HomeMy WebLinkAbout9951-09 Authorizing the aquisitions, constructions and installation of certain improvements and extensionsORDINANCE No.
Passed by the Common Council of the City of South Bend, Indiana
August 10, 20 09
Attest:
Attest:
Presented by me to the Mayor of the Ciry of Sorrtle Bend, Indiana
August 11, 20 09
Ciry Clerk
President of Commo~t Council
City Clerk
Approved and signed by me August 11,
2009
Mayer
ORDINANCE NO. ~~ ~Q '~~
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH
BEND, INDIANA, AUTHORIZING THE ACQUISITION, CONSTRUCTION
AND INSTALLATION OF CERTAIN IMPROVEMENTS AND
EXTENSIONS TO THE CITY'S SEWAGE WORKS, THE ISSUANCE AND "
SALE OF ADDITIONAL REVENUE BONDS TO PROVIDE FUNDS FOR
THE PAYMENT OF THE COSTS THEREOF, THE ISSUANCE AND SALE
OF BOND ANTICIPATION NOTES IN ANTICIPATION OF THE
ISSUANCE AND SALE OF SUCH BONDS 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"), 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 City has employed Greeley and Hansen
as 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
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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, construction, 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 and, if necessary, bond
anticipation notes (the "BANS") on account of the financing of all or a portion thereof, will be in
the estimated amount of Four Million Six Hundred Thousand and 00/100 Dollars
($4,600,000.00). The City desires to authorize the issuance of the BANS, if necessary, to provide
interim financing of the Project in the maximum aggregate principal amount not to exceed Four
Million Six Hundred Thousand Dollars ($4,600,000) and the issuance of sewage works revenue
bonds, in one or more series, payable from the Net Revenues (as hereinafter defined) of the
Sewage Works, in the maximum aggregate principal amount of Four Million Six Hundred
Thousand Dollars ($4,600,000) issued to finance the aforementioned costs of the Project and to
refund the BANS, if issued.
Pursuant to Ordinance No. 8919-98 adopted by the Common Council on June 22,
1998 (the "1998 Ordinance"), the City has heretofore issued revenue bonds payable from the net
revenues of the Sewage Works, such bonds being designated as "Sewage Works Refunding
Revenue Bonds of 1998" (the "1998 Bonds"), outstanding after December 1, 2008, in the amount
of $14,895,000, bearing interest at various rates and maturing in various amounts annually on
December 1 in the years 2009 to and including 2018.
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Pursuant to Ordinance No. 9523-04 adopted by the Common Council on
August 10, 2004 (the "2004 Ordinance"), the City has heretofore issued sewage works bonds
payable from the net revenues of the Sewage Works, designated as "Sewage Works Revenue
Bonds of 2004" (the "2004 Bonds"), outstanding after December 1, 2008, in the amount of
$9,815,000, bearing interest at various rates and maturing in various amounts annually on
December 1 in the years 2009 to and including 2024.
Pursuant to Ordinance No. 9672-06 adopted by the Common Council on April 11,
2006, as amended by Ordinance No. 9767-07 adopted by the Common Council on June 25, 2007
(collectively, the "2006 Ordinance" and with the 1998 Ordinance and the 2004 Ordinance, the
"Prior Ordinances"), the City has heretofore issued revenue bonds payable from the net revenues
of the Sewage Works, such bonds being designated as (i) "Sewage Works Revenue Bonds of
2006" (the "2006 Bonds"), outstanding after December 1, 2008, in the amount of $7,620,000,
bearing interest at various rates and maturing in various amounts annually on December 1 in the
years 2009 to and including 2026; (ii) "Sewage Works Revenue Bonds of 2007" (the "2007
Bonds"), outstanding after December 1, 2008, in the amount of $16,060,000, bearing interest at
various rates and maturing in various amounts annually on December 1 in the years 2009 to and
including 2027; and (iii) "Sewage Works Revenue Bonds of 2007 B" (the "2007 B Bonds" and
with the 1998 Bonds, the 2004 Bonds, the 2006 Bonds and the 2007 Bonds, the "Prior Bonds"),
outstanding a8er December 1, 2008, in the amount of $15,980,000, bearing interest at various
rates and maturing in various amounts annually on December 1 in the years 2009 to and
including 2027.
The Prior Ordinances authorizes the issuance of additional revenue bonds ranking
on a parity basis with the Prior Bonds for such purposes, so long as certain conditions are met.
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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 and BANS, if
necessary, to provide the necessary funds to be applied to the costs of the Project and the
refunding of the BANS, if issued, and all authorized costs relating thereto, have been complied
with in accordance with the provisions of the Act. The Common Council therefore seeks to
authorize the issuance of revenue bonds and BANS, if necessary, to finance the acquisition,
construction, and installation of the Project pursuant to the Act and the sale of such revenue
bonds to the Indiana Bond Bank (the "Bond Bank") pursuant to the provisions of Indiana
Code 5-1.5, the Indiana Finance Authority (the "Authority") pursuant to the provisions of
Indiana Code 4-4-11 and Indiana Code 13-18-13, or at public sale pursuant to the provisions of
Indiana Code 5-1-11 and the sale of such BANS pursuant to the provisions of the Act and other
applicable laws, subject to and dependent upon the terms and conditions hereinafter set forth. In
conjunction with the issuance of any such bonds sold to the Authority, the City expects to enter
into a Financial Assistance Agreement (as hereinafter defined) with the Authority, pertaining to
the Project and the financing of a portion thereof;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF
THE CITY OF SOUTH BEND, INDIANA, AS FOLLOWS:
Section I. Acguisition, 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
collection and treatment of sewage and other wastes, hereby orders, authorizes and directs the
Board to acquire any and all necessary property and to proceed with the acquisition,
construction, 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
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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 of any and all necessary property and
the acquisition, construction, installation, and financing of such improvements and extensions 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 Treatment Works, as defined in the Financial Assistance Agreement, and all
enlargements, improvements, extensions and additions thereto, and replacements thereof, now or
subsequently constructed or acquired, from the proceeds of the bonds and BANS authorized
herein or otherwise. Such improvements and extensions shall be constructed and the bonds and
BANS herein authorized shall be issued pursuant to the provisions of this Ordinance and the Act.
Section II. Descrietion of the Project. The Project collectively consists of the
acquisition, construction, installation and equipping of the following project known as "CSONet
Phase 2 improvements" which include flow measurement instruments and control valves and
sewer piping changes to actuate real time monitoring and control at various CSO diversion
structure throttle line locations.
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
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appropriate for such purpose, in conformity with and subject to the requirements and conditions
set forth in this Ordinance and in the Act.
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, and refunding the BANS, if any, described below, the City shall issue and sell its sewage
works revenue bonds in the aggregate principal amount not to exceed Four Million Six Hundred
Thousand and 00/100 Dollars ($4,600,000.00) (the "Bonds"). 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 and designated as the "City of South Bend, Indiana,
Sewage Works Revenue Bonds of 20_" (with the blank to be filled in with the last two digits
of the calendar year in which such series of the Bonds is issued, with an appropriate series
designation in the event more than one series of Bonds is expected to be issued in such calendar
year). Each series of 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, or in the
event that the Bonds are sold to the Bond Bank or to the Authority pursuant to Section VIII of
this Ordinance, shall be in multiples of One Dollar ($1). The Bonds shall be numbered
consecutively from 20 R-1 (with the blank to be filled in with the last two digits of the calendar
year in which such series of the Bonds is issued, with an appropriate series designation in the
event more than one series of Bonds is expected to be issued in such calendar year) upward and
shall bear interest at a rate or rates not exceeding five percent (5.0%) per annum (or at the rate
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provided in the Purchase Agreement (as hereinafter defined) with respect to any series of the
Bonds that is sold to the Bond Bank, or as provided in the Financial Assistance Agreement with
respect to any series of the Bonds that is sold to the Authority). In the event that the Controller
determines that any series of the Bonds shall be sold as Build America Bonds or Recovery Zone
Bonds, the Controller shall set forth the maximum interest rate of the Bonds in a written
certificate of the Controller prior to the issuance of the Bonds. The exact rate or rates shall be
determined by negotiation with the Bond Bank or the Authority or by bidding. If determined by
public bidding, said interest rate or rates shall be in multiples of one-eighth (1/8) or one-
twentieth (1/20) of one percent (1%); otherwise, said interest rate or rates shall be in multiples of
one-hundredth (1/100) 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 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 oftwelve (12) thirty (30)-day months for a three hundred
and sixty (360)-day year and shall be payable semiannually on June 1 and December 1 in each
year (each an "Interest Payment Date"), commencing on the first June 1 or December 1,
following the original date of the Bonds as determined by the Controller, with the advice of the
City's financial advisor, or as set forth in the Financial Assistance Agreement to be entered into
between the City and the Authority (the "Financial Assistance Agreement"), or in the bond sale
notice if the Bonds are sold to any other purchaser, until principal is fully paid. The principal of
each series of the Bonds shall mature annually on December 1 of each year, over a period
ending no later than twenty (20) years after the date of issue of each series of Bonds issued
hereunder, in such amounts that will produce as level annual debt service as practicable, except
as otherwise provided in the Financial Assistance Agreement if the Bonds are sold to the
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Authority, and in the years and amounts to be determined by negotiation with the Bond Bank or
the Authority or by the Controller with the advice of the City's financial advisor, if any series of
the Bonds are sold by public bidding.
In the event any series of the Bonds is sold by public bidding, the Controller may
determine, with the advice of the City's financial advisor, to issue the Bonds as "Build America
Bonds" pursuant to Section 54AA of the Internal Revenue Code of 1986, as amended (the
"Code") or "Recovery Zone Economic Development Bonds" pursuant to Section 1400U-2 of the
Code. In such case, the Controller is authorized to set forth such additional terms of the Bonds
as may be required in order to proceed with the sale of the Bonds as so designated and also to
evidence compliance with any requirements that may apply to Build America Bonds or Recovery
Zone Economic Development Bonds. If all or a portion of the Bonds are issued as Build
America Bonds and, pursuant to Section 54AA and Section 6431 of the Code, the City elects to
receive the direct payment from the federal government equal to thirty-five percent (35%) of the
interest payable on each interest payment date ("Federal Cash Payment"), each Federal Cash
Payment shall be immediately deposited into the Revenue Fund (defined herein) and treated as a
revenue of the Sewage Works.
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 (unless otherwise provided in the Purchase Agreement in the event the Bonds are sold
to the Bond Bank or unless otherwise provided in the Financial Assistance Agreement in the
event such series of the Bonds is sold to the Authority), 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
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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.
In the event that the Bonds or the BANs are sold to the Authority or any other
purchaser who so agrees pursuant to Section IX of this Ordinance, it is understood that principal
shall not be payable and interest shall not accrue on the Bonds or the BANS until such principal
amount has been advanced pursuant to requests made by the City to the Authority or to any such
other purchaser, with advances to be allocable to the Bonds in order of maturity. If the Bonds
are sold to the Authority, to the extent that (a) the total principal amount of the Bonds is not paid
by the purchaser or drawn down by the City or (b) proceeds remain in the Construction Account
established under Section X of this Ordinance and are not applied to the Project (or any
modifications or additions thereto approved by the Department and the Authority for that portion
or portions of the Project funded in whole or in part by Bonds sold to the Authority), the City
shall reduce the principal amount of the Bonds' maturities to effect such reduction in a manner
that will still achieve as level an annual debt service as practicable as described in this Section III
subject to and upon the terms forth in the Financial Assistance Agreement.
The Controller is hereby authorized to appoint a registrar and a paying agent for
the Bonds (the "Registrar" and the "Paying Agent" and, in both such capacities, the "Registrar
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
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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 previously established and continued herein.
If the Bonds or BANS are registered in the name of the Authority, the Bond Bank
or any other purchaser that does not object to such designation, the Controller shall be designated
as the Registrar and Paying Agent and shall be charged with the performance of all of the duties
and responsibilities of Registrar and Paying Agent.
The Registrar and Paying Agent, if not the Controller, 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 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
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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.
Principal of and any redemption premium on the Bonds, and principal of and
interest on the BANS, 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
Registrar 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. Norivithstanding the foregoing, principal of and interest on the Bonds or
BANS, if registered in the name of the Authority or the Bond Bank, shall be paid by wire transfer
to a financial institution if and as directed by the Authority or Bond Bank, as the case may be, on
the due date of such payment or, if such date is a day when financial institutions are not open for
business, on the business day immediately preceding such due date. So long as the Authority or
the Bond Bank is the registered owner of the Bonds or BANS, the Bonds or BANS shall be
presented for payment as directed by the Authority or the Bond Bank, as applicable. 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
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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 may be
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
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
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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 $ond 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. The BANS. In anticipation of the issuance and sale of the Bonds
authorized herein, and to provide interim financing to apply to the costs of the Project, the City is
hereby authorized to have prepared and to issue and sell negotiable BANS of the City to an
eligible purchaser of the BANS under Indiana Code 5-1-14-5, the Bond Bank or the Authority,
pursuant to a Bond Anticipation Note Purchase Agreement (the "BAN Purchase Agreement")
entered into between the City and the purchaser of the BANs, in one or more series, in an
aggregate principal amount not to exceed Four Million Six Hundred Thousand and 00/100
Dollars ($4,600,000.00) to be designated "City of South Bend, Indiana, Sewage Works Revenue
Bond Anticipation Notes of 20_" (with the blank to be filled in with the last two digits of the
calendar year in which such series of the BANs is issued, with an appropriate series designation
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in the event more than one series of BANS is expected to be issued in such calendar year). The
BANS shall be issued pursuant to Indiana Code 4-4-11 and 13-18-13 if sold to the Authority,
pursuant to Indiana Code 5-1.5-8-6.1 if sold to the Bond Bank, or pursuant to Indiana Code 5-1-
14-5 if sold to an eligible purchaser thereunder. If the BANs are sold to the Authority, the
Financial Assistance Agreement shall serve as the BAN Purchase Agreement. The BANS shall
be issued in fully registered form, shall be numbered consecutively from R-1 (with the
blank to be filled in with the last two digits of the calendar year in which such series of the BANS
is issued, with an appropriate series designation in the event more than one series of BANS is
expected to be issued in such calendar year) upwards, shall be in multiples of One Dollar ($1),
shall be dated as of the date of issuance of the BANs, and shall bear interest at a rate or rates not
exceeding five percent (5.0%) per annum (or at such rate as provided in the Purchase Agreement
if the BANS are sold to the Bond Bank or as provided in the Financial Assistance Agreement if
the BANS are sold to the Authority),. the exact rate of interest to be determined by negotiations
with the purchaser of the BANS and payable as provided in the BAN Purchase Agreement. The
initial BANS delivered will mature on the date provided in the BAN Purchase Agreement. Each
subsequent BAN delivered will bear the same maturity date as the initial BANS. The BANS shall
be subject to renewal or extension, subject to the limitations set forth below, at an interest rate
not to exceed five percent (5.0%) per annum (or at such rate as provided in the Purchase
Agreement if the BANS are sold to the Bond Bank or as provided in the Financial Assistance
Agreement if the BANS are sold to the Authority) with the exact rate to be negotiated with the
purchaser of such BANS. The term of the BANS and all renewal BANS may not exceed five (5)
years from the date of delivery of the initial BANs.
