HomeMy WebLinkAbout9672-06 Authorizing the Acquistion and Installation of Improvements to the City's Sewage WorksORDINANCE No.
9672-06
Passed by the Common Council of the City of Soutlr Bend, Indiana
April 10,
Attest:
Attest:
~6
Presented by me to the Mayor of the Ciry of Soutlr Bend, Indiana
April 11,
06
City Clerk
President of Common Council
~~ Ciry Clerk
Approved and signed by me April 13 , 20 0 6
ORDINANCE NO. C{ (o~Z-Q~
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF
SOUTH BEND, INDIANA, AUTHORIZING THE ACQUISITION AND
INSTALLATION OF CERTAIN IMPROVEMENTS TO THE CITY'S
SEWAGE WORKS, THE ISSUANCE AND SALE OF ADDITIONAL
REVENUE BONDS TO PROVIDE FUNDS FOR THE PAYMENT OF THE
COSTS THEREOF, AND THE COLLECTION, SEGREGATION AND
DISTRIBUTION OF THE REVENUES OF SUCH SEWAGE WORKS AND
OTHER RELATED MATTERS
STATEMENT OF PURPOSE AND INTENT
The City of South Bend, Indiana (the "City"), presently owns and operates a
sewage works by and through its Board of Public Works (the "Board") for the collection and
treatment of sewage and other wastes (the "Sewage Works"), pursuant to the provisions of
Indiana Code 36-9-23, as amended (the "Act"). The Board has determined and recommended to
the Common Council of the City (the "Common Council") that certain improvements and
extensions to the Sewage Works, as described herein, are necessary. The Board has employed
consulting engineers (the "Consulting Engineers"), to prepare and file plans, specifications, and
detailed descriptions and estimates of the costs of the necessary improvements and extensions to
the Sewage Works, which plans, specifications, descriptions and estimates, to the extent required
by law, have been duly submitted to and approved or will be approved by all governmental
authorities having jurisdiction thereover (the improvements and extensions to the Sewage Works
as described in the Consulting Engineers' plans and specifications and below are referred to
herein as the "Project"), including, without limitation, the Indiana Department of Environmental
Management (the "Department").
The Common Council finds that the estimates prepared and delivered by the
Consulting Engineers with respect to the costs (as defined in Indiana Code 36-9-23-11) of
acquisition and installation of such improvements and extensions to the Sewage Works (as
defined in Indiana Code 36-9-1-8, as amended, and in the Act), and including all authorized costs
relating thereto, including the costs of issuance of bonds on account of the financing of all or a
portion thereof, will be in the estimated amount not to exceed Fifty-six Million Three Hundred
Eighty Thousand and 00/100 Dollars ($56,380,000.00). The Common Council finds that to
provide funds necessary to pay for the costs of the Project, it will be necessary for the City to
issue sewage works revenue bonds in an amount not to exceed Fifty-six Million Three Hundred
Eighty Thousand and 00/100 Dollars ($56,380,000.00).
Pursuant to Ordinance No. 8919-98, adopted by the Common Council on June 22,
1998 (the "1998 Bond Ordinance"), the City has heretofore issued revenue bonds payable from
the net revenues of the Sewage Works, designated "Sewage Works Revenue Bonds of 1998" (the
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"1998 Bonds"), outstanding after December 5, 2005, in the amount of $18,590,000, bearing
interest at various rates and maturing in various amounts annually on December 1 in the years
2006 to and including December 1, 2018. Pursuant to Ordinance No. 9270-01 adopted by the
Common Council on September 1, 2001 (the "2001 Bond Ordinance"), the City has heretofore
issued revenue bonds payable from the net revenues of the Sewage Works, designated as
"Sewage Works Refunding Revenue Bonds of 2001" (the "2001 Bonds"), outstanding after
December 1, 2005, in the amount of $2,440,000, bearing interest at various rates and maturing in
various amounts annually on December 1 in the years 2006 to and including 2008.
The City, pursuant to Ordinance No. 9523-04 adopted by the Common Council on
August 10, 2004 (the "2004 Bond Ordinance", and with the 2001 Bond Ordinance and the 1998
Bond Ordinance, the "Prior Ordinances"), the Ciry has heretofore issued revenue bonds payable
from the net revenues of the Sewage Works, designated as "Sewage Works Junior Revenue
Bonds of 2004" (the "2004 Bonds" and with the 2001 Bonds and the 1998 Bonds, the "Prior
Bonds"), outstanding in the amount of $11,035,000, bearing interest at various rates and
maturing in various amounts annually on December 1 in the years 2006 to and including 2024.
The Prior Ordinances permit the issuance of additional bonds payable from
revenues of the Sewage Works ranking on a parity basis with the Prior Bonds for the purpose of
financing the costs of future additions, extensions and improvements to the Sewage Works, so
long as certain conditions are met. Crowe Chizek and Company LLC, Financial Advisor to the
City (the "Financial Advisor"), has been employed by the Board for the purpose of analyzing the
records and finances of the Sewage Works, and has submitted preliminary evidence and findings
demonstrating compliance with the conditions set forth in the Prior Ordinances for the issuance
of additional revenue bonds payable out of the revenues of the Sewage Works and ranking on a
parity with the Prior Bonds. The Common Council now finds that all conditions precedent to the
adoption of an ordinance authorizing the issuance of revenue bonds on a parity basis with the
Prior Bonds to provide the necessary funds to be applied to the costs of the Project and all
authorized costs relating thereto, have been complied with in accordance with the provisions of
the Act.
Subject to the provisions of the immediately preceding paragraph, this Council
now finds that all conditions precedent to the adoption of an ordinance, authorizing the issuance
of additional bonds ranking on a parity with the Prior Bonds for the purpose of financing the cost
of the Project and the authorized costs relating thereto, have been complied with in accordance
with the provisions of the Prior Ordinances and the Act. The Common Council consequently
seeks to authorize the issuance of revenue bonds in multiple series to finance the acquisition and
installation of the Project pursuant to the Act and the sale of multiple series of such revenue
bonds at public sale pursuant to the provisions of Indiana Code 5-1-11, subject to and dependent
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF
THE CITY OF SOUTH BEND, INDIANA, AS FOLLOWS:
Section I. Acquisition, Construction and Installation of the Project. The City,
acting by and through the Board and as the owner and operator of the Sewage Works for the
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collection and treatment of sewage and other wastes, hereby orders, authorizes and directs the
Board to proceed with the acquisition and installation of improvements and extensions to the
Sewage Works, pursuant to the Act and in accordance with the plans, specifications and cost
estimates prepared and filed with the Board by the Consulting Engineers, which plans,
specifications and cost estimates are hereby adopted and approved and, by reference,
incorporated fully into this Ordinance, and two copies of which are now on file in the office of
the Board and are open for public inspection. The actions of the Board in connection with the
acquisition, installation, and financing of such improvements to the Sewage Works are hereby
authorized, approved, ratified and confirmed.
Where used in this Ordinance, the term "City" shall be construed also to include
any department, board, commission or officer or officers of the City or of any City department,
board or commission. The terms "Sewage Works," "sewage works," "works" and similar terms
used in this Ordinance shall be construed to mean and include the existing structures and
property of the Sewage Works and all enlargements, improvements, extensions and additions
thereto, and replacements thereof, now or subsequently constructed or acquired, from the
proceeds of the bonds authorized herein or otherwise. Such improvements and extensions shall
be constructed and the bonds herein authorized shall be issued pursuant to the provisions of this
Ordinance and the Act.
Section II. Description of the Project. The Project consists of the improvements
described in Appendix A attached hereto and incorporated herein.
The City, acting by and through the Board, shall proceed with the acquisition,
construction and installation of the Project and shall enter into all contracts necessary or
appropriate for such purpose, in conformity with and subject to the requirements and conditions
set forth in this Ordinance and in the Act and in accordance with the plans and specifications
previously prepared for and on behalf of the City.
