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HomeMy WebLinkAboutAuthorizing the Issuance of Bonds - EDIT 2015, Smart Streets $25 MillionORDINANCE No. 10346 -15 Passed by the Common Council of the City of South Bend, Indiana Attest: Attest January 26, 20 15 JOHN VOORDE Presented by me to the Mayor of the City of $outh Bend, Indiana January 2.g 20 15 City Clerk President of Common Council Approved and signed by me eln- *o 20-6- City Clerk = Ordinance No. 10 -,� 10 — ( AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AUTHORIZING THE ISSUANCE OF BONDS BY THE CITY OF SOUTH BEND, INDIANA TITLED AS ECONOMIC DEVELOPMENT INCOME TAX BONDS OF 2015 AND OTHER MATTERS CONNECTED THEREWITH, INCLUDING THE PAYMENT OF INCIDENTAL EXPENSES ON ACCOUNT OF THE ISSUANCE OF THE BONDS AND REPEALING ORDINANCES INCONSISTENT HEREWITH WHEREAS, South Bend, Indiana (the "City "), is a governmental unit and political subdivision of the State of Indiana (the "State "), whose legislative and fiscal body is the Common Council (the "Council "); and, WHEREAS, the Council finds that it is advisable to issue the City of South Bend, Indiana Economic Development Income Tax Bonds of 2015 (the "Bonds ") in an amount not to exceed $5,680,000, and to use the proceeds, together with funds on hand: (1) to pay the cost of various capital improvements and expansions at the City's parks and park facilities, including, but not limited to the items described on Exhibit A hereto (the "Project "); (2) to fund a reserve for the Bonds, if necessary; and (3) to pay for all costs related to the issuance of the bonds hereunder; and, WHEREAS, the City reasonably expects to pay debt service on the Bonds from economic development income tax revenue ( "EDIT Revenues "), on parity with the City's County Economic Development Income Tax Refunding Revenue Bonds, Series 2006A and Series 2006B (the "Prior Bonds ") any other obligations payable from such source (collectively, the "Parity Bonds ") and, if economic development income tax revenue is not sufficient, from other sources of funds legally available to the City for such purpose; and, WHEREAS, the Council now finds that all conditions precedent to the adoption of an ordinance authorizing the issuance of the Bonds have been complied with in accordance with the provisions of the Act; WHEREAS, the amount of proceeds of the Bonds allocated to costs of the Project, together with estimated earnings thereon, does not exceed the estimated costs of the Project; NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of South Bend, Indiana, as follows: SECTION 1. Authorization for Bonds. In order to provide for the financing of the Project and the costs of selling and issuing the Bonds, the City shall issue its Economic Development Income Tax Revenue Bonds of 2015 as herein authorized pursuant to Indiana Code -6 -3.5 (the "Act ") and the Common Council hereby deems the Project an "economic development project," as defined in the Act and /or a capital project for which the City could issue general obligation bonds. 1 SECTION 2. General Terms of Bonds. (a) Issuance of Bonds. The City shall issue the Bonds in the aggregate principal amount not to exceed Five Million Six Hundred and Eighty Thousand Dollars ($5,680,000) (the "Authorized Amount") for the purpose of providing funds to (i) pay the of the costs of the Project, (ii) fund a debt service reserve fund, if necessary, and (iii) pay issuance costs related to the Bonds. The Controller of the City (the "Controller ") is hereby authorized and directed to advertise the sale of the Bonds and to receive bids therefore pursuant to a Notice of Intent to Sell Bonds in the form submitted with this ordinance. The Controller is authorized and directed to finalize such notice and to have prepared and to issue and sell the Bonds as negotiable, fully registered bonds of the City in an amount not to exceed the Authorized Amount. The Bonds shall be signed in the name of the City by the manual or facsimile signature of the Mayor (the "Mayor ") and attested by the manual or facsimile signature of the Controller, and the City Clerk (the "Clerk ") shall affix the seal of the City to each of the Bonds manually or shall have the seal imprinted or impressed thereon by facsimile or other means. In case any officer whose signature or facsimile signature appears on the Bonds shall cease to be such officer before the delivery of Bonds, such signature shall nevertheless be valid and sufficient for all purposes as if such officer had remained in office until delivery thereof. The Bonds also shall be, and will not be valid or become obligatory for any purpose or entitled to any benefit under this Ordinance unless and until, authenticated by the manual signature of the Registrar (as defined in Section 4 hereof). The Bonds shall be numbered consecutively from R -1 upward, shall be issued in denominations of Five Thousand Dollars ($5,000) or any integral multiple in excess thereof. The Bonds shall be originally dated as of the date of delivery of the Bonds, and shall bear interest payable semi - annually each February 1 and August 1, commencing not earlier than August 1, 2015 at a rate not exceeding six percent (6 %) per annum (the exact rate or rates on each Bond to be determined by bidding). Interest shall be calculated on the basis of a 360 -day year comprised