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HomeMy WebLinkAbout1997-07-02 BEFORE THE CITY COUNCIL OF THE CITY OF BATESVILLE ORDINANCE # _J� AN ORDINANCE ADOPTING THE INTERLOCAL CO-OPERATIVE AGREEMENT REGARDING THE OPERATION OF A SOLID WASTE RECYCLING CENTER AND RECYCLING PROGRAM BETWEEN THE CITY OF BATESVILLE, ARKANSAS AND INDEPENDENCE COUNTY, ARKANSAS; Declaring an EMERGENCY; AND FOR OTHER PURPOSES. WHEREAS, the County is in the process of constructing, owning, and operating a Solid Waste Recycling Center (the "Center") for the purpose of recycling solid waste that can be recycled ('Recyclable Waste"); and WHEREAS, the City desires to dispose of the Recyclable Waste that it collects from the users of its solid waste system; and WHEREAS, the City and County desire to enter into an interlocal cooperative agreement that sets out the rights and obligations of the City and County with regard to the recycling program; now BE IT THEREFORE ORDAINED that the Interlocal agreement regarding the operation of a Solid Waste Recycling Center and Recycling Program, a copy of which is attached hereto and incorporated herein by reference, is hereby adopted. EMERGENCY CLAUSE. This ordinance; being essential for the orderly disposal of solid waste and for the health, safety and welfare of the Citizens of the City of Batesville; shall be effective from and after the date of its passage. Adopted this J/,"`day of July, 1997 HONORABLE JOE BIARD, MAYOR ATTEST: DENISE JOHNSTON, CLERK 0 ,SNE 8Tq p� WESLEY J. KETZ,JR. T.J. HIVELY 1 al Deputy Prosecuting Attorney Prosecuting Attorney � � P.O. Box 2476 P.O. Box 2476 Batesville,AR72503 Batesville,AR 72503 � (501)698-1896896 (501) 793-8825 (501) 698-1896 Fax(501) 698-2821 Fax(501) 793-8870 OFFICE OF THE PROSECUTING ATTORNEY ('kXte8 i qgqp� The Honorable Joe Biard Mayor City Hall Batesville, AR 72501 Re: Recycling Interlocal Agreement Between Independence County and the City of Batesville. Dear Mayor Biard: e Confirming our conversation at our meeting at City Hall on July 18 , 1997 , the County is not expecting and does not expect the City to collect all recyclable waste within the city limits. We all realize that certain businesses dispose of their own recyclable waste and the City will not be able to collect and deliver 100% . As far as the County is concerned, Section 103 states that: During the term of this Agreement, the City shall (a) deliver to the Center all Recyclable Waste collected by or on behalf of the City. . . The underlined phrase is the operative phrase to us. This phrase does not obligate the City to collect 100% of recyclable waste. It is also our opinion that Section 103 prevails over the first sentence of Section 101 and clarifies the first sentence of Section 101. • It is the County' s hope that someday we will be able to run all recyclable waste through the Center. However, as stated above, the current agreement does not so require. Cordially yours, Wesley J. Ketz, Jr. WJK/ke Enclosures CC. Mr. C. Eric Hance The Honorable David Wyatt • L • • AGREEMENT BETWEEN INDEPENDENCE COUnTY AND THE CITY OF BATESVILLE , ARKANSAS his Agreement is made and entered into this day of 1997 , by and between Independence County, Ar ans (the "County") and the City of Batesville, Arkansas (the "City") WITNESSETH: WHEREAS, the County is in the process of constructing, owning, and operating a Solid Waste Recycling Center (the "Center") for the purpose of recycling solid waste that can be recycled ("Recyclable Waste") ; and WHEREAS, the City desires to dispose of the Recyclable waste that it collects from the users of its solid waste system; NOW THEREFORE , that in consideration of the covenants and agreements hereinafter to be performed by the parties , it is mutually agreed as follows : RECYCLABLE WASTE COLLECTION TRANSPORTATION AND DISPOSAL Section 101 . The City will collect and deliver all its Recyclable Waste to the Center. The County will accept the City' s Recyclabl Waste and cause it to be transported from the Center. Two trucks and two ten-bin trailers will be provided by the County for the collection of Recyclable Waste within thCity. Such equipment will be operated by the City in suchInner as to preserve it in its original condition, ordinary 'wear and tear excepted. The equipment will be serviced and maintained by the County, including fuel and repairs . The equipment will be insured by the County (a) against damage or destruction in amounts equal to the respective replacement costs thereof and (b) against liability in amounts required by Arkansas law. Subject equipment will be stationed at the Recycling Center when not in use. The County will furnish each household in the City a container to use in storing and transporting recyclable waste to the curbside for collection . The containers are to • remain with the house should the present owner move to another address within the City or away from the City. The • nN.i cn• CT E T7 II kaw AGREEMENT - Page 2 County will maintain sufficient extra containers for additions or replacements . The Center shall be operated by and under the control of the County. The County and the City will , each, provide two employees for the operation of the Center. One employee, who shall be provided by the County, will be responsible for the operation and management of the Center and the marketing of Recyclable Waste. The City will also provide one full-time driver and a relief driver to operate curbside collection within the City. These employees will be in addition to the two employees provided herein above. It is the intent of the parties that in the event the recycling program becomes self sufficient the contract may be re--negotiated within the original term to reduce the number of emplouyees furnished by the parties in an equitable manner. Section 102 . The County' s obligations in this Agreement are subject to the County' s inability to perform such obligations due to the inability to secure or maintain governmental permits (after reasonable effort to do so) and other circumstances and events not reasonable within the control of the County. Section 103 . During the term of this Agreement, the City shall (a) deliver to the Canter all Recyclable Waste collected by or on behalf of the City (b) cause its Recyclable Waste to be delivered in a form whereby it is separate from all other solid waste and (c) deliver no Recyclable Waste collected by or on behalf of the City to any entity other than the County. The City will cooperate with the County in the development and promotion of educational programs to encourage an increase in the volume of Recyclable Waste collected within the City. Recognizing that an increase in the volume of Recyclable Waste collected will decrease the disposal costs for its solid waste, the City agrees to expend a minimum of $300 . 