HomeMy WebLinkAboutD-2512-20 Bond Ordinance authorizing the issuance of revenue bonds payable from the net revenues of the City’s sewage works utility to finance various wastewater improvements SPONSOR: Councilors Finkam
and Worrell
ORDINANCE D-2512-20
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF
CARMEL, INDIANA AUTHORIZING THE ACQUISITION,
CONSTRUCTION AND INSTALLATION OF CERTAIN IMPROVEMENTS
FOR THE SEWAGE WORKS SYSTEM OF THE CITY OF CARMEL,
INDIANA, THE ISSUANCE OF REVENUE BONDS TO PROVIDE THE
COST THEREOF, THE COLLECTION, SEGREGATION AND
DISTRIBUTION OF THE REVENUES OF SUCH SYSTEM, THE
SAFEGUARDING OF THE INTERESTS OF THE OWNERS OF SUCH
REVENUE BONDS AND OTHER MATTERS CONNECTED THEREWITH,
INCLUDING THE ISSUANCE OF NOTES IN ANTICIPATION OF SUCH
BONDS,AND REPEALING ORDINANCES INCONSISTENT HEREWITH.
Synopsis:
Bond Ordinance authorizing the issuance of revenue bonds payable from the net revenues of the
City's sewage works utility to finance various wastewater improvements in the City.
WHEREAS,the City of Carmel,Indiana(the"City"),has heretofore established,constructed
and financed a municipal sewage works system for the purpose of providing for the collection and
treatment of wastewater from the City residents and users (the"System")pursuant to IC 36-9-23 et
seq., as in effect on the issue date of the bond anticipation notes or the bonds, as applicable,which
are authorized herein(the "Act"); and
WHEREAS, the Common Council of the City (the "Council") hereby finds: (i) that the
acquisition, construction, extension and installation of certain improvements for the System, as set
forth in Exhibit A(the"Project"),are necessary; (ii)that plans,specifications and cost estimates for
the Project (the "Engineering Reports") have been prepared by an engineer (the "Engineer"),
employed for plans,specifications,detailed descriptions and estimates of the costs of the necessary
improvements and extensions to the System, and (iii) that the Engineering Reports have been
previously adopted and have been or will be submitted to all government authorities having
jurisdiction,particularly the Indiana Department of Environmental Management("IDEM"),if and to
the extent IDEM approval is required under Indiana law, and has been approved by the aforesaid
government authorities; and
WHEREAS,the estimates prepared and delivered by the Engineer with respect to the costs of
acquisition, construction, extension and installation of certain improvements for the System, and
including all authorized expenses relating thereto,including the costs of issuance of bonds and bond
anticipation notes on account thereof,will be in the estimated amount not to exceed Sixteen Million
Two Hundred Fifty Thousand Dollars($16,250,000)to be financed by the issuance of revenue bonds
and bond anticipation notes in an amount not to exceed Sixteen Million Two Hundred Fifty
Thousand Dollars ($16,250,000) and
WHEREAS,the City has advertised or will advertise for and receive bids for the construction
of the Project,and such bids will be subject to the determination to acquire,construct and install the
Project and obtaining funds for the Project; and
WHEREAS,the Council finds that there are insufficient funds available to pay the cost of the
Project,and that cost of the Project is to be financed by certain available funds on hand,if necessary,
and through the issuance of its tax-exempt sewage works revenue bonds,in one or more series(the
"2020 Bonds") and, if necessary, its bond anticipation notes (the `BANs"); and
WHEREAS, the City has issued its Sewage Works Revenue Bonds of 2005, which were
authorized by and issued pursuant to Ordinance No. D-1754-05 adopted by the Council on July 18,
2005, as supplemented and amended by Ordinance No. D-2222-15 adopted by the Council on
August 17,2015 (collectively,the"2005 Ordinance"),which 2005 Bonds constitute a first charge on
the Net Revenues (as hereinafter defined) of the System; and
WHEREAS, the City has issued its Sewage Works Revenue Bonds of 2009, which were
authorized and issued pursuant to Ordinance No. D-1950-09 adopted by the Council on August 17,
2009 (the "2009 Ordinance") which 2009 Bonds constitute a first charge on the Net Revenues (as
hereinafter defined) of the System; and
WHEREAS, the City has issued its Sewage Works Revenue Bonds of 2012, which were
authorized and issued pursuant to Ordinance No.D-2071-11 adopted by the Council on February 20,
2012, as amended by Ordinance No. D-2096-12 adopted by the Council on May 21, 2012
(collectively,the"2012 Ordinance")which 2012 Bonds constitute a first charge on the Net Revenues
(as hereinafter defined) of the System; and
WHEREAS,the 2005 Ordinance,the 2009 Ordinance and the 2012 Ordinance(collectively,
the "Prior Ordinances") allow for the issuance of additional bonds payable from revenues of the