of twelve 30 -day months. The Bonds may be sold at a discount not exceeding two percent (2 %) of the principal amount thereof. The Bonds shall mature semiannually on February 1 and August 1 of each year, as determined by the Controller, with a final maturity in not more than 20 years. All or a portion of the Bonds may be aggregated into and issued as one or more term bonds. The term bonds will be subject to mandatory sinking fund redemption with sinking fund payments and final maturities corresponding to the serial maturities described above. Sinking fund payments shall be applied to retire a portion of the term bonds as though it were redemption of serial bonds, and, if more than one term bond of any maturity is outstanding, the Registrar, by lot, shall make redemption of such maturity. Sinking fund redemption payments shall 2 be made in a principal amount equal to such serial maturities, plus accrued interest to the redemption date, but without premium or penalty. For all purposes of this Ordinance, such mandatory sinking fund redemption payments shall be deemed to be required payments of principal, which mature on the date of such sinking fund payments. Appropriate changes shall be made in the definitive Bonds, relative to the form of the Bonds contained in this Ordinance, to reflect any mandatory sinking fund redemption terms described in the Bond Purchase Agreement (as defined below). (b) Source of Payment. The Bonds are, as to all the principal thereof and interest due thereon, payable from EDIT Revenues, on parity with the Parity Bonds, and to the extent EDIT Revenues are not sufficient, any other sources of funds legally available to the City for such purposes. (c) Payments. All payments of interest on the Bonds shall be paid by check mailed one business day prior to the interest payment date to the registered owners thereof as of the fifteenth (15th) day of the month preceding the interest payment date (the "Record Date ") at the addresses as they appear on the registration and transfer books of the City kept for that purpose by the Registrar (the "Registration Record ") or at such other address as is provided to the Paying Agent (as defined in Section 4 hereof) in writing by such registered owner. Each registered owner of $1,000,000 or more in principal amount of Bonds shall be entitled to receive interest payments by wire transfer by providing written wire instructions to the Paying Agent before the Record Date for any payment. All principal payments and premium payments, if any, on the Bonds shall be made upon surrender thereof at the principal office of the Paying Agent, in any U.S. coin or currency which on the date of such payment shall be legal tender for the payment of public and private debts, or in the case of a registered owner of $1,000,000 or more in principal amount of Bonds, by wire transfer on the due date upon written direction of such owner provided at least fifteen (15) days prior to the maturity date or redemption date. Interest on the Bonds shall be payable from the interest payment date to which interest has been paid next preceding the authentication date thereof unless such Bonds are authenticated after the Record Date for an interest payment and on or before such interest payment date in which case they shall bear interest from such interest payment date, or unless authenticated on or before the Record Date for the first interest payment date, in which case they shall bear interest from the original date, until the principal shall be fully paid. (d) Transfer and Exchange. Each Bond shall be transferable or exchangeable only upon the Registration Record, by the registered owner thereof in writing, or by the registered owner's 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 such attorney, and thereupon a new fully registered Bond or Bonds in the same aggregate principal amount, and of the same maturity, shall be executed and 3 delivered in the name of the transferee or transferees or the registered owner, as the case may be, in exchange therefor. The costs of such transfer or exchange shall be borne by the City, except for any tax or governmental charges required to be paid in connection therewith, which shall be payable by the person requesting such transfer or exchange. The City, the Registrar and the Paying Agent may treat and consider the persons in whose names such Bonds are registered as the absolute owners thereof for all purposes including for the purpose of receiving payment of, or on account of, the principal thereof and interest and premium, if any, due thereon. (e) Mutilated, Lost, Stolen or Destroyed Bonds. In the event any Bond is mutilated, lost, stolen or destroyed, the City may execute and the Registrar may authenticate a new bond of like date, maturity and denomination as that mutilated, lost, stolen or destroyed, 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 Controller and the Registrar, together with indemnity satisfactory to them. In the event any such bond shall have matured, instead of issuing a duplicate bond, the City and the Registrar may, upon receiving indemnity satisfactory to them, pay the same without surrender thereof. The City and the Registrar may charge the owner of such Bond with their reasonable fees and expenses in this connection. Any Bond issued pursuant to this paragraph shall