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The principal of the BANS shall be refunded and retired out of the proceeds from the
issuance and sale hereunder of the Bonds. The principal of the BANs, and the principal and
interest of BANs prepaid in accordance with Section V herein, shall be refunded by the issuance
of the Bonds pursuant to, and in the manner prescribed by, the Act. The interest on the BANS
shall be payable either from the Net Revenues of the Sewage Works or from proceeds from the
issuance and sale hereunder of the Bonds.
Section V. Optional Prepayment of BANs; Redemption of the Bonds.
(a) Optional Prepayment of BANS. The BANS are prepayable by the
City, in whole or in part, at any time, upon seven (7) days' notice to the owner of the
BANS, without any premium. In the case of prepayment, the principal and accrued
interest due on the BANs shall be paid only from proceeds of the Bonds, except that such
principal and interest due on the BANs may also be paid from other revenues and funds
legally available therefor, if any, including federal or state funds available for application
to the Project; provided, however, that such funds are not pledged to the payment of the
BANs.
(b) Optional Redemption. The Bonds shall be subject to redemption at
the option of the City upon such terms as determined by the Controller based on the
advice of the City's financial advisor, to be set forth in a written certificate of the
Controller prior to the issuance of the Bonds, provided that the redemption premium shall
not exceed two percent (2%) of the par amount of the Bonds to be redeemed.
Official notice of such redemption shall be mailed by the Registrar and
Paying Agent by certified or registered mail at least sixty (60) days and not more than
ninety (90) days prior to the scheduled redemption date to each of the registered owners
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of the Bonds called for redemption (unless waived by any such registered owner) 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 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.
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(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 and
to one or more national information services that disseminate notices of redemption of
obligations such as the Bonds.
(iii) If so directed by the City, each such further 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 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.
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(c) Mandatory Sinking Fund Redem tp ion. In the event that one or
more series of the Bonds are sold via public sale pursuant to Section IX(b) hereof, such
series may be subject to mandatory sinking fund redemption as set forth herein. At the
option of the successful bidder for the Bonds, all or a portion of the Bonds 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 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 Notice of Intent to Sell:
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
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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
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 A 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 V.
Section VI. Execution and Authentication of the Bonds and BANS. The Bonds
and the BANS shall be executed in the name of the City by the manual or facsimile signature of
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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 and the BANS. The Bonds and the BANS shall be authenticated by the manual signature
of the Registrar, and no Bond or BAN 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 or BAN 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 and BANS, the Bonds and BANS shall
be fully negotiable instruments under the laws of the State of Indiana.
Section VII. 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. The Bonds
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
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constitute an indebtedness of the City within the meaning of the provisions and limitations of the
constitution of the State of Indiana.
Section VIII. Form of the Bonds. The form and tenor of the Bonds shall be
substantially as set forth in Appendix A attached hereto and incorporated herein as if set forth at
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 IX. Issuance, Sale and Delivery of the-Bonds and the BANS.
(a) Generally. The Controller is hereby authorized and directed to
have the Bonds and BANs prepared, and the Mayor and the Clerk are each hereby
authorized and directed to execute, and attest as appropriate, the Bonds and the BANS in
the form and manner herein provided. The Controller is hereby authorized and directed
to deliver the Bonds and the BANS 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-nine percent
(99%) of the par amount of the Bonds (or such higher percentage of the par value 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, if any. The City may
receive payment for the Bonds and BANs in installments. The proceeds derived from the
sale of the Bonds (or the BANS if such BANS are issued), 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
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whatever other acts and things that may be necessary or appropriate to carry out the
provisions of this Ordinance.
(b) Issuance, Sale and Delivery of the BANS. The City, having
satisfied all the statutory requirements for the issuance of the Bonds, may elect to issue its
BAN or BANs to an eligible purchaser under Indiana Code 5-1-14-5, the Bond Bank or
the Authority pursuant to the BAN Purchase Agreement, to be entered into between the
City and the purchaser of the BANS. The Common Council hereby authorizes the
issuance and execution of the BAN or BANs in lieu of initially issuing Bonds to provide
interim construction financing for the Project until permanent financing becomes
available. It shall not be necessary for the City to repeat the procedures for the issuance
of its Bonds, as the procedures followed before the issuance of the BAN or BANS are for
all purposes sufficient to authorize the issuance of the Bonds and the use of the proceeds
to repay the BAN or BANS. The Mayor and the Controller are hereby authorized and
directed to execute the BAN Purchase Agreement in such form or substance as they shall
approve acting upon the advice of counsel. The Mayor and the Controller may also take
such other action or deliver such other certificates as are necessary or desirable in
connection with the issuance of the BANs or the Bonds and the other documents needed
for the financing as they deem necessary or desirable in connection therewith.
(c) Public Sale of the Bonds. The Bonds may, in the discretion of the
Controller, be sold by public sale. In the event the Bonds are sold by public sale, prior to
the sale 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-County News and
the Court and Commercial Record. The notice of such sale or a summary thereof may
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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 Bonds 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 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 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 Bonds sold at public sale shall be sealed and shall be
presented to the Controller at the Controller's office, and the Controller shall continue to
BDDBOI 5738468v1
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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%) per annum. Such interest rate or rates shall be in multiples of one-
eighth (1/8) or one-twentieth (1120} of one percent (1%). Bids specifying more than one
interest rate shall also specify the amount and maturities ofthe 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 99% of the par value 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
the Bonds pursuant to the general provisions of Indiana Code 5-1-11 (rather than
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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.
(d) Sale to the Indiana Bond Bank. The Bonds may, in the discretion
of the Controller, be sold to the Bond Bank. In the event of such determination, Bonds
shall be sold to the Bond Bank at a price not less than 97.5% of the par value of the
Bonds or such higher percentage of the par value of the Bonds as may be set forth in the
Purchase Agreement (defined herein) and in such denomination or denominations as the
Bond Bank may request and pursuant to a purchase agreement (the "Purchase
Agreement") between the City and the Bond Bank, hereby authorized to be entered into
and executed by the Mayor on behalf of the City, and attested by the Clerk, subsequent to
the date of the adoption of this Ordinance. Such Purchase Agreement may set forth the
definitive terms and conditions for such sale, but all of such terms and conditions must be
consistent with the terms and conditions of this Ordinance, including without limitation,
the interest rate or rates on the Bonds which shall not exceed the maximum rate of
interest for the Bonds authorized pursuant to this Ordinance. Bonds sold to the Bond
Bank shall be accompanied by all documentation required by the Bond Bank pursuant to
the provisions of Indiana Code 5-1.5 and the Purchase Agreement, including, without
limitation, an approving opinion of nationally recognized bond counsel, certification and
guarantee of signatures and certification as to no litigation pending, as of the date of
delivery of the Bonds to the Bond Bank, challenging the validity or issuance of the
Bonds. In the event the Controller determines to sell the Bonds to the Bond Bank, the
submission of an application to the Bond Bank and the entry by the City into the
Purchase Agreement and the execution of the Purchase Agreement on behalf of the City
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by the Mayor in accordance with this Ordinance are hereby authorized approved and
ratified.
(e) Sale to the Authority. The Bonds may, in the discretion of the
Controller, based upon the advice of the Financial Advisor, be sold to the Authority. The
Board is hereby authorized to submit an application to the wastewater SRF loan program
(the "SRF Program") under Indiana Code 4-4-11 and Indiana Code 13-18-13. As a part
of said program, the Financial Assistance Agreement for the Bonds and the Project shall
be executed by the City and the Authority. The substantially final form of Financial
Assistance Agreement attached as Appendix B hereto and incorporated herein as if set
forth in this place is hereby approved by the Common Council, and the Mayor and the
Clerk are hereby authorized to execute the same on behalf of the City, and to approve any
changes in form or substance to the Financial Assistance Agreement, such approval to be
conclusively evidenced by its execution. The Financial Assistance Agreement may set
forth the definitive terms and conditions for such sale including the purchase price and
interest -rate, but all of such terms and conditions must be consistent with the terms and
conditions of this Ordinance, including, without limitation, the interest rates on the Bonds
which shall not exceed the maximum rate of interest for the Bonds authorized pursuant to
this Ordinance. Bonds sold to the Authority shall be accompanied by all documentation
required by the Authority pursuant to Indiana Code 4-4-11 and Indiana Code 13-18-13,
and the Financial Assistance Agreement, including, without limitation, an approving
opinion of a nationally recognized bond counsel, certification and guarantee of signatures
and certification as to no litigation pending, as of the date of delivery of the Bonds to the
Authority, challenging the validity or issuance of the Bonds. In the event the Controller
BDDBOI 5738468v1
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determines to sell the Bonds to the Authority, the entry by the City into the Financial
Assistance Agreement and the execution of the Financial Assistance Agreement by the
Mayor, and, if required, the entry by the City into a purchase agreement or any other
agreement with the Authority and the execution thereof by the Mayor, in accordance with
this Ordinance are hereby authorized, approved and ratified.
Notwithstanding anything contained herein, the City may accept any other
forms of financial assistance, as and if available, from the SRF Program (including
without limitation (1) any forgivable loans, grants or other assistance whether available
as an alternative to any Bond related provision otherwise provided for herein or as a
.supplement or addition thereto and (2) one or more series or combination of series of
Bonds and/or BANs). If required by the SRF Program to be eligible for such financial
assistance, one or more of the series of the Bonds or BANs issued hereunder may be
issued on a basis such that the payment of the principal of or interest on (or both) such
series of Bonds is junior and subordinate to the payment of the principal of and interest
on other series of Bonds issued hereunder (and/or any other revenue bonds secured by a
pledge of Net Revenues, whether now outstanding or hereafter issued), all as provided by
the terms of such series of Bonds as modified pursuant to this authorization. Such
financial assistance, if any, shall be as provided in the Financial Assistance Agreement
and the Bonds of each series of Bonds and the BANs of each series of BANS issued
hereunder (including any modification made pursuant to the authorization in this
paragraph to the form of Bond otherwise contained herein).
(f) Credit Enhancement; Opinion of Bond Counsel. Prior to the
delivery of the Bonds and BANs, the Mayor, subject to the direction of the Common
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Council, (i) shall be authorized to investigate, negotiate and obtain bond insurance, other
forms of credit enhancement and/or credit ratings on Bonds (and the BANS, if issued) and
(ii) shall obtain a legal opinion as to the validity of the Bonds (and the BANS, if issued)
from Baker & Daniels LLP, South Bend, Indiana, bond counsel for the City, with such
opinion to be furnished to the purchaser of the Bonds or to the purchaser of the BANS 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 and BANS, shall be considered as a part of the
cost of the Project and shall be paid out of the proceeds of the Bonds and BANS,
respectively.
Section X. Disposition of Proceeds of the Bonds and BANS; City of South Bend,
2009 Sewage Works Construction Account. The proceeds from the sale of the BANS (or, if and
to the extent the BANS are not issued, 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 2009 Sewage Works Construction Account" (the "Construction Account").
Amounts in the Construction Account shall be expended only for the purpose of paying the costs
of the Project, refunding the BANS, if issued, paying the costs of issuance of the Bonds and the
BANs, if the BANS are issued, or 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,
construction, installation or equipping 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, or be applied upon
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the terms forth in the Financial Assistance Agreement. Pursuant to the Act, the owners of the
Bonds and BANS shall be entitled to a lien on the proceeds of the Bonds and BANS, respectively,
until such proceeds are applied as required by this Ordinance and by Indiana law.
Notwithstanding the provisions of this Section X, if BANS are issued, then the
proceeds of the Bonds relating thereto shall be used to refund the BANS or to pay additional
Project costs and are hereby pledged for such purposes, and any proceeds of the Bonds
remaining after the BANS have been paid in full and after completion 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.
If the Bonds are sold to the Authority, to the extent that (a) the total principal
amount of the Bonds is not paid by the purchaser or drawn down by the City or (b) proceeds
remain in the Construction Account and are not applied to the Project (or any modifications or
additions thereto approved by the Department and the Authority), the City shall reduce the
principal amount of the Bonds' maturities to effect such reduction in a manner that will still
achieve as level an annual debt service as practicable as described in Section III of this
Ordinance subject to and upon the terms forth in the Financial Assistance Agreement.
Section XI. Segre>7ation 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 a special fund of the City (the "Revenue Fund") 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
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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 previously established 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 of the
works 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 calendar month may be transferred to the Sewage Works Sinking Fund if necessary
to prevent a default in the payment of principal or interest on outstanding bonds of the Sewage
Works.
Section XII. Sewage Works Sinking Fund.
(a) There shall be deposited from the Revenue Fund into the Sewage
Works Sinking Fund previously established and continued hereby for the payment of the
interest on and principal of revenue bonds which by their terms are payable from the Net
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 to meet the requirements of the Bond and
Interest Account and the Reserve Account previously established and continued hereby in
said Sewage Works Sinking Fund. Such payments shall continue until the balance in the
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Bond and Interest Account, plus the balance in the Reserve Account, equals the principal
of and interest on all of the then outstanding bonds of the Sewage Works to the final
maturity thereof.
(b) Bond and Interest Account. There shall be transferred, on or
before the last day of each calendar month, from the Revenue Fund and credited 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 of the Sewage Works payable on the then next succeeding
Interest Payment Date, and one-twelfth (1/12) of the amount of principal payable on all
then outstanding bonds of the Sewage Works payable on the then next succeeding
principal payment date, until the amount of interest and principal payable on the next
succeeding respective interest and principal payment dates shall have been so credited;
provided that such fractional amounts shall be appropriately increased, if necessary, to
provide for the first interest and first principal payments on the Bonds. There shall
similarly be credited to the Bond and Interest Account any amount necessary to pay the
bank fiscal agency charges, if any, for paying the principal of and interest on outstanding
bonds of the Sewage Works 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 registered owners of the outstanding bonds of the Sewage
Works or 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.
(c) Reserve Account. On the date of delivery of the Bonds or any
other bonds payable from the Reserve Account, funds on hand of the Sewage Works,
proceeds of the Bonds or such other bonds or a combination thereof may be deposited
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into the Reserve Account. The balance to be maintained in the Reserve Account shall
equal but not exceed an amount (the "Reserve Requirement") equal to the least of
(i) maximum annual debt service on the Bonds and any other bonds payable from the
Reserve Account, (ii) one hundred twenty-five percent (125%) of average annual debt
service on the Bonds and any other bonds payable from the Reserve Account, or (iii) ten
percent (10%) of the proceeds of the Bonds and any other bonds payable from the
Reserve Account, plus if and to the extent the amount set forth above is less than
maximum annual debt service on the Bonds and any other bonds payable from the
Reserve Account, a minor portion of the proceeds thereof under Section 148(e) of the
Code. If the initial deposit into the Reserve Account does not equal the Reserve
Requirement, or if no deposit is made, the City shall deposit a sum of Net Revenues into
the Reserve Account on the last day of each calendar month until the balance equals the
Reserve Requirement. The monthly deposits shall be equal in amount and sufficient to
accumulate the Reserve Requirement within five (5) years of the date of delivery of the
Bonds. The Reserve Account shall constitute the margin for safety and protection against
default in the payment of principal of and interest on the Bonds and any other bonds
payable from the Reserve Account, and the moneys in the Reserve Account shall be used
to pay current principal and interest on the Bonds and any other bonds payable from the
Reserve Account to the extent that moneys in the Bond and Interest Account are
insufficient for that purpose. Any deficiency in the balance maintained in the Reserve
Account shall be made up from the next available Net Revenues remaining after credits
into the Bond and Interest Account. Any moneys in the Reserve Account in excess of the
Reserve Requirement shall either be transferred to the Sewage Works Improvement Fund
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or be used for the purchase of outstanding bonds or installments of principal of fully
registered bonds at a price not exceeding par and accrued interest, and redemption
premium, if any.