Section III. The Bonds. In accordance with the Act and for the purpose of
providing funds with which to pay the costs of the Project, together with all authorized costs
relating thereto including the costs of issuance of the Bonds, as hereinafter defined, on account
thereof, the City shall issue and sell its sewage works revenue bonds in the aggregate principal
amount not to exceed Fifty-six Million Three Hundred Eighty Thousand and 00/100 Dollars
($56,380,000.00). The principal of, redemption premium, if any, and interest on the Bonds shall
be payable, on a parity basis with the Prior Bonds, solely out of the Sewage Works Sinking Fund
referred to below.
The Bonds shall be issued in one (1) or more series designated as the "City of
South Bend, Indiana, Sewage Works Revenue Bonds of 200_" (with the blank to be filled in
with the year in which each series of bonds are issued, with a letter designation in the event two
(2) series of bonds are issued in the same calendar year) (the "Bonds"). The Bonds shall be
issued as fully registered bonds in denomination or denominations of Five Thousand Dollars
($5,000) and any integral multiples thereof not exceeding the aggregate principal amount of such
Bonds maturing in any one (1) year. The Bonds shall be numbered consecutively from 200 R-1
(with the blank to be filled in with the year in which each series of bonds are issued, with a letter
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designation in the event two (2) series of bonds aze issued in the same calendaz year) upward and
shall beaz interest at a rate not exceeding eight percent (8.0%) per annum, the exact rate or rates
to be determined by bidding. Said interest rate or rates shall be in multiples of one-eighth (1/8)
or one-twentieth (1/20) of one percent (1%). All Bonds of a series maturing on the same date
shall bear the same rate of interest, and the interest rate on Bonds of a series of a given maturity
must be at least as great as the interest rate on Bonds of any earlier maturity. Interest on each
series of the Bonds shall be calculated on the basis of twelve (12) thirty (30)-day months for a
three hundred and sixty (360)-day year and shall be payable semiannually on December 1 and
June 1 in each year (each an "Interest Payment Date"), commencing on the first December 1 or
June 1, following the original date of the Bonds as determined by the Controller, with the advice
of the City's financial advisor and as set forth in the Issuer's Certificate (defined herein) and in
the notice of intent to sell bonds for each series of the Bonds until principal is fully paid. The
principal of each series of the Bonds shall mature serially and annually on December 1 of each
year, over a period ending no later than twenty-two (22) years from the date of issuance of each
series of the Bonds, and in the years and amounts to be determined by the Controller with the
advice of the City's financial advisor prior to the publication of the notice to intent to sell bonds
referred to herein and set forth in the Issuer's Certificate with respect to each series of Bonds.
The Bonds shall bear an original issue date which shall be the date of issuance of
the Bonds or the first day of the month in which the Bonds are delivered, as determined by the
Controller and set forth in the Issuer's Certificate for each series of Bonds, and each Bond shall
also bear the date of its authentication. Any Bond authenticated on or before the fifteenth (15th)
day of the calendar month immediately preceding the first Interest Payment Date, shall pay
interest from its original issue date. Any Bond authenticated thereafter shall pay interest from
the Interest Payment Date next preceding the date of authentication of such Bond to which
interest thereon has been paid or duly provided for, unless such Bond is authenticated after the
day which is fifteen (15) days prior to the Interest Payment Date and on or before such Interest
Payment Date, in which case interest thereon shall be paid from such Interest Payment Date.
The Controller is hereby authorized to appoint a registrar and a paying agent for
each series of the Bonds (the "Registrar" and the "Paying Agent" and, in both such capacities, the
"Registraz and Paying Agent"). The Registrar and Paying Agent shall be charged with and shall
by appropriate agreement undertake the performance of all of the duties and responsibilities
customarily associated with each such position, including without limitation the authentication of
the Bonds. The Controller is authorized and directed to enter into such agreements and
understandings with the Registrar and Paying Agent and any subsequent Registrar and Paying
Agent as will enable and facilitate the performance of its duties and responsibilities, and is
authorized and directed to pay such fees as the Registrar and Paying Agent may reasonably
charge for its services in such capacity, and such fees may be paid from the Sewage Works
Sinking Fund continued by this Ordinance.
The Registraz and Paying Agent may at any time resign as Registrar and Paying
Agent upon giving thirty (30) days' notice in writing to the City and by first-class mail to each
registered owner of the Bonds then outstanding, and such resignation will take effect at the end
of such thirty (30) days or upon the earlier appointment of a successor Registrar and Paying
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Agent by the City. Any such notice to the City may be served personally or sent by certified
mail. The Registrar and Paying Agent may also be removed at any time as Registrar and Paying
Agent by the City, in which event the City may appoint a successor Registrar and Paying Agent.
The City shall notify each registered owner of Bonds then outstanding by first-class mail of the
removal of the Registrar and Paying Agent. Notices to registered owners of the Bonds shall be
deemed to be given when mailed by first-class mail to the addresses of such registered owners as
they appear on the registration books kept by the Registrar. Any predecessor Registrar and
Paying Agent shall deliver all of the Bonds and cash in its possession with respect thereto,
together with the registration books, to the successor Registrar and Paying Agent. The
Controller is hereby authorized to act on behalf of the City with regard to any of the
aforementioned actions of the City relating to the resignation or removal of the Registrar and
Paying Agent and appointment of a successor Registrar and Paying Agent.
The Bonds shall, in compliance with all applicable laws, be issued and held in
book-entry form on the books of the central depository system, The Depository Trust Company,
its successors, or any successor central depository system appointed by the City from time to
time (the "Clearing Agency"). The City and the Registrar and Paying Agent may, in connection
therewith, do or perform or cause to be done or performed any acts or things not adverse to the
rights of the holders of the Bonds, as are necessary or appropriate to accomplish or recognize
such book-entry form Bonds.
During any time that the Bonds are held in book-entry form on the books of a
Clearing Agency (1) any such Bond may be registered upon the books kept by the Registrar and
Paying Agent in the name of such Clearing Agency, or any nominee thereof, including CEDE &
Co., as nominee of The Depository Trust Company; (2) the Clearing Agency in whose name
such Bond is so registered shall be, and the City and the Registrar and Paying Agent may deem
and treat such Clearing Agency as, the absolute owner and holder of such Bond for all purposes
of this Ordinance, including, without limitation, the receiving of payment of the principal of and
interest on such Bond, the receiving of notice, and the giving of consent; (3) neither the City nor
the Registrar and Paying Agent shall have any responsibility or obligation hereunder to any
direct or indirect participant, within the meaning of Section 17A of the Securities Exchange Act
of 1934, as amended, of such Clearing Agency, or any person on behalf of which, or otherwise in
respect of which, any such participant holds any interest in any Bond, including, without
limitation, any responsibility or obligation hereunder to maintain accurate records of any interest
in any Bond or any responsibility or obligation hereunder with respect to the receiving of
payment of principal, premium, if any, or interest on any Bond, the receiving of notice, or the
giving of consent; (4) the Clearing Agency is not required to present any Bond called for partial
redemption prior to receiving payment so long as the Registrar and Paying Agent and the
Clearing Agency have agreed to the method for noting such partial redemption; and (5) payment
of the principal of and interest on the Bonds may be made by wire transfer or other method
acceptable to the Clearing Agency.
If either (i) the City receives notice from the Clearing Agency which is currently
the registered owner of the Bonds to the effect that such Clearing Agency is unable or unwilling
to discharge its responsibility as a Clearing Agency for the Bonds or (ii) the City elects to
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discontinue its use of such Clearing Agency as a Clearing Agency for the Bonds, then the City
and the Registraz and Paying Agent each shall do or perform or cause to be done or performed all
acts or things, not adverse to the rights of the holders of the Bonds, as are necessary or
appropriate to discontinue use of such Clearing Agency as a Clearing Agency for the Bonds and
to transfer the ownership of each of the Bonds to such person or persons, including any other
Cleazing Agency, as the holder of the Bonds may direct in accordance with this Ordinance. Any
expenses of such discontinuance and transfer, including expenses of printing new certificates to
evidence the Bonds, shall be paid by the City.