be deemed an original, substitute contractual obligation of the City, 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 issued hereunder. SECTION 3. Terms of Redemption. The Bonds are subject to redemption prior to maturity, at the option of the City on thirty (30) days' notice, in whole or in part, in any order of maturities selected by the City and by lot within a maturity, beginning not earlier than the Bonds maturing February 1, 2025 or on such other dates and with premiums, if any, and other terms as determined by the Controller with the advice of the City's financial advisor, as evidenced by the execution of the Bond Purchase Agreement and the Bonds by the Controller. Notice of redemption shall be mailed by first -class mail to the address of each registered owner of a Bond to be redeemed as shown on the Registration Record not more than sixty (60) days and not less than thirty (30) days prior to the date fixed for redemption except to the extent such redemption notice is waived by owners of Bonds redeemed; 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 any proceedings for the redemption of any other Bonds. The notice shall specify the date and place of redemption, the redemption price and the CUSIP numbers, if applicable, of the Bonds called for redemption. The place of redemption may be determined by the City. Interest on the Bonds so called for redemption shall cease 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 date so named, and thereafter, such Bonds shall no longer be protected by this Ordinance and shall El not be deemed to be outstanding hereunder, and the holders thereof shall have the right only to receive the redemption price. All Bonds which have been redeemed shall be canceled and shall not be reissued; provided, however, that one or more new registered bonds shall be issued for the unredeemed portion of any Bond without charge to the holder thereof. No later than the date fixed for redemption, funds shall be deposited with the Paying Agent or another paying agent to pay, and such agent is hereby authorized and directed to apply such funds to the payment of, the Bonds or portions thereof called for redemption, including accrued interest thereon to the redemption date. No payment shall be made upon any Bond or portion thereof called for redemption until such bond shall have been delivered for payment or cancellation or the Registrar shall have received the items required by this Ordinance with respect to any mutilated, lost, stolen or destroyed bond. SECTION 4. _Appointment of Registrar and Paving Agent. The Controller is hereby appointed to serve as registrar and paying agent or is authorized to appoint another registrar and paying agent for the Bonds (together with any successor, the "Registrar" or "Paying Agent "). The Registrar is hereby charged with the responsibility of authenticating the Bonds, and shall keep and maintain the Registration Record at its office. The Mayor is hereby authorized to enter into such agreements or understandings with an institution as will enable the institution to perform the services required of the Registrar and Paying Agent. The Controller is authorized to pay such fees as an institution may charge for the services it provides as Registrar and Paying Agent. The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent by giving thirty (30) days written notice to the City and 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 Agent by the City. Such notice to the City may be served personally or be sent by first -class or registered mail. The Registrar and Paying Agent may 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 the Bonds then outstanding 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 Record. Any predecessor Registrar and Paying Agent shall deliver all the Bonds, cash and investments related thereto in its possession and the Registration Record to the successor Registrar and Paying Agent. At all times, the same entity shall serve as Registrar and as Paying Agent. SECTION 5. (a) Form of Bonds. The form and tenor of the Bonds shall be substantially as shown in Exhibit B, all blanks to be filled in properly and all necessary additions and deletions to be made prior to delivery thereof and the approval of any changes to such form shall be evidenced by the execution by the Mayor and the Controller. (b) Authorization of Book -Entry Bonds. The City may, upon the advice of its financial advisor, have the Bonds held by a central depository system pursuant to an agreement W between the City and The Depository Trust Company, New York, New York ( "DTC ") and have transfers of the Bonds effected by book -entry on the books of the central depository system. In such case, the Bonds shall be issued in the name of Cede & Co., as nominee for DTC, as registered owner of the Bonds, and held in the custody of DTC and the terms and conditions of this provision shall apply. If the Bonds are held by DTC, a single certificate will be issued and delivered to DTC for each maturity of the Bonds. The actual purchasers of the Bonds (the "Beneficial Owners ") will not receive physical delivery of the Bond certificates except as provided herein. Beneficial Owners are expected to receive a written confirmation of their purchase providing details of each Bond acquired. For so long as DTC shall continue