In the event the Bonds are sold to the Authority, notwithstanding the
foregoing, the Reserve Requirement shall be the combined maximum annual debt service
on the Bonds, any Prior Bonds payable from the Reserve Account, and any parity bonds
hereafter issued. In such event, on each December 2 subsequent to the delivery of the
Bonds, beginning with the December 2 immediately succeeding completion of the
Project, the Controller shall decrease, if necessary, the amount on deposit in the Reserve
Account so that the remaining amount on deposit equals the Reserve Requirement,
provided that the City shall provide to the Authority fifteen (IS) days prior written notice
of any such intended transfer from the Reserve Account. In the event additional bonds
payable from the Net Revenues of the Sewage Works are hereafter issued on a parity
with the Bonds, the Reserve Requirement shall be proportionately increased to equal
maximum annual debt service on the Bonds, any Prior Bonds payable from the Reserve
Account, and all bonds hereafter issued on a parity therewith; provided, that, if nationally
recognized bond counsel is unable to provide an opinion that interest on such proposed
additional parity bonds is excludable from gross income for federal income tax purposes
as a result of the determination of the Reserve Requirement in the manner provided in
this paragraph, then the City may, in order to allow such opinion to be issued, establish a
separate reasonably required reserve fund that secures only the proposed parity bonds and
shall expressly provide in the authorizing ordinance for such proposed parity bonds that
the moneys deposited in the Reserve Account hereby as a margin of safety for the
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payment of principal of and interest on the Bonds do not secure such proposed parity
bonds.
The City may at any time and from time to time fund all or any part of the
Reserve Account by depositing in the Reserve Account one or more debt service reserve
surety bonds or insurance policies (each, a "Reserve Account Credit Instrument"), each of
which is issued by an insurance company rated at the time of deposit in the highest rating
category by Standard & Poor's Corporation and Moody's Investors Service. As long as
any Reserve Account Credit Instrument is in full force and effect, any valuation of the
Reserve Account shall treat the maximum amount available under such Reserve Account
Credit Instrument as its value. If the Reserve Account Credit Instrument is provided
subsequent to the initial cash contribution to the Reserve Fund, and the Bonds are
purchased by the Authority, notice of the purchase of the Reserve Account Credit
Instrument shall be given to the Authority.
Prior to applying any funds held in .any debt service reserve accounts
securing any obligations payable out of the revenues of the sewage works of the City to
the payment of such obligation, the City shall cause all funds held in the Sewage Works
Sinking Fund (or any like fund or account from which debt service has been structured to
be paid) to be applied in full before any such reserve accounts are so applied.
(d) Depository Agreements. The Sinking Fund, containing the Bond
and Interest Account and the Reserve Account, and/or the Construction Account may be
held by a financial institution acceptable to the Authority, pursuant to terms acceptable to
the Authority. If the Sinking Fund and the accounts therein are held in trust, the City
shall transfer the monthly required amounts of Net Revenues to the Bond and Interest
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Account and the Reserve Account, and the financial institution holding such .funds in
trust shall be instructed to pay the required payments in accordance with the payment
schedules for the City's outstanding bonds. The Common Council hereby authorizes the
Mayor and Controller to execute and deliver an agreement with a financial institution to
reflect this trust arrangement for the Sinking Fund and/or the Construction Account.
Section XIII. Funding Improvements to the Sewage Works. On the first day of
each calendar month, after meeting the requirements for operation, repair and maintenance, and
the Sewage Works Sinking Fund, all available Net Revenues shall be credited to the Sewage
Works Improvement Fund previously established and continued hereby. Said fund shall be used
for improvements, replacements, additions and extensions of the Sewage Works, or for any other
lawful purpose, including transfers to the cash reserve fund of the utility or the general fund of
the City representing payments in lieu of taxes and a reasonable rate of return on 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 Reserve Account of the Sewage Works Sinking Fund. Moneys in the Sewage
Works Improvement Fund also may be transferred to the Operation and Maintenance Fund to
meet unforeseen contingencies in the operation, repair and maintenance ofthe Sewage Works.
Section XIV. Investment of Funds. All of the amounts in the funds and accounts
created pursuant to this Ordinance shall be deposited in lawful depositories of the State of
Indiana, and shall be continuously held and secured or invested as provided by the laws of the
State of Indiana relating to the depositing, securing, holding and investing of public funds,
including particularly Indiana Code 5-13, as amended and supplemented, including pursuant to
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BDDBOI 5738468v1
Indiana Code 4-4-11 and Indiana Code 13-18-13. The amounts in the Sewage Works Sinking
Fund shall be deposited in and maintained as a separate account or accounts from all other bank
accounts of the City. The Operation and Maintenance Fund and the Sewage Works
Improvement Fund may be maintained in a single account, or accounts, but such account or
accounts shall likewise be maintained separate and apart from all other bank accounts of the City
and apart from the Sinking Fund account or accounts. In no event shall any of the Net Revenues
of the Sewage Works be transferred or used for any purpose not authorized by this Ordinance so
long as any of the bonds of the Sewage Works issued pursuant to the provisions of this
Ordinance shall be outstanding. Investment income earned on moneys in the funds and accounts
established by this Ordinance shall become a part of the funds and accounts invested (except as
otherwise provided in Section XII hereof] and shall be used only as provided in this Ordinance
and the Prior Ordinance.
Section XV. 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 all 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, upon written request, to any
owner of the Bonds or BANS 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,
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BDDBOI 5738468v1
covering the preceding fiscal year, which annual 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 or BANS 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.
If the Bonds or BANS are sold to the Bond Bank or the Authority, the City shall
establish and maintain the books and other financial records of the Project (including the
establishment of a separate account or subaccount for the Project) and the Sewage Works in
accordance with (i) generally accepted accounting standards for utilities, on an accrual basis, as
promulgated by the Government Accounting Standards Board, and (ii) the rules, regulations, and
guidance of the State Board of Accounts.
Section XVI. 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, at a level adequate
to produce and maintain sufficient revenue (including user and other charges, fees, income, or
revenues available to the City) to provide for the proper Operation and Maintenance (as defined
in the Financial Assistance Agreement) of the works, to comply with and satisfy all covenants
contained in this Ordinance and the Financial Assistance Agreement, and for the payment of the
sums required to be paid into the Sewage Works Sinking Fund by the Act and this Ordinance;
and that such rates or charges shall be sufficient in each year to produce net revenues, as defined
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in Section VI of this Ordinance, at least equal to 1.1 times the greater of the average annual debt
service on the Prior Bonds, the Bonds and all bonds on a parity therewith or the debt service
payable during the next succeeding twelve calendar months on the Prior Bonds, the Bonds and
all bonds on a parity therewith. For these purposes, the interest rate on variable rate debt shall be
assumed to be the average interest rate thereon in the preceding calendar year.
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
and Maintenance of the Sewage Works and the requirements of the Sewage Works Sinking
Fund. 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 no less
frequently than semi-annually by the City or the various departments thereof as the charges
accrue.
Section XVII. Defeasance. If, when 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 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 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
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BDDBOI 5738468v1
made for paying all fees and expenses for the redemption, then and in that case the Bonds (or
portions thereo fl issued hereunder shall no longer be deemed outstanding or entitled to the
pledge of the net revenues of the City's Sewage Works.
Section XVIII. Additional BANS and Bonds. The City will issue no other bonds
or obligations of any kind or nature payable from or enjoying a lien on the Net Revenues of the
Sewage Works having priority over the Bonds herein authorized.
The City reserves the right to authorize and issue additional BANS at any time ranking on
a parity with the BANS so long as the interest is payable only on the same date(s) as that
provided in the BAN Purchase Agreement and the principal is payable solely from the Bond
proceeds. The City also reserves the right to authorize and issue additional bonds, payable out of
the net revenues of its Sewage Works, ranking on parity with the Bonds authorized by this
Ordinance, for the purpose of financing the cost of future additions, extensions and
improvements to the Sewage Works, 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 payments into the Sinking Fund shall have been made
in accordance with the provisions 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 to
date 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
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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. For purposes of this Subsection 18 (b), Federal Cash Payments shall be
calculated and applied (i) in an amount not to exceed the amount thereof projected to be
received in the same bond year ending coterminous with the bond year ending with such
maximum annual interest and principal requirements of the then outstanding bonds and
the additional bonds proposed to be issued and (ii) solely for the term in which the
Federal Cash Payment applies.
(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.
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(e) If the Bonds are sold to the Authority, (i) the City has obtained the
consent of the Authority, (ii) the City has faithfully performed and is in compliance with
each of its obligations, agreements, and covenants contained in the Financial Assistance
Agreement and this Ordinance, and (iii) the City is in compliance with its National
Pollutant Discharge Elimination System permits, except for non-compliance, if any, for
which the additional parity bonds are issued, including refunding bonds issued prior to,
but part of the overall plan to eliminate such non-compliance.
Section XIX. 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 iet 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
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
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BDDBOI 5738468v1
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 (which must be acceptable to the Authority if the
Authority owns the Bonds), 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. In the Bonds are sold to the Authority for participation in the wastewater SRF
loan program under Indiana Code 13-18-13, use of the City's self-insurance program to
satisfy any of the insurance requirements set forth herein shall be subject to the approval
of the Authority. 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 (provided such is consented to by the Authority if the
Authority owns the Bonds).
(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
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BDDBOI 5738468v1
which may become worn out or obsolete, without the prior written consent of the
Authority if the Bonds are sold to the Authority.
(f) If the Bonds are sold to the Authority, the City shall not borrow
any money, enter into any contract or agreement or incur any other liabilities in
connection with the Sewage Works, other than for normal operating expenditures,
without the prior written consent of the Authority if such undertaking would involve,
commit, or use the revenues of the Sewage Works.
(g) 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 XV hereof
coincidentally with the delivery of such additional bonds or other obligations.
(h) 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.
(i) 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
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BDDBOI 5738468v1
affects the rights of such owners so long as any of said bonds or the interest thereon
remains unpaid.
(j) 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; provided, however, that if the Bonds are sold to the Authority, the City
shall obtain the prior written consent of the Authority.
Section XX. 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 and Indiana Code 5-1-14-3 at a restricted yield (subject
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BDDB01 5738468v1
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 XXI. Tax Covenants. In order to preserve the exclusion of interest on the
Bonds and the BANS from gross income for federal income tax purposes and as an inducement
to purchasers of the Bonds and BANS, 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 BANS or property financed by the
Bond or BAN 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 or BAN. 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 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 or BAN proceeds will be loaned to any entity or person.
No Bond or BAN proceeds will be transferred, directly or indirectly, or deemed
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BDDBOI 5738468v1
transferred to a nongovernmental person in any manner that would in substance constitute
a loan of the Bond or BAN 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 or BANs that would
result in the loss of the exclusion from gross income for federal income tax purposes of
interest on the Bonds or BANS 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 or BAN is outstanding hereunder which would cause any Bond or
BAN to be an "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 or BANs.
(d) The City will, to the extent necessary to preserve the exclusion of
interest on the Bonds and BANS from gross income for federal income tax purposes,
rebate all required arbitrage profits on Bond and BAN proceeds or other moneys treated
as Bond or BAN 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 XXII. 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
BANS or the exclusion of interest on the Bonds or BANs 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.
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BDDBOI 5738468v1
Section XXIII. Supplemental Ordinances. Without notice to or consent of the
owners of the bonds or BANS herein authorized, the City may, from time to time and at any time,
adopt an ordinance or ordinances supplemental hereto (which supplemental ordinance or
ordinances shall thereafter form a part hereof) for any of the following purposes:
(i) To cure any ambiguity or formal defect or omission in this
Ordinance or in any supplemental ordinance or to make any other change authorized
herein;
(ii) To grant to or confer upon the owners of the Bonds and BANS any
additional benefits, rights, remedies, powers, authority or security that may lawfully be
granted to or conferred upon the owners of the Bonds and BANS or to make any change
which, in the judgment of the City, is not to the prejudice of the owners of the Bonds or
BANS;
(iii) To modify, amend or supplement this Ordinance to permit the
qualification of the Bonds or BANS for sale under the securities laws of the United States
of America or of any of the states of the United States of America or to obtain or
maintain bond insurance or other credit enhancement with respect to payments of
principal of and interest on Bonds or BANS;
(iv) To provide for the refunding or advance refunding of the Bonds;
(v) To procure a rating on the Bonds from a nationally recognized
securities rating agency or agencies designated in such supplemental ordinance if such
supplemental ordinance will not adversely affect the owners of the Bonds or any other
bonds ranking on a parity with such Bonds; or
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BDDBOI 5738468v1
(vi) To accomplish any other purpose which, in the judgment of the
City, does not adversely affect the interests of the owners of the Bonds or BANS;
provided, however, that if the Bonds or BANS are sold to the Authority, the City shall
obtain the prior written consent of the Authority.
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, that if the Bonds are sold to the
Authority, the City shall obtain the prior written consent of the Authority; and provided,
further, that nothing herein contained shall permit or be construed as permitting:
(a) A reduction in the Reserve Requirement; or
(b) An extension of the maturity of the principal of or interest on any
Bond issued pursuant to this Ordinance; or
(c) A reduction in the principal amount of any bond or the redemption
premium or the rate of interest thereon; or
(d) 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
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BDDBOI 5738468v1
(e) 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
(f) 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
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BDDBOI 5738468v1
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.
Notwithstanding anything in this Section XXI of this Ordinance, as to any series
of Bonds sold to the Authority pursuant to Section VIII of this Ordinance, no supplemental
ordinance shall be adopted unless consented to in writing by the Authority.
Section XXIV. Repeal of Conflicting Ordinances. All ordinances and parts of
ordinances in conflict herewith are hereby repealed; provided, however, that this Ordinance shall
not be deemed in any way to repeal, amend, alter or modify any of the Prior Ordinance, nor be
construed as adversely affecting the rights of any of the owners of the outstanding Prior Bonds.
Section XXV. 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-OS adopted November 28, 2005.
Section XXVI. 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
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.
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BDDBOI 5738468v1
Section XXVII. Payments on Holidays. Ifthe 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
Authority 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 XXVIII. 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 XXIX. Effectiveness. This Ordinance shall be in full force and effect
from and upon compliance with the procedures required by law.
ATTEST:
City Jerk
BDDBOI 5738468v1
COMMON COUNCIL
THE CITY OF SOUTH BEND, INDIANA
ember of the Common Council
-51-
Presented by me to the Mayor of the City of South Bend, Indiana, on the L 1 ~1 day of
~,~~ t~. , 2009, at t l t~S o'clock Q ~ .m.
.,
City C r ~ ~~
Approved and signed by me on the ~ day of , 2009, at Z ' ~
o'clock m.
~ ~'
Mayor, Crty of So end, Indiana
1st READING ~ `Z' ~ ~~ 0.S 0. 2-1-~, ~u.~s~ ~st'
PUBLIC HEARING ~-
3 rd READING g"-Lo-~ ~ ~S Q ~.,~~ S~~.SSt~i~ - 52 -
NOT APPROVE
REf ERRED ~ - ~ aS ~ ~-~ Su~ s ~ -~r`~ ~
~ ~~~ ~
Filed nl Clerk's Office
AU6 S p 2009
JOHN VOORDE
C11Y CLERK, S0. BEND, IN.
TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND:
Your Committee of the Whole, to whom was referred:
BILL NO.