During any time that the Bonds are held in book-entry form on the books of a
Clearing Agency, the Registrar and Paying Agent shall be entitled to request and rely upon a
certif cate or other written representation from the Clearing Agency or any participant or indirect
participant with respect to the identity of any beneficial owners of the Bonds as of a record date
selected by the Registrar and Paying Agent. For purposes of determining whether the consent,
advice, direction or demand of a Registered Owner of the Bonds has been obtained, the Registrar
and Paying Agent shall be entitled to treat the beneficial owners of the Bonds as the holders of
the Bonds.
During any time that the Bonds are held in book-entry form on the books of a
Clearing Agency, the Controller or the Mayor is each authorized to enter into a Blanket Letter of
Representations agreement with the Clearing Agency, and the provisions of any such Letter of
Representations or any successor agreement shall control on the matters set forth herein.
Principal of and any redemption premium on the Bonds shall be payable at the
principal corporate trust office of the Paying Agent. Interest on the Bonds shall be paid by check
or draft mailed or delivered by the Paying Agent to the registered owner thereof at the address as
it appears on the registration books kept by the Registraz as of the fifteenth (15th) day of the
month immediately preceding the Interest Payment Date or at such other address as may be
provided to the Paying Agent in writing by such registered owner. So long as the Clearing
Agency or its nominee is the registered owner of the Bonds, interest on, together with the
principal of and any redemption premium on, the Bonds will be paid directly to the Clearing
Agency by wire transfer in same day funds by the Registrar and Paying Agent. All payments on
the Bonds shall be made in any coin or currency of the United States of America which, on the
dates of such payments, shall be legal tender for the payment of public or private debt.
Each Bond shall be transferable or exchangeable only on the books of the City
maintained for such purpose at the principal corporate trust office of the Registrar, by the
registered owner thereof in person, or by his or her attorney duly authorized in writing, upon
surrender of such Bond together with a written instrument of transfer or exchange satisfactory to
the Registrar duly executed by the registered owner or his or her attorney duly authorized in
writing, and thereupon a new fully registered Bond or Bonds in the same aggregate principal
amount and of the same maturity shall be executed and delivered in the name of the transferee or
transferees or the registered owner, as the case may be, in exchange therefor. Each Bond maybe
transferred or exchanged without cost to the registered owner, except for any tax or other
governmental charge which may be required to be paid with respect to such transfer or exchange.
The Registrar shall not be obligated to make any transfer or exchange of any Bond (i) during the
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fifteen (15) days immediately preceding an Interest Payment Date or (ii) after the mailing of
notice calling such Bond for redemption. The City, the Registrar and the Paying Agent may treat
and consider the person in whose name any Bond is registered as the absolute owner thereof for
all purposes including the purpose of receiving payment of, or on account of, the principal
thereof, and redemption premium, if any, and interest thereon.
In the event any Bond is mutilated, lost, stolen or destroyed, the City may cause to
be executed and the Registrar may authenticate a new Bond of like date, maturity, series and
denomination as the mutilated, lost, stolen or destroyed Bond, which new Bond shall be marked
in a manner to distinguish it from the Bond for which it was issued; provided, that in the case of
any mutilated Bond, such mutilated Bond shall first be surrendered to the Registrar, and in the
case of any lost, stolen or destroyed Bond there shall be first furnished to the Registrar evidence
of such loss, theft or destruction satisfactory to the City and the Registrar, together with
indemnity satisfactory to them. In the event that any such mutilated, lost, stolen or destroyed
Bond shall have matured or been called for redemption, instead of causing to be issued a
duplicate Bond, the Registrar and Paying Agent may pay the same upon surrender of the
mutilated Bond or upon satisfactory indemnity and proof of loss, theft or destruction in the case
of a lost, stolen or destroyed Bond. The City and the Registrar and Paying Agent may charge the
owner of any such Bond with their reasonable fees and expenses in connection with the above.
Every substitute Bond issued by reason of any Bond being lost, stolen or destroyed shall, with
respect to such Bond, constitute a substitute contractual obligation of the City pursuant to this
Ordinance, whether or not the lost, stolen or destroyed Bond shall be found at any time, and shall
be entitled to all the benefits of this Ordinance, equally and proportionately with any and all
other Bonds duly issued hereunder.
In the event that any Bond is not presented for payment or redemption on the date
established therefor, the City may deposit in trust with the Paying Agent an amount sufficient to
pay such Bond or the redemption price thereof, as appropriate, and thereafter the owner of such
Bond shall look only to the funds so deposited in trust with the Paying Agent for payment and
the City shall have no further obligation or liability with respect thereto.
Section IV. Redemption of the Bonds.
(a) Optional Redemption. Each series of the Bonds shall be subject to
redemption at the option of the City, in whole or in part, upon thirty (30) days written
notice, to the registered owner or owners of Bonds to be redeemed, on any December 1
not earlier than ten (10) years from the original date of each series of the Bonds, at a
redemption price and in amounts and maturities and in order of maturities determined by
the Mayor and the Clerk upon the advice of the City's financial advisor as set forth in a
certificate of the City to be executed and attested by the Mayor and the Clerk,
respectively, prior to the sale of each series of the Bonds (the "Issuer's Certificate").
Official notice of such redemption shall be mailed by the Registrar and
Paying Agent by certified or registered mail at least thirty (30) days and not more than
forty-five (45) days prior to the scheduled redemption date to each of the registered
owners of the Bonds called for redemption (unless waived by any such registered owner)
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at the address shown on the registration books of the Registrar and Paying Agent, or at
such other address as is furnished in writing by such registered owner to the Registrar;
provided, however, that failure to give such notice by mailing, or any defect therein, with
respect to any Bond shall not affect the validity of the proceedings for the redemption of
any other Bonds. The notice shall specify the redemption price, the date and place of
redemption, and the registration numbers (and, in case of partial redemption, the
respective principal amounts) of the Bonds called for redemption. The place of
redemption may be at the principal corporate trust office of the Registrar and Paying
Agent or as otherwise determined by the City. Interest on the Bonds (or portions thereof)
so called for redemption shall cease to accrue on the redemption date fixed in such notice,
if sufficient funds are available at the place of redemption to pay the redemption price on
the redemption date and when such Bonds (or portions thereof) are presented for
payment. Any Bond redeemed in part may be exchanged for a Bond or Bonds of the
same maturity in authorized denominations equal to the remaining principal amount
thereof.
In addition to the foregoing notice, the City may also direct that further
notice of redemption of each series of the Bonds be given, including without limitation
and at the option of the City, notice described in paragraph (i) below given by the
Registrar and Paying Agent to the parties described in paragraphs (ii) and (iii) below. No
defect in any such further notice and no failure to give all or any portion of any such
further notice shall in any manner defeat the effectiveness of any call for redemption of
Bonds so long as notice thereof is mailed as prescribed above.
(i) If so directed by the City, each further notice of redemption
given hereunder shall contain the information required above for an official notice
of redemption plus (A) the CUSIP numbers of all Bonds being redeemed; (B) the
date of issue of the Bonds as originally issued; (C) the rate of interest borne by
each Bond being redeemed; (D) the maturity date of each Bond being redeemed;
and (E) any other descriptive information needed to identify accurately the Bonds
being redeemed.