00 per annum toward promotion of recycling within the City. gip' d S01Y ON SG: 2T L • AGREEMENT - Page 3 TERM Section 201 . The initial term of the Agreement shall be for ten (10) years . This Agreement shall automatically be renewed annually on the ninth (9th) and following anniversaries of the Agreement, for single year terms , unless terminated by either party. This renewal option provides the parties with a rolling two-year Agreement beginning on the ninth (9th) anniversary. Section 202 . This Agreement may be terminated by either panty by written notice (by certified mail , return receipt requested) not less than ten days prior to any anniversary hereof, commencing with the 9th anniversary hereof, and such termination shall be effective one year after such anniversary. GENERAL CONDITIONS AND REPRESENTATIONS Section 301 . The County and the City each binds itself and its successors, agents , and assigns to the other party of this Agreement; and to the successors , agents and assigns of the other party in respect to all covenants of this Agreement. Section 302 . The City recognizes that the Center is being financed by the County by the issuance of Solid Waste (Recycling) Revenue Bonds , Series 1997 (the "Bonds") and that payment of the Bonds is dependent, in part, on receipt of Recyclable Wastes from the City as set forth herein. Accordingly, the obligations of the City set forth herein may be enforced by the holders of the Bonds as and to the extent and by the procedures set forth in Ordinance No. 97-07 of the County, adopted March 10 , 1997 , for anforcement of the obligations of the County with respect to the security and payment of the Bonds . DEFAULT, REMEDIES Section 401 . Any failure of the City or the County to perform any covenant or obligation set forth herein shall , upon ten days, written notice (by certified mail , return receipt requested, or by personel deivery by the County Judge to the Mayor) constitute an Event of Default hereunder and, upon the occurrence of any Event of go Default, the aggrieved party (or the holders of the Bonds b0' d S 0 0p] 190 : 2 T ter;, T,7- Tif AGREEMENT - Page 4 as set forth in Section 301 above) may seek any remedy available at law or in equity, including, without limitation, suit for damages, specific performance, mandamus and termination of services . CITY OF BATESVILLE INDEPENDENCE COUNTY BY: BY: May° Coun y J dge ATTEST: ?.. .rte. �.,. I �'� `-�.'(�;w;iATTEST City Clerk o my Clerk EMERGENCY ORDINANCE APPROPRIATION ORDINANCE ORDINANCE NO. 97-07 BE IT ENACTED BY THE QUORUM COURT OF THE COUNTY OF INDEPENDENCE, STATE OF ARKANSAS ; AN ORDINANCE TO BE ENTITLED: AN ORDINANCE AUTHORIZING THE ISSUANCE OF SOLID WASTE REVENUE BONDS; PROVIDING FOR THE PAYMENT THEREOF; APPROPRIATING THE PROCEEDS THEREOF; PRESCRIBING VARIOUS MATTERS RELATED THERETO; AND DECLARING AN EMERGENCY . WHEREAS, Independence County, Arkansas (the "County") has a need for facilities for the recycling of solid waste, and this need can best be met by the establishment of a recycling facility; and WHEREAS , the proposed recycling facility, with facilities related thereto and costs associated with the construction and installation thereof and with the issuance of proposed revenue bonds is referred to herein as the "Facility" ; and WHEREAS, the estimated cost of the Facility is $1, 173 , 500 , which cost can be financed by the issuance of proposed revenue bonds; and WHEREAS, the County has entered into a Loan Agreement with the United States of America (the "Government" ) , whereby the Government has committed to purchase $1 , 173 , 500 in principal amount of Solid Waste (Recycling) Revenue Bonds ; and WHEREAS, the Loan Agreement provides that the bonds will bear interest at not to exceed the prevailing Government interest rate (the "Government interest rateV ) at the time of loan approval (5 . 50%) but that upon timely written request of the County 'the interest rate will be the lower of the prevailing Government interest rate at the time of loan approval or the prevailing Government interest rate at the time the bonds are issued; NOW, THEREFORE, Be It Ordained by the Quorum Court of. Independence County, Arkansas : Article 1 . .�� (a) The Facility shall be accomplished. The County Judge is authorized to execute such agreements and writings and take such action as may be appropriate to the accomplishment of the Facility. The County Judge is further authorized to enter into such agreements and take such action, on behalf of the County, as may be appropriate to provide for use of the Facility by the City of Batesville, Arkansas and other municipalities and entities within the County. ,a„ �."noosla.+m �1.rT 1997 (b) The Facility shall be operated as a part of the County' s solid waste system (the "System") , which System includes the County' s solid waste transfer station, solid waste collection system and the Facility, and any expansions or additions hereafter effected; (c) System accounting shall be carried out by the County Treasurer from the "Solid Waste Fund" (identified hereinbelow) . Article 2 . Under the Constitution and laws of the State of Arkansas, including particularly Arkansas Code of 1987 Annotated, Title 14 , Chapter 164 , Subchapter 4 , and Title 14 , Chapter 232 , Subchapter 1 (the "Authorizing Legislation") , there is hereby authorized the issuance of the Independence County, Arkansas Solid Waste (Recycling) Revenue Bonds, Series 1997 , in the principal amount of $1, 173 , 500 (the "Bonds" ) . The Bonds shall be issued in two series , being the "Equipment Series Bonds" . in the principal amount of $468 , 000 and the "Real Estate Series Bonds" in the principal amount of $705 , 500 . Article 3 . The offer of the Government, of par for $1, 173 , 500 in principal amount of Bonds, is hereby accepted, and the Bonds are hereby sold to the Government. The County Judge is authorized and directed to make timely written request to the Government that the Bonds bear interest at the lower of the prevailing Government interest rate at the time of loan approval (5 . 50%) or the prevailing Government interest rate at the time the Bonds are issued. Article 4 . References in this Ordinance to the unqualified word "Bonds" shall , unless the context requires otherwise, be deemed references to the permanent Bonds authorized and outstanding (regardless of when issued) and not to the temporary bonds authorized by Article 6 (b) . The Bonds shall be dated as of the date of their delivery and shall bear interest at the lower of the prevailing Government interest rate at the time of loan approval (5 . 50% per annum) or the prevailing Government interest rate at the time the Bonds are issued. Interest only shall be payable annually on the first anniversary from the date of the Bonds; principal of and interest on the Bonds shall be payable in annual amortized installments commencing in the 24th month from the date of the Bonds and continuing annually thereafter on the same day; provided, however, that if the Bonds are dated on the 29th, 30th or 31st day of any month, each payment shall be made on the 28th day of any such month. If the interest rate is 5 . 