2007-0332
INTRODUCED BY: ALBERT D. LAQUE, PARISH PRESIDENT
(BOND COUNSEL)
ORDINANCE NO. _______
FIFTH SUPPLEMENTAL ORDINANCE
Title
A Fifth Supplemental Ordinance amending and supplementing an ordinance (the "General Bond Ordinance") adopted on September 19, 1988; providing for the issuance and sale of Twenty-Seven Million Four Hundred Thousand Dollars ($27,400,000) principal amount of Public Improvement Bonds, Series ST-2008, of the Parish of St. Charles, State of Louisiana (the "Issuer"), pursuant to the General Bond Ordinance; prescribing the form, fixing the details and providing for the payment of principal of and interest on such Bonds; accepting the lowest and best bid for the purchase of the Bonds; approving the Official Statement; and providing for other matters in connection therewith.
Body
WHEREAS, the St. Charles Parish Council, acting as the governing authority of the Issuer (the "Governing Authority"), adopted an ordinance on September 19, 1988 (the "General Bond Ordinance"), authorizing the issuance from time to time of Sales Tax Revenue Bonds of the Issuer on the terms and conditions set forth in the General Bond Ordinance; and
WHEREAS, the General Bond Ordinance provides that the details of the Bonds of each Series of Bonds issued thereunder shall be specified in a supplemental ordinance adopted by the Issuer authorizing the issuance of such Series of Bonds, subject to the terms, conditions and limitations established in the General Bond Ordinance; and
WHEREAS, the Issuer presently has outstanding the following described sales tax bonds (the "Outstanding Bonds") which are payable from a pledge and dedication of the revenues of the Tax (hereinafter defined), viz:
$5,040,000 of Public Improvement Refunding Bonds, Series ST-2005 (the "2005 Bonds"), maturing on December 1 of the years 2007 through 2010, inclusive, bearing interest at 3.25% and 3.50% per annum, authorized by virtue of the General Bond Ordinance, as supplemented by the Fourth Supplemental Ordinance adopted by the governing authority of the Issuer on August 1, 2005;
WHEREAS, other than the 2005 Bonds, the Issuer has no other outstanding indebtedness payable from the net revenues of the Tax and the Issuer has authority to issue additional bonds on a complete parity with the 2005 Bonds under the terms and conditions provided in the General Bond Ordinance; and
WHEREAS, pursuant to Sub-Part F, Part III, Chapter 4 of Title 39 of the Louisiana Revised Statutes of 1950, as amended, and other constitutional and statutory authority, it is now the desire of the Issuer to adopt this Fifth Supplemental Ordinance to authorize the issuance of an additional Twenty-Seven Million Four Hundred Thousand Dollars ($27,400,000) principal amount of its Bonds to be the fifth issue of such bonds issued under the General Bond Ordinance and to be designated "Public Improvement Bonds, Series ST-2008 (the "Bonds") for the purpose of constructing, acquiring, improving drains, drainage canals, pumps and pumping plants, dykes and levees and related machinery and equipment for the West Bank Hurricane Protection System, funding a reserve for the Bonds, and for paying the issuance costs, to fix the details of the Bonds and to sell the Bonds to the purchasers thereof; and
WHEREAS, the Issuer desires to sell the Bonds to the purchasers thereof and to fix the details of the Bonds and the terms of the sale of the Bonds;
WHEREAS, this Governing Authority has determined that all the terms and conditions specified in this Fifth Supplemental Ordinance for the issuance of the Bonds have been or will be complied with prior to the delivery of the Bonds; and
WHEREAS, this Governing Authority has investigated the operating history and the revenues collected from the levy and collection of the Tax, and has determined that the estimated revenues to be derived from the Tax in calendar year 2008 will be at least the sum of $___________, which is greater than _____ times the highest combined principal and interest requirements for any succeeding fiscal or calendar year period on the proposed Bonds; and
WHEREAS, the maturities on the Bonds have been arranged so that the total amount of principal and interest falling due in any year on the Bonds will never exceed 75% of the proceeds of the Tax estimated to be received by the Issuer in calendar year 2008; and
WHEREAS, the sale and issuance of the Bonds has been approved by the Louisiana State Bond Commission;
NOW, THEREFORE, BE IT ORDAINED by the Parish Council of the Parish of St. Charles, State of Louisiana, acting as the governing authority of said Parish:
SECTION 1. Definitions. Unless the context shall clearly indicate some other meaning, all words and terms used in this Fifth Supplemental Ordinance which are defined in an ordinance (the "General Bond Ordinance") adopted by this Parish Council on September 19, 1988, entitled: "An ordinance authorizing the issuance from time to time of Public Improvement Sales Tax Bonds of the Parish of St. Charles, State of Louisiana, payable from the proceeds of the one percent (1%) sales and use tax authorized by Proposition at an election held on July 16, 1988, prescribing the form, fixing the details and providing for the payment of principal of and interest on such bonds and for the rights of the registered owners thereof" shall have the same meanings as are assigned to them in the General Bond Ordinance. In addition, unless the context shall clearly indicate some other meaning, the following terms shall, for all purposes of the General Bond Ordinance and of this Third Supplemental Ordinance or of any ordinance or other instrument amendatory thereof or supplemental thereto have the following meanings:
"Act" shall include, in addition to those sections listed in the General Bond Ordinance, and Chapter 4 of Title 39 of the Louisiana Revised Statutes of 1950, as amended.