(ii) If so directed by the City, each further notice of redemption
shall be sent at least thirty-five (35) days before the redemption date by registered
or certified mail or overnight delivery service to all registered securities
depositories then in the business of holding substantial amounts of obligations of
types comprising the Bonds (such depositories now being The Depository Trust
Company of New York, New York) and to one or more national information
services that disseminate notices of redemption of obligations such as the Bonds
(such as Financial Information, Inc.'s Financial Daily Called Bond Service, Kenny
Information Service's Called Bond Service, Moody's Municipal and Government
News Reports and Standard & Poor's Called Bond Record).
(iii) If so directed by the City, each such fuuther notice shall be
published one time in The Bond Buyer of New York, New York or, if the
Registrar believes such publication is impractical or unlikely to reach a substantial
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number of the holders of the Bonds, in some other financial newspaper or journal
which regularly carries notices of redemption of other obligations similar to the
Bonds, such publication to be made at least sixty (60) days prior to the date fixed
for redemption.
Upon the payment of the redemption price of the Bonds (or portions
thereof) being redeemed and if so directed by the City, each check or other transfer of
funds issued for such purpose shall bear the CUSIP number identifying, by issue and
maturity, the Bonds (or portions thereof) being redeemed with the proceeds of such check
or other transfer.
(b) Mandatory Sinking Fund Redemption. The Bonds may be subject
to mandatory sinking fund redemption as set forth herein. At the option of the successful
bidder for each series of the Bonds, all or a portion of the Bonds of a particular series
may be aggregated into one or more term bonds payable from mandatory sinking fund
redemption payments (the "Term Bonds") required to be made as set forth below. The
Term Bonds shall have a stated maturity or maturities on December 1 of the years in
which the Bonds are outstanding as determined pursuant to Section III hereof or as
determined by the successful bidder.
In the event that the successful bidder opts to aggregate certain Bonds of a
particular series into Term Bonds, such Term Bonds shall be subject to mandatory
sinking fund redemption prior to maturity at a redemption price equal to 100% of the
principal amount thereof, plus accrued interest to the redemption date, but without
premium, on December 1 of each year and in the principal amounts corresponding to and
consistent with the maturity schedule for the Bonds set forth in the bond sale notice.
The Registrar and Paying Agent shall credit against the current mandatory
sinking fund requirement for a Term Bond of a particular maturity, any Bonds of such
maturity delivered to the Registrar and Paying Agent for cancellation or purchased for
cancellation by the Registrar and Paying Agent and cancelled by the Registrar and Paying
Agent and not theretofore applied as a credit against any mandatory sinking fund
requirement. Each Bond so delivered or purchased shall be credited by the Registrar and
Paying Agent at 100% of the principal amount thereof against the mandatory sinking
fund redemption requirements for the applicable Term Bond in order of mandatory
sinking fund redemption (or final maturity) dates determined by the Clerk, and the
principal amount of such Term Bond to be redeemed on such mandatory sinking fund
redemption dates by operation of the mandatory sinking fund requirements shall be
reduced accordingly; provided, however, the Registrar and Paying Agent shall only credit
Bonds against the mandatory sinking fund requirements to the extent such Bonds are
received on or before 45 days preceding the applicable mandatory sinking fund
redemption date.
The Registrar shall determine by lot (treating each $5,000 principal
amount of each Bond as a separate Bond for such purpose) the Bonds within a Term
BDDBOI 4347413v2 - 9 -
Bond of a particular maturity to be redeemed pursuant to the mandatory sinking fund
redemption requirements on December 1 of each year.
Notice of any such mandatory sinking fund redemption shall be given in
the same manner as notice of optional redemption is required to be given pursuant to this
Section IV of this Ordinance. If Bonds are to be redeemed by optional redemption and
mandatory sinking fund redemption on the same date, the Registrar shall select by lot the
Bonds for optional redemption before selecting the Bonds by lot for the mandatory
sinking fund redemption.
In the event any of the Bonds are issued as Term Bonds, the form of the
Bond set forth in Appendix B to this Ordinance shall be modified accordingly.
Any reference to payment of principal on the Bonds shall include payment
of scheduled mandatory sinking fund redemption payments described in this Section IV.
Section V. Execution and Authentication of the Bonds. The Bonds shall be
executed in the name of the City by the manual or facsimile signature of the Mayor of the City
(the "Mayor"), countersigned by the manual or facsimile signature of the Controller and attested
by the manual or facsimile signature of the Clerk of the City (the "Clerk"), who shall cause the
seal of the City or a facsimile thereof to be affixed to each of the Bonds. The Bonds shall be
authenticated by the manual signature of the Registrar, and no Bond shall be valid or become
obligatory for any purpose until the certificate of authentication thereon has been so executed. In
case any official whose signature appears on any Bond shall cease to be such official before the
delivery of such Bond, the signature of such official shall nevertheless be valid and sufficient for
all purposes, the same as if such official had been in office at the time of such delivery. Subject
to the provisions of this Ordinance regarding the registration of the Bonds, the Bonds shall be
fully negotiable instruments under the laws of the State of Indiana.
Section VI. Security and Sources of Payment for the Bonds. The Bonds, when
fully paid for and delivered to the purchaser thereof as to both principal and interest, shall be
valid and binding special revenue obligations of the City, payable solely from and secured by an
irrevocable pledge of and constituting a charge upon all of the net revenues (herein defined as
gross revenues after deduction only for the payment of the reasonable expenses of operation,
repair and maintenance but not including depreciation and payments in lieu of taxes) derived
from the Sewage Works, including all such net revenues from the existing works, the Project and
all additions and improvements thereto and replacements thereof subsequently constructed or
acquired, to be set aside into the Sewage Works Sinking Fund as herein provided and shall rank
on a parity with the Prior Bonds. The City shall not be obligated to pay the Bonds or the interest
thereon except from the net revenues of the Sewage Works, and the Bonds shall not constitute an
indebtedness of the City within the meaning of the provisions and limitations of the constitution
of the State of Indiana.
Section VII. Form of the Bonds. The form and tenor of the Bonds shall be
substantially as set forth in Appendix B attached hereto and incorporated herein as if set forth at
BDDBOI 4347413v2 - 1 ~ -
this place (with all blanks to be filled in properly and all necessary additions and deletions to be
made prior to the delivery thereof).
Section VIII. Issuance, Sale and Delivery of the Bonds.
(a) Generally. The Controller is hereby authorized and directed to
have the Bonds prepared, and the Mayor, the Controller and the Clerk are each hereby
authorized and directed to execute, and attest as appropriate, the Bonds in the form and
manner herein provided. The Controller is hereby authorized and directed to deliver the
Bonds to the purchaser or purchasers thereof after sale made and in accordance with the
provisions of the Act and this Ordinance, provided that at the time of said delivery the
Controller shall collect the full amount which the purchaser or purchasers have agreed to
pay therefor, which shall be not less than ninety-eight percent (98%) of the par amount of
the series of the Bonds being sold (or such higher percentage of the par value of such
series of the Bonds as the Controller, with the advice of the financial advisor of the City,
shall determine) plus accrued interest thereon to the date of delivery. The proceeds
derived from the sale of the Bonds shall be and are hereby set aside for application to the
costs of the Project, and including all authorized costs relating thereto, including the costs
of issuance of the Bonds. The authorized officers of the City are hereby authorized and
directed to draw all proper and necessary warrants and to do whatever other acts and
things that may be necessary or appropriate to carry out the provisions of this Ordinance.
(b) Public Sale of the Bonds. The Bonds shall be sold by public sale.