50% , and all the Bonds are issued, the amortized payments shall be in the amount of $67 , 318 for the Equipment Series Bonds and $60 , 786 for the Real Estate Series Bonds . If the interest rate is lower, the annual payments shall be in the amounts necessary to amortize the Equipment Series Bonds in nine equal annual installments and to r:�K�,.woos 1x.:oa M.-7. 1947 2 amortize the Real Estate Series Bonds in nineteen equal annual installments . The amount of each payment shall be applied first to payment of interest then due and the balance shall be applied to a reduction of principal . The amortized installments of principal and interest shall continue until the principal of the Bonds, with interest, is fully paid, except that final payment of the Equipment Series Bonds shall be due and payable not later than ten years from the date thereof and final payment of the Real Estate Series Bonds shall be due not later than twenty years after the date thereof, subject to prepayment prior to maturity as provided in the face of the Bonds . The Bonds will be issued in the form of typewritten Bonds, registered as to both principal and interest, payable to the registered owner, or assigns , as set forth hereinafter in the permanent bond forms, and shall be numbered R-1 and upwards . Payment of principal and interest shall be by check or draft mailed to the registered owner thereof at its address shown on the bond registration books of the County which shall be maintained by the County Clerk as Bond Registrar, without presentation or surrender of the Bonds (except upon final payment) and such payments shall discharge the obligation of the County to the extent thereof. The County Clerk shall keep a payment record and make proper notations thereon of all payments of principal and interest. Payment of principal and interest shall be in any coin or currency of the United States of America which, as at the time of payment, shall be legal tender for the payment of debts due the United States of America. When the principal of and interest on any Bond has been fully paid, the Bond shall be canceled and delivered to the County Clerk. The County Judge is authorized to execute the necessary writings and take the necessary action to issue the Bonds , at one time or from time to time, within the limits set forth herein, as requested by the Government , to the end that the purposes set forth in this Ordinance may be accomplished. Article 5 . The Bonds shall be executed on behalf of the County by the County Judge and County Clerk and shall have impressed thereon the seal of the County. The Bonds are not general obligations of the County but are special obligations , the principal of and interest on which are secured by a pledge of and are payable from revenues derived from the System. The Bonds and interest thereon shall not constitute an indebtedness of the County within any constitutional or statutory limitation. (.Nmnnr�uO05•IM.:ad Much 7. 1997 3 The pledge of System Revenues is subordinate to the Pledge securing the County's Solid Waste Revenue Bonds, Series 1995 (the "Prior Bonds") . The Bonds are to be further secured by a mortgage lien on the real property included in the Facility and in the County's solid waste transfer station, and the County Judge is authorized to execute and deliver a mortgage, in favor of the Government and assigns, in evidence of and conferring such mortgage lien (subject to the pledge of revenues securing the Prior Bonds) . Article 6 . (a) The Bonds shall be in substantially the following form, with conforming changes, and the County Judge and County Clerk are hereby authorized and directed to make all the recitals contained therein: • r:��rWoos�a.:m M.,m 7. 1997 4 (form of single registered bond) • (To be typewritten) UNITED STATES OF AMERICA STATE OF ARKANSAS COUNTY OF INDEPENDENCE 5 . 50% SOLID WASTE (RECYCLING) REVENUE BOND [EQUIPMENT SERIES] [REAL ESTATE SERIES] No. R-1 $ KNOW ALL MEN BY THESE PRESENTS : That Independence, Arkansas (the "County") , for value received, hereby acknowledges itself to owe and promises to pay to the registered owner, or assigns , solely from the special .fund provided as hereinafter set forth, the principal sum of (or the total principal amount outstanding as reflected by the Record of Payment of Advances attached hereto) with interest on the unpaid balance of the total principal amount at the rate of % per annum from the date of each advance. The principal and interest shall be payable in such coin or currency of • the United States of America as at the time of payment shall be legal tender for the payment of debts due the United States of America and shall be payable as follows : Interest only shall be payable annually on the first anniversary from the date of this Bond; commencing in the 24th month from the date of this Bond and annually thereafter on the same day (except that if this Bond is dated the 29th, 30th or 31st day of any month, the annual payment shall be due on the 28th day of the month) amortized annual installments of principal and interest in the amount of $ each shall be payable until the principal and interest are fully paid, except that final payment of the entire indebtedness , if not sooner paid, shall be due and payable years from the date of this Bond. Payments of the principal and interest installments due hereon shall be made, except for final payment, without presentation and surrender of this Bond, directly to the registered owner at his address shown on the bond registration book of the County maintained by the County Clerk as Bond Registrar, and such payments shall fully discharge the obligation of the County to the extent of the payments so made. This Bond is issued for the purpose of financing a portion of the cost to the County of constructing and equipping a ,,%h-q„oos-i e.2oe 5 n.R„ iw7 solid waste recycling station, to be operated as a part of the County' s solid waste system (the "System") , costs of authorizing and issuing the Bonds and paying interest during construction, and is issued pursuant to and in full compliance with the Constitution and laws of the State of Arkansas, including particularly Title 14 , Chapter 164 , Subchapter 4 and Title 14 , Chapter 232 , Subchapter 1 of the Arkansas Code of 1987 Annotated, and pursuant to Ordinance No. of the County, duly adopted and approved on the day of , 1995 (the "Authorizing Ordinance" ) . Reference is hereby made to the Authorizing Ordinance for the details of the nature and extent of the security and of the rights and obligations of the County and the registered owner of this Bond. Prepayments of principal installments , or any portion thereof , may be made from funds from any source at any time at the option of the County in inverse chronological order of maturity at a price of the principal amount thereof plus accrued interest. Such prepayments shall not affect the obligation of the County to pay the remaining installments as scheduled