to serve as securities depository for the Bonds as provided herein, all transfers of beneficial ownership interests will be made by book -entry only, and no investor or other party purchasing, selling, or otherwise transferring beneficial ownership of the Bonds is to receive, hold, or deliver any Bond certificate. For every transfer and exchange of the Bonds, the Beneficial Owner may be charged a sum sufficient to cover such Beneficial Owner's allocable share of any tax, fee, or other governmental charge that may be imposed in relation thereto. Bond certificates are required to be delivered to and registered in the name of the Beneficial Owner, under the following circumstances: (i) DTC determines to discontinue providing its service with respect to the Bonds (such a determination may be made at any time by giving thirty (30) days' notice to the City and the Registrar and discharging the responsibilities with respect thereto under applicable law), or (ii) the City determines that continuation of the system of book -entry transfers through DTC (or a successor securities depository) is not in the best interests of the Beneficial Owners. The City and the Registrar will recognize DTC or its nominee as the holder of the Bonds for all purpose, including notices and voting. The City and the Registrar covenant and agree, so long as DTC shall continue to serve as securities depository for the Bonds, to meet the requirements of DTC with respect to required notices and other provisions of a Letter of Representations between the City and DTC. If necessary to comply with the terms and provisions of the Letter of Representations, a supplemental ordinance shall be adopted to amend this ordinance as necessary. The Registrar is authorized to rely conclusively upon a certificate furnished by DTC and corresponding certificates from DTC participants and indirect participants as to the identity of, and the respective principal amount of Bonds beneficially owned by, the Beneficial Owner or Beneficial Owners. C SECTION 6. Preparation and Sale of Bonds. (a) The Controller is hereby authorized and directed to have the Bonds prepared, and the Mayor and Controller are hereby authorized and directed to execute the Bonds in the form and manner herein provided. The Controller is hereby authorized and directed to deliver the Bonds to the purchaser of the Bonds as selected through bidding in accordance with Indiana Code 5- 1 -11 -2 and approved by the Controller, in accordance with a bond purchase agreement between the City and the purchaser (the "Bond Purchase Agreement "). The substantially final form of Bond Purchase Agreement between the City and the purchaser is submitted to the Council with this ordinance and is incorporated herein and is hereby approved in such form by the City. The Mayor and Controller are hereby authorized to approve necessary revisions to such agreement and to execute the Bond Purchase Agreement and deliver the Bonds to the purchaser thereof in accordance with the terms of the Bond Purchase Agreement so long as their terms are consistent with this ordinance. The Bond Purchase Agreement shall establish a final principal amount, purchase price, interest rates, maturity schedule, denominations and mandatory redemption features, if any. (b) The proceeds derived from the sale of the Bonds shall be and are hereby set aside for the cost of the Project, the funding of a reserve for the Bonds, if necessary, and the payment of various expenses necessarily incurred in connection with the Bonds. The proper officers of the City are hereby directed to draw all proper and necessary warrants, and to do whatever acts and things which may be necessary to carry out the provisions of this Ordinance. (c) The preparation and distribution of an official statement for the Bonds is hereby authorized in the form submitted with this ordinance. The Mayor and Controller are hereby authorized and directed to finalize and execute such official statement on behalf of the City in a form consistent with this Ordinance and are further authorized to designate the preliminary official statement as "nearly final" for purposes of Rule 15c2 -12 of the Securities and Exchange Commission (the "SEC Rule "), if applicable. (d) The Controller, with the advice of the City's financial advisor, is hereby authorized to obtain one or more ratings for the Bonds if such rating or ratings will facilitate the sale of the Bonds. (e) The Controller is hereby authorized and directed to obtain a legal opinion as to the validity of the Bonds from Frost Brown Todd LLC, and to furnish such opinion to the purchaser of the Bonds. The costs of such opinion shall be paid out of the proceeds of the Bonds. 