Prior to the sale of each series of the Bonds, the Controller shall cause to be published a
notice of intent to sell two times at least one week apart in the South Bend Tribune, the
Tri-Count, News and the Court and Commercial Record. The notice of such sale or a
summary thereof may also be published in The Bond Buyer, a financial journal published
in the City and State of New York and/or in other publications, in the discretion of the
Controller. The notice must state that any person interested in submitting a bid for the
series of the Bonds being sold may furnish in writing, at the address set forth in the
notice, the person's name, address, and telephone number, and that any such person may
also furnish a telex number. The notice must also state: (1) the amount of the Bonds to
be offered; (2) the denominations; (3) the dates of maturity; (4) the maximum rate or
rates of interest; (5) the place of sale; and (6) the time within which the name, address
and telephone number must be furnished, which time must not be less than seven (7) days
after the last publication of the notice. Each person so registered shall be notified of the
date and time bids will be received not less than twenty-four (24) hours before the date
and time of sale. The notification shall be made by telephone at the number furnished by
the person, and also by telex if the person furnishes a telex number. Such notice may
also include such other information as the Controller shall deem necessary. Such notice
shall also provide, among other things, that each bid shall be accompanied by a certified
or cashier's check or financial surety bond in an amount equal to one percent (1%) of the
principal amount of the Bonds being sold to guarantee performance on the part of the
bidder, and that in the event the successful bidder shall fail or refuse to accept delivery of
and pay for the Bonds as soon as the Bonds are ready for delivery, or at the time fixed in
BDDBOI 4347413v2 - 11 -
the notice of intent to sell, then such check or financial surety bond and the proceeds
thereof shall become the property of the City and shall be considered as the City's
liquidated damages on account of such default.
All bids for the Bonds shall be submitted electronically or in sealed bid
form and shall be presented to the Controller at the Controller's office (or such other
place as the Controller shall designate), and the Controller shall continue to receive all
bids offered until the time fixed for the sale of the Bonds, at which time and place the
Controller shall open and consider each bid. Bidders for the Bonds shall be required to
name the rate or rates of interest which the Bonds are to bear, not exceeding eight percent
(8.0%) per annum. Such interest rate or rates shall be in multiples of one-eighth (1/8) or
one-twentieth (1/20) of one percent (1%). Bids specifying more than one interest rate
shall also specify the amount and maturities of the Bonds bearing each rate, and all Bonds
maturing on the same date shall bear the same rate of interest. The interest rate on Bonds
of a given maturity must be at least as great as the interest rate on Bonds of any earlier
maturity. Subject to the provisions set forth below, the Controller shall award the Bonds
to the bidder offering the lowest net interest cost to the City, to be determined by
computing the total interest on all of the Bonds from the date thereof to their maturities
and deducting therefrom the premium bid, if any, or adding thereto the amount of any
discount. No bid for less than 98% of the par value of each series of the Bonds (or such
higher percentage of the par value of the Bonds as the Controller, with the advice of the
financial advisor to the City, shall determine prior to the publication of the notice of
intent to sell), plus accrued interest at the rate or rates named to the date of delivery, will
be considered. The Controller shall have full right to reject any and all bids. In the event
no acceptable bid is received at the time fixed for the sale of the Bonds, the Controller
shall be authorized to continue to receive bids from day to day thereafter for a period not
to exceed thirty (30) days, without readvertising, pursuant to Indiana law.
The Controller is hereby authorized to determine, in her discretion, to sell
each series of the Bonds pursuant to the general provisions of Indiana Code 5-1-11
(rather than Section 2(b) thereof), and in the event of such a determination, those portions
of this Section VIII which conflict with such provisions shall be deemed inapplicable.
(c) Credit Enhancement; Opinion of Bond Counsel. Prior to the
delivery of each series of the Bonds, the Mayor, subject to the direction of the Common
Council, (i) shall be authorized to investigate, negotiate and obtain bond insurance, other
forms of credit enhancement and/or credit ratings on Bonds and (ii) shall obtain a legal
opinion as to the validity of the Bonds from bond counsel for the City, with such opinion
to be furnished to the purchaser of the Bonds at the expense of the City. The costs of
obtaining any such 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 the Project and shall be paid out of the proceeds of
the Bonds.
BDDBOI 4347413v2 - 12 -
Section IX. Disposition of Proceeds of the Bonds; City of South Bend, Sewage
Works Construction Account. The proceeds from the sale of each series of the Bonds shall be
deposited and applied as follows:
(a) The accrued interest and any premium received at the time of
delivery of the Bonds or any unused discount shall be deposited in the Sewage Works
Sinking Fund continued by this Ordinance.
(b) The remaining proceeds from the sale of the Bonds shall be
deposited in a bank or banks which are legally qualified depositories for the funds of the
City, in the special account to be designated as "City of South Bend, 200_ Sewage
Works Construction Account" (with the blank to be filled in with the year in which the
particular series of Bonds are being sold) (the "Construction Account"). Amounts in the
Construction Account shall be expended only for the purpose of paying the costs of the
Project, as described in the Ordinance and in the Act, together with all authorized costs
relating thereto, including the costs of issuance of the Bonds, and as otherwise permitted
or required by the Act. Any balance or balances remaining unexpended in the
Construction Account after completion of the Project, which are not required to meet
unpaid obligations incurred in connection with the acquisition and installation of the
Project, shall be used solely for one or more of the purposes permitted under the
provisions of Indiana Code 5-1-13, as amended. Pursuant to the Act, the owners of each
series of the Bonds shall be entitled to a lien on the proceeds of the respective series of
the Bonds until such proceeds are applied as required by this Ordinance and by Indiana
law.
Section X. Segregation and Application of Sewage Works Revenues. All
revenues derived from the operation of the Sewage Works and from the collection of sewage
rates and charges shall be deposited in the Sewage Works Revenue Fund, created under the Prior
Bond Ordinances and continued hereby, and segregated and kept separate and apart from all
other funds and bank accounts of the City. Out of said revenues the proper and reasonable
expenses of operation, repair and maintenance of the Sewage Works shall be paid, the principal
and interest of all bonds and fiscal agency charges of bank paying agents shall be paid, and the
costs of replacements, extensions, additions and improvements shall be paid as hereinafter
provided.
On the last day of each calendar month there shall be credited from the Revenue
Fund to the Sewage Works Operation and Maintenance Fund, created under the Prior Bond
Ordinances and continued hereby, a sufficient amount of the revenues of the Sewage Works so
that the balance in said fund shall be sufficient to pay the expenses of operation, repair and
maintenance for the then next succeeding two (2) calendar months. The moneys credited to this
fund shall be used for the payment of the reasonable and proper operation, repair and
maintenance expenses of the Sewage Works on a day to day basis, but none of the moneys in
such fund shall be used for depreciation, replacements, improvements, extensions or additions.
Any balance in said fund in excess of the expected expenses of operation, repair and
maintenance for the next succeeding month may be transferred to the Sewage Works Sinking
BDDBOI 4347413v2 - 13 -
Fund referred to below if necessary to prevent a default in the payment of principal or interest on
outstanding bonds.
Section XI. Sewage Works Sinking Fund. There shall be deposited from the
Revenue Fund into the "Sewage Works Sinking Fund," created under the Prior Bond Ordinances
and continued hereby, for the payment of the interest on and principal of revenue bonds which
by their terms are payable from the revenues of the Sewage Works, and the payment of any fiscal
agency charges in connection with the payment of such bonds and interest thereon, a sufficient
amount of the net revenues of said Sewage Works (defined as gross revenues of the sewage
works after deduction only for the payment of the reasonable expenses of operation, repair and
maintenance but not including depreciation and payments in lieu of taxes) to meet the
requirements of the Bond and Interest Account and the Debt Service Reserve Account each
created under the Prior Bond Ordinances and continued hereby, in said Sewage Works Sinking
Fund. Such payments shall continue until the balance in the Bond and Interest Account, plus the
balance in the Debt Service Reserve Account, equals the principal of and interest on all of the
then outstanding bonds to the final maturity thereof.
(a) Bond and Interest Account. Beginning with the first calendar
month following the date of issuance of each series of the Bonds herein authorized, there
shall be credited on the first day of each calendar month to the Bond and Interest Account
an amount equal to the sum of one-sixth(1/6) of the interest on all then outstanding bonds
payable during the then next succeeding six calendar months and one-twelfth (1/12) of
the principal on all then outstanding bonds payable during the then next succeeding
twelve calendar months; provided that such fractional amounts shall be appropriately
increased, if necessary, to provide for the first interest and first principal payments.