herein. This Bond does not constitute an indebtedness of the County within any constitutional or statutory limitation or provision, and the taxing power of the County is not pledged to the payment of the principal of or interest on this Bond. This Bond is a special obligation payable solely from revenues derived from the operation of the System. A sufficient amount of System revenues to pay principal and interest has been duly set aside and pledged as a special fund for that purpose, identified as the "Recycling Revenue Bond Fund, " created by the Authorizing Ordinance. The County has fixed and has covenanted and agreed to maintain rates for use of the System which, with beginning balances, shall be sufficient at all times at least to provide for the payment of the reasonable expenses of operation and maintenance of the System, provide for the payment of the principal of and interest on all the outstanding Bonds to which System revenues are pledged as the same become due, establish and maintain debt service reserves and provide a depreciation fund all as set forth in the Authorizing Ordinance. The pledge of System Revenues is on a parity of pledge securing certain Solid Waste (Recycling) Bonds of another series, issued on the date of issuance of this Bond, and is subordinate to that securing the County' s Solid Waste Revenue Bonds, Series 1995 . This Bond is further secured by a mortgage lien on certain System properties . I This Bond may be assigned, and, in order to effect such assignment, the assignor shall promptly notify the County Clerk by registered mail, and the assignee shall surrender this Bond to the County Clerk for transfer on the registration records. Every M.-,. 1997 6 s � assignee shall take this Bond subject to all payments and prepayments of principal and interest Record maintained by the Count Clerk (as reflected by the Payment transfer. y ) , prior to such surrender for THE COUNTY HAS DESIGNATED THIS BOND AS A " TAX-EXEMPT OBLIGATION" WITHIN THE MEANING OF SECTION 265 (b) OFFTHE INTERNAL REVENUE CODE OF 1986 , AS AMENDED. IT IS HEREBY CERTIFIED, RECITED acts, conditions and things required b AND DECLARED that all statutes of the State of Arkansas to exist y the Constitution and and be precedent to and in the issuance of thisappen Bond do exist,performed have happened and have been performed in regular and due time, form and manner as required by law; that this Bond does not exceed any constitutional or statutory limitation of indebtedness, and that provision has been made for the payment of the principal of and interest on this Bond, as provided in the Authorizing Ordinance. IN WITNESS WHEREOF, Independence Count Arkansas, has caused this Bond to be executed in its name by its C�oun y Judge and County Clerk, thereunto duly authorized, and its corporate seal to be affixed, all as of the "^ day of 1997 . INDEPENDENCE COUNTY, ARKANSAS ATTEST: (\ ZnBy 11Yi County Judge Co my C erk (SEAL) ':'Illy'-0118"2,d M-cn 7. 1997 7 REGISTRATION CERTIFICATE • of Date of Re istration:Name of Re istered Owner: Couuntturey Clerrk • r:v,o„� Waos.ls.:oa M�-7. 1997 O RECORD OF PAYMENT OF ADVANCES Amount of Total Principal Signature of Date of Advance* Advance Outstanding County Clerk *The date of each advance shall be the interest commencement date from which the principal amount of--such advance bears interest. • M..z 7, 1997 9 Article 6 . (b) Pending the preparation and delivery of the permanent and definitive Bonds hereinabove authorized, temporary bonds in the aggregate principal amount of not to exceed $1, 173 , 500 may be issued for the purpose of providing funds immediately and in anticipation of the issuance of such permanent and definitive Bonds. The temporary bonds shall be in such denominations as the County Judge shall determine, be numbered from 1 upwards, be sold at a price of 100 cents on the dollar, be dated the day of delivery, bear interest at a rate not in excess of seven percent (7%) per annum and be payable two (2) years from their date. Upon delivery of the permanent and definitive Bonds , the temporary bonds to the extent then outstanding, with accrued interest, shall be exchanged for, or paid from the proceeds of , the permanent and definitive Bonds , and shall be canceled. Article 7 . The rates heretofore fixed for System services are confirmed. The County covenants and agrees that the beginning balances and rates established will produce gross revenues at least sufficient to pay operation and maintenance expenses of the System, pay the principal of and interest on all outstanding bonds to which System revenues are pledged, as the same become due, create and maintain debt service reserves, and make the required deposits for depreciation. The County covenants always to maintain rates ( including increases as necessary) which will provide for the maintenance of the funds hereinafter described. The rates shall never be reduced while any of the Bonds are outstanding unless there is obtained from a certified public accountant not in the regular employ of the County a certificate reciting the opinion that the proposed new rates will produce net revenues (net revenues being gross revenues to be derived during the next twelve ( 12) months less the reasonably anticipated cost of operation and maintenance for the next twelve ( 12) months and less the required deposits for depreciation of the System for the next twelve ( 12) months) which will equal not less than 1200 of the maximum amount that will become due in any year thereafter for principal , interest and trustee' s and paying agent' s fees on all bonds then outstanding to which System revenues are pledged ( including the Prior Bonds) . Article 8 . The County Treasurer shall be custodian of the gross revenues derived from the operation of the System and shall give bond for the faithful discharge of his or her duties as such custodian. The amount of the bond shall at all times be at least equal to the total funds in his or her custody at any one time or the sum of $129 , 000 , whichever is greater . From and after the delivery of any Bonds issued under the provisions of this Ordinance, the System shall be continuously operated as a revenue-producing undertaking . All moneys received by the Treasurer shall be deposited by him or her in such depository or depositories as may be lawfully designated from time to time; r M."7. 