System and ranking on parity with the 2005 Bonds, the 2009 Bonds and the 2012 Bonds
(collectively, the "Prior Bonds"); and
WHEREAS,the Council now finds that all conditions precedent to the issuance of the Bonds
on a parity with the Prior Bonds have been or will be met; and
WHEREAS, the Council now finds that all conditions precedent to the adoption of an
ordinance authorizing the issuance of the BANs and the 2020 Bonds have been complied with in
accordance with the provisions of the Act; and
WHEREAS, the City may enter into a Financial Assistance Agreement with the Indiana
Finance Authority(the"Authority")as part of its wastewater loan program established and existing
pursuant to IC 5-1.2-1 through 5-1.2-4, and IC 5-1.2-10 (the "SRF Program"), pertaining to the
Project and the financing of the Project(the"Financial Assistance Agreement")if any bonds are sold
to the Authority as part of its SRF Program; and
WHEREAS,the City may accept other forms of financial assistance,as and if available,from
the SRF Program; and
WHEREAS, Section 1.150-2 of the Treasury Regulations on Income Tax (the
"Reimbursement Regulations")specifies conditions under which a reimbursement allocation may be
treated as an expenditure of bond proceeds,and the City intends by this ordinance to qualify amounts
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advanced by the City to the Project for reimbursement from proceeds of the BANS or the Bonds in
accordance with the requirements of the Reimbursement Regulations.
NOW,THEREFORE,BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY
OF CARMEL, INDIANA, THAT:
SECTION 1. Authorization of Project.The City shall proceed with the completion of
the Project in accordance with the Engineering Report,which is hereby adopted and approved, and
by reference made a part of this Ordinance as fully as if the same were attached hereto and
incorporated herein. The Project shall be constructed pursuant to and in accordance with the Act.
The Project shall not be affected by the refunding of any BANs which may be issued pursuant to this
Ordinance and any other interim borrowing related to the Project, and the bonds herein authorized
shall be issued pursuant to and in accordance with the provisions of the Act. However,in the event
the City desires to utilize proceeds of the 2020 Bonds(as hereinafter defined)for projects other than
those contained in Exhibit A attached hereto, the Council shall first approve such projects and
modify this Ordinance by adding them to the list in Exhibit A. The term "System," "works",
"utility", "sewage works" and other like terms where used in this Ordinance shall be construed to
mean the existing Sewage Works system and all real estate and equipment used in connection
therewith and appurtenances thereto, and all extensions, additions and improvements thereto and
replacements thereof now or at any time hereafter constructed or acquired, and all other items as
defined in the Act, whether from the proceeds of the BANs and bonds herein authorized or
otherwise, provided that if the 2020 Bonds or BANs are purchased pursuant to the terms of the
Financial Assistance Agreement, such term shall mean the Treatment Works (as defined in the
Financial Assistance Agreement). The Project shall be carried out in accordance with the plans and
specifications heretofore mentioned, which plans and specifications are hereby approved. The
Council hereby orders the Project, and the issuance of the Bonds under the Act, in the amount
necessary to pay the Costs of the Project,pursuant to and in accordance with the Act,Indiana Code
5-1-14, Indiana Code 5-1.2-1 through Indiana Code 5-1.2-4, and Indiana Code 5-1.2-10 and other
applicable laws relating to the issuance of revenue bonds. The City reasonably expects to reimburse
expenditures for the Project with proceeds of the Bonds and this constitutes a declaration of official
intent pursuant to Treasury Regulation 1.150-2(e) and Indiana Code 5-1-14-6(c).
SECTION 2. Issuance of BANs and Bonds.
(a) The City shall issue its"City of Carmel, Indiana Sewage Works Revenue Bonds of
2020" [with the year and any series or other references added, revised or removed as appropriate]
(the "2020 Bonds"), in one or more series, in an original principal amount not to exceed Sixteen
Million Two Hundred Fifty Thousand Dollars ($16,250,000) as negotiable, fully registered bonds,
for the purpose of procuring funds to be applied to the costs of the Project, including without
limitation reimbursement of preliminary expenses related to the Project and all incidental expenses
incurred in connection therewith (all of which are deemed to be a part of the Project), and the costs
of selling and issuing the 2020 Bonds. The 2020 Bonds shall rank on a parity with the Prior Bonds
for all purposes upon satisfaction of the conditions set forth in the Prior Ordinances.