"Bonds" or "Series 2008 Bonds" shall mean $27,400,000 of Public Improvement Bonds, Series ST-2008, authorized by the General Bond Ordinance and this Fifth Supplemental Ordinance.
"Government Securities" shall mean direct general obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America, which may be United States Treasury Obligations such as the State and Local Government Series and may be in book-entry form.
"Paying Agent" shall mean The Bank of New York Trust Company, N.A., in the City of Baton Rouge, Louisiana, until a successor Paying Agent shall have become such pursuant to the applicable provisions of this Supplemental Ordinance, and thereafter Paying Agent shall mean such successor Paying Agent.
"Purchaser" shall mean ________________ , of _____________, ______________.
"Supplemental Ordinance" shall mean this Fifth Supplemental Ordinance as the same may be supplemented or amended hereafter.
"Tax" shall mean the 1% sales and use tax authorized at an election held in the Parish of St. Charles on July 16, 1988.
Unless or except as the context shall clearly indicate otherwise or may otherwise require in this Supplemental Ordinance: (i) all references to a particular section, paragraph or subdivision of the General Bond Ordinance or this Supplemental Ordinance, as the case may be, are to the corresponding section, paragraph or subdivision of the General Bond Ordinance only, or this Supplemental Ordinance only, as the case may be; (ii) the terms "herein", "hereunder", "hereby", "hereto", "hereof", and any similar terms, refer to this Supplemental Ordinance only, and to this Supplemental Ordinance as a whole and not to any particular section, paragraph or subdivision thereof; (iii) the terms "therein", "thereunder", "thereby", "thereto", "thereof", and any similar terms, refer to the General Bond Ordinance, and to the General Bond Ordinance as a whole and not to any particular section, paragraph or subdivision thereof; and (iv) the term "heretofore" means before the time of effectiveness of this Supplemental Ordinance and the term "hereafter" means after the time of the effectiveness of this Supplemental Ordinance.
SECTION 2. Interpretation. In this Supplemental Ordinance, unless the context otherwise requires, (a) words importing persons include firms, associations and corporations, (b) words importing the singular include the plural and vice versa and (c) words of the masculine gender shall be deemed and considered to include correlative words of the feminine and neuter genders.
SECTION 3. Authorization and Designation. (a) Pursuant to the provisions of the General Bond Ordinance, this Supplemental Ordinance and the Act, there is hereby authorized the issuance of Twenty-Seven Million Four Hundred Thousand Dollars ($27,400,000) principal amount of Series 2008 Bonds of the Issuer to be designated "Public Improvement Bonds, Series ST-2008", for the purpose of constructing, acquiring, improving drains, drainage canals, pumps and pumping plants, dykes and levees and related machinery and equipment for the West Bank Hurricane Protection System, funding a reserve for the Bonds, and for paying the issuance costs. The Series 2008 Bonds shall be special obligations of the Issuer payable solely from the avails or proceeds of the Tax, subject only to the payment of the reasonable costs and expenses of collecting and administering the Tax, shall be entitled, pursuant to and in accordance with the General Bond Ordinance, to the pledge and lien created thereby and shall be otherwise entitled to the security and benefits thereof.
