Tribal
Bond Ordinance
Tribal
Code 301
(a)
Authority and Purpose.
(1) The authority for this Ordinance is found in the Tribal Constitution
under Article III, Section 1.
(2) The
purpose of this Ordinance is to establish procedures to enable the
Tribal Council, as the governing body of the Tribe, to issue bonds
or incur other obligations from federal and non-federal sources under
Article III, Section 1 of the Constitution of the Tribe for public
purposes (" Tribal Projects").
(b) Definitions. Unless defined elsewhere in this Ordinance
or the context clearly requires otherwise, the definitions in this Section
apply throughout this Ordinance.
(1) "Bond" means a Full Faith and Credit Bond, a Revenue Bond,
or other Obligations.
(2)
"Credit Enhancement Device" means a letter of credit, bond
insurance policy, surety bond or other device or facility used to
enhance the creditworthiness or marketability of any Bonds.
(3)
"Full Faith and Credit Bond" means an obligation, including
without limitation a bond, a lease-purchase obligation, a line of
credit or a bond anticipation Note, which is (a) incurred or issued
to finance a Tribal Project, and (b) specifically designated by the
Tribal Council as a full faith and credit obligation payable from
taxes, if any, which may be levied, or from the general revenues of
the Tribe.
(4)
"Note" means a note Obligation issued in anticipation of
Bonds, Revenues, taxes, grants or other sources of repayment.
(5)
"Obligation" means an agreement that evidences an indebtedness
of the Tribe, other than a Full Faith and Credit Bond or a Revenue
Bond, and includes, but is not limited to, conditional sales contracts,
loan agreements, letters or lines of credit, lease obligations, and
Notes.
(6)
"Revenues" means, with respect to the issuance of Revenue
Bonds, all fees, tolls, excise taxes, assessments, property taxes
and all other taxes of whatever kind or nature, rates, charges, loan
agreements, rentals and all other income and receipts of whatever
kind or character derived by or to which a Tribal body is entitled
from the operation, sale or use of facilities, projects, utilities
or systems owned or operated by or on behalf of the Tribe or a Tribal
Enterprise and other revenues legally available to be pledged to secure
Revenue Bonds.
(7)
"Revenue Bonds" means Bonds or revenue anticipation Notes
issued for any public purpose, which are secured by Revenues pledged
for such public purpose.
(8)
"Tribal Enterprise" means an enterprise of the Tribe duly
established pursuant to the Constitution of the Tribe.
(9)
"Tribal Project" means any project or projects of the Tribe
or any Tribal Enterprise to be financed in whole or in part with the
proceeds of Bonds issued for a public purpose. Tribal Project shall
also include the financing of any cash flow needs or deficits of the
Tribe or a Tribal Enterprise.
(c) Interpretation of Constitution.
The Tribal Court is the ultimate arbiter of the meaning of the Constitution
and of Tribal laws, and any meaning that the Tribal Court may assign to
a constitutional provision or to a Tribal law by written opinion shall
be final and binding on the Tribe. When any party in entering into a contract
or other transaction pertaining to the issuance of Bonds shall have relied
on such meaning as expressed by ordinance or resolution of the Tribal
Council, such meaning becomes a part of such contract or transaction and
shall not thereafter be revoked or modified to the prejudice of such party.
(d) Authority to Issue Waiver of Sovereign Immunity for Certain Purposes.
Pursuant to Chapter 210 (c)( 2) of the Tribal Code, the Tribal Council,
on behalf of the Tribe, is hereby authorized to waive the sovereign
immunity of the Tribe, its officers, members and staff, for the limited
purpose of providing for the sale, issuance and security for the Bonds,
but any such waiver may only be made by a duly authorized resolution
of the Tribal Council.
(e) Authority to Issue Bonds.
(1) The Tribal Council shall provide by resolution for the issuance
of Bonds for the payment of all or any portion of the cost and expense
of any Tribal Project at Tribal Council's discretion. Said resolution
will state the maximum aggregate principal amount of the Bond issue.
(2)
The resolution shall describe the Tribal Project for which Bonds are
to be issued. The Tribal Council or its authorized officer may determine
certain particular terms and conditions of any borrowing or issuance
of Bonds for an approved Tribal Project pursuant to Section (b)( 8)
of this Ordinance, subject to any restrictions contained in such resolution.