1997 10 provided that each depository must hold membership in the Federal Deposit Insurance Corporation ( "FDIC") . All deposits shall be in the name of the County and shall be so designated on the books of the County to indicate the particular fund to which the revenues belong. Any deposit in excess of the amount insured by the FDIC shall be secured by bonds or other direct or fully guaranteed obligations of the United States of America unless invested as herein authorized. Article 9 . The County covenants that it will continuously operate the System as a revenue-producing undertaking and will not sell or lease the same, or any substantial portion thereof, without the prior written approval of the holders of the Bonds ; provided, however, that nothing herein shall be construed to prohibit the County from making such dispositions of properties of the System and such replacements and substitutions of properties of the System as shall be necessary or incidental to the efficient operation of the System as a revenue-producing undertaking. Article 10 . The provisions of the ordinance authorizing the Prior Bonds, being Ordinance No. 95-07 , adopted April 25 , 1995 , as heretofore amended (the "Prior Ordinance") are hereby confirmed. Without limiting the generality of the foregoing, there is hereby confirmed the Solid Waste System Revenue Fund (the "Solid Waste Fund" ) , the Solid Waste Revenue Bond Fund (the "Prior Bond Fund") and the Solid Waste Depreciation Fund. So long as any of the Bonds are outstanding, all such Funds shall be • maintained and the requirements of the Prior Ordinance shall serve to protect and secure the Bonds (provided, however, that the Prior Bond Fund need not be maintained in the event of the discharge of the Prior Bonds) . Article 11 . (a) Following required deposits into the Prior Bond Fund, there shall be paid from the Solid Waste Fund into a special fund in the name of the County which is hereby created and designated "Recycling Revenue Bond Fund" (the "Bond Fund" ) , the sums in the amounts and at the times hereinafter stated in subsection (b) for the purpose of providing funds for the payment of the principal of and interest on the Bonds as they mature, and to establish a debt service reserve . (b) There shall be paid into the Bond Fund on the first business day of each month commencing the first month after delivery of the Bonds and continuing on the first business day of each month thereafter until all outstanding Bonds with interest thereon have been paid in full or provision made for such payment, a sum equal to the monthly sum equal to 1/ 12 of the interest or principal and interest payment due during the then next twelve months, plus the additional sum of $788 . When a debt service reserve shall have been accumulated, and so long as it shall M.-7. 19 7 11 remain, in the amount equal to $94 , 445 (the "required level") , the additional payment of $788 need not be made. In the event that the principal amount of the Bonds issued is equal to less than the amount authorized hereby, the required level and the monthly deposit requirement shall be reduced in proportion to such reduction. (c) If the revenues of the System are insufficient to make the required payment on or before the first business day of the following month into the Bond Fund, then the amount of any such deficiency in the payment made shall be added to the amount otherwise required to be paid into the Bond Fund on the first business day of the next month. (d) If, for any reason, the County Treasurer shall fail at any time to make any of the required payments into the Bond Fund, or if for any reason the Bond Fund shall be insufficient at any time to make the required payments for principal and interest, as due, any sums then held in the debt service reserve shall be used to the extent necessary in the payment of the principal of and interest on the Bonds, but such reserve shall be reimbursed from the first available moneys in the Solid Waste Fund by the increased monthly payments specified in (b) above. The debt service reserve shall be used solely as herein provided. (e) When the moneys held in the Bond Fund, including the debt service reserve, shall be and remain sufficient to pay the principal of and interest on all of the Bonds then outstanding, the County Treasurer shall not be obligated to make any further payments into the Bond Fund. (f) All moneys in the Bond Fund shall be used solely for the purpose of paying the principal of and interest on the Bonds, except as herein specifically provided. If a surplus shall exist in the Bond Fund over and above the amount necessary to insure the payment, when due, of principal and interest and over and above the debt service reserve required level , such surplus shall , at the option of the County, (1) be used for the payment or prepayment of Bonds or of other obligations payable from System revenues or (2) be used to construct and equip expansions and improvements to the System. (g) It shall be the duty of the County to withdraw from the Bond Fund and to pay to the registered owner, on or before the date on which each installment hereunder is due, an amount equal to the amount of such installment. No withdrawal of funds from the Bond Fund shall be made for any other purpose except as otherwise authorized in this Ordinance . M arcv', 1997 12 C (h) The Bonds of this issue shall be specifically secured by a pledge of all the revenues required to be placed into the Solid Waste Fund, subject to the terms of this Ordinance. This pledge in favor of the Bonds is hereby irrevocably made according to the terms of this Ordinance, and the County and its officers and employees shall execute, perform and carry out the terms thereof in strict conformity with the provisions of this Ordinance. (i) Provision has been made for the payment of the principal of and accrued interest on the temporary bonds from the proceeds of the permanent bonds and the County shall not be required to make any payments into the Bond Fund until delivery of the permanent bonds unless necessary to prevent a default on the temporary bonds . Article 12 . Any surplus in the Solid Waste Fund after making the required deposits in the other Funds as set forth herein may be used: (a) for the redemption of the Bonds in the manner and upon the terms applicable to redemption prior to maturity; or (b) for the construction of extensions, betterments and improvements to the System ( including payment of the principal of and interest on bonds issued therefor but subject to the provisions herein set forth pertaining to parity bonds) ; or • (c) for any lawful System purpose. Article 13 . Bonds paid either at or before maturity shall be canceled and shall not be reissued. Article 14 . The principal and interest installments shall be prepayable prior to maturity as provided in the bond forms in Article 6 hereof. Article 15 . So long as any of the Bonds are outstanding, the County shall not issue or attempt to issue any bonds having or claimed to be entitled to a priority of lien on the revenues of the System over the lien securing the Bonds , including any and all future extensions, betterments and improvements to the System. Nothing herein shall be construed in any manner to prevent the issuance by the County of additional revenue bonds to finance or pay the cost of constructing extensions , betterments and improvements to the System; however, any such additional bonds shall not be issued on a parity with the outstanding Bonds of this issue unless and until there shall have been procured