There shall similarly be credited to the account the amount necessary to pay the bank
fiscal agency charges, if any, for paying principal and interest on the bonds as the same
become payable. The City shall, from the sums deposited in the Sewage Works Sinking
Fund and credited to the Bond and Interest Account, remit promptly to the bank fiscal
agency sufficient moneys to pay the principal and interest on the due dates thereof
together with the amount of any bank fiscal agency charges.
(b) Debt Service Reserve Account. On the first day of each calendar
month, after making the credits to the Bond and Interest Account, there shall be credited
from available net revenues to the Debt Service Reserve Account an amount not less than
an amount which will produce, in equal monthly installments over a sixty (60) month
period, an amount equal to the least of (i) maximum annual debt service on all bonds
payable from the net revenues of the Sewage Works, (ii) 125% of the average annual
principal and interest payable on all bonds payable from the net revenues of the Sewage
Works, or (iii) ten percent (10%) of the proceeds of all bonds payable from the net
revenues of the Sewage Works, plus a minor portion thereof as defined in the Internal
Revenue Code of 1986, as amended (the "Code") (the "Debt Service Reserve
Requirement"). Said credits to the Debt Service Reserve Account shall continue until the
balance therein shall equal the Debt Service Reserve Requirement. The Debt Service
Reserve Account shall constitute the margin for safety as a protection against default in
BDDBOI 4347413v2 - 14 -
the payment of principal of and interest on the bonds, and the moneys in the Debt Service
Reserve Account shall be used to pay current principal and interest on the bonds to the
extent that moneys in the Bond and Interest Account are insufficient for that purpose. In
the event moneys in the Debt Service Reserve Account are transferred to the Bond and
Interest Account to pay principal and interest on bonds, then such depletion of the
balance in the Debt Service Reserve Account shall be made up from the next available
net revenues after the credits into the Bond and Interest Account hereinbefore provided
for. Any moneys in the Debt Service Reserve Account in excess of the Debt Service
Reserve Requirement shall be transferred to the Sewage Works Improvement Fund, and
in no event shall such excess moneys be held in the Debt Service Reserve Account. The
Debt Service Reserve Requirement, with respect to each series of the Bonds, shall be
deemed to be satisfied if there is on deposit in the Sewage Works Reserve Account any
surety bond, insurance policy, guaranty, letter of credit or other credit facility in any
amount equal to the amount necessary to pay the principal of and interest on the
respective series of the Bonds in the event that funds in the Bond and Interest Account
are insufficient for such purpose, the issuer of which credit facility is rated at least
"AAA" by Standard & Poor's Ratings Group or "Aaa: by Moody's Investor service. The
Mayor and the Controller are hereby authorized to obtain such a credit facility for each
series of Bonds being sold, and are authorized to enter into an agreement (the "Reserve
Agreement") with the issuer of said credit facility and to negotiate the terms of said credit
facility on the advice of the Financial Advisor.
Section XII. Sewage Works Improvement Fund. On the first day of each
calendar month after each series of the Bonds are issued, after meeting the requirements for
operation, repair, and maintenance, and the Sewage Works Sinking Fund, all available net
revenues shall be credited to the fund created under the Bond Ordinance and continued hereby,
and designated as the "Sewage Works Improvement Fund". Said fund shall be used for
improvements, replacements, additions and extensions of the Sewage Works. Moneys in the
Sewage Works Improvement Fund shall be transferred to the Sewage Works Sinking Fund if
necessary to prevent a default in the payment of principal and interest on the then outstanding
bonds or if necessary to eliminate any deficiencies in credits to or minimum balance in the Debt
Service Reserve Account of the Sewage Works Sinking Fund.
Section XIII. Books of Record and Accounts. The City shall keep proper books
of record and accounts, separate from all of its other records and accounts, in which completed
and correct entries shall be made showing all revenues collected from said works and deposited
in said funds, and all disbursements made therefrom on account of the operation of the works,
and to meet the requirements of the Sewage Works Sinking Fund, and alI other financial
transactions relating to said works, including the amounts set aside or credited to the Sinking
Fund, the Sewage Works Operation and Maintenance Fund and the Sewage Works Replacement
Fund, and the cash balances in each of said funds and accounts described herein as of the close
of the preceding fiscal year. There shall be prepared and furnished to the original purchaser or
purchasers of the Bonds, and, upon written request, to any owner of the Bonds at the time then
outstanding, not more than one hundred twenty (120) days after the close of each fiscal year,
complete financial statements of the works, covering the preceding fiscal year, which annual
BDDBOI 4347413v2 - 15 -
statements shall be certified by the Controller, or by licensed independent public accountants
employed for that purpose. Copies of all such statements and reports shall be kept on file in the
office of the Controller. Any owner or owners of the Bonds then outstanding shall have the right
at all reasonable times to inspect the works and all records, accounts and data of the City relating
thereto. Such inspections may be made by representatives duly authorized by written instrument.
Section XIV. Rates and Charges. The City covenants and agrees that it will
establish and maintain just and equitable rates or charges for the use of and the services rendered
by said works, to be paid by the owner of each and every lot, parcel of real estate or building that
is connected with and uses said Sewage Works by or through any part of the sewage works
system of the City, or that in any way uses or is served by such sewage works, and that such rates
or charges shall be sufficient in each year to provide for the payment of the proper and
reasonable expenses of operation, repair and maintenance of the Sewage Works, for depreciation
and improvement, and for the payment of the sums required to be paid into the Sinking Fund.
Such rates or charges shall, if necessary, be changed and readjusted from time to
time so that the revenues therefrom shall always be sufficient to meet the expenses of operation,
repair and maintenance, depreciation and improvement of the Sewage Works and the
requirements of the Sewage Works Sinking Fund. In no event shall the annual gross revenues of
the Sewage Works after payment of the expenses of operation, repair and maintenance (but not
including depreciation and payments in lieu of taxes) be less than one hundred twenty-five
percent (125%) of the annual interest and principal requirements of the Bonds and any additional
Bonds issued pursuant to Section XVI hereof. The rates or charges so established shall apply to
any and all use of such Sewage Works by and service rendered to the City and all departments
thereof and shall be paid semi-annually by the City or the various departments thereof as the
charges accrue.
Section XV. Defeasance. If, when each series of the Bonds issued hereunder (or
portions thereof) shall have become due and payable in accordance with their terms or shall have
been duly called for redemption or irrevocable instructions to call each series of the Bonds (or
portions thereof) for redemption shall have been given, and the whole amount of the principal
and the interest and the premium, if any, so due and payable upon all of each series of the Bonds
(or portions thereof) then outstanding shall be paid; or (i) sufficient moneys, or (ii} direct
obligations of, or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America, the principal of and the interest on which when due
will provide sufficient moneys, or (iii) time certificates of deposit fully secured as to both
principal and interest by obligations of the kind described in (ii) above of a bank or banks the
principal of and interest on which when due will provide sufficient moneys, shall be held in trust
for such purpose, and provision shall also be made for paying all fees and expenses for the
redemption, then and in that case such series of the Bonds (or portions thereof) issued hereunder
shall no longer be deemed outstanding or entitled to the pledge of the net revenues of the City's
Sewage Works.
Section XVI. Additional Bonds. The City also reserves the right to authorize and
issue additional bonds, payable out of the net revenues of its Sewage Works, ranking on a parity
with the Bonds authorized by this Ordinance, for the purpose of financing the cost of future
BDDBOI 4347413v2 - 16 -
additions, extensions and improvements to the Sewage Works or to provide for a complete or
partial refunding of said Bonds, subject to the following conditions:
(a) The interest on and principal of all bonds payable from the
revenues of the Sewage Works shall have been paid to date in accordance with the terms
thereof, provided, this condition shall be deemed satisfied if any required amount is to be
provided from the proceeds of the parity bonds or other funds of the City.