(b) The 2020 Bonds shall be issued in denominations of Five Thousand Dollars($5,000)
(except for any 2020 Bonds sold to the Authority as part of the SRF Program, such denomination
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may be One Dollar($1)) or any integral multiple thereof, numbered consecutively from 1 upward,
and dated as of the first day of the month in which they are sold or the date of delivery,as evidenced
by the execution thereof. The 2020 Bonds shall bear interest at a rate or rates not exceeding five
percent (5.00%) per annum (the exact rate or rates to be determined by bidding or, if applicable,
negotiations), and interest shall be payable semiannually on May 1 and November 1 in each year,
beginning on the May 1 or November 1 selected by the Controller of the City(the"Fiscal Officer")
upon the advice of the City's municipal advisor,as evidenced by delivery of the executed initial issue
of the 2020 Bonds to the Registrar for authentication. Interest on the 2020 Bonds shall be calculated
according to a 360-day calendar year containing twelve 30-day months.The 2020 Bonds shall mature
annually on May 1 of each year thereafter over a period ending not later than twenty(20)years after
the date of issuance and in such amounts which will achieve as level debt service as practicable
(either based solely on the 2020 Bonds or the combined debt service of the 2020 Bonds and the Prior
Bonds or for any 2020 Bond sold to the Authority as part of the SRF Program, in such amount as
may meet the requirements of the SRF Program as provided by the maturities set forth in the
Financial Assistance Agreement), and when considering authorized denominations and the initial
principal maturity all as finally estimated, determined and fixed by the Mayor of the City (the
"Executive")and the Fiscal Officer with the advice of the City's municipal adviser,as evidenced by
delivery of the executed initial issue of the 2020 Bonds to the Registrar for authentication. The
amount of 2020 Bonds issued shall be determined by the Executive and the Fiscal Officer,with the
advice of the City's municipal advisor after fixing the amount of the funds of the Utility if any now
on hand to be applied to the cost of the Project.
(c) All or a portion of the 2020 Bonds may be aggregated into and issued as one or more
term bonds.The term bonds will be subject to mandatory sinking fund redemption with sinking fund
payments and final maturities corresponding to the serial maturities described above. Sinking fund
payments shall be applied to retire a portion of the term bonds as though it were a redemption of
serial bonds, and, if more than one term bond of any maturity is outstanding, redemption of such
maturity shall be made by lot. Sinking fund redemption payments shall be made in a principal
amount equal to such serial maturities, plus accrued interest to the redemption date, but without
premium or penalty. For all purposes of this Ordinance, such mandatory sinking fund redemption
payments shall be deemed to be required payments of principal which mature on the date of such
sinking fund payments.Appropriate changes shall be made in the definitive form of the 2020 Bonds,
relative to the form of the 2020 Bonds contained in this Ordinance,to reflect any mandatory sinking
fund redemption and optional redemption terms.
(d) The City has the authority to elect to issue its bond anticipation note or notes
("BANs") if necessary, in lieu of initially issuing all or a portion of 2020 Bonds to provide interim
construction financing for the Project until permanent financing becomes available or to qualify for
financial assistance provided from the SRF Program. BANs may be issued to (i)the Indiana Bond
Bank(the"Indiana Bond Bank")pursuant to a Purchase Agreement("Purchase Agreement")or the
Authority pursuant to a Financial Assistance Agreement;or(ii)a purchaser pursuant to Indiana Code
5-1-11 or as otherwise permitted by law and approved by the Executive and Fiscal Officer. If so
determined by the Executive and Fiscal Officer, the City shall issue its BANs for the purpose of
procuring interim financing to apply to the cost of the Project.
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(e) The BAN or BANs shall be issued in an aggregate amount not exceeding Sixteen
Million Two Hundred Fifty Thousand Dollars ($16,250,000) and shall be designated "City of
Carmel, Indiana Sewage Works Bond Anticipation Note of 2020" [with the year and any series or
other references added, revised or removed as appropriate]. Any such BAN or BANS shall have a
maturity not exceeding five(5)years and shall be dated the first day of the month in which issued or
sold or the date of delivery as determined by the Executive and Fiscal Officer with the advice of the
City's financial adviser. Any such BAN or BANs shall pay interest semiannually on May 1 and
November 1 in each year, beginning no later than either the next May 1 or November 1 following
their issuance until maturity.Any such BAN or BANS may be refunded with a later series of BAN or
BANs provided that such refunding BAN or BANS shall have a maturity not exceeding one(1)year
and shall be dated the first day of the month in which issued or sold or the date of delivery as
determined by the Executive and Fiscal Officer with the advice of the City's financial adviser. Any
such BAN or BANs shall pay interest semiannually on May 1 and November 1 in each year,
beginning no later than either the next May 1 or November 1 following their issuance until maturity.
