisions of this Resolution or of the Bond.
919
920 Section 25: Effective Date. This Resolution shall become effective upon passage and
921 approval.
922
923 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
924 THIS SEVENTH DAY OF MAY, 2020
925
926
927 KODIAK ISLAND BOROUGH
928
929
93
9311
932 o erts, Mayor
933
934 ATTEST:
935
936
937
938
939 ra Welinsky, Borough Clerk
940
941 VOTES:
942 Ayes: Symmons, Turner, Arndt, Dvorak, Kavanaugh, Schroeder, Skinner
943 Noes:
Kodiak Island Borough, Alaska Resolution No. FY2020-30
Page 21 of 21