and filed in the office of the County Clerk a statement by a certified public accountant not in the regular employ of the County reciting the opinion that the net revenues (net revenues being gross revenues of f:NmsU�y�cO05.18.?ad Muds 7, 1997 13 the System less operation and maintenance expenses and required deposits for depreciation) of the System for the fiscal year preceding the year in which such parity bonds are to be issued were not less than 120% of the average annual debt service requirements on all outstanding bonds to which the revenues of the System are pledged and the bonds then proposed to be issued. The additional bonds , the issuance of which is restricted and conditioned by this Article, shall not be deemed to mean bonds the security and source of payment of which are subordinate and subject to the priority of the Bonds . Article 16 . It is covenanted and agreed by the County with the holders of the Bonds that it will faithfully and punctually perform all duties with reference to the System required by the Constitution and laws of the State of Arkansas and by this Ordinance, including, without limitation, the making and collecting of reasonable and sufficient rates lawfully established for services rendered by the System, segregating the revenues- of the----- System and applying them to the funds created by this Ordinance. The County covenants and agrees that the owners of the Bonds shall have the protection of all the provisions of the Authorizing Legislation and that the County will diligently proceed to enforce those provisions to the end of the bondholders' realizing fully upon their security. And, if the County shall fail to proceed within thirty (30) days after written request shall have been filed by the owners of not less than ten percent ( 10%) in principal amount of the Bonds then outstanding, any owner may (on behalf of itself and all other owners) proceed to enforce all such provisions . If there be any default in the payment of the principal of or interest on any of the Bonds of this issue, or if the County defaults in any Bond Fund requirement or in the performance of any of the other covenants contained in this Ordinance, the owners of not less than ten percent ( 10%) in principal amount of the Bonds of this issue then outstanding may, by proper suit, compel the performance of the duties of the officials of the County under the laws of the State of Arkansas . And, in the case of a default in the payment of the principal of and interest on any of the outstanding Bonds of this issue, any owner of the Bonds of this issue then outstanding may apply in a proper action to a court of competent jurisdiction for the appointment of a receiver to administer the System on behalf of the County and the bondholders with power to charge and collect (or by mandatory injunction or otherwise to cause to be charged and collected) rates sufficient to provide for the payment of the expenses of operation, repair and maintenance and to pay any Bonds and interest outstanding and to apply the revenues in conformity with this Ordinance. When all defaults in principal and interest payments have been cured, the (:%.V .Juy wool-18.Ud M..dh 7. 1997 14 custody and operation of the System shall revert to the County . No one or more owners of the Bonds hereby secured shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of this Ordinance, or to enforce any right hereunder except in the manner herein provided, that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the benefit of all owners of the outstanding Bonds and that any individual rights of action or other right given to one or more of such owners by law are restricted by this Ordinance to the rights and remedies herein provided. No remedy herein conferred upon or reserved to the owners of the Bonds is intended to be exclusive of any other remedy or remedies herein provided or provided by law, and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or given by law. No delay or omission of owners of the Bonds to exercise any right or power accrued upon any default shall impair any such right or power or shall be construed to be a waiver of any default or an acquiescence therein; and every power and remedy given by this Ordinance to the owners of the Bonds may be exercised from time to time and as often as may be deemed expedient. The owners of not less than ten percent ( 10%) in principal amount of all Bonds outstanding may waive any default which shall have been remedied before the entry of final judgment or decree in any suit, action or proceeding instituted under the provisions of this Ordinance or before the completion of the enforcement of any other remedy, but no such waiver shall extend to or affect any other existing- or any subsequent default or defaults or impair any rights or remedies consequent thereon. Any costs of enforcement of any of the Bonds or of any provision of this Ordinance, including reasonable attorney' s fees, shall be paid by the County. All rights and remedies set forth in this Ordinance for the security and enforcement of the Bonds are subject to the rights and remedies securing the Prior Bonds . Nothing set forth herein shall be construed to limit or to be granted in lieu of any rights or remedy granted to the holders of the Bonds pursuant to a mortgage delivered by the County. Article 17 . The County shall cause proper books of accounts and records to be kept in which complete and correct entries shall be made of all transactions relating to the operation of the System, and such books shall be available for inspection by the holder of any of the Bonds at reasonable times and under reasonable circumstances . The County agrees to have these records audited by an independent certified public accountant r:Vw kiaywO05-I I.:nd M.rch 7. 1997 15 at least once each year, and a copy of the audit shall be made available to any registered owner of the Bonds upon request. In the event that the County fails or refuses to make the audit, any owner of the Bonds may have the audit made, and the cost thereof shall be charged against the Solid Waste Fund. Article 18 . The County covenants and agrees that it will maintain the System in good condition and operate the same in an efficient manner and at reasonable cost. While any of the Bonds are outstanding, the County agrees that it will insure and at all times keep insured, in the amount of the actual value thereof , in a responsible insurance company or companies authorized and qualified under the laws of the State of Arkansas to assume the risk thereof, properties of the System, to the extent that such properties would be covered by insurance by private companies engaged in similar types of businesses against loss or damage thereto from fire and other perils included in extended coverage insurance in effect in Arkansas. In the event of loss, the proceeds of such insurance shall be applied solely toward the reconstruction, replacement or repair of the System, and