(b) This Governing Authority does hereby find, determine and declare that the Issuer has complied, or will comply prior to the delivery of the Bonds, with all of the terms and conditions set forth in the General Bond Ordinance, as supplemented, with respect to authorizing the issuance of the Bonds.
SECTION 4. Principal Amount and Type. The Series 2008 Bonds shall be issued in the aggregate original principal amount of Twenty-Seven Million Four Hundred Thousand Dollars ($27,400,000), said Bonds being issuable as fully registered Current Interest Serial Bonds.
SECTION 5. Denominations, Dates, Maturities and Interest. The Bonds shall be dated January 1, 2008, shall be in the denomination of $5,000 or any integral multiple thereof within a maturity and shall be numbered from R-1 upward. The unpaid principal of the Bonds shall bear interest from the date thereof or from the most recent interest date to which interest has been paid or duly provided for, payable on June 1 and December 1 of each year, commencing June 1, 2008, at the following rates of interest per annum, and shall mature on December 1 of each of the years and in the aggregate principal amounts set forth below:
DATE PRINCIPAL INTEREST DATE PRINCIPAL INTEREST
(DEC. 1) PAYMENT RATE (DEC. 1) PAYMENT RATE
2010 $5,000 2022 $1,215,000
2011 690,000 2023 1,275,000
2012 725,000 2024 1,345,000
2013 765,000 2025 1,415,000
2014 805,000 2026 1,490,000
2015 845,000 2027 1,565,000
2016 890,000 2028 1,650,000
2017 940,000 2029 1,735,000
2018 990,000 2030 1,825,000
2019 1,040,000 2031 1,920,000
2020 1,095,000 2032 2,025,000
2021 1,150,000
SECTION 6. Optional Redemption. Those Bonds maturing December 1, 2018, and thereafter, will be callable for redemption by the Issuer in full or in part at any time on or after December 1, 2017 at the redemption prices, expressed as a percentage of the principal amount of each Bond redeemed set forth below, together with accrued interest to the date fixed for redemption:
Redemption Redemption
(both dates inclusive) Price
December 1, 2017 to November 30, 2018 101%
December 1, 2018 to November 30, 2019 100-1/2%
December 1, 2019 and thereafter 100%
In the event a Bond is of a denomination larger than $5,000, a portion of such Bond ($5,000 or any multiple thereof) may be redeemed. Official notice of such call of any of the Bonds for redemption will be given by first class mail, postage prepaid, by notice deposited in the United States mails not less than thirty (30) days prior to the redemption date addressed to the registered owner of each Bond to be redeemed at his address as shown on the registration books of the Paying Agent.
SECTION 7. Application of Proceeds of Series 2008 Bonds There shall be deposited or retained in the 1988 Sales Tax Bond Sinking Fund and exclusive of the amount equal to the Debt Service Reserve Fund Requirement which shall be deposited in the Reserve Fund as provided by Section 5.03 of the General Bond Ordinance and Section 19 hereof) shall be deposited by the Issuer in a special fund to be used solely for the purpose for which the Bonds are issued and for the payment of the costs of issuance.
SECTION 8. Execution and Form of Bonds. The Bonds and the endorsements to appear on all such Bonds issuable hereunder shall be, respectively, substantially in the form set forth in Exhibit A hereto, with such necessary or appropriate variations, omissions and insertions as are required or permitted by law or by the General Bond Ordinance, as amended and supplemented by this Fifth Supplemental Ordinance and as may be amended and supplemented by any ordinance. The Series 2008 Bonds shall be lettered "R" and shall be numbered separately from 1 upward. If the purchaser of the Bonds have obtained insurance on all maturities of the Bonds, an endorsement satisfactory to bond counsel may be printed on any or all the Bonds.
SECTION 9. Paying Agent; Appointment and Acceptance of Duties. The initial Paying Agent for the Bonds shall be The Bank of New York Trust Company, N.A., in the City of Baton Rouge, Louisiana. The Bonds shall be paid in the medium of payment as provided in Section 6.03 of the General Bond Ordinance.