56-09 A BILL OF THE COMMON COUNCIL OF THE CITY OF
SOUTH BEND, INDIANA, AUTHORIZING THE
ACQUISITION, CONSTRUCTION AND INSTALLATION OF
CERTAIN IMPROVEMENTS AND EXTENSIONS TO THE
CITY'S SEWAGE WORKS, THE ISSUANCE AND SALE OF
ADDITIONAL REVENUE BONDS TO PROVIDE FUNDS
FOR THEY PAYMENT OF THE COSTS THEREOF, THE
ISSUANCE AND SALE OF BOND ANTICIPATION NOTES
IN ANTICIPATION OF THE ISSUANCE AND SALE OF
SUCH BONDS 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 being a 2"d substitute.
Ann Puzzello
Chairperson, Committee of the Whole
APPENDIX A TO THE
BOND ORDINANCE
FORM OF REGISTERED BOND
(Form of Face of Bond)
UNITED STATES OF AMERICA
STATE OF INDIANA, COUNTY OF ST. JOSEPH
CITY OF SOUTH BEND, INDIANA,
SEWAGE WORKS REVENUE BOND, SERIES 2009
No. 2009R-
Interest Maturity Original Authentication
Rate Date Date Date
2009 , 2009
Registered Owner:
Principal Amount:
The City of South Bend (the "City"), in St. Joseph County, State of Indiana, for value
received, hereby promises to pay to the Registered Owner specified above, or registered assigns,
upon surrender hereof, solely out of the special revenue fund hereinafter referred to, the Principal
Amount stated above [, or so much thereof as may be advanced from time to time and be
outstanding as evidenced by the records of the registered owner making payment for this Bond,
or its assigns] on [the Maturity Date specified above] or December 1 in the years and in the
amounts as set forth on Exhibit A attached hereto] (unless this Bond be subject to and shall have
been called for redemption prior to maturity as hereinafter provided), and to pay interest hereon
until the Principal Amount is fully paid at the Interest Rate per annum specified above from the
Original Date or [the interest payment date to which interest has been paid next preceding the
Authentication Date of this Bond unless this Bond is authenticated after the fifteenth day of the
month preceding an interest payment date and on or before such interest payment date, in which
case it shall bear interest from such interest payment date, or unless this Bond is authenticated on
or before 15, 200_, it shall bear interest from the Original Date specified above],
which such interest is payable semiannually on June 1 and December 1 of each year,
BDDBOI 5738468v1 A-1
commencing 1, Interest shall be calculated on the basis of twelve (12) thirty
(30)-day months for a three hundred sixty (360)-day year.
[The principal of and premium, if any, on this Bond is payable at the [principal corporate
trust] office of in the of ,Indiana, or of any successor
registrar and paying agent appointed by the City pursuant to the Ordinance hereinafter mentioned
(the "Registrar" and the "Paying Agent").] All payments of [principal of and] interest hereon
will be paid by cash or draft mailed or delivered by the Paying Agent to the Registered Owner
hereof at the address as it appears on the registration books kept by [the Controller of the City
(the "Registrar" or "Paying Agent") in the City or the Registrar ] as of the fifteenth day of the
month immediately preceding the applicable interest payment date or at such other address as is
furnished to the Paying Agent in writing by such Registered Owner. All payments on this Bond
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 and private debts.
Notwithstanding the foregoing paragraph, so long as this Bond is registered in the name
of the Indiana Finance Authority (the "Authority"), principal of and interest on this Bond shall be
paid by wire transfer to a financial institution designated by the Authority on the due date of such
payment or, if such date is a day when financial institutions are not open for business, on the
business day immediately preceding such due date. So long as the Authority is the registered
owner of this Bond, this Bond shall be presented for payment as directed by the Authority.
So long as the Authority is the registered owner of this Bond, it is understood that
principal shall not be payable and interest shall not accrue on this Bond until such principal
amount has been advanced pursuant to requests made by the City to the Authority.
This Bond and the other bonds of this issue, together with the interest payable hereon and
thereon, are payable solely from and secured by an irrevocable pledge of and constitute a charge
upon all of the net revenues (defined to be gross revenues after deduction only for the payment
of the reasonable expenses of operation, repair and maintenance) derived from the sewage works
of the City, including the existing works, the improvements and extensions acquired or
constructed out of the proceeds of this Bond and the issue of which it is a part, and all additions
and improvements thereto subsequently acquired or constructed; and rank on a parity with the
Prior Bonds (as defined in the Ordinance (defined herein)). The City shall not be obligated to
pay the principal of or interest on this Bond except from the special fund, entitled the "Sewage
Works Sinking Fund" heretofore created by Ordinance No. ,adopted on ,
and subsequently continued, provided from the net revenues of such sewage works, and
neither this Bond nor any of the bonds of the issue of which this Bond is a part shall constitute an
indebtedness of the City within the meaning of the provisions and limitations of the constitution
of the State of Indiana.
The City, the Registrar and the Paying Agent may deem and treat the Registered Owner
hereof as the absolute owner hereof for the purpose of receiving payment of or on account of
principal hereof and the interest due hereon and for all other purposes, and none of the City, the
Registrar or the Paying Agent shall be affected by any notice to the contrary.
BDDBOI 5738468v1 A-2
This Bond shall not be valid or become obligatory for any purpose or entitled to any
security or benefit under the Ordinance herein described unless and until the certificate of
authentication hereon shall have been executed by a duly authorized representative of the
Registrar.
This Bond is one of an authorized issue of bonds of the City of South Bend, Indiana, of
like tenor and effect, except as to series, numbering, interest rate and date of maturity, in the total
amount of Dollars ($ )numbered from 2009R-1
upward, issued for the purpose of providing funds to pay the cost of certain improvements and
extensions to the sewage works of the City (the "Sewage Works"), and all expenses necessarily
incurred in connection with the issuance of such bonds, as authorized by an ordinance adopted
by the Common Council of the City of South Bend on the _ day of , 2009, entitled
"An Ordinance of the Common Council of the City of South Bend, Indiana, Authorizing the
Acquisition, Construction and Installation by the City of South Bend, Indiana, of Certain
Improvements and Extensions 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 Revenues of Such Sewage Works and Other Related Matters"
(the "Ordinance"), and in strict compliance with the provisions of Indiana Code, Title 36, Article
9, Chapter 23, and the laws amendatory thereof and supplemental thereto (the "Act").
Reference is hereby made to the Financial Assistance Agreement between the City and
the Authority as to certain terms and covenants pertaining to the sewage works project and this
Bond (the "Financial Assistance Agreement").
This Bond is issuable only in fully registered form in the denomination of One Dollar
($1) or any integral multiple thereof not exceeding the aggregate principal amount of the bonds
of this issue maturing in any one year, unless this Bond is of a series of bonds sold to the
Authority, in which case it may be of such denomination as directed.
Pursuant to the provisions of the Act and the Ordinance, the principal of and interest on
this Bond and all other bonds of this issue, and any bonds hereafter issued on a parity therewith,
are equally and ratably secured by and are payable solely from the Sewage Works Sinking Fund
continued by the Ordinance to be provided from the net revenues (herein defined as the gross
revenues after deduction only for the payment of the proper and reasonable expenses of
Operation and Maintenance, as defined in the Financial Assistance Agreement) derived from the
Sewage Works, including the existing works, the improvements and extensions acquired or
constructed out of the proceeds of this Bond and the issue of which it is a part, and all additions
and improvements thereto and replacements thereof subsequently constructed and acquired. This
Bond shall rank on parity with the Prior Bonds (as defined in the Ordinance). This Bond does
not and shall not constitute an indebtedness of the City within the meaning of the provisions and
limitations of the constitution of the State of Indiana, and the City is not and shall not be
obligated to pay this Bond or the interest thereon except from such special fund provided from
such net revenues.
The City irrevocably pledges the entire net revenues of the Sewage Works to the extent
necessary for such purposes, to the prompt payment of the principal of and interest on the bonds
of this issue authorized pursuant to the Ordinance, including this Bond, any bonds hereafter
BDDBOI 5738468v1 A-3
issued on parity herewith. The City covenants that it will to the fullest extent permitted by law
cause to be fixed, maintained and collected such rates and charges for services rendered by such
works as are sufficient in each year for the payment of the proper and reasonable expenses of
Operation and Maintenance (as defined in the Financial Assistance Agreement) of said works
and for the payment of the sums required to be paid into said Sinking Fund under the provisions
of said Act and said Ordinance to comply with and satisfy all covenants contained in this
Ordinance and the Financial Assistance Agreement. In the event the City, or the proper officers
thereof, shall fail or refuse to so fix, maintain and collect such rates or charges, or if there be a
default in the payment of the principal of or interest on this Bond, the Registered Owner of this
Bond shall have all of the rights and remedies provided for in the Act, including the right to have
a receiver appointed to administer the works and to charge and collect rates sufficient to provide
for the payment of the principal of and interest on this Bond.
The City further covenants that it will set aside and pay into its Sewage Works Sinking
Fund a sufficient amount of the net revenues of the Sewage Works to meet (a) the interest on all
bonds payable from the revenues of the Sewage Works, as such interest shall fall due, (b) the
necessary fiscal agency charges for paying all bonds and interest, (c) the principal of all bonds
payable from the revenues of the Sewage Works, and (d) an additional amount as a margin of
safety to create the reserve required by the Ordinance.
The bonds of this issue maturing on or after 1, 200 are subject to
redemption prior to maturity, at the option of the City, in whole or in part, on 1,
20_, or at any time thereafter, or sixty (60) days' notice, in inverse order of maturity and by lot
within any such maturity or maturities by the Registrar at a redemption price expressed as a
percentage of the principal amount of each bond to be redeemed in accordance with the
following schedule, plus accrued interest to the date of redemption:
Redemption Period
(Both Dates Inclusive)
Redemption Price
20~ through , 20_ _%
20~ and thereafter prior to maturity _%
Notice of any such redemption shall be sent by registered or certified mail to the Registered
Owner of this Bond not more than ninety (90) and not less than sixty (60) days prior to the date
fixed for redemption, unless such notice is waived by the Registered Owner; provided, however,
that failure to give such notice by mailing, or any defect therein, with respect to any such bond
will not affect the validity of any proceedings for redemption of any other such 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. Interest on bonds so called for redemption shall cease to accrue on the
redemption date fixed in such notice, so long as sufficient funds are available at the place of
redemption to pay the redemption price on the redemption date or when presented for payment.
Prior to the date fixed for redemption, funds shall be deposited with the Paying Agent to
pay, and the Paying Agent is hereby authorized and directed to apply such funds to the payment
of the bonds or portions thereof called, together with accrued interest thereon to the redemption
BDDBOI 5738468v1 A-4
date and any required premium. No payment shall be made by the Paying Agent 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 the Ordinance with respect
to any mutilated, lost, stolen or destroyed bond.
If this Bond or a portion hereof shall have become due and payable in accordance with its
terms or this Bond or a portion hereof shall have been duly called for redemption or irrevocable
instructions to call this Bond or a portion hereof for redemption shall be given and the whole
amount of the principal and the premium, if any, and interest, so due and payable upon this Bond
or such portion hereof 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 for such purpose, or (iii)time certificates of deposit of a bank or banks, fully secured as
to both principal and interest by obligations of the kind described in (ii) above, the principal of
and interest on which when due will provide sufficient moneys for such purpose, 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 this Bond or such portion hereof shall no longer be deemed
outstanding, entitled to the pledge of the net revenues of the sewage works or an obligation of the
City.
If this Bond shall not be presented for payment or redemption on the date fixed therefor,
the City may deposit in trust with the Paying Agent an amount sufficient to pay such bond or the
redemption price, as appropriate, and thereafter the Registered Owner 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.
All bonds which have been redeemed shall be canceled and cremated or otherwise
destroyed and shall not be reissued and a counterpart of the certificate of cremation or other
destruction evidencing such cremation or other destruction shall be furnished by the Registrar to
the City; 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.
Subject to the provisions of the Ordinance regarding the registration of such bonds, this
Bond and all other bonds of this issue of which this Bond is a part are fully negotiable
instruments under the laws of the State of Indiana. This Bond is transferable or exchangeable
only on the books of the City maintained for such purpose at the principal office of the Registrar,
by the Registered Owner hereof in person, or by his attorney duly authorized in writing, upon
surrender ofthis Bond together with a written instrument oftransfer or exchange satisfactory to
the Registrar duly executed by the Registered Owner or his 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. This Bond may be
transferred or exchanged without cost to the Registered Owner or his attorney duly authorized in
writing, 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 exchange
or transfer of this Bond (i) during the fifteen (15) days immediately preceding an interest
payment date on this Bond or (ii)after the mailing of any notice calling this Bond for redemption.
BDDBOI 5738468v1 A-5
The City, the Registrar and any Paying Agent for this Bond may treat and consider the person in
whose name this Bond is registered as the absolute owner hereof for all purposes including for
the purpose of receiving payment of, or on account of, the principal hereof and the redemption
premium, if any, and interest due hereon.
In the event this 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 and denomination
as this Bond, which new bond shall be marked in a manner to distinguish it from this Bond;
provided, that in the case of this Bond being mutilated, this Bond shall first be surrendered to the
Registrar, and in the case of this Bond being lost, stolen or destroyed, there shall first be
furnished to the Registrar evidence of such loss, theft or destruction satisfactory to the City and
to the Registrar, together with indemnity satisfactory to them. In the event that this Bond, being
mutilated, lost, stolen or destroyed, shall have matured or been called for redemption, instead of
causing to be issued a duplicate bond the Registrar may pay this Bond upon surrender of this
mutilated bond or upon satisfactory indemnity and proof of loss, theft or destruction in the event
this Bond is lost, stolen or destroyed. In such event, the City and the Registrar may charge the
owner of this Bond with their reasonable fees and expenses in connection with the above. Every
substitute bond issued by reason of this Bond being lost, stolen or destroyed shall, with respect to
this Bond, constitute a substitute contractual obligation of the City, whether or not this Bond,
being lost, stolen or destroyed shall be found at any time, and shall be entitled to all the benefits
of the Ordinance, equally and proportionately with any and all other bonds duly issued
thereunder.
In the manner provided in the Ordinance, the Ordinance and the rights and obligations of
the City and the owners of the bonds of this issue authorized thereunder, including this Bond,
may (with certain exceptions as stated in the Ordinance) be modified or amended with the
consent of the owners of at least sixty-six and two-thirds percent (66-2/3%) in aggregate
principal amount of such bonds exclusive of any such bonds which may be owned by the City.
The Registered Owner of this Bond, by the acceptance hereof, hereby agrees to all the
terms and provisions contained in the Ordinance.
The City hereby certifies, recites and declares that all acts, conditions and things required
to be done precedent to and in the preparation, execution, issuance and delivery of this Bond
have been done and performed in regular and due form as required by law.
BDDBOI 5738468v1 A-6
IN WITNESS WHEREOF, the City of South Bend, in St. Joseph County, State of
Indiana, has caused this Bond to be executed in its corporate name and on its behalf by the
manual or facsimile signature of the Mayor of the City, countersigned by the manual or facsimile
signature of the City Controller, and its corporate seal to be hereunto affixed or impressed by any
means and attested by the manual or facsimile signature of its Clerk.