(f) Authority to Establish Letters or Lines of Credit. The
Tribal Council, on behalf of the Tribe, may establish letters or lines
of credit with any national bank, association, or state chartered bank
to be drawn upon in exchange for its Bonds, to delegate to its Chairperson
or other officer specified by resolution the authority to determine the
amount of credit extended, and to pay interest and other finance or service
charges. The interest rates on such Bonds may be a fixed rate or rates
set periodically, or a variable rate or flexible rates determined by agreement
of the parties.
(g) Authority to Secure Interim Financing. Bonds or Notes
authorized under this Ordinance which are issued in anticipation of
taxes or other Revenues, and any Bonds or Notes which are issued to
refund such Bonds or Notes, shall not be issued prior to the beginning
of, and shall mature not later than, the end of the fiscal year in which
the taxes or other Revenues are expected to be received. Bonds or Notes
issued in anticipation of taxes or other Revenues shall not be issued
in an amount greater than 100 percent of the amount budgeted to be received
in the fiscal year in which the Bonds or Notes are issued.
Bonds
which are issued in anticipation of a grant will mature not later than
one year after the date the grant is estimated to be received. Bonds
issued to provide interim financing for capital assets shall mature
not later than one year from the estimated date of completion or acquisition
of the capital assets. Bonds issued to provide permanent or long-term
financing for capital assets or a Tribal Project are not subject to
the maturity limitations stated in this Section.
Except
as provided in this Section, Bonds authorized pursuant to this Ordinance
may be in any form and contain any terms, including provisions for redemption
at the option of the owner and provisions for the varying of interest
rates in accordance with any index, banker's loan rate or other standard.
(h) Security. Absent a resolution requiring otherwise, the
Tribal Council may pledge as security for Bonds or Credit Enhancement
Devices authorized pursuant to this Ordinance, the Tribe's powers to
take the following actions:
(1) Cause appropriations or pledges from anticipated taxes, grants,
other Revenues, loan repayments, the proceeds of any Bonds or other
permanent financing, or any combination thereof;
(2)
Segregate any pledged funds into separate accounts which may be held
by the Tribe or any third party trustee designated by resolution of
the Tribal Council;
(3)
Enter into contracts to obtain Credit Enhancement Devices, or other
financial commitments designated to provide additional security for
Bonds authorized for Tribal Projects;
(4)
Establish any reserves deemed necessary for the payment of the Bonds;
(5)
Adopt resolutions and enter into agreements containing covenants and
provisions for protection and security of the owners of Bonds, which
shall constitute enforceable contracts with such owners;
(6)
For Full Faith and Credit Bonds and any Credit Enhancement Devices
securing such Full Faith and Credit Bonds, pledge, restrict and encumber
the general revenues of the Tribe, including the Tribe's general revenue-raising
and taxing powers, if any, to produce sufficient funds to pay debt
service on the Full Faith and Credit Bonds and on any reimbursement
obligation on the Credit Enhancement Devices all in accordance with
their terms; and
(7)
The Tribal Council may obtain a Credit Enhancement Device for Bonds.
(i) Amount, Terms, Conditions, Interest, etc. of Bonds. The
Tribal Council may by resolution delegate to the Chairperson or other
officer of the Tribal Council, its authority to determine the interest
rate or rates applicable to any Bonds issued to finance a Tribal Project.
The Tribal Council may also delegate to the Chairperson or other officer
of the Tribal Council its authority to determine an amortization schedule
for the Bonds, provided that the maximum term does not exceed 40 years.
Except as provided in this Ordinance, the Chairperson or the Secretary
of the Tribal Council may act on behalf of the Tribal Council to perform
any and all other necessary acts pertaining to the issuance of the Bonds,
including, without limitation, the determination of any conditions of
the Bond issue, Bond denominations, redemption rights, registration privileges,
manner of execution, price, manner of sale, covenants and form, including
registration of principal and interest, registration of principal only,
or bearer.
(j) Registration System and Appointment of Financial Institutions.