SECTION 10. Supplemental Ordinance to Constitute Contract. In consideration of the purchase and the acceptance of the Bonds by those who shall be the registered owners of the same from time to time, the provisions of this Supplemental Ordinance shall be a part of the contract of the Issuer with the owners of the Bonds and shall be deemed to be and shall constitute a contract between the Issuer, the Paying Agent and the owners from time to time of the Bonds. The provisions, covenants and agreements herein set forth to be performed by and on behalf of the Issuer shall be for the benefit, protection and security of the owners of any and all of the Bonds.
SECTION 11. Arbitrage Covenants. (a) To the extent permitted by the laws of the State, the Issuer will comply with the requirements of the Code to establish, maintain and preserve the exclusion from "gross income" of interest on the Bonds under the Code. The Issuer shall not take any action or fail to take any action, nor shall it permit at any time or times any of the proceeds of the Bonds or any other funds of the Issuer to be used directly or indirectly to acquire any securities or obligations the acquisition of which would cause any Bond to be an "arbitrage bond" as defined in the Code or would result in the inclusion of the interest on any Bond in "gross income" under the Code, including, without limitation, the failure to comply with the limitation on investment of the proceeds of the Bonds, (ii) the failure to pay any required rebate of arbitrage earnings of the United States of America, or (ii) the use of the proceeds of the Bonds in a manner which would cause the Bonds to be "private activity bonds" under the Code.
(b) The Issuer shall not permit at any time or times any proceeds of the Bonds or any other funds of the Issuer to be used, directly or indirectly, in a manner which would result in the exclusion of the interest on any Bond from the treatment afforded by Section 103(a) of the Code, from time to time amended, or any successor provision thereto.
SECTION 12. Continuing Disclosure. Pursuant to 17 CFR 240.15c2-12 (the "SEC Continuing Disclosure Rules") the Issuer covenants and agrees for the benefit of the Owners of the Bonds to provide certain financial information and operating data relating to the Issuer (the "Annual Report"), and to provide notices of the occurrence of the events enumerated in Section (b)(5)(I)(C) of the SEC Continuing Disclosure Rules, if material. The Annual Report will be filed by the Issuer with each Nationally Recognized Municipal Securities Information Repository ("NRMSIR"), and with the Louisiana State Information Depository ("Louisiana SID"), if any. Any notices of material events shall be filed with each NRMSIR or with the Municipal Securities Rulemaking Board ("MSRB"), and with the Louisiana SID, if any. The specific nature of the information to be contained in the Annual Report or the notice of material events shall be as more fully set forth in the Continuing Disclosure Certificate attached hereto as Exhibit B, as the same may be amended from time to time in accordance with its terms. Failure to comply with the SEC Continuing Disclosure Rules shall not constitute an "event of default" under Section 10.01 of the General Bond Ordinance, however any of the Owners of the Bonds may take such action or exercise such remedies as may be provided by law to enforce the obligations of the Issuer under the Continuing Disclosure Certificate.
The Executive Officers are hereby empowered, authorized and directed to take any and all action and to execute and deliver any instrument, document or certificate necessary to effectuate the purposes of this Section, including, without limitation, the Continuing Disclosure Certificate in substantially the form attached hereto as Exhibit B.
SECTION 13. Official Statement. On behalf of the Issuer, this Governing Authority does hereby approve the Official Statement prepared and distributed in connection with the sale of the Bonds and further declares that the information contained therein is true and correct to the best of its knowledge and belief; that due diligence has been exercised in the preparation of said Official Statement; that said Official Statement does not contain any untrue statement of a material fact or omit any statement of a material fact; that the information contained therein has been obtained from sources which are believed to be reliable and that this Governing Authority has no reason to believe that any material fact contained therein is untrue or any material fact has been omitted in effecting the purpose of the Official Statement to constitute a due diligence disclosure of all material information in connection with offering the Bonds for sale and reflecting the security for the payment thereof.
The Parish President, Secretary and the Director of Finance be and the same are hereby authorized and directed to review the information contained in said Official Statement and certify, if true, on the date of delivery of the Bonds that no adverse happenings have occurred and that there have been no relevant or material changes in the information contained in said Official Statement since the date of the sale of the Bonds which affect the Bonds or the security for their payment.
SECTION 14. Publication of Ordinance. A copy of this Supplemental Ordinance shall be published immediately after its adoption in the official journal of the Issuer.