in such event the County will , with reasonable promptness, cause to be commenced and completed the reconstruction, replacement and repair work. If such proceeds are more than sufficient for such purposes, the balance remaining shall be deposited to the credit of the Solid Waste Fund, and if such proceeds shall be insufficient for such purposes the deficiency shall be supplied first from moneys in the Depreciation Fund and second from surplus moneys in • the Solid Waste Fund. Nothing shall be construed as requiring the County to expend any moneys for operation and maintenance of the System or for premiums on its insurance which are derived from sources other than the operation of the System, but nothing shall be construed as preventing the County from doing so. It is further covenanted by the County with the holder or holders of the Bonds that the County will maintain public liability insurance covering the County' s ownership and operation of a motor vehicle or vehicles in connection with the System, with maximum liability limits of not less than $25 , 000 for personal injury or death of a single person, $50 , 000 for personal injury or death of more than one person in a single accident or occurrence and $15 , 000 for property damage arising from a single accident or occurrence . Article 19 . (a) The County covenants that it shall not take any action or suffer or permit any action to be taken or condition to exist which causes or may cause the interest payable on the Bonds to be subject to federal income taxation pursuant to existing laws on the date of issuance. Without limiting the generality of the foregoing, the County covenants that the proceeds of the Bonds and moneys that are deposited in the funds identified herein will not be used directly or indirectly in such manner as to cause the bonds to be treated as "arbitrage bonds" within the H.,M 1997 16 • L 0 - meaning of Section 148 of the Internal Revenue Code of 1986 , as amended (the "Code") . (b) The County represents that is has not used or permitted the use of, and covenants that it will not use or permit the use of, the Facility or the proceeds of the Bonds, in such manner as to cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Code. In this regard, the County covenants that (i) it will not use (directly or indirectly) the proceeds of the Bonds to make or finance loans to any person, ( ii) that while the Bonds are outstanding the System and the Facility will only be used by persons as members of the general public and that ( iii) charges for use of the System while the Bonds are outstanding will be based upon rates for usage only and not by take or pay or like contract with any nongovernmental person. (c) The Bonds are hereby designated as "qualified tax-exempt obligations" within the meaning of the Code. The County represents and covenants that the aggregate principal amount of its tax-exempt obligations (excluding private activity bonds within the meaning of Section 141 of the Code, except qualified 501 (c) (3 ) bonds within the meaning of Section 145 of the Code) , including those of its subordinate entities, issued in the calendar year in which these Bonds are issued, does not and will not exceed $10 , 000 , 000 . The County further covenants and represents that (i) the aggregate principal amount of its tax-exempt obligations (not including "private activity bonds" within the meaning of Section 141 of the Code) , including those of its subordinate entities , issued in the calendar year in which these Bonds are issued, will not exceed $5 , 000 , 000 and ( ii) at least 950 of the proceeds of the bonds will be expended for the cost of the construction (exclusive of costs of issuance of the Bonds) . (d) The County covenants that it will take no action which would cause the bonds to be "federally guaranteed" within the meaning of Section 149 (b) of the Code; specifically, (A) the payment of any portion of principal or interest with respect to the Bonds will not be guaranteed (directly or indirectly) by the United States or any agency or instrumentality thereof , (B) none of the proceeds of the Bonds (exclusive of proceeds invested for an initial temporary period until needed for the purpose for which the Bonds were issued and proceeds deposited into the Bond Fund) will be invested (directly or indirectly) in federally insured deposits or accounts. Nothing in this Section shall prohibit investments in bonds issued by the United States Treasury . (e) The County covenants that it will submit to the Secretary of the Treasury of the United States, not later than the 15th day of the second calendar month after the close of the calendar quarter in which any Bonds (temporary or permanent) are l:4— ,U"S-IS-Zcd .M. 7, 1997 17 f � • issued, a statement concerning the Bonds which contains the information required by Section 149 (e) of the Code. Article 20 . (a) The proceeds of the Bonds are hereby appropriated to pay the costs of constructing and equipping the Facility, with costs incidental thereto and to the issuance of the Bonds, and interest during construction of the Facility. (b) When the Bonds herein authorized (temporary bonds and permanent bonds) have been executed by the County Judge and County Clerk and the seal of the County impressed, as herein provided, they shall be delivered to the purchaser upon payment of the purchase price. The proceeds from the sale of the Bonds shall be disbursed as follows: (1) In the case of the temporary bonds the amount necessary to provide for the payment of interest that will become due and payable during the construction period shall be deposited in the Bond Fund and the balance of the proceeds shall be deposited in a special account of the County designated "Construction Fund" in a bank that is a member of the FDIC. (2) In the case of the permanent Bonds the amount necessary, if any, to pay in full the outstanding principal and accrued interest to date of payment of any temporary bonds shall be used for that purpose, the amount, if any, necessary to provide for the payment of interest during the construction period shall be • deposited in the Bond Fund, and the balance shall be deposited into the Construction Fund. Moneys in the Construction Fund in excess of the amount insured by the FDIC shall be continuously secured by bonds or other direct or fully guaranteed obligations of the United States of America, except that any moneys invested as hereafter authorized need not be so secured. (3) The moneys in the Construction Fund shall be disbursed solely in payment of the cost of construction and equipping of the Facility, paying necessary expenses incidental thereto, paying expenses of issuing the Bonds and interest on the Bonds during the construction period. Disbursements shall be on the basis of County Court orders which shall contain at least the following information: The person, firm or corporation to whom payment is being made; the amount of the payment; and the purpose by general classification of the payment. In the case of any item of expense over which the consulting engineers shall exercise supervision, each order shall be accompanied by a certificate signed by the consulting engineers (or by a representative thereof designated by the consulting engineers) , certifying approval thereof. The County shall keep records of all disbursements from the Constructiton Fund. March 7. 