(Seal of the City)
ATTEST:
Clerk
CITY OF SOUTH BEND, INDIANA
By:
Mayor
Countersigned:
By:
Controller
BDDBOI 5738468v1 A-7
REGISTRAR'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the City of South Bend, Indiana, Sewage Works Revenue Bonds,
Series 20_, issued and delivered pursuant to the provisions of the within-mentioned Ordinance.
as Registrar
By:
Authorized Representative
BDDBO l 5738468v1 A-8
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
(insert name and address) the within bond and all rights thereunder, and hereby irrevocably
constitutes and appoints attorney to transfer the
within bond on the books kept for the registration thereof with full power of substitution in the
premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as it appears on the face
of the within bond in every particular, without
alteration or enlargement or any change whatsoever.
Signature Guarantee:
NOTICE: Signature(s) must be
guaranteed by an eligible guarantor
institution participating in a Security
Transfer Association recognized
signature guarantee program.
BDDB01 5738468v1 A-9
SCHEDULE A
Date
PRINCIPAL PAYMENT SCHEDULE
Principal
Amount
(End of Bond Form)
BDDBOI 5738468v 1 A-1
APPENDIX B TO THE
BOND ORDINANCE
FORM OF FINANCIAL ASSISTANCE AGREEMENT
STATE OF INDIANA
WASTEWATER REVOLVING LOAN PROGRAM
FINANCIAL ASSISTANCE AGREEMENT made as of this day of
2009 by and between the Indiana Finance Authority '(the "Finance Authority"), a body politic
and corporate, not a state agency but an independent instrumentality of the State of Indiana (the
"State") and the City of South Bend, Indiana (the "Participant"),apolitical subdivision as
defined in I.C. 13-11-2-164 and existing under I.C. 36-4, witnesseth:
WHEREAS, the State's Wastewater Revolving Loan Program (the "Wastewater SRF
Program") has been established in accordance with the federal Clean Water Act and the
regulations promulgated thereunder, and pursuant to I.C. 13-18-13 (the "Wastewater SRF Act"),
which Wastewater SRF Act also establishes the wastewater revolving loan fund (the
"Wastewater SRF Fund"); and
.WHEREAS, pursuant to the Wastewater SRF Act, the State was authorized to fund the
Wastewater SRF Program with federal capitalization grants, together with required state
matching funds therefor, and to operate the Wastewater SRF Program, and prior to May 15, 2005
so funded and operated the Wastewater SRF Program; and
WHEREAS, the Indiana Bond Bank (the "Bond Bank") has had a longstanding
commitment to finance water quality and drinking water projects for qualified entities by issuing
its bonds, pursuant to I.C. 5-1.5, for the purpose of buying securities of such qualified entities
and financed by the Wastewater SRF Program, including the required state matching funds, and
prior to May 15, 2005 so financed the Wastewater SRF Program; and
WHEREAS, pursuant to Public Law 235 - 2005, by operation of law and effective May
15, 2005, the Finance Authority has become the successor to the State in all matters related to the
Wastewater SRF Program (including use and acceptance of federal capitalization grants and
required state matching funds and operation of the Wastewater SRF Program) and to the Bond
Bank in all matters related to the financing of the Wastewater SRF Program (including the Bond
Bank's outstanding State Revolving Fund Program Bonds and securities of all qualified entities
purchased with the proceeds of such bonds); and
WHEREAS, the Participant is a duly existing political subdivision of the State, lawfully
empowered to undertake all transactions and execute all documents mentioned or contemplated
herein; and
B-1
BDDBOI 5738468v1
WHEREAS, the Participant has previously entered into two Financial Assistance
Agreements with the State in its capacity as predecessor to the Finance Authority in matters
related to the Drinking Water and Wastewater SRF Programs, dated as of June 12, 2000 and
December 30, 1998 (the "Prior Agreements"), to borrow money from the Drinking Water and
Wastewater SRF Programs, respectively, to construct and acquire a separate project (as described
and defined in the Prior Agreements); and
WHEREAS, the Participant has determined to undertake a wastewater treatment system
project (as more fully described herein, the "Project") and to borrow money from the Wastewater
SRF Program to construct and acquire the Project; and
WHEREAS, the Finance Authority and the Participant desire to set forth the terms of
such financial assistance as hereinafter provided.
NOW THEREFORE, in consideration of the mutual covenants herein set forth, the
Finance Authority and the Participant agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms shall, for all purposes of this
Agreement, have the following meaning:
"A~ency" shall mean the United States Environmental Protection Agency or its
successor.
"American Recovery and Reinvestment Act" shall mean the American Recovery and
Reinvestment Act of 2009, and other laws, regulations and guidance supplemental thereto
(including the Clean Water Act), as amended and supplemented from time to time.
"Authorizing Instrument(s)" shall mean the separate trust indenture(s) of the
Participant entered into with a corporate trustee or the detailed resolution(s) or ordinance(s) of
the governing body of the Participant pursuant to which the Bonds are issued in accordance with
State law.
"Authorized Representative" shall mean the City Controller of the Participant or such
other officer, official, or representative of the Participant duly authorized to act for and on behalf
of the Participant as provided for herein.
"Bond" or "Bonds" shall mean the instrument(s) (including the 2009 Bonds and the
2009 BAN) which evidence(s) the Loan, as authorized by the Authorizing Instrument and
containing the terms set forth in Section 2.02 of this Agreement.
B-2
BDDBOI 5738468v1
"Bond Fund" shall mean the separate and segregated fund or account established and
created by the Participant pursuant to the Authorizing Instrument from which payment of the
principal of and interest on the Bonds is required to be made by the Participant.
"Business Day" shall mean any day other than a Saturday, Sunday or State legal holiday
or any other day on which financial institutions in the State are authorized by law to close and to
remain closed.
"Clean Water Act" shall mean the Federal Water Pollution Control Act, 33 U.S.C.
Sections 1251-1387, and other laws, regulations and guidance supplemental thereto (including
the American Recovery and Reinvestment Act), as amended and supplemented from time to
time.
"Code" shall mean the Internal Revenue Code of 1986, as amended and supplemented
from time to time, together with the regulations related thereto.
"Construction Fund" shall mean the separate and segregated fund or account
established and created by the Participant pursuant to the Authorizing Instrument to receive
proceeds of the Bonds and from which Eligible Costs of the Project may be paid by the
Participant.
"Credit Instrument" means a letter of credit, surety bond, liquidity facility, insurance
policy or comparable instrument furnished by a Credit Provider that is used by the Participant to
meet all or a portion of any debt service reserve requirement securing the Bonds or any other
bonds payable from the revenues of the Treatment Works, which bonds are on a parity with the
Bonds.
"Credit Provider" means a bank, insurance company, financial institution or other entity
providing a Credit Instrument.
"Department" shall mean the Indiana Department of Environmental Management
created under I.C. 13-13-1-1 or its successor.
"Deposit Agreement" shall mean an agreement between the Participant and the Deposit
Agreement Counterparty in such form as from time to time determined by the Finance Authority
pursuant to which (a) the Participant's Bond Fund (including any reserve account established and
created by the Participant pursuant to the Authorizing Instrument related thereto) shall be held by
such Deposit Agreement Counterparty and available for payment of the Bonds and any other
similar obligations of the Participant that are payable from the Bond Fund regardless whether
they are on a parity basis, (b) such Deposit Agreement Counterparty serves as the paying agent
for the Bonds and any other such similar obligations of the Participant that are payable from the
Bond Fund, and (c) the Participant's Construction Fund may be held by such Deposit Agreement
Counterparty upon any Loan disbursement by the Finance Authority to it from time to time.
B-3
BDDBOI 5738468v1
"Deposit Agreement Counterparts" shall mean the financial institution that enters into
a Deposit Agreement with the Participant, which financial institution shall be approved by the
Finance Authority and may be replaced by the Finance Authority from time to time.
"Director of Environmental Programs" shall mean the person designated by the
Finance Authority as authorized to act as the Director of Environmental Programs (which
designation includes such Director's assumption of the duties previously assigned to the
Wastewater SRF Program Representative and the Wastewater SRF Program Director) and where
not limited, such person's designee.
"Disbursement Agent" shall mean the party disbursing the Loan to or for the benefit of
the Participant, which shall be the Trustee unless amounts are held in the Construction Fund, in
which case the Disbursement Agent shall thereafter be the Deposit Agreement Counterparts as
the party disbursing amounts are held in the Construction Fund unless otherwise agreed by the
Finance Authority.
"Disbursement ReQUest" shall mean a request for a disbursement of the Loan made by
an Authorized Representative in such form as the Finance Authority may from time to time
prescribe.
"Eligible Cost" shall mean and include, whether incurred before or after the date of this
Agreement, all costs which have been incurred and qualify for Financial Assistance, including
engineering, financing and legal costs related thereto.
"Equity Account" shall mean the Equity Grant Account, the Equity Earnings Account
and any other Equity account, each as created and existing from time to time under the
Wastewater SRF Indenture and held as part of the Wastewater SRF Fund.
"Finance Authority" shall mean the Indiana Finance Authority, a body politic and
corporate, not a state agency but an independent instrumentality ofthe State.
"Finance Authority Bonds" shall mean (A) any Indiana Bond Bank State Revolving
Fund Program Bonds issued as a part of the Wastewater SRF Program within the meaning of the
Wastewater SRF Indenture and (B) any Finance Authority State Revolving Fund Program Bonds
or other similar obligations of the Finance Authority issued as a part of the Wastewater SRF
Program within the meaning of the Wastewater SRF Indenture.
"Financial Assistance" shall mean the financial assistance authorized by the Clean
Water Act, including the Loan.
"Loan" shall mean the purchase of the Bonds by the Finance Authority to finance the
planning, designing, constructing, renovating, improving and expanding of the Participant's
Treatment Works or refinance an existing debt obligation where such debt was incurred and
building of such systems began after March 7, 1985, but does not mean the provision of other
Financial Assistance.
BDDBOI 5738468v1
B-4
"Loan Forgiveness" shall mean the forgiveness and discharge of the 2009 BAN as
provided by Section 2.02(e) herein to the extent permitted by the American Recovery and
Reinvestment Act.
"Loan Reduction Payment" shall mean in any circumstances where there is a balance
(inclusive of Loan proceeds and any earnings) in the Construction Fund, any action causing such
balance to be applied to a reduction in the maximum aggregate amount of the Loan outstanding
other than pursuant to regularly scheduled principal payments or optional redemptions applicable
to the Bonds. A Loan Reduction Payment shall not be applicable unless Loan amounts are held
in the Construction Fund.
"Non-Use Close-out Date" shall mean that date which is the earlier of (a) the first date
as of which the full amount of the Loan has been disbursed on a cumulative basis (which shall
also be deemed to have occurred when and if such amounts have been deposited in the
Participant's Construction Fund) or (b) the date as of which the Participant binds itself that no
further Loan disbursements will be made under this Agreement.
"Non-Use Fee" shall mean a fee in an amount determined by the Finance Authority
charged to compensate it for costs and expenses within the Wastewater SRF Program. Such
amount shall be the greater of (A) the product of the undrawn balance of the Loan on each
applicable Non-Use Assessment Date multiplied by one percent (1%) or (B) One Thousand
Dollars ($1,000). Such fee shall apply and be payable under Section 5.09 herein with respect to
each Non-Use Assessment Date until the Non-Use Close-out Date shall occur. A Non-Use Fee
shall not be applicable if the full amount of the Loan has been disbursed and deposited in the
Participant's Construction Fund by the Non-Use Assessment Date.
"Non-Use Assessment Date" shall mean 1, 2011 and the first day of each
sixth (6th) calendar month thereafter unless and until the Non-Use Close-out Date occurs in
advance of any such Non-Use Assessment Date.
"Operation and Maintenance" shall mean the activities required to assure the
continuing dependable and economic function of the Treatment Works, including maintaining
compliance with National Pollutant Discharge Elimination System permits, as follows:
(1) Operation shall mean the control and management of the united processes
and equipment which make up the Treatment Works, including financial and personnel
management, records, reporting, laboratory control, process control, safety and
emergency operation planning and operating activities.
(2) Maintenance shall mean the preservation of the functional integrity and
efficiency of equipment and structures by implementing and maintaining systems of
preventive and corrective maintenance, including replacements.
B-5
BDDBOI 5738468v1
"PIans and Specifications" shall mean the detailed written descriptions of the work to
be done in undertaking and completing the Project, including the written descriptions of the work
to be performed and the drawings, cross-sections, profiles and the like which show the location,
dimensions and details of the work to be performed.
"Preliminary Engineering Report" shall mean the information submitted by the
Participant that is necessary for the Finance Authority (or if submitted to the Department prior to
May 15, 2005, then the Department in its role as predecessor to the Finance Authority in certain
matters related to the Wastewater SRF Program) to determine the technical, economic and
environmental adequacy ofthe proposed Project.
"Project" shall mean the activities or tasks identified and described in Exhibit A to this
Agreement, and incorporated herein, as amended or supplemented by the Participant and
consented to by the Finance Authority, for which the Participant may expend the Loan.
"Purchase Account" shall mean the account by that name created by the Wastewater
SRF Indenture and held as part of the Wastewater SRF Fund.
"Reamortization Methodolo~y" shall mean a change in principal maturities of the
Bonds by use of the following methodology caused by the Project being Substantially Complete
with a portion of the Loan (including any amounts held in the Construction Fund) not being
subject to disbursement to pay further Project costs, whether such is effected by means of a Loan
Reduction Payment or a reduction in the maximum Loan amount available under this Agreement
as determined by the Finance Authority:
(1) as between the 2009 Bonds and the 2009 BAN, shall be reduced in the same
proportion as would have had been applied to such Loan, had the Loan been first
allocated under the SRF Policy Guidelines on the date of this Agreement in the aggregate
amount finally drawn; and
(2) the principal maturities of the 2009 Bonds shall be modified in such amounts
and with such maturities as achieves as level annual debt service for such 2009 Bonds as
practicable during each annual period (commencing in the first full bond year after
application of this methodology and ending no later than the date of the final maturity of
the 2009 Bonds as originally scheduled);
provided that (a) this methodology is agreed to be consistent with the methodology prescribed in
the Authorizing Instrument and as originally applied to the Bonds and (b) any principal payment
on the 2009 Bonds due and payable prior to application of this methodology shall not be affected
by this methodology.
"Settlement Costs" shall mean any and all fees, costs, losses or expenses incurred (or
estimated to be incurred) by the Finance Authority resulting or arising from a Loan Reduction
Payment (including without limitation interest and earnings differentials when the Finance
Authority seeks to lend such Loan Reduction Payment to another Wastewater SRF Program
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borrower). In connection with the Loan made pursuant to this Agreement, there are agreed to be
no Settlement Costs.
"Settlement Fee" shall mean a fee payable by the Participant to the Finance Authority to
compensate the Finance Authority for its Settlement Costs in circumstances where there has been
a Loan Reduction Payment.
"SRF Policy Guidelines" shall mean guidance of general applicability (as from time to
time published, amended and supplemented by the Finance Authority) pertaining to participants
utilizing financial assistance in connection with their projects funded in whole or in part through
the Wastewater SRF Program.
"State" shall mean the State of Indiana.
"Substantial Completion of Construction" shall mean the day on which the Finance
Authority (or if designated by the Finance Authority, the Department) determines that all but
minor components of the Project have been built, all equipment is operational and the Project is
capable of functioning as designed.
"Treatment Works" shall mean all, or any part of, the devices and systems for storage,
transport, treatment, recycling and reclamation of municipal sewage, domestic sewage or liquid
industrial wastes, or necessary to recycle or reuse water at the most economical cost over the life
of the wastewater treatment system, including one or more of the following:
(1) Intercepting sewers, outfall sewers, sewage collection systems, individual
systems, pumping, power and other equipment and their appurtenances.