7 SECTION 7. Funds and Accounts. (a) Use of Proceeds; Capital Fund. (i) First, any premium received at the time of delivery of the Bonds will be deposited to the Bond Principal and Interest Account as defined below and applied to payments on the Bonds on the applicable interest payment date. (ii) Second, if proceeds of the Bonds will be used to fund all or a portion of a reserve for the Bonds, the Controller shall transfer such proceeds to the Reserve Account, as directed by the Controller. (iii) Third, the remaining proceeds from the sale of the Bonds shall be deposited in a fund hereby created and designated as the "EDIT Bond Capital Fund." Such Capital Fund may be held by the City, or may be held by a bank or Trustee, on behalf of the City, and in such event, the Controller is hereby authorized to enter into an agreement regarding the deposit to, and use of, money in such fund. The proceeds deposited in the EDIT Bond Capital Fund, together with all investment earnings thereon shall be expended by the City only for costs of the Project and on the payment of costs related to the Issuance of the Bonds. When all costs of the Project and costs of issuance of the Bonds have been paid, the Controller shall then transfer any amount then remaining from the proceeds of the Bonds to the payment of principal on the bonds or used as otherwise permitted by law. (b) Funds. Upon receipt, the EDIT Revenues will be deposited into a previously created "Economic Development Income Tax Fund," which consists of a Bond Principal and Interest Account, a Reserve Account and an Excess Account, and moneys deposited in such Fund shall be used in the following order of priority within the fund. (i) Bond Principal and Interest Account. As soon as possible upon receipt by the City of EDIT Revenues due in May and November of each year, beginning with the May 2015 distribution, but not later than June 15 or December 15 following receipt of the EDIT Revenues, the City shall deposit all EDIT Revenues into the Bond Principal and Interest Account to be used to pay principal of and interest on the EDIT Bonds (as defined in Section 10 hereof) until amounts on deposit in such account are sufficient to make the next principal and interest payment on the EDIT Bonds. (ii) Reserve Account. After making the required deposit to the Bond Principal and Interest Account, there will be deposited in the 8 Reserve Account, remaining EDIT Revenues, to the extent available, to maintain the Reserve Account in the amount required, if any, for any of the EDIT Bonds. At the election of the Controller, no reserve may be required for the Bonds. (iii) General Account. After making the required deposits to the Bond Principal and Interest Account and the Reserve Account, all remaining EDIT Revenues, if any, will be transferred to the General Account. All moneys in the General Account will be used and withdrawn for any of the purposes set forth in the Act, including, without limitation, payment of additional costs of the Project. SECTION 8. Authorization. (a) Authorization. The proper officers of the City are hereby directed to sell the Bonds to the Purchaser, to draw all proper and necessary warrants, and to do whatever acts and things which may be necessary to carry out the provisions of this Ordinance. (b) Official Statement and Disclosure Agreement. The Mayor and the Controller each are hereby authorized to approve and deem final an official statement with respect to the Bonds, as of its date, in accordance with the provisions of Rule 15c2- 12 of the U.S. Securities and Exchange Commission, as amended (the "SEC Rule "), subject to completion as permitted by the SEC Rule, and the City further authorizes the distribution of the deemed final official statement, and the execution, delivery and distribution of such document as further modified and amended with the approval of the Mayor or the Controller in the form of a final official statement. SECTION 9. Defeasance. If, when the Bonds or any portion 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 the Bonds or any portion thereof for redemption have been given, and the whole amount of the principal, premium, if any, and the interest so due and payable upon such bonds or any portion thereof then outstanding shall be paid, or (i) cash, or (ii) direct noncallable obligations of or unconditionally guaranteed by the U.S. Department of the Treasury, or (iii) any combination of the foregoing, shall be held irrevocably in trust for such purpose, and provision shall also be made for paying all fees and expenses for the payment, then and in that case the Bonds or such designated portion thereof shall no longer be deemed outstanding or secured by this Ordinance. SECTION 10. Additional Bonds. The City reserves the right to issue additional bonds and to incur lease obligations (which for all purposes of this Ordinance shall be deemed to be required bond payments which mature on the date such lease - rental payment obligations are due) after the issuance of the Bonds, payable out of the EDIT Revenues and earnings thereon on parity with the Prior Bonds and the Bonds, and such future bonds and lease obligations are herein referred to as "Additional Bonds," or bonds which are junior and subordinate in right of payment to the Bonds (such bonds and lease obligations are herein referred to as "Junior Bonds ") 9 (the Prior Bonds, the Bonds, the Additional Bonds, and the Junior Bonds collectively, the "EDIT Bonds ") for the purpose of raising money for future economic development or to provide for a complete or partial refunding of such obligations. The issuance or incurrence of obligations pursuant to Additional Bonds and Junior Bonds shall be subject to the following conditions precedent: (a) All interest and principal payments with respect to all EDIT Bonds shall be current to date in accordance with the terms thereof with no payment in arrears, provided, this condition shall be satisfied if any required amount is to