1997 18 (4) When the work has been completed, this fact shall be evidenced by the filing with the depository in which the Construction Fund is deposited of a certificate signed by the County Judge, and the consulting engineer ( if any) , which certificate shall state the date of such completion and shall state that all obligations which are payable from the Construction Fund have been discharged. Upon receipt of the above certificate the depository shall pay or transfer any remaining balance pursuant to the written direction of the County Judge and with any such remaining balance to be transferred into the Bond Fund, and applied immediately to the prepayment of bonds, in multiples of $1 , 000 in principal amount. Any remaining balance of less than $1 , 000 shall be deposited in the debt service reserve in the Bond Fund. Article 21 . (a) Moneys held for the credit of the Construction Fund may be continuously invested and reinvested in direct obligations of, or obligations the principal of and interest on which are fully guaranteed by, the United States Government ( "Government Obligations") , whichmature or which shall be subject to redemption by the holder, at the option of such holder, not later than the date or dates when the moneys will be needed for proper disbursements. (b) Moneys held for the credit of the debt service reserve in the Bond Fund may be invested and reinvested in Government Obligations which shall be subject to redemption by the holder thereof, not later than ten (10) years after the date of • investment. (c) Moneys held for the credit of the Bond Fund (other than the debt service reserve) and the Solid Waste Fund may, at the option of the County, be invested and reinvested by the County in Government Obligations which shall mature, or which shall be subject to redemption by the holder thereof at the option of such holder, not later than the date or dates when the moneys held for the credit of the particular fund will be required for the purpose intended. (d) Obligations so purchased as an investment of moneys in any such fund shall be deemed at all times to be a part of such fund, and the interest accruing thereon and any profit realized from such investment shall be credited to such fund. Earnings on moneys in the debt service reserve which cause the required level to be exceeded shall be transferred to the Bond Fund. (e) Moneys so invested in Government Obligations need not be secured by the depository bank. Article 22 . In the event the office of County Judge, County Clerk or County Treasurer shall be abolished, or any two or more of such offices shall be merged or consolidated, or in the u.M,-. Imo, 19 event the duties of a particular office shall be transferred to another office or officer, or in the event of a vacancy in any such office by reason of death, resignation, removal from office or otherwise, or in the event any such officer shall become incapable of performing the duties of his office by reason of sickness , absence from the County or otherwise, all powers conferred and all obligations and duties imposed upon such office or officer shall be performed by the office or officer succeeding to the principal functions thereof, or by the office or officer upon whom such powers, obligations and duties shall be imposed by law. Article 23 . The provisions of this Ordinance shall constitute a binding contract between the County and the registered owners of the outstanding Bonds issued hereunder, and the County will at all times strictly adhere to the terms and provisions hereof and fully discharge all of its obligations hereunder. Subject to the terms and provisions contained in this Article and not otherwise, the registered owners of not less than seventy-five percent (75%) in aggregate principal amount of the Bonds then outstanding shall have the right, from time to time, anything contained in this Ordinance to the contrary notwithstanding, to consent to and approve the adoption by the County of such ordinance supplemental hereto as shall be necessary or desirable for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Ordinance or in any supplemental ordinance; provided, however, that nothing herein contained shall permit or be construed as permitting (a) an extension of the maturity of the principal of or interest on any Bond issued hereunder, or (b) a reduction in the principal amount of any Bond or the rate of interest thereon, or (c) the creation of a lien upon or a pledge of revenues other than as expressly authorized by the appropriate provisions of this Ordinance as now adopted, or (d) the creation of a privilege or priority of any Bond or Bonds over any other Bond or Bonds , or (e) a reduction in the aggregate principal amount of the Bonds required for consent to such supplemental ordinance. Article 24 . This Ordinance shall not create any right of any kind, and no right of any kind shall arise hereunder pursuant to it, until the Bonds authorized by this Ordinance shall be issued and delivered. Article 25 . The provisions of this Ordinance are hereby declared to be severable, and if any provision shall for any reason be held illegal or invalid, it shall not affect the validity of the remainder of the Ordinance. Article 26 . All ordinances and resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. ILM."7. IJ97 20 y Article 27. It is hereby ascertained and declared that the System is inadequate to serve the needs of the County and the inhabitants thereof, thus endangering the life, health and safety of the inhabitants and their property, and that the only practical manner in which those hazards- can be eliminated is by the Facility to be financed by the Bonds. It is, therefore, declared that an emergency exists, and this Ordinance being necessary to meet a public emergency affecting life, health, safety and property of the people, shall take effect and be in force from and after its passage. ,, PASSED: UL /� �%� 1997 . APPROVED: ATTEST: County dge_ Co y Clerk (S EAI.) • f'�urcUarirO01-18.:ad Narrn 1997 21 c CERTIFICATE The undersigned, County Clerk of Independence Arkansas, hereby certifies that the foregoing pages are Cou a tCounty, correct copy of Ordinance No. 97-07rue and session of the Quorum Court oftt a Regular h ounty,p held ted a at the regular meeting place of the Court at 7:00 March 1997 . .m. , on the 12 day of --_ — , and that said Ordinance is of record in Ordinance Record—Book Book No. Page 586-_589 now in my possession. GIVEN under my hand and seal this 10 March 1997 . day of County Clerk T (SEAL) • I M-rcri 7. 1997 22