(2) Extensions, improvements, remodeling, additions and alterations thereof.
(3) Elements essential to provide a reliable recycled supply such as standby
treatment units and clear well facilities.
(4) Any part of the wastewater treatment system including the land which will
be an integral part of the treatment process or is used for ultimate disposal of residue
resulting from such treatment, including land used for (i) composting sludge,
(ii) temporary storage of such sludge and (iii) the storage of treated wastewater in land
treatment systems before land application.
(5) Any other method or system for preventing, abating, reducing, storing,
treating, separating or disposing of municipal or industrial waste, including waste in
combined storm water and sanitary sewer systems.
"Trustee" shall mean The Bank of New York Mellon Trust Company, N.A.,
Indianapolis, Indiana, in its capacity as trustee or its successor under the Wastewater SRF
Indenture.
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"2009 Recovery Grant" shall mean the federal capitalization grant (assistance
identification number 2W-OOE73001-0 related to CFDA number 66.458), if any, made available
to the Finance Authority pursuant to the American Recovery and Reinvestment Act by the
Agency for use as part of the Wastewater SRF Program, provided that such grant is available and
designated by the Finance Authority as a source of funding for the portion of the Loan evidenced
by the 2009 BAN, whether such designation by the Finance Authority occurs when this
Agreement is entered into or later, or such other portion thereof as herea8er designated by the
Finance Authority.
"Wastewater SRF Fund" shall mean the wastewater revolving loan fund as established
by I.C. 13-18-13-2.
"Wastewater SRF Indenture" shall mean the Sixth Amended and Restated Wastewater
SRF Trust Indenture, dated as of April 1, 2007 between the Finance Authority (as successor by
operation of law to the State in all matters related to the Wastewater SRF Program) and the
Trustee, as amended and supplemented from time to time.
(End of Article I)
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ARTICLE II
PURPOSE OF BORROWING AND
LOAN TERMS
Section 2.01. Amount; Purpose. The Finance Authority agrees to Loan an amount not
to exceed Dollars ($ ) in aggregate principal amount to the
Participant as Financial Assistance to pay for the Eligible Costs, as hereinafter described, of the
Project on, and subject to, the terms and conditions contained herein. The Loan shall be used
only to pay the following Eligible Costs: (a) eligible planning services for the production of a
Preliminary Engineering Report ("Planning"), (b) eligible design services for the production of
Plans and Specifications ("Design") and (c) eligible construction costs, including financing and
legal costs ("Construction"). The Loan shall be funded solely from unallocated and available
proceeds of the 2009 Recovery Grant or from other sources (including its Purchase Account and
Equity Accounts) that the Finance Authority may, in its sole discretion, designate. The Loan is
evidenced by the Bonds executed and delivered by the Participant contemporaneously herewith.
The Bonds shall be in fully registered form, with the Finance Authority registered as the
registered owner. So long as the Finance Authority is the registered owner, the principal of and
redemption premium, if any, and interest on the Bonds shall be paid to the Trustee by a wire
transfer referenced as follows: The Bank of New York, ABA 021 000 018, For Credit to GLA:
111-565, For Final Credit: TAS #610026, Account Name: IN SRF QE Deposit, Attn: Amy L
Oram. The Participant agrees to undertake and complete the Project and to receive and expend
the Loan proceeds in accordance with this Agreement.
Section 2.02. The Bonds.
(a) Until paid, the Sewage Works Revenue Bonds of 2009 ("2009 Bonds") will bear
interest at the per annum rate of and One-Hundredths percent ~ %). Such
interest shall be calculated on the basis of a 360-day year comprised of twelve 30-day months,
and be as provided in I.C. 13-18-13-10 and -15. Interest, if any, on the 2009 Bonds will be
payable on June 1 and December 1 of each year, commencing December 1, 2009. The 2009
Bonds will be in the aggregate principal amount of Dollars ($ ).
Subject to Section 2.05 and 2.06 herein, the 2009 Bonds will mature on December 1 of each of
the years set forth in, and at the principal amount set opposite each such month and year set forth
in the schedule contained in the attached Exhibit B to this Agreement (which is hereby
incorporated by reference); provided, however, notwithstanding the foregoing or the terms of the
2009 Bonds to the contrary, no maturity of 2009 Bonds shall extend beyond the date which is
twenty (20) years after Substantial Completion of Construction. If the maturity date for any
2009 Bonds is beyond such date, unless otherwise agreed to, such 2009 Bonds, together with
accrued and unpaid interest thereon, will be due and payable on such date.
(b) Until paid, the Sewage Works Bond Anticipation Note of 2009 ("2009 BAN") will
bear interest at the per annum rate ofzero percent (0%). Such interest shall be calculated on the
basis of a 360-day year comprised of twelve 30-day months, and be as provided in I.C. 13-18-13-
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BDDB01 5738468v1
10 and -15. Interest, if any, on the 2009 BAN will be payable on June 1 and December 1 of
each year, commencing December 1, 2009. The 2009 BAN will be in the aggregate principal
amount of Dollars ($ ). Subject to Section 2.05 and 2.06 herein,
the 2009 BAN will mature on April 15, 2013.
(c) The Bonds will be subject to redemption by the Participant as provided in the
Authorizing Instrument. The Loan, and the Bonds evidencing it, will be subject to payment by
the Participant as provided in this Agreement.
(d) The form and other terms of the Bonds will be in conformity with the Authorizing
Instrument.
(e) The principal maturity ofthe 2009 BAN is subject to Loan Forgiveness (which
evidences a portion of the Loan made hereunder) and shall be deemed forgiven and discharged
on April 15, 2013 to the extent permitted by the American Recovery and Reinvestment Act,
provided however that there is not then existing any default under this Agreement and the
Participant has otherwise complied with the terms and conditions of this Agreement (including
having timely made principal and interest payments on the remainder of the maturities of the
2009 Bonds).
Section 2.03. Disbursement Conditions. Each of the following shall be a condition
precedent to the disbursement of the Loan or any portion thereof (including from the
Construction Fund):
(a) (1) With respect to procurement of professional services related to the Project
to be paid from Loan proceeds, the Participant shall have complied with applicable State
law and SRF Policy Guidelines. (2) With respect to procurement of all other goods and
services related to the Project to be paid from Loan proceeds, the Participant shall have
complied with I.C. 36-1-12 and SRF Policy Guidelines.
(b) No representation, warranty or covenant of the Participant contained in this
Agreement or in any paper executed and delivered in connection with the transactions
contemplated by this Agreement shall be false or inaccurate in any material respect.
(c) The Participant shall undertake and faithfully perform each of its obligations,
agreements and covenants contained in this Agreement, the Authorizing Instrument and
the Bonds.
(d) There shall be available to the Finance Authority uncommitted funds in an
amount sufficient to satisfy the Finance Authority's obligations hereunder from the
proceeds of the 2009 Recovery Grant or from other sources (including its Purchase
Account and Equity Accounts) that the Finance Authority may, in its sole discretion,
designate; provided however, once Loan proceeds have been deposited in the
Construction Fund, such condition shall be deemed satisfied.
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(e) The Participant shall have undertaken all actions necessary to comply with
and satisfy the conditions and requirements for a Loan secured with money made
available from the Wastewater SRF Fund as set forth in federal and State statutes, rules
and regulations, including I.C. 13-18-13, SRF Policy Guidelines, the Clean Water Act
and 40 C.F.R. Part 35.
(f) Prior to making any Loan disbursement to pay any Construction costs, the
Project shall have been approved by the State's Historical Preservation Officer in a
manner consistent with the policies and practices of the Wastewater SRF Program (the
"Historical Preservation Approval"). Notwithstanding any provision of this Agreement
to the contrary, in the event a Historical Preservation Approval has not been given within
four (4) months after the date of this Agreement, the Finance Authority may, in its sole
discretion, (i) reduce the aggregate amount of the Loan to the amount then disbursed and
outstanding under this Agreement and (ii) if any amounts are held in the Construction
Fund, require a Loan Reduction Payment pursuant to Section 2.06 as if it were a date that
was three (3) years after the dated date of the Bonds. Upon giving notice to the
Participant of such action, no further Loan disbursement (including from the Construction
Fund) may be made under this Agreement unless consented to by the Finance Authority.
(g) In the event the Bonds are payable from rates and charges of the Treatment
Works and if requested by the Finance Authority, the Participant shall provide evidence
satisfactory to the Finance Authority demonstrating that such rates and charges are at a
level adequate to produce and maintain sufficient net revenue after providing for the
proper Operation and Maintenance of the Treatment Works, on a proforma basis
consistent with SRF Policy Guidelines, to provide 1.25x coverage on all obligations of
the Treatment Works (including the Bonds).
Section 2.04. Disbursement Procedures. Loan proceeds (including any held from time
to time in the Construction Fund) shall be disbursed to the Participant by the Disbursement
Agent for actual Eligible Costs incurred with respect to the Project. The Finance Authority may,
in its discretion, cause Loan disbursements to be made (a) directly to the person or entity
identified in the Disbursement Request to whom payment is due, or (b) if advised in writing by
the Participant that I.C. 36-1-12-14 or a similar law applies to the Project, to the Participant for
purposes of collecting retainage, or some combination thereof. Any Loan proceeds in excess of
the amount subject to retainage controlled by the Participant will be immediately remitted to the
person or entity to whom payment is due, no later than three (3) Business Days after receipt or
the date such Loan proceeds are no longer subject to retainage. The Finance Authority may, in its
discretion, cause Loan disbursements to be made from time to time, in whole or in part, to the
Participant's Construction Fund for disbursement consistent with this Agreement. Loan
disbursements shall not be made more frequently than monthly and shall only be made following
the submission of a Disbursement Request to the Finance Authority. Disbursement Requests
shall be approved by the Director of Environmental Programs prior to submission to the
Disbursement Agent for a Loan disbursement. Disbursement Requests shall be numbered
sequentially, beginning with the number 1.
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BDDB01 5738468v1
Section 2.05. Effect of Disbursements. Loan disbursements made to or for the benefit
of the Participant shall be deemed to be a purchase, first, of the 2009 Bonds for any Loan
Disbursements made on the date hereof, second, of the 2009 BAN unless cost related to a
disbursement has been designated as not eligible for funding from the 2009 Recovery Grant and,
third, of the remainder of the 2009 Bonds in order of their maturities, provided that if the original
maximum aggregate amount of the Loan is not disbursed (or not required to be disbursed
pursuant to Section 2.06(a) or (b) herein), then the maturities of the Bonds (including as set forth
in Exhibit B shall be modified consistent with the Reamortization Methodology. The deposit of
Loan proceeds in the Construction Fund shall be deemed to be a purchase of the Bonds. Interest
on the Loan commences on disbursement of the Loan to or for the benefit of the Participant
(including any amounts disbursed to the Construction Fund) by the Finance Authority and the
Bonds shall be deemed to be purchased in the full amount thereof. Each disbursement (including
any amounts disbursed from the Construction Fund) shall be made pursuant to a Disbursement
Request. In the event any Loan disbursement (including any amounts disbursed from the
Construction Fund) shall be made in excess of Eligible Costs, such excess disbursements shall be
immediately paid by the Participant to the Disbursement Agent (and if made from any amounts
held in the Construction Fund, shall be immediately deposited by the Participant into such
Construction Fund) and thereafter may, subject to the terms and conditions set forth in this
Agreement, be applied thereafter to pay Eligible Costs of the Project by the Participant.
Section 2.06. Acknowledgment of Amount of Loan; Interim Contractual
Commitment Requirements; Final Disbursement. (a) Within 30 days after any request by the
Finance Authority from time to time, the Participant shall execute and deliver to the Finance
Authority an acknowledgment in the form prescribed by the Finance Authority which
acknowledges the outstanding principal of and interest on the Bonds. Unless the Finance
Authority consents in writing, no Loan disbursement shall be made more than one year after
Substantial Completion of Construction. After Substantial Completion of Construction, upon the
request of the Finance Authority, the Participant shall replace, at its expense, the Bonds with
substitutes issued pursuant to the Authorizing Instrument to evidence the outstanding principal
under the Loan.
(b) In the event that (i) Construction has not commenced by December 1, 2009 or (ii)
the Participant has not entered into contracts related to Eligible Costs as of December 1, 2009
which obligate the Participant to make payments that aggregate an amount at least equal to the
maximum Loan amount hereunder ("Contractual Commitments"), then the Loan balance
available pursuant to this Agreement shall be reduced as of December 1, 2009 to an aggregate
amount equal to Contractual Commitments as of December 1, 2009 (the "Reduced Loan
Amount"). The Participant agrees to certify to the Finance Authority by no later than December
5, 2009 (i) the aggregate amount of the Contractual Commitments by December 1, 2009, (ii) that
true and accurate copies of the contracts constituting such Contractual Commitments have been
provided to the Finance Authority, (iii) whether Construction has commenced by December 1,
2009 and (iv) such additional information as required by SRF Policy Guidelines. The Finance
Authority may in its discretion determine one or more later dates to apply to the foregoing
provisions ofthis Section 2.06(b) provided that such actions by such dates permits compliance
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with the American Recovery and Reinvestment Act without any deobligation of the 2009
Recovery Grant funds.
(c) In addition to Section 2.06(b), in the event there remains a balance (inclusive of
Loan proceeds and any earnings) in the Construction Fund on the date that is the earlier of (i) one
year after Substantial Completion of Construction or (ii) three (3) years after the dated date of the
Bonds (or in either such circumstance, such later date as the Finance Authority may approve in
its discretion), the Participant agrees to make a Loan Reduction Payment, and to pay a
Settlement Fee, to the Finance Authority within 10 days after any Finance Authority written
demand. Any Loan Reduction Payment shall be applied and Bond maturities modified consistent
with the Reamortization Methodology. If the Authorizing Instrument permits the Participant to
apply Bond proceeds to pay interest accruing on or before Substantial Completion of
Construction, the Participant may seek to reimburse itself for such interest costs it has paid
pursuant to a Disbursement Request provided, unless otherwise approved by the Finance
Authority, any such reimbursement shall be limited to the amount thereof that the Participant
causes to be used to pay the Settlement Fee. If the Participant fails to make such Loan Reduction
Payment or to pay a Settlement Fee by such date, the Finance Authority and Deposit Agreement
Counterparty are authorized to cause any balance held in the Construction Fund to be so applied
without further direction and authorization from the Participant. Notwithstanding the foregoing,
if requested by the Finance Authority, in lieu of the Participant making a Loan Reduction
Payment together with any Settlement Fee payment, the Finance Authority may in its discretion
require the Participant to hold any remaining balance (inclusive of Loan proceeds and any
earnings) in the Construction Fund until such amounts maybe applied on the first optional
redemption date applicable to the Bonds, and upon any such request, the Participant agrees to
cause such amounts to be so held and applied on such date.
(End of Article ~II)
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE PARTICIPANT
Section 3.01. Planning, Design and Construction Covenants. The Participant hereby
covenants and agrees with the Finance Authority that the Participant will:
(a) Provide information as requested by the Finance Authority to determine the
need for, or to complete any necessary, environmental review or analysis.
(b) Comply with the procurement procedures and affirmative action requirements
contained in SRF Policy Guidelines in the Planning, Design and Construction of the
Project to the extent that such are to be paid from Loan proceeds.