be provided from the proceeds of such Additional Bonds or Junior Bonds or other funds available to the City. (b) The balance in the Reserve Account shall be equal to the amounts required with respect to the outstanding EDIT Bonds, if any, provided, this condition shall be satisfied if any required amount is to be provided from the proceeds of such Additional Bonds or Junior Bonds or other funds available to the City. (c) In the case of a proposed issue of Additional Bonds, the City shall have received a certificate prepared by an independent certified public accountant or an independent financial consultant with professional experience in the business of estimating the levels of and increases in assessed valuation in the State of Indiana and the expected changes in property tax rates caused by such changes (the "Certifier "), certifying that the EDIT Revenues estimated to be received in each succeeding year, together with estimated other available revenues (as defined below), is at least equal to 125% of the principal and interest requirements on all outstanding Prior Bonds and Bonds, any outstanding Additional Bonds, and the proposed issue of Additional Bonds, for each respective year during the term of such outstanding Bonds, and outstanding Additional Bonds and the proposed Additional Bonds. In estimating the EDIT Revenues and other available revenues to be received in any future year, the Certifier shall base his calculation on estimates, believed by the Certifier to be reasonable, including without limitation estimates of investment earnings. For purposes of this paragraph, "Other Available Revenues" shall mean, to the extent such amounts have been set aside and designated for such purpose, amounts held in any debt service reserve accounts for outstanding Prior Bonds, Bonds and Additional Bonds, other than the proposed Additional Bonds. (d) The principal of the proposed Additional Bonds or Junior Bonds shall be payable on the same dates as the principal of the Bonds and the interest thereon shall be payable on February 1 and August 1, during the periods such principal and interest are payable. The City shall approve and confirm the findings and estimates set forth in the above - described certificate of a Certifier in any ordinance authorizing the issuance of the Additional Bonds or Junior Bonds, and such certificate shall be 10 updated by the Certifier as of the date of issuance of the Additional Bonds or Junior Bonds. In the event the Additional Bonds are issued to refund currently outstanding Bonds or Additional Bonds, and each payment of principal and interest on the Additional Bonds is equal to or lesser than the amount due on the bonds being refunded, the certificate required by paragraph (c) above shall not be required. SECTION 11. Amendments. 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 then outstanding shall have the right, from time to time, to consent to and approve the adoption by the Council of such ordinance or ordinances supplemental hereto as shall be deemed necessary or desirable by the City for the purpose of amending in any particular any of the terms or provisions contained in this Ordinance, or in any supplemental ordinance; provided, however, that nothing herein contained shall permit or be construed as permitting: (a) An extension of the maturity of the principal of or interest or premium, if any, on any Bond or an advancement of the earliest redemption date on any Bond, without the consent of the holder of each Bond so affected; or (b) a reduction in the principal amount of any Bond or the redemption premium or rate of interest thereon, or a change in the monetary medium in which such amounts are payable, without the consent of the holder of each Bond so affected; or (c) a preference or priority of any Bond over any other Bond, without the consent of the holders of all Bonds then outstanding; or (d) a reduction in the aggregate principal amount of the Bonds required for consent to such supplemental ordinance, without the consent of the holders of all Bonds then outstanding. If the City shall desire to obtain any such consent, it shall cause the Registrar to mail a notice, postage prepaid, to the addresses appearing on the Registration Record. Such notice shall briefly set forth the nature of the proposed supplemental ordinance and shall state that a copy thereof is on file at the office of the Registrar for inspection by all owners of the Bonds. The Registrar shall not, however, be subject to any liability to any owners of the Bonds by reason of its failure to mail such notice, and any such failure shall not affect the validity of such supplemental ordinance when consented to and approved as herein provided. Whenever at any time within one year after the date of the mailing of such notice, the City shall receive any instrument or instruments purporting to be executed by the owners of the Bonds of not less than sixty -six and two - thirds per cent (66 -2/3 %) in aggregate principal amount of the Bonds then outstanding, 11 which instrument or instruments shall refer to the proposed supplemental ordinance described in such notice, and shall specifically consent to and approve the adoption thereof in substantially the form of the copy thereof referred to in such notice as on file with the Registrar, thereupon, but not otherwise, the