(1) The Tribal Council may establish a system of registering the ownership
of its Bonds as to principal and interest, or principal only. Registration
may include, without limitation: (i) A book-entry system of recording
the ownership of a Bond whether or not a physical instrument is issued;
or (ii) recording the ownership of a Bond together with the requirement
that the transfer of ownership may only be effected by the surrender
of the old Bond and either the reissuance of the old Bond or the issuance
of a new Bond to the new owner.
(2)
The system of registration shall define the method or methods by which
transfer of the registered Bonds shall be effective, and by which
payment of principal and any interest or redemption premium shall
be made. The system of registration may permit the issuance of Bonds
in any denomination to represent several registered Bonds of smaller
denominations. The system of registration may also provide for any
writing relating to a Bond that is not issued as a physical instrument,
for identifying numbers or other designations, for a sufficient supply
of certificates for subsequent transfers, for record and payment dates,
for varying denominations, for communications to the owners of Bonds,
for accounting, canceled certificate destruction, registration and
release of securing interests, and for such other incidental matters
pertaining to the registration of Bonds as the issuer may deem to
be necessary or appropriate.
(3)
The Tribal Council or its designee may appoint a national banking
association or state chartered bank, maintaining a minimum capital
surplus of $50,000,000 together with its bank holding company or other
affiliate banks (collectively the "Bank"), to act with respect
to an issue of its Bonds as authenticating trustee, transfer agent,
registrar and paying or other agent, and specify the rights and duties
and means of compensation of the Bank. The Tribal Council or its designee
may also enter into agreements with any such Bank in connection with
the establishment and maintenance by the Bank of a nationally recognized
central depository system for the transfer or pledge of Bonds.
(4)
The Tribal Council may by resolution appoint the Treasurer of the
Tribe, or any other fiscal agency, to serve as the fiscal agency.
If the Tribal Council decides to use the services of a fiscal agency
other than the Treasurer of the Tribe, the Tribal Council shall so
notify the Treasurer of the Tribe at the time the decision is made.
The authority granted by this Section (j)( 4) shall be in addition
to, not in lieu of, the authority granted in Section (j)( 3) of this
Ordinance.
(5)
Nothing in this Section (j) precludes the Tribe, the Tribal Council,
or a trustee appointed by the Tribal Council, pursuant to any other
provision of law, from itself performing, either alone or jointly
with other issuers, fiscal agencies, or trustees, any transfer, registration,
authentication, payment, or other function described in this Section.
(k) Form and Content of Bonds. Bonds
shall be in such denominations as may be provided in the resolution authorizing
their issue and shall be numbered in the manner provided by such resolution.
Each Bond shall (i) be signed by the Chairperson of the Tribal Council
or his or her duly authorized designee; (ii) refer to the Tribal Project
for which it is issued and the resolution ordering it; (iii) provide that
the principal sum therein named and the interest thereon shall be, unless
otherwise provided by the resolution authorizing the Tribal Project, payable
out of the general revenues of the Tribe, or out of a source of security
designated for the Bonds in the resolution of the Tribal Council authorizing
such Bonds; and (iv) be in any form, including bearer bonds or registered
bonds as provided by the resolution authorizing the issuance of such Bonds.
Any Bonds may be signed by the Chairperson of the Tribal Council or his
or her duly authorized designee, or in lieu thereof, may have printed
thereon a facsimile of his or her signature.
(l) Reproduction of Physical Instrument. When the Tribal
Council issues Bonds as physical instruments, the Bonds shall be printed,
engraved, lithographed, photocopied, typed, or reproduced and the manual
or facsimile signatures of the Chairperson of the Tribal Council or
his or her duly authorized designee shall be included on each Bond.
(m) Payment of Costs of Issuance and Sale. The proceeds of
any Bonds issued may be used to pay incidental costs and costs related
to the sale and issuance of the Bonds. Such costs may include, but are
not limited to, payments for fiscal agent, paying agent, trustee, escrow
agent, registrar fees, legal and accounting expenses, bond ratings,
printing, engraving, advertising, credit enhancement fees, bond insurance
premiums, underwriting costs and out-of-pocket expenditures of the Tribe
relating to issuance of the Bonds. These costs shall also include the
establishment and funding of reserve accounts and other accounts, any
amount required for working capital, capitalized interest, necessary
and related engineering, architectural, planning and inspection costs,
and other similar activities or purposes.