(c) With respect to prime and first tier contract awards, report minority and
women business enterprise utilization in the Planning, Design and Construction of the
Project, to the extent that such are to be paid from Loan proceeds, by executing and
delivering Agency Form SF 5700-52 to the Finance Authority whenever any agreements
or subagreements are awarded. (These reports must be submitted on regular reporting
cycles consistent with SRF Policy Guidelines commencing after such agreement or
subagreement is awarded.)
(d) Comply with all applicable federal, State and local statutes, rules and
regulations relating to the acquisition and construction of the Treatment Works.
(e) In the event Construction is to be paid from Loan proceeds, prior to an award
of any contract for Construction of the Project, obtain a construction permit from the
Department and receive the written approval of the Finance Authority (or if approved by
the Department prior to May 15, 2005, then the Department in its role as predecessor to
the Finance Authority in certain matters related to the Wastewater SRF Program) of the
Preliminary Engineering Report.
(f) Obtain the property rights necessary to construct the Treatment Works and, in
procuring any such rights comply with federal and State law.
(g) In the event Construction is to be paid from Loan proceeds, comply with the
federal Davis-Bacon Act, codified at 40 U.S.C. 276a-276a-5 unless separately waived by
the Finance Authority.
(h) In the event Construction is to be paid from Loan proceeds, execute and
deliver to the Finance Authority Agency Form 4700-4 ("Pre-award Compliance Review
Report for Wastewater Treatment Construction Grants") and Agency Form 5700-49
("Certification Regarding the Debarment, Suspension, and Other Responsibility
Matters").
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(i) In the event Construction is to be paid from Loan proceeds, follow guidance
issued by the Finance Authority in procuring contracts for Construction, including (1)
submission to the Finance Authority (or if submitted to the Department prior to May 15,
2005, then the Department in its role as predecessor to the Finance Authority in certain
matters related to the Wastewater SRF Program) of Project change orders, (2) obtaining
approval from the Director of Environmental Programs of any Project change order
which significantly changes the scope or Design of the Project or, when taking into
account other change orders and contracts, are reasonably expected to result in
expenditures in an amount greater than the Loan, (3) receiving approval from the Director
of Environmental Programs prior to the award of any contract for Construction and (4)
receiving authorization from the Director of Environmental Programs prior to initiating
procurement of Construction of the Project.
(j) In the event Construction is to be paid from Loan proceeds, before awarding
Construction contracts, receive approval of the Director of Environmental Programs for
the user charge system (including any use ordinance and interlocal agreement) associated
with the Project.
(k) In the event Construction is to be paid from Loan proceeds, cause the Project
to be constructed in accordance with the Preliminary Engineering Report and Plans and
Specifications, using approved contract papers.
(1) Permit the Finance Authority and its agents to inspect from time to time (1)
the Project, (2) the Treatment Works and (3) the books and other financial records of the
Treatment Works, including the inspections described in SRF Policy Guidelines.
Construction contracts shall provide that the Finance Authority or its agents will have
access to the Project and the work related thereto and that the Participant's contractor will
provide proper facilities for such access and inspection. All files and records pertaining
to the Project shall be retained by the Participant for at least six years after Substantial
Completion of Construction.
(m) Upon Substantial Completion of Construction and when requested by the
Finance Authority, provide audited reports to the Finance Authority to permit the Finance
Authority to determine that the Loan proceeds have been used in compliance with this
Agreement.
(n) In the event Construction is to be paid from Loan proceeds, within one year
of Substantial Completion of Construction, consistent with SRF Policy Guidelines,
certify to the Finance Authority that the Project meets performance standards, or if not
met, (1) submit to the Finance Authority (or if directed by the Finance Authority, to the
Department) a corrective action plan and (2) promptly and diligently undertake any
corrective action necessary to bring the Project into compliance with such standards.
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(o) In the event Construction is to be paid from Loan proceeds, within one year
of Substantial Completion of Construction, provide as-built plans for the Project to the
Finance Authority (or if directed by the Finance Authority, to the Department).
Section 3.02. General Covenants. The Participant hereby covenants and agrees with
the Finance Authority that the Participant will:
(a) Comply with all applicable federal, State and local statutes, rules and
regulations relating to Operation and Maintenance.
(b) (1) Own, operate and maintain the Project and the Treatment Works for their
useful life, or cause them to be operated and maintained for their useful life; (2) at all
times maintain the Treatment Works in good condition and operate it in an efficient
manner and at a reasonable cost; and (3) not sell, transfer, lease or otherwise encumber
the Treatment Works or any portion thereof or any interest. therein without the prior
written consent of the Finance Authority
(c) Obtain and maintain the property rights necessary to operate and maintain the
Treatment Works, and in procuring any such rights, comply with federal and State law.
(d) Acquire and maintain insurance coverage acceptable to the Finance
Authority, including fidelity bonds, to protect the Treatment Works and its operations.
All insurance shall be placed with responsible insurance companies qualified to do
business under State law. Insurance proceeds and condemnation awards shall be used to
replace or repair the Treatment Works unless the Finance Authority consents to a
different use of such proceeds or awards.
(e) Establish and maintain the books and other financial records of the Project
(including the establishment of a separate account or subaccount for the Project) and the
Treatment Works in accordance with (1) generally accepted governmental accounting
principles, as promulgated by the Government Accounting Standards Board and (2) the
rules, regulations and guidance of the State Board of Accounts.
(f) Provide to the Finance Authority such periodic financial and environmental
reports as it may request from time to time, including (1) annual operating and capital
budgets and (2) such other information requested or required of the Finance Authority or
the Participant by the Agency.
(g) Provide notice to the Finance Authority under the circumstances
contemplated, and undertake inspections as required, by SRF Policy Guidelines.
(h) (1) Establish and maintain just and equitable rates and charges for the use of
and the service rendered by the Treatment Works, to be paid by the owner of each and
every lot, parcel of real estate or building that is connected with and uses the Treatment
Works, or that in any way uses or is served by the Treatment Works, (2) establish, adjust
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BDDBOI 5738468v1
and maintain rates and charges at a level adequate to produce and maintain sufficient
revenue (including user and other charges, fees, income or revenues available to the
Participant) to provide for the proper Operation and Maintenance of the Treatment
Works, to comply with and satisfy all covenants contained herein and to pay all
obligations of the Treatment Works and of the Participant with respect thereto, and (3) if
and to the extent Bonds are payable from property taxes, levy each year a special ad
valorem tax upon all property located in the boundaries of the Participant, to pay all
obligations of the Participant with respect thereto.
(i) If the Bonds are payable from the revenues of the Treatment Works, not
borrow any money, enter into any contract or agreement or incur any other liabilities in
connection with the Treatment Works without the prior written consent of the Finance
Authority if such undertaking would involve, commit or use the revenues of the
Treatment Works; provided that the Participant may authorize and issue additional
obligations, payable out of the revenues of its Treatment Works, ranking on a parity with
the Bonds for the purpose of financing the cost of future additions, extensions and
improvements to the Treatment Works, or to refund obligations of the Treatment Works,
subject to the conditions, if any, in the Authorizing Instrument.
(j) Comply with the Civil Rights Act of 1964, as amended, 42 U.S.C.
Section 2000d et seg., the Age Discrimination Act, as amended, Public Law 94-135,
Section 504 of the Rehabilitation Act of 1973, as amended (including Executive Orders
11914 and 11250), 29 U.S.C. Section 794, Section 13 of the Federal Water Pollution
Control Act Amendments of 1972, Public Law 92-500, Executive Order 11246 regarding
equal employment opportunity, and Executive Orders 11625 and 12138.
(k) Undertake all actions necessary to investigate all potential, material claims
which the Participant may have against other persons with respect to the Treatment
Works and the Project and take whatever action is necessary or appropriate to (1) recover
on any actionable, material claims related to the Project or the Planning, Design or
Construction thereof, (2) meet applicable Project performance standards and (3)
otherwise operate the Treatment Works in accordance with applicable federal, State and
local law.
(1) Not modify, alter, amend, add to or rescind any provision of the Authorizing
Instrument without the prior written consent of the Finance Authority.
(m) In the event the Participant adopts an ordinance or resolution to refund the
Bonds, within 5 days ofthe adoption ofthe ordinance or resolution, provide written notice
to the Finance Authority of the refunding. Any refunding of the Bonds shall only be
undertaken by the Participant with the prior written consent of the Finance Authority.
(n) In any year in which disbursements exceed $500,000 the Participant shall
comply with the Single Audit Act (SAA) of 1984, as amended by the Single Audit Act
Amendments of 1996 (see Circular A-133) and have an audit of their use of Federal
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BDDB01 5738468v1
financial assistance. The Participant agrees to provide the Finance Authority with a copy
of the SAA audit within 9 months of the audit period.
(o) Inform the Finance Authority of any findings and recommendations
pertaining to the SRF program contained in an A-133 audit in which SRF Federal
financial assistance was less than $500,000.
(p) Initiate within 6 months of the audit period corrective actions for those audit
reports with findings and recommendations that impact the SRF financial assistance.
(q) Notwithstanding anything in the Authorizing Instrument related to the Bonds
(or in any authorizing instrument related to any other outstanding bonds payable from the
revenues of the Treatment Works which are on a parity with the Bonds) to the contrary,
in the event any Credit Provider that has provided a Credit Instrument fails to be rated on
along term basis at least "A-/A3" by Standard & Poor's Ratings Services, a Division of
the McGraw-Hill Companies, and Moody's Investors Service, Inc., and their successors
(such Credit Instrument, a "Disqualified Instrument"), within 12 months of such failure
(or pursuant to such other schedule as may be approved by the Finance Authority), the
Participant shall cause cash (or a replacement Credit Instrument from a Credit Provider
that is rated on a long term basis at least "AA-/Aa3" by Standard & Poor's Ratings
Services, a Division of the McGraw-Hill Companies, and Moody's Investors Service,
Inc., and their successors)(or some combination thereof) in an aggregate amount equal to
the stated credit available under the Disqualified Instrument(s) to be deposited in the
related reserve account(s) in lieu of such Disqualified Instrument(s). No Disqualified
Instrument shall be included as part of the reserve balance which satisfies any such
reserve requirement under any such authorizing instrument. Nothing in this subsection
shall waive or modify additional requirements contained in any such authorizing
instrument (including the Authorizing Instrument related to the Bonds); the provisions of
this subsection and any such authorizing instrument (including the Authorizing
Instrument related to the Bonds) shall both be required to be met. Unless and until notice
shall be given by the Finance Authority to the Participant, a surety policy issued by
MBIA Insurance Corporation or Financial Guaranty Insurance Company that has been
reinsured by National Public Finance Guarantee Corporation (formerly know as MBIA
Insurance Corp. of Illinois) shall not be treated as a Disqualified Instrument.
(r) Comply with all federal requirements applicable to the Loan when funded
with the 2009 Recovery Grant (including those imposed by the American Recovery and
Reinvestment Act and related SRF Policy Guidelines) which the Participant understands
includes, among other, requirements that all ofthe iron, steel, and manufactured goods
used in the Project be produced in the United States unless the Participant has requested,
and the Finance Authority has obtained, a waiver from the Agency pertaining to the
Project.
(s) (i) comply with Title 40 CFR Part 34 (New Restrictions on Lobbying) and the
Byrd Anti-Lobbying Amendment ("Lobbying Restrictions"); (ii) provide certifications
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and disclosures related to Lobbying Restrictions in a form and manner as may from time
to time be required by SRF Policy Guidelines or the Clean Water Act including without
limitation the Lobbying Restrictions; and (iii) pay any applicable civil penalty required
by the Lobbying Restrictions as may be applicable to making a prohibited expenditure
under Title 40 CFR Part 34, or failure to file any required certification or lobbying
disclosures. The Participant understands and acknowledges that pursuant to such
Lobbying Restrictions, the making of any such prohibited expenditure, or
any such failure to file or disclose, is subject to a civil penalty of not less than $10,000
and not more than $100,000 for each such expenditure or failure.
Section 3.03. Representations and Warranties of the Participant. After due
investigation and inquiry, the Participant hereby represents and warrants to the Finance
Authority that:
(a) The Participant is duly organized and existing under state law, and constitutes
a "political subdivision" within the meaning of I.C. 13-11-2-164 and a "participant"
within the meaning of I.C. 13-11-2-151.1. The Project and the Treatment Works are
subject to I.C. 36-9-23.
(b) The Participant has full power and authority to adopt the Authorizing
Instrument, enter into this Agreement and issue the Bonds and perform its obligations
hereunder and thereunder.
(c) By all required action, the Participant has duly adopted the Authorizing
Instrument and authorized the execution and delivery of this Agreement, the Bonds and
all other papers delivered in connection herewith.
(d) Neither the execution of, nor the consummation of the transaction
contemplated by, this Agreement nor the compliance with the terms and conditions of
any other paper referred to herein, shall conflict with, result in a breach of or constitute a
default under, any indenture, mortgage, lease, agreement or instrument to which the
Participant is a party or by which the Participant or its property, including the Treatment
Works, is bound or any law, regulation, order, writ, injunction or decree of any court or
governmental agency or instrumentality having jurisdiction.
(e) There is no litigation pending or, to the knowledge of the Participant, upon
investigation, threatened that (1) challenges or questions the validity or binding effect of
this Agreement, the Authorizing Instrument or the Bonds or the authority or ability of the
Participant to execute and deliver this Agreement or the Bonds and perform its
obligations hereunder or thereunder or (2) would, if adversely determined, have a
significant adverse effect on the ability of the Participant to meet its obligations under
this Agreement, the Authorizing Instrument or the Bonds.
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(f) The Participant has not at any time failed to pay when due interest or principal
on, and it is not now in default under, any warrant or other evidence of obligation or
indebtedness of the Participant.
(g) All information furnished by the Participant to the Finance Authority or any
of the persons representing the Finance Authority in connection with the Loan or the
Project is accurate and complete in all material respects including compliance with the
obligations, requirements and undertakings imposed upon the Participant pursuant to this
Agreement.
(h) The Participant has taken or will take all proceedings required by law to
enable it to issue and sell the Bonds as contemplated by this Agreement.
(i) For any outstanding bonds payable from the revenues of the Treatment Works
which are on a parity with the Bonds, each Credit Provider, if any, that has provided a
Credit Instrument is at least rated on a long term basis "A-/A3" long term by Standard &
Poor's Ratings Services, a Division of the McGraw-Hill Companies and Moody's
Investors Service, Inc., and their successors, except as represented and set forth in Exhibit
C attached thereto (and with respect to which true, accurate and complete copies of each
such Credit Instrument have been delivered to the Finance Authority).
Each of the foregoing representations and warranties will be deemed to have been made
by the Participant as of the date of this Agreement and as of the date of any disbursement of
Loan proceeds (including from the Construction Fund). Each of the foregoing representations
and warranties shall survive the Loan disbursements regardless of any investigation or
investigations the Finance Authority may have undertaken.
Section 3.04. Covenants Regarding Assignment. The Participant acknowledges that
the Finance Authority may pledge, sell or assign the Bonds or cause the Bonds to be pledged,
sold or assigned, and certain of its rights related thereto, as permitted pursuant to Section 5.02
herein. The Participant covenants and agrees to cooperate with and assist in, at its expense, any
such assignment. Within 30 days following a request by the Finance Authority, the Participant
covenants and agrees with the Finance Authority that the Participant will, at its expense, furnish
any information, financial or otherwise, with respect to the Participant, this Agreement, the
Authorizing Instrument and the Bonds and the Treatment Works as the Finance Authority
reasonably requests in writing to facilitate the sale or assignment of the Bonds.