Council may adopt such supplemental ordinance in substantially such form, without liability or responsibility to any owners of the Bonds, whether or not such owners shall have consented thereto. No owner of any Bond 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 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, duties and obligations of the City and of the owners of the Bonds, and the terms and provisions of the Bonds and this Ordinance, or any supplemental ordinance, may be modified or amended in any respect with the consent of the City and the consent of the owners of all the Bonds then outstanding. Without notice to or consent of the owners of the Bonds, the City may, from time to time and at any time, adopt such ordinances supplemental hereto as shall not be inconsistent with the terms and provisions hereof (which supplemental ordinances shall thereafter form a part hereof), (a) To cure any ambiguity or formal defect or omission in this Ordinance or in any supplemental ordinance; or (b) To grant to or confer upon the owners of the Bonds any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the owners of the Bonds; or (c) To procure a rating on the Bonds from a nationally recognized securities rating agency designated in such supplemental ordinance, if such supplemental ordinance will not adversely affect the owners of the Bonds; or 12 (d) To obtain or maintain bond insurance with respect to the Bonds; or (e) To provide for the refunding or advance of the Bonds; or (f) To make any other change which, in the determination of the City in its sole discretion, is not to the prejudice of the owners of the Bonds. SECTION 12. Investment of Funds. The Controller is hereby authorized to invest moneys pursuant Indiana law, including Indiana Code 5- 1 -14 -3, and the provisions of this Ordinance. 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 state and federal law. SECTION 13. Continuing Disclosure. In order for the Purchaser of the Bonds to comply with the SEC Rule, if applicable, the Mayor and Controller of the City may execute and deliver an agreement by the City to comply with the requirements of a continuing disclosure undertaking by the City pursuant to subsection (b) (5) of the SEC Rule, and any amendments thereto from time to time (the "Continuing Disclosure Agreement'). The City hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Agreement. The substantially final form of Continuing Disclosure Agreement submitted to the Council with this ordinance is incorporated herein by reference and is hereby approved and the Mayor and/or Controller of the City are authorized to execute the same and to approve such changes in form or substance thereto which are consistent with the terms of this Ordinance, such changes to be conclusively evidenced by the execution thereof. SECTION 14. Other Action. The Mayor and/or the Controller may take such other actions to finalize and deliver such other certificates and documents needed to accomplish the transaction contemplated hereby as they deem necessary or desirable in connection therewith. SECTION 15. No Conflict. All ordinances and orders or parts thereof in conflict with the provisions of this Ordinance are to the extent of such conflict hereby repealed. After the issuance of the Bonds and so long as any of the Bonds or interest or premium, if any, thereon remains unpaid, except as expressly provided herein, this Ordinance shall not be repealed or amended in any respect which will adversely affect the rights of the holders of the Bonds, nor shall the City adopt any law or ordinance which in any way adversely affects the rights of such holders. SECTION 16. Severabilitv. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance. 13 SECTION 18. Non - Business Days. 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 jurisdiction in which the Registrar or 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. SECTION 19. Intemretation. Unless the context or law clearly requires otherwise, references herein to statutes or other laws include the same as modified, supplemented or superseded from time to time. (THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK) 14 SECTION 20. Effectiveness. This Ordinance shall be in full force and effect from and after its passage. ATTEST John Voorde, City Clerk Member, South Bend Common Council Presented by me to the Mayor of the City of South Bend, Indiana this � day of 2015, at it-, z-.r o'clock �.m. City Clerk Approved by me, Mayor of the City of South Bend, Indiana, this -_? - day of %dmjqt 2015, at o'clock Ohm. ATTE .IJL4 John Voorde, Clerk t sP READING I I PUBLIC HEAPING 3,d READING NOT APPROVED REFERRED PASSED 15 Peter . , X011" Filed in Cllr's Office JAN - ?1 l� JOk' CITY CLFRN, W"U H JLND, IN TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 01 -15 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AUTHORIZING THE ISSUANCE OF BONDS BY THE CITY OF SOUTH BEND, INDIANA TITLED AS ECONOMIC DEVELOPMENT INCOME TAX BONDS OF 2015 AND OTHER MATTERS CONNECTED THEREWITH, INCLUDING THE PAYMENT OF INCIDENTAL EXPENSES ON ACCOUNT OF THE ISSUANCE OF THE BONDS AND REPEALING ORDINANCES INCONSISTENT HEREWITH 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. This bill was heard by the Community Investment & PARCS Committee. Karen L. White Chairperson, Committee of the Whole