(n) Personal Liability. Neither the holder nor owner of any
Bond shall have any claim (other than a writ of mandamus, injunction
or other similar writ or proceeding) against any member of the Tribal
Council or any officer, employee, or agent of the Tribe, for personal,
contractual or monetary liability on the Bond.
(o) Revenue Bonds.
(1) The Tribal Council shall provide by resolution for the issuance
of Revenue Bonds for the payment of the whole or any portion of the
cost and expense of any Tribal Project at the discretion of Tribal Council.
Said resolution will determine the maximum amount of the Revenue Bond
issue, which amount may equal, but may not exceed, the total amount
specified in the tribal resolution authorizing the issuance of Revenue
Bonds for the Tribal Project.
(2)
The Tribal Council may pledge for the payment of Revenue Bonds issued
in connection with a Tribal Project all or any portion of (i) the
Revenues of any revenue producing facility providing services related
to the services financed by the Revenue Bonds; (ii) the Revenues of
a public utility or system, or an addition or extension thereto; (iii)
all or any portion of the Revenues of the Tribe; or (iv) any other
legally available moneys.
(3)
If the Tribal Council determines that it is necessary to provide additional
security for the Revenue Bonds, the Tribal Council may, to the extent
permitted by law, mortgage, grant security interests in or otherwise
encumber facilities, projects, utilities or systems owned or operated
by the Tribe. Such security may be given in favor of the holders of
the Revenue Bonds, a trustee therefor or as security for its obligations
arising under any Credit Enhancement Device. The Tribal Council may
obtain a Credit Enhancement Device for Revenue Bonds provided that
such Credit Enhancement Device is payable solely from Revenues. The
Tribal Council may loan the proceeds of any Revenue Bonds to any enterprise
of the Tribe or to any member of the Tribe on the terms and conditions
specified in a resolution of the Tribal Council.
(4)
The substance of the limitations included in this subsection shall
be plainly printed, written, engraved, or reproduced on: (i) each
Revenue Bond that is a physical instrument; and (ii) each official
statement associated with the Revenue Bonds.
(p) Dispute Resolution.
(1) Unless otherwise provided by the terms of the specific Bond issue
or Credit Enhancement Device: A party with a claim arising from the
issuance of Bonds or Credit Enhancement Device under this Ordinance
shall first file a written petition with the Tribal Court for a hearing
on the claim, which hearing shall be granted within 90 days of the filing
of the petition. The hearing will be on the record, and shall be transcribed
verbatim. The petitioner shall pay the costs of transcription. A party
dissatisfied with the decision of the Tribal Court may appeal pursuant
to the Tribal Court Ordinance.
If the
Tribal Council so provides in a duly authorized resolution, a party
may seek arbitration of the dispute under the rules and auspices of
the American Arbitration Association. For purposes of this arbitration,
the Tribal Council shall not raise a sovereign immunity defense, provided
that this agreement shall be strictly construed and shall not be construed
as an agreement not to assert any such immunity in any action brought
or maintained in the courts of a State or in the federal courts.
(2)
In connection with authorizing a specific Bond issue, the Tribal Council
(by authorization of the terms and agreements pertaining to the Bond
issue or otherwise) may provide for a dispute resolution system differing
from that provided in subparagraph (1) above. Such other dispute resolution
system may provide, among other things, for waiving the necessity
of any proceedings before the Tribal Council or Tribal Courts, for
other or greater waivers of sovereign immunity, for lesser or greater
powers of the arbitrators than those stated by the rules of the American
Arbitration Association, and for federal and state court jurisdiction.
(q) Effective Date.
Subject to the referendum provisions of Article II, Section 1( c) of the
Constitution and the legislative procedures contained in Section 210(
d)( 5) of the Tribal Code, this ordinance shall be effective 21 days after
its enactment.
I certify this to be a true copy of the Confederated Tribes of the Grand
Ronde Community of Oregon Tribal Bond Ordinance.
_____________________
Ed Pearsall, Tribal Secretary
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