Section 3.05. Nature of Information. All information furnished by the Participant to
the Finance Authority or any person representing the Finance Authority in connection with the
Loan or the Project may be furnished to any other person the Finance Authority, in its judgment,
deems necessary or desirable in its operation and administration of the Wastewater SRF
Program.
Section 3.06. Tax Covenants. The Participant hereby covenants that it will not take, or
cause or permit to be taken by it or by any party under its control, or fail to take or cause to
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permit to be taken by it or by any party under its control, any action 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. The Participant further covenants that it will not do any act
or thing that would cause the Bonds to be "private activity bonds" within the meaning of Section
141 of the Code or "arbitrage bonds" within the meaning of Section 148 of the Code. In
furtherance and not in limitation of the foregoing, the Participant shall take all action necessary
and appropriate to comply with the arbitrage rebate requirements under Section 148 of the Code
to the extent applicable to the Participant or the Bonds, including accounting for and making
provision for the payment of any and all amounts that may be required to be paid to the United
States of America from time to time pursuant to Section 148 of the Code.
Section 3.07. Non-Discrimination Covenant. Pursuant to and with the force and effect
set forth in I.C. 22-9-1-10, the Participant hereby covenants that the Participant, and its
contractor and subcontractor for the Project, shall not discriminate against any employee or
applicant for employment, to be employed in the performance of this Agreement, with respect to
the hire, tenure, terms, conditions or privileges of employment, or any matter directly or
indirectly related to employment, because of race, color, religion, sex, disability, national origin
or ancestry.
(End of Article III)
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ARTICLE IV
DEFAULTS
Section 4.01. Remedies. The Finance Authority's obligation to make a disbursement
under the Loan to the Participant hereunder may be terminated at the option of the Finance
Authority, without giving any prior notice to the Participant, in the event: (a) the Participant fails
to undertake or perform in a timely manner any of its agreements, covenants, terms or conditions
set forth herein or in any paper entered into or delivered in connection herewith (including the
Authorizing Instrument); or (b) any representation or warranty made by the Participant as set
forth herein or in any paper entered into or delivered in connection herewith is materially false or
misleading. Any such event shall constitute an event of default and in addition to any other
remedies at law or in equity, the Finance Authority may (x) require a Loan Reduction Payment
pursuant to Section 2.06 as if it were a date that was three (3) years after the dated date of the
Bonds, (y) in the event a Deposit Agreement has not previously been entered into related to the
Participant's Bond Fund (including any related reserve), require the Participant to enter into a
Deposit Agreement (or to modify any such previously entered Deposit Agreement) and the
Participant shall enter into (or modify) such an agreement within 5 days after any such demand
and (z) without giving any prior notice, declare the entire outstanding principal amount of the
Loan, together with accrued interest thereon, immediately due and payable.
Section 4.02. Effect of Default. Failure on the part of the Finance Authority in any
instance or under any circumstance to observe or perform fully any obligation assumed by or
imposed upon the Finance Authority by this Agreement or by law shall not make the Finance
Authority liable in damages to the Participant or relieve the Participant from paying any Bond or
fully performing any other obligation required of it under this Agreement or the Authorizing
Instrument; provided, however, that the Participant may have and pursue any and all other
remedies provided by law for compelling performance by the Finance Authority of such
obligation assumed by or imposed upon the Finance Authority. The obligations of the Finance
Authority hereunder do not create a debt or a liability ofthe Finance Authority or the State under
the constitution of the State or a pledge of the faith or credit of the Finance Authority or the State
and do not directly, indirectly or contingently, obligate the Finance Authority or the State to levy
any form of taxation for the payment thereof or to make any appropriation for their payment.
Neither the Finance Authority or the State, nor any agent, attorney, member or employee of the
Finance Authority or the State shall in any event be liable for damages, if any, for the
nonperformance of any obligation or agreement of any kind whatsoever set forth in this
Agreement.
Section 4.03. Defaults under other Financial Assistance Agreements. The Participant
and the Finance Authority agree that any event of default occurring under the Prior Agreements
shall constitute an event of default under this Agreement. Similarly, the Participant and the
Finance Authority agree that any event of default under this Agreement, or under any subsequent
financial assistance agreement enter into between the Participant and the Finance Authority, shall
constitute an event of default under the Prior Agreements and the subsequent financial assistance
agreement, if any, as the case may be.
(End of Article IV)
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ARTICLE V
MISCELLANEOUS
Section 5.01. Citations. Any reference to a part, provision, section or other reference
description of a federal or State statute, rule or regulation contained herein shall include any
amendments, replacements or supplements to such statutes, rules or regulation as may be made
effective from time to time. Any reference to a Loan disbursement shall include any
disbursement from the Construction Fund. Any use of the term "including" herein shall not be a
limitation as to any provision herein contained but shall mean and include, without limitation, the
specific matters so referenced.
Section 5.02. Assignment. Neither this Agreement, nor the Loan or the proceeds
thereof may be assigned by the Participant without the prior written consent of the Finance
Authority and any attempt at such an assignment without such consent shall be void. The
Finance Authority may at its option sell or assign all or a portion of its rights and obligations
under this Agreement, the Authorizing Instrument, and the Bonds to an agency of the State or to
a separate body corporate and politic of the State or to a trustee under trust instrument to which
the Finance Authority, the State or any assignee is a beneficiary or party. The Finance Authority
may at its option pledge or assign all or a portion of its rights under this Agreement, the
Authorizing Instrument, and the Bonds to any person. The Participant hereby consents to any
such pledge or assignment by the Finance Authority. This Agreement shall be binding upon and
inure to the benefit of any permitted secured party, successor and assign.
Section 5.03. No Waiver. Neither the failure of the Finance Authority nor the delay of
the Finance Authority to exercise any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any right, power or
privilege preclude any other further exercise of any other right, power or privilege.
Section 5.04. Modifications. No change or modification of this Agreement shall be
valid unless the same is in writing and signed by the parties hereto. The Participant understands
that the Finance Authority, pursuant to Public Law 235-2005, by operation of law and effective
May 15, 2005, has become the successor to the State and the Bond Bank, and agrees to such as if
the Prior Agreements (and the Authorizing Instrument and the Bonds referenced in such Prior
Agreements and all other collateral agreements and understandings thereto), were amended and
restated contemporaneously herewith to such force and effect.
Section 5.05. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and there are no promises, agreements, conditions, undertakings,
warranties and representations, either written or oral, expressed or implied between the parties
hereto other than as herein set forth or as may be made in the Authorizing Instrument and the
other papers delivered in connection herewith. In the event there is a conflict between the terms
of this Agreement and the Authorizing Instrument, the terms of this Agreement shall control. It
is expressly understood and agreed that except as otherwise provided herein this Agreement
represents an integration of any and all prior and contemporaneous promises, agreements,
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conditions, undertakings, warranties and representations between the parties hereto. This
Agreement shall not be deemed to be a merger or integration of the existing terms under the
Prior Agreements except as expressly set forth in Section 3.03A and Section 4.03 herein.
Section 5.06. Execution of Counteruarts. This Agreement may be executed in any
number of counterparts, each of which shall be executed by the Finance Authority and the
Participant, and all of which shall be regarded for all purposes as one original and shall constitute
one and the same instrument.
Section 5.07. Severability of Invalid Provisions. If any one or more of the covenants
or agreements provided in this Agreement on the part of the Finance Authority or the Participant
to be performed shall be deemed by a court of competent jurisdiction to be contrary to law or
cause the Bonds to be invalid as determined by a court of competent jurisdiction, then such
covenant or covenants or agreement or agreements shall be deemed severable from the
remaining covenants and agreements and waived and shall in no way affect the validity of the
other provisions of this Agreement.
Section 5.08. Notices. All notices hereunder shall be sufficiently given for all purposes
hereunder if in writing and delivered personally or sent or transmitted to the appropriate
destination as set forth below in the manner provided for herein. Notice to the Finance Authority
shall be addressed to:
Indiana Finance Authority
SRF Programs
(a) 100 North Senate, Room 1275
Indianapolis, Indiana 46204
Attention: Director of Environmental Programs
or at such other address(es) or number(s) and to the attention of such other person(s) as the
Finance Authority may designate by notice to the Participant. Notices to the Participant shall be
addressed to:
City of South Bend
City Hall
City-County Building
227 W. Jefferson Boulevard
South Bend, IN 46601-1830
Attention: Controller
or at such other address(es) or number(s) and to the attention of such other person(s) as the
Participant may designate by notice to the Finance Authority. Any notice hereunder shall be
deemed to have been served or given as of (a) the date such notice is personally delivered,
(b) three (3) Business Days after it is mailed U.S. mail, First Class postage prepaid, (c) one (1)
Business Day after it is sent on such terms by Federal Express or similar next-day courier, or
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(d) the same day as it is sent by facsimile transmission with telephonic confirmation of receipt by
the person to whom it is sent.
Section 5.09. Expenses. The Participant covenants and agrees to pay (a) the fees, costs
and expenses in connection with making the Loan, including issuing the Bonds and providing the
necessary certificates, documents and opinions required to be delivered therewith; (b) the fees,
costs and expenses in connection with making and administering the Loan; (c) the costs and
expenses of complying with its covenants made herein; and (d) any and all costs and expenses,
including attorneys' fees, incurred by the Finance Authority in connection with the enforcement
of this Agreement, the Authorizing Instrument and the Bonds in the event of the breach by the
Participant of or a default under this Agreement, the Authorizing Instrument or the Bonds.
Notwithstanding clause (b) above, the Participant shall not be obligated to pay any of the fees,
costs and expenses in connection with administering the Loan except as follows: (1) the Finance
Authority may request and the Participant shall promptly pay (no later than the date first above
written), a closing fee in connection with the Loan in an amount determined by the Finance
Authority, but not exceeding $1,000, which may not be paid from a Loan disbursement; (2) the
Finance Authority may request and the Participant shall promptly pay (no later than thirty (30)
days after any request), an annual administrative fee in connection with the Loan in an amount
determined by the Finance Authority, but not exceeding $1,000, which may not be paid from a
Loan disbursement; (3) the Finance Authority may request and the Participant shall promptly pay
(no later than ten (10) days after any request), any Settlement Fee; (4) the Finance Authority
may request and the Participant shall promptly pay (no later than thirty (30) days after any
request), aNon-Use Fee in connection with the Loan, which may not be paid from a Loan
disbursement; (5) for so long as the Finance Authority is the registered owner of the Bonds, at
the direction of the Finance Authority, the interest rate on the Bonds may be adjusted to lower
the interest rate on the Bonds, and the difference between the amount payable as the original rate
on the Bonds and the lower rate shall be deemed an additional administrative fee in connection
with the Wastewater SRF Program; and (6) the Participant shall only be obligated to pay fees,
costs and expenses of the Finance Authority's counsel and financial advisers in connection with
making the Loan up to $10,000, which may be paid from a Loan disbursement.
Section 5.10. Applicable Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Indiana.
Section 5.11. Term. This Agreement shall terminate at such time as the Participant has
fully met and discharged all of its obligations hereunder, which term may extend beyond the
final payment of the Bonds or provision for the payment of the Bonds pursuant to the
Authorizing Instrument.
Section 5.12. Non-Collusion. The undersigned attests, subject to the penalties of
perjury, that he/she is an authorized officer or representative of the Participant, that he/she has
not, nor has any other officer or representative of the Participant, directly or indirectly, to the
best of the undersigned's knowledge, entered into or offered to enter into any combination,
collusion or agreement to receive pay, and that the undersigned has not received or paid any sum
of money or other consideration for the execution of this Agreement other than that which
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appears upon the face of the agreement or is a payment to lawyers, accountants and engineers by
the Participant related to customary services rendered in connection with the Loan.
Section 5.13. Federal Award Information. The CFDA Number for the Authority's
Wastewater SRF Program (also known as the Clean Water SRF Loan Program) is 66.458 and the
Federal Agency & Program Name is "US Environmental Protection Agency Capitalization Grant
for Clean Water State Revolving Funds."
(End of Article V)
[THE REMAINDER OF THIS PAGE HAS
BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers or officials, all as of the date first above written.
CITY OF SOUTH BEND, INDIANA
"Participant"
(i) INDIANA
FINANCE AUTHORITY
By: "Finance Authority"
Printed:
By:
Title: (b) James P.
McGoff
Director of Environmental Programs
Attested by Finance Authority Staff
Attest: By:
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Section XXX.EXHIBIT A
The Project involves the following:
• To come.
The Project is more fully described in, and shall be in accordance with, the Preliminary
Engineering Report and the Plans and Specifications approved by the Finance Authority (or if
designated by the Finance Authority, the Department).
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EXHIBIT B
Principal Payment Schedule for the 2009 Bonds
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BDDBOI 5738468v1
Maturity
Date Total Loan Principal
Amount
12/1/2009
12/1/2010
12/1/2011
12/1/2012
12/1/2013
12/1/2014
12/1/2015
12/1/2016
12/1/2017
12/1/2018
12/1/2019
12/1/2020
12/1/2021
12/1/2022
12/1/2023
12/1/2024
12/1/2025
12/1/2026
12/1/2027
12/1/2028
Total
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EXHIBIT C
Credit Instrument
Credit Providers rated on a long term basis lower than "A-/A3" long term by Standard &
Poor's Ratings Services, a Division of the McGraw-Hill Companies and Moody's Investors
Service, Inc. are:
[Financial Guaranty Surety Policy No.
Assurance (now Syncora) in the amount of $
defined in the Authorizing Instrument).]
[Financial Guaranty Surety Policy No.
Assurance (now Syncora) in the amount of $
defined in the Authorizing Instrument).]
dated ,from XL Capital
securing the Bonds (as
dated ,from XL Capital
securing the Bonds (as
[End of Exhibit C]
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1400 CoUNTY-Cmr BUILDING
227 W. JEFFERSON BOULEVARD
SOVrII BEND, INDIANA 46601-1830
CITY OF SOUTH BEND STEPHEN J. LUECKE, MAYOR
DEPARTMENT OF LAW
PHONE 5741235-9241
FAx 574/235-9892
TDD 574/ 235-5567
CHARLES S. LEONE ALADEAN M. DEROSE
CITYATTORNEY CHIEF ASSISTANT CFIYATTORNEY
August 10, 2009
Mr. Derek Dieter
President, South Bend Common Council
4`~' Floor, County-City Building
South Bend, IN 46601
Re: Substitute Version Bill 56-09 -Sewage Works Bond Ordinance
Dear President Dieter:
Attached for Common Council consideration is a substitute version of Bill 56-09, an
ordinance which authorizes improvements to the City's sewage works facility and the issuance
and sale of revenue bonds, tax anticipation notes and other financing. Bill 56-09 is somewhat
atypical because the authorized sewage works improvements are being funded by sources in
addition to the customary revenue bonds.
The attached substitute version of Bill 56-09 contains the following changes to the
original Bill:
• Project Description at Section 2, pages 5-6
• Minor Edits
• Inclusion and incorporation of Financial Assistance Agreement as Exhibit "B" to
Bond Ordinance
Thank you for your consideration of Substitute Bill 56-09.
Sincerely,
Aladean M. DeRose
Chief Assistant City Attorney
AMD/cw
cc: Gary Gilot
Randy Rompola
Filed In Clerk's Office
AUG 1 02009
~a~N vooaDE
CITY CLERK, S0. BEND, IN. ____
THOMAS L. BODNAR CHERYL A. GREENE ANN-CAROL NASH
JEFFREY M. JANKOWSKI LAWRENCE J. METEIVER JEFFREY L. SANFORD JOHN E. BRODEN