(b) All required deposits into the Sinking Fund shall have been made
in accordance with the provision of this Ordinance, and the interest on and principal of all
bonds payable from the net revenues of the Sewage Works shall have been paid in
accordance with the terms thereof.
(c) The net revenues of the Sewage Works in the fiscal year
immediately preceding the issuance of any such bonds ranking on a parity with the Bonds
authorized by this Ordinance shall be not less than one hundred twenty-five percent
(125%) of the maximum annual interest and principal requirements of the then
outstanding Bonds, any then outstanding parity bonds and the additional parity bonds
proposed to be issued; or, prior to the issuance of said parity bonds, the sewage rates and
charges shall be increased sufficiently so that said increased rates and charges applied to
the previous fiscal year's operations would have produced net revenues for said year
equal to not less than one hundred twenty-five percent (125%) of the maximum annual
interest and principal requirements of the then outstanding Bonds, any then outstanding
parity bonds and the additional parity bonds proposed to be issued. For purposes of this
subsection, the records of the Sewage Works shall be analyzed and all showings shall be
prepared by a certified public accountant or nationally recognized firm of professionals
experienced in analyzing financial records of municipal utilities retained by the City for
that purpose.
(d) The principal of said additional parity bonds shall be payable on
December 1 and the interest on said additional parity bonds shall be payable
semiannually on June 1 and December 1 during the periods in which such principal and
interest are payable.
Section XVII. Additional Covenants of the City. For the purpose of further
safeguarding the interests of the owners of the Bonds herein authorized, it is specifically
provided as follows:
(a) All contracts let by the City in connection with the construction of
said additions and improvements to the Sewage Works shall be let after due
advertisement as required by the laws of the State of Indiana, and all contractors shall be
required to furnish surety bonds in an amount equal to one hundred percent (100%) of the
amount of such contracts, to insure the completion of said contracts in accordance with
their terms, and such contractors shall also be required to carry such employers liability
and public liability insurance as are required under the laws of the State of Indiana in the
BDDBOI 4347413v2 - 17 -
case of public contracts, and shall be governed in all respects by the laws of the State of
Indiana relating to public contracts.
(b) Said additions and improvements shall be constructed under the
supervision and subject to the approval of the Consulting Engineers or such other
competent engineer as shall be designated by the Board. All estimates for work done or
material furnished shall first be checked by the Consulting Engineers and approved by
the Board.
(c) The City shall at all times maintain its Sewage Works in good
condition and operate the same in an efficient manner and at a reasonable cost.
(d) So long as any of the Bonds herein authorized are outstanding, the
City shall maintain insurance coverage, including fidelity bonds, to protect the sewage
works and its operations on the insurable parts of said Sewage Works of a kind and in an
amount such as would normally be carried by private companies engaged in a similar
type of business. All insurance shall be placed with responsible insurance companies
qualified to do business under the laws of the State of Indiana, provided, however, such
insurance requirement may be satisfied, in part or in whole, through the City's self
insurance program. Insurance proceeds and condemnation awards shall be used to
replace or repair the property, or, if not used for that purpose, shall be treated and applied
as net revenues of the sewage works.
(e) So long as any of the Bonds are outstanding, the City shall not
mortgage, pledge or otherwise encumber such sewage works, or any part thereof, nor
shall it sell, lease or otherwise dispose of any portion thereof except replace equipment
which may become worn out or obsolete.
(f) Except as hereinbefore provided in Section XVI hereof, so long as
any of the bonds herein authorized are outstanding, no additional bonds or other
obligations pledging any portion of the revenues of said Sewage Works shall be
authorized, executed or issued by the City except such as shall be made subordinate and
junior in all respects to the bonds herein authorized, unless all of the bonds herein
authorized are redeemed, retired or defeased pursuant to Section XVI hereof
coincidentally with the delivery of such additional bonds or other obligations.
(g) The City shall take all action or proceedings necessary and proper
to require connection of all property where liquid and solid waste, sewage, night soil, or
industrial waste is produced with available sanitary sewers. The City shall, insofar as
possible, cause all such sanitary sewers to be connected with said Sewage Works.
(h) The provisions of this Ordinance shall constitute a contract by and
between the City and the owners of the sewage works revenue bonds herein authorized,
and after the issuance of said bonds, this Ordinance shall not be repealed or amended in
any respect which will adversely affect the rights of the owners of said bonds, nor shall
the Common Council adopt any law, ordinance or resolution which in any way adversely
BDDBOI 4347413v2 - 1$ -
affects the rights of such owners so long as any of said bonds or the interest thereon
remains unpaid.
(i) The provisions of this Ordinance shall be construed to create a
trust in the proceeds of the sale of the Bonds herein authorized for the uses and purposes
herein set forth, and the owners of the Bonds shall retain a lien on such respective
proceeds until the same are applied in accordance with the provisions of this Ordinance
and of the Act. The provisions of this Ordinance shall also be construed to create a trust
in the portion of the net revenues herein directed to be set apart and paid into the Sewage
Works Sinking Fund for the uses and purposes of said fund as in this Ordinance set forth.
The owner of said Bonds shall have all of the rights, remedies and privileges set forth in
the provisions of the Act, including the right to have a receiver appointed to administer
said Sewage Works in the event of default in the payment or the principal of or interest
on any of the Bonds herein authorized or in the event of default in respect to any of the
provisions of this Ordinance or the Act. The Common Council reserves the right,
however, to amend this Ordinance from time to time to preserve the Tax Exemption
described in Section XIX hereof without the approval of any owner of the bonds so long
as the Common Council certifies that such amendment does not violate subsection (i) of
Section XVII.
Section XVIII. Permitted Actions Relating to Preservation of Exclusion of
Interest from Federal Gross Income.
(a) The Controller is hereby authorized to invest moneys pursuant to
the provisions of this Ordinance at a restricted yield (subject to applicable requirements
of federal law to insure that any such investment is acquired for fair market value) to the
extent necessary or advisable to preserve the exclusion from gross income of interest on
the Bonds, or the tax exempt status of interest on the Bonds, under federal law.
(b) The Controller shall keep full and accurate records of investment
earnings and income from moneys held in the funds and accounts created or referenced
herein. In order to comply with the provisions of this Ordinance, the Controller is hereby
authorized and directed to employ consultants or attorneys from time to time to advise the
City as to requirements of federal law to preserve the tax exclusion or exemption.
Section XIX. Tax Covenants. In order to preserve the exclusion of interest on
the Bonds from gross income for federal income tax purposes and as an inducement to
purchasers of the Bonds, the City represents, covenants and agrees that:
(a) No person or entity, other than the City or another state or local
governmental unit, will use proceeds of the Bonds or property financed ~by the Bond
proceeds other than as a member of the general public. No person or entity other than the
City or another state or local governmental unit will own property financed by the Bond
proceeds or will have actual or beneficial use of such property pursuant to a lease, a
management or incentive payment contract, an arrangement such as take-or-pay or output
BDDB01 4347413v2 - 19 -
contract or any other type of arrangement that differentiates that person's or entity's use of
such property from the use by the public at large.
(b) No Bond proceeds will be loaned to any entity or person. No Bond
proceeds will be transferred, directly or indirectly, or deemed transferred to a
nongovernmental person in any manner that would in substance constitute a loan of the
Bond proceeds.
(c) The City will not take, or cause to permit to be taken by it or by
any party under its control, or fail to take or cause or permit to fail to be taken by it or by
any party under its control, any action with respect to the Bonds that would result in the
loss of the exclusion from gross income for federal income tax purposes of interest on the
Bonds pursuant to Section 103 of the Code, nor will the City act in any other manner
which would adversely affect such exclusion. The City further covenants that it will not
make any investment or do any other act or thing during the period that any Bond is
outstanding hereunder which would cause any Bond to bean "arbitrage bond" within the
meaning of Section 148 of the Code and the regulations applicable thereto as in effect on
the date of delivery of the Bonds.