SECTION 15. Payment into Various Funds. In addition to the payments required by the Fourth Supplemental Ordinance to provide for payment of the Outstanding Bonds (i) on the 20th day of each month, commencing February, 2008, there shall be paid from the Sales Tax Fund into the Sinking Fund, during the period February, 2008 through December, 2009, such equal monthly payment as shall be required, along with monies already in deposit in such fund, to pay the interest on the Bonds on the immediately following Interest Payment Date and (ii) thereafter, a sum equal to one-sixth of the interest falling due on the Bonds on the next interest payment date and one-twelfth (1/12) of the principal falling due on the on the next principal payment date together with such additional proportionate sum as may be required to pay said principal and interest as the same becomes due and payable. The payments required herein shall be in addition to all payments required to be made by the Issuer pursuant to the General Bond Ordinance and the First, Second, Third, and Fourth Supplemental Ordinances.
Upon delivery of the Bonds, proceeds thereof shall be deposited into the Reserve Fund in an amount, which when added to funds presently therein, shall equal the Debt Service Reserve Fund Requirement.
SECTION 16. Filing of Ordinance. A certified copy of this Supplemental Ordinance shall be filed and recorded as soon as possible in the Mortgage Records of the Parish of St. Charles, Louisiana.
SECTION 17. Employment of Bond Counsel. It is recognized by this Governing Authority that a real necessity exists for the employment of special bond counsel in connection with the issuance of the Bonds and accordingly the employment of Foley & Judell, L.L.P., of New Orleans, Louisiana, as special bond counsel to the Issuer to do and perform comprehensive legal and co-ordinate professional work with respect to the issuance and sale of the Bonds, is hereby ratified and confirmed. The fees to be paid said attorneys shall be in accordance with the Attorney General's Guidelines for Fees and Services of Bond Attorneys, which fee for special bond counsel shall not exceed the amount calculated in accordance with the Attorney General's Guidelines for Comprehensive Legal Services in the issuance of revenue bonds, plus actual out-of-pocket expenses incurred in connection with the issuance of the Bonds. The fees herein described shall be payable directly to special bond counsel by the Director of Finance of the Issuer from the funds derived from the sale of said Bonds. Bond Counsel shall also assist in the preparation of an Official Statement containing detailed and comprehensive financial and statistical data required with respect to the sale of the Bonds and the costs of the preparation, printing and distribution of such official statement shall be paid from the proceeds of the Bonds. Said Official Statement may be submitted to such nationally recognized bond rating service or services as may be recommended by bond counsel, together with a request that an appropriate rating be assigned. A certified copy of this Supplemental Ordinance shall be submitted to the Attorney General of the State of Louisiana for his written approval of said employment and of the fees herein designated.
Vote
The foregoing ordinance having been submitted to a vote, the vote thereon was as follows:
YEAS:
NAYS:
ABSENT:
And the ordinance was declared adopted on this, the _________ day of ____________________, 2008.
________________________________________
Chairman
________________________________________
Secretary
DELIVERED TO PARISH PRESIDENT: ________________________
APPROVED: ________________________
DISAPPROVED: ________________________
________________________________________
Parish President
RETURNED TO SECRETARY ON __________________________
AT _____ A.M./P.M.
RECEIVED BY: ___________
STATE OF LOUISIANA
PARISH OF ST. CHARLES
I, the undersigned Secretary of the St. Charles Parish Council, do hereby certify that the foregoing ___________ (_____) pages constitute a true and correct copy of Ordinance No. _________ adopted by the Parish Council on December 3, 2007, A Fifth Supplemental Ordinance amending and supplementing an ordinance (the "General Bond Ordinance") adopted on September 19, 1988; providing for the issuance and sale of Twenty-Seven Million Four Hundred Thousand Dollars ($27,400,000) principal amount of Public Improvement Bonds, Series ST-2008, of the Parish of St. Charles, State of Louisiana (the "Issuer"), pursuant to the General Bond Ordinance; prescribing the form, fixing the details and providing for the payment of principal of and interest on such Bonds; accepting the lowest and best bid for the purchase of the Bonds; approving the Official Statement; and providing for other matters in connection therewith.
IN FAITH WHEREOF, witness my official signature and the impress of the official seal of said Parish at Hahnville, Louisiana, on this, the 3rd day of December, 2007.
____________________________
Secretary
(SEAL)