10963-23-Ordinance Authorizing the Acquisition and Construction of Certain Additions and Improvements to the Municipal Waterworks of the City of South Bend

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advisable. The notice may provide, among other things, that the winning bidder shall submit to the City a certified or cashier's check (or wire transfer such amount) not later than a time determined by the City to guarantee performance on the part of the winning bidder. In the event the successful bidder shall fail or refuse to accept delivery of the Bonds and pay for the same as soon as the Bonds are ready for delivery, or at the time fixed in the notice of sale,then said check and the proceeds thereof shall be the property of the City and shall be considered as its liquidated damages on account of such default. The notice may also provide that bidders for the Bonds will be required to name the rate or rates of interest which the Bonds are to bear, not exceeding the maximum rate hereinbefore fixed, and that such interest rate or rates shall be in multiples of one- eighth(1/8) or one-hundredth(1/100) of one percent(1%). No conditional bid will be considered. The opinion of Barnes &Thornburg LLP, South Bend, Indiana,bond counsel for the City("Bond Counsel"), approving the legality of the Bonds, will be furnished to the purchaser at the expense of the City. The Bonds shall be awarded by the Controller to the best bidder who has submitted its bid in accordance with the terms of this Ordinance, I.C. 5-1-11 and the notice. The best bidder will be the one who offers the lowest net interest cost to the City, to be determined by computing the total interest on all of the Bonds to their maturities, deducting the premium bid, if any and adding thereto the discount bid, if any. The right to reject any and all bids shall be reserved. If an acceptable bid is not received on the date of sale, the sale may be continued from day to day thereafter without further advertisement for a period of thirty (30) days, during which time no bid which provides a higher net interest cost to the City than the best bid received at the time of the advertised sale will be considered. Notwithstanding anything in this Ordinance to the contrary and in lieu of a competitive sale of the Bonds pursuant to this Section IX and in the event Indiana law then permits a negotiated sale of the Bonds or any series thereof, the Mayor and the Controller, upon consultation with the Municipal Advisor, may determine to provide for the Bonds to be sold through a negotiated sale in the manner and upon the terms and conditions set forth in a purchase agreement between the City and an underwriter, bank, financial institution or other purchaser (the "Purchaser") to be selected by the Mayor and the Controller, at such prices and on such terms as may be determined at the time of such sale and approved by the Mayor and the Controller. The Mayor and the Controller are hereby authorized to approve and execute a bond purchase agreement(the"Purchase Agreement") for the Bonds with the Purchaser,in a form and substance approved by such officers, such approval to be conclusively evidenced by the execution thereof. Such Purchase Agreement may set forth the definitive terms and conditions for such sale, but all such terms and conditions must be consistent with the terms and conditions of this Ordinance, including without limitation, the interest rate or rates on the Bonds which shall not exceed the maximum rate of interest for the Bonds authorized pursuant to this Ordinance. Prior to the delivery of each series of Bonds, the Controller is authorized to investigate, negotiate and obtain municipal bond insurance, other forms of credit enhancement, and/or credit ratings on the Bonds. The costs of obtaining any such municipal bond insurance, other credit enhancement, and/or credit ratings, together with bond counsel's fee in preparing and delivering such opinion and in the performance of related services in connection with the issuance, sale and delivery of the Bonds, shall be considered as a part of the cost of issuance of the Bonds of such series and shall be paid out of the proceeds of the sale of the Bonds of such series SECTION X. Financial Records and Accounts; Continuing Disclosure. (a) The City shall keep proper records and books of account, separate from all of its other records and accounts, in which complete and correct entries shall be made showing all revenues received on account of the operation of the waterworks and all disbursements made therefrom and all transactions relating to the waterworks. Copies of all such statements and reports shall be kept on file in the office of the Controller. (b) If any series of Bonds are subject to the Rule, a Continuing Disclosure Undertaking Agreement ("Disclosure Agreement") for the Bonds is hereby authorized and approved by the Common Council,and the Mayor or Controller are hereby authorized and directed to complete, execute and attest the same on behalf of the City. Notwithstanding any other provisions of this Ordinance, failure of the City to comply with the Disclosure Agreement shall not be considered an event of default under the Bonds or this Ordinance. SECTION XI. Use of Proceeds and Costs of Issuance. Any accrued interest received shall be deposited into the Bond and Interest Account of the Waterworks Sinking Fund - 14 -