(d) The City will, to the extent necessary to preserve the exclusion of
interest on the Bonds from gross income for federal income tax purposes, rebate all
required arbitrage profits on Bond proceeds or other moneys treated as Bond proceeds to
the federal government and will set aside such moneys in a Rebate Account to be held by
the Controller in trust for such purpose.
Section XX. Compliance with Tax Sections. Notwithstanding any other
provisions of this Ordinance, the covenants and authorizations contained in this Ordinance ("Tax
Sections") which are designed to preserve the tax exempt status of interest on the Bonds or the
exclusion of interest on the Bonds from gross income under federal law ("Tax Exemption") need
not be complied with if the City receives an opinion of nationally recognized bond counsel that
any Tax Section is unnecessary to preserve the Tax Exemption.
Section XXI. Supplemental Ordinances. Subject to the terms and provisions
contained in this Section, and not otherwise, the owners of not less than sixty-six and two-thirds
percent (66-2/3%) in aggregate principal amount of the Bonds issued pursuant to this Ordinance
and 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 City of
such ordinance or ordinances supplemental hereto as shall be deemed necessary or desirable by
the City 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, the City shall obtain the prior written consent of the State of
Indiana; and provided, further, 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 pursuant to this Ordinance; or
BDDBOI 4347413v2 - 20 -
(b) A reduction in the principal amount of any bond or the redemption
premium or the rate of interest thereon; or
(c) The creation of a lien upon or a pledge of the net revenues of the
sewage works ranking prior to the pledge thereof created by this Ordinance; or
(d) A preference or priority of any Bond or Bonds issued pursuant to
this Ordinance over any other Bond or Bonds issued pursuant to the provisions of this
Ordinance; or
(e) A reduction in the aggregate principal amount of the Bonds
required for consent to such supplemental ordinance.
The owners of not less than sixty-six and two-thirds percent (66-2/3%) in
aggregate principal amount of the Bonds outstanding at the time of adoption of such
supplemental ordinance shall have consented to and approved the adoption thereof by written
instrument to be maintained on file in the office of the Controller of the City. No owner of any
Bond issued pursuant to this Ordinance shall have any right to object to the adoption of such
supplemental ordinance or to object to any of the terms and provisions contained therein or the
operation thereof, or in any manner to question the propriety of the adoption thereof, or to enjoin
or restrain the City or its officers from adopting the same, or from taking any action pursuant to
the provisions thereof. Upon the adoption of any supplemental ordinance pursuant to the
provisions of this Section, this Ordinance shall be, and shall be deemed, modified and amended
in accordance therewith, and the respective rights, duties and obligations under this Ordinance of
the City and all owners of Bonds issued pursuant to the provisions of this Ordinance then
outstanding, shall thereafter be determined, exercised and enforced in accordance with this
Ordinance, subject in all respects to such modifications and amendments. Notwithstanding
anything contained in the foregoing provisions of this Ordinance, the rights and obligations of
the City and of the owners of the Bonds authorized by this Ordinance, and the terms and
provisions of the bonds and this Ordinance, or any supplemental ordinance, may be modified or
altered in any respect with the consent of the City and the consent of the owners of all the Bonds
issued pursuant to this Ordinance then outstanding.
Section XXII. Repeal of Conflicting Ordinances. All ordinances and parts of
ordinances in conflict herewith are hereby repealed.
Section XXIII. Rates and Charges. The estimate of rates and charges which will
be needed and charged to the general classes of users of property to be served by the Sewage
Works in order to provide sufficient moneys to make payments of principal of and interest on the
Bonds, along with the other payments identified in this Ordinance, is set forth in Ordinance No.
9639-05, adopted November 28, 2005.
Section XXIV. Notice of Adoption and Purport of Ordinance. Upon passage of
this Ordinance, the Clerk of the City shall immediately cause to be published in accordance with
Indiana Code 5-3-1 a notice of the adoption and the purport of this Ordinance in accordance with
Section 10 of the Act with respect to the Project. In the event an objecting petition is filed in
BDDBOI 4347413v2 - 21 -
accordance with Section 12 of the Act, no further proceedings shall be taken by the City relating
to the Project until the later of (i) the date on which the court having jurisdiction over such matter
confirms the decision of the City to issue bonds relating to the Project, or (ii) if an appeal is
taken, the date on which the appropriate court of last resort confirms the decision of the City to
issue bonds relating to the Project, except as permitted by Subsection 12(f) of the Act.
Section XXV. Payments on Holidays. If the date of making any payment or the
last date for performance of any act or the exercising of any right, as provided in this Ordinance,
shall be a legal holiday or a day on which banking institutions in the City or the city in which the
Registrar and Paying Agent is located are typically closed, such payment may be made or act
performed or right exercised on the next succeeding day not a legal holiday or a day on which
such banking institutions are typically closed, with the same force and effect as if done on the
nominal date provided in this Ordinance, and no interest shall accrue for the period after such
nominal date. Notwithstanding the foregoing, with respect to any series of Bonds sold to the
State pursuant to Section VIII of this Ordinance, if the date for making any payment is a day
when financial institutions are not open for business, such payment shall be made on the business
day immediately preceding such payment date.
Section XXVI. Captions. The captions in this Ordinance are inserted only as a
matter of convenience and reference, and such captions are not intended and shall not be
construed to define, limit, establish, interpret or describe the scope, intent or effect of any
provision of this Ordinance.
Section XXVII. Reimbursement. The Council hereby declares the official intent
of the City, pursuant to I.C. 5-1-14-6(b) and 1.150-2 of the Treasury Regulations, that
preliminary costs incurred by or on behalf of the City in financing the costs relating to the
Project be reimbursed from the proceeds of the Bonds.
Section XXVIII. Effectiveness. This Ordinance shall be in full force and effect
from and upon compliance with the procedures required by Iaw.
*****
BDDBOI 4347413v2 - 22 -
Mem er of the on Council
ATTEST:
ity erk
Presented by me to the Mayor of the City of South Bend, Indiana, on the (I -}~
day of , 2006, at L'- 00 o'clock .m.
(>:.~~~
City Cle ~, ~~
Approved and signed by me on the ~3 ~ day of , 2006, at
~_ o'clock a .m.
1 st READING 3-~ ,O ~~ ~ s s~C~.~..t-~,~~
PUBL!C HEARING ~ ~~ ~ ~ _ '
3rd P.EADiNG y^l~-tea 0.S ~~~J~~~
NOT APPROVED
REFERRED , 1 ~~ ~,,,~ SO,~S"~'t"~±,r':~',a-4r~
PASSED -\ ~®~
BDDBOI 4347413v2
Mayor, City of S uthVBend, Indiana
- 23 -
Fiied in Clerk's Offlce
APR -- 5 2006
JOHN SDRB h'D,iN.
CITY C4ERK,
TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND:
Your Committee of the Whole, to whom was referred:
BILL NO.
23-06 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA, AUTHORIZING THE ACQUISITION AND INSTALLATION OF
CERTAIN IMPROVEMENTS TO THE CITY'S SEWAGE WORKS, THE
ISSUANCE AND SALE OF ADDITIONAL REVENUE BONDS TO PROVIDE
FUNDS FOR THE PAYMENT OF THE COSTS THEREOF, AND THE
COLLECTION, SEGREGATION AND DISTRIBUTION OF THE REVENUES
OF SUCH SEWAGE WORKS AND OTHER RELATED MATTERS
Respectfully report that they have examined the matter and that in their opinion, this bill
is being recommended to the full Council with a favorable recommendation as
substituted.
Karen L. White
Chairman