BAN interest may be paid as capitalized interest and,after provision for payment of the Prior Bonds
and any 2020 Bonds,from the Net Revenues of the utility on a subordinate basis.BAN interest shall
be calculated according to a 360-day calendar year containing twelve 30-day months,or based on an
actual days basis using a 365-day year, as determined by the Executive and Fiscal Officer with the
advice of the City's financial adviser.Any such BAN or BANs shall bear interest at a rate or rates not
exceeding five percent(5.00%)per annum,or bear interest at a variable rate determined by reference
to any available published index as selected by the Executive or Fiscal Officer prior to their issuance,
and may be sold at a discount not to exceed one percent (1%). The BANs herein authorized are
payable from the proceeds of the 2020 Bonds and other legally available funds of the utility. Any
such BAN or BANs shall be subject to early redemption on or after any date selected by the
Executive or Fiscal Officer prior to their issuance,upon thirty(30) days notice to the owner of such
BAN,without a premium.The BANs may be issued in one or more series of BANs,or the City may
receive payment on the BANs in installments, as determined by the Executive and Fiscal Officer
with the advice of the City's municipal advisor prior to advertising or negotiating a sale of the BANs.
The BANs shall be in a customary form as approved by the Executive and Fiscal Officer.
(f) It shall not be necessary for the City to repeat the procedures for the issuance of its
2020 Bonds;the procedures followed before the issuance of the BAN or BANs are for all purposes
sufficient to authorize the issuance of the 2020 Bonds and the use of the proceeds to repay the BAN
or BANs. The City shall issue the 2020 Bonds described and authorized in this Ordinance to
discharge its obligations under the BAN and BANs at or before the maturity date of the BAN or
BANs.
The City may receive payment for the 2020 Bonds and BANs in installments. With respect
to any 2020 Bonds sold to the Authority as part of the SRF Program,to the extent that (a) the total
principal amount of the 2020 Bonds is not paid by the purchaser or drawn down by the City or(b)
proceeds remain in the Project Fund and are not applied to the Project (or any modifications or
additions thereto approved by IDEM and the Authority)as of the date no additional amounts maybe
drawn under the Financial Assistance Agreement, the remaining 2020 Bond maturities shall be
reduced in a manner that will effect as level debt service as practicable for such remaining maturities
an in a manner consistent with how the initial maturities were fixed,provided however such shall in
any case be consistent with the Financial Assistance Agreement.
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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 2020 Bond or
BAN related provision otherwise provided for herein or as a supplement or addition thereto and(2)
one or more series or combination of series of 2020 Bonds and/or BANs). If required by the SRF
Program to be eligible for such financial assistance, one or more of the series of 2020 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 2020 Bonds is junior and subordinate to the payment of the principal of
and interest on other series of 2020 Bonds issued hereunder(and/or any other revenue bonds secured
by a pledge of Net Revenue, whether now outstanding or hereafter issued), all as provided by the
terms of such series of 2020 Bonds as modified pursuant to this authorization. Such financial
assistance,if any,shall be as provided in the Financial Assistance Agreement and the 2020 Bonds of
each series of 2020 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).
SECTION 3. Pledge of Net Revenues;Payment of Principal and Interest. The 2020
Bonds,and any hereafter issued bonds ranking on a parity therewith,as to principal,premium,if any,
and interest, shall be payable solely from and are hereby secured by an irrevocable pledge of and
shall constitute a charge upon all the net revenues (defined as gross revenues of the works after
deduction only for the payment of the reasonable expenses of operation,repair and maintenance,and
after such time as no Prior Bonds remain outstanding,defined as gross revenues,inclusive of System
Development Charges(as hereinafter defined),of the works after deduction only for the payment of
the reasonable expenses of operation,repair and maintenance excluding transfers for payment in lieu
of taxes) of the works (the"Net Revenues"), on a parity with the Prior Bonds for all purposes. For
purposes of this Ordinance, "System Development Charges" shall mean the proceeds and balances
from any non-recurring charges such as tap fees,subsequent connector fees,capacity or contribution
fees,and other similar one-time charges that are available for deposit under this ordinance;provided,
however, that any System Development Charges that are enacted under IC 36-9-23-29, shall be
considered as Net Revenues of the sewage works. The City shall not be obligated to pay the 2020
Bonds, any BANs or the interest thereon, except from the Net Revenues, and the 2020 Bonds and
any BANs shall not constitute an indebtedness of the City within the meaning of the provisions and
limitations of the constitution of the State of Indiana.
All payments of interest on the 2020 Bonds shall be paid by check mailed one business day
prior to the interest payment date to the registered owners thereof as of the fifteenth(15th)day of the
month preceding the interest payment date(the"Record Date")at the addresses as they appear on the
registration and transfer books of the City kept for that purpose by the Registrar(the"Registration
Record") or at such other address as is provided to the Paying Agent in writing by such registered
owner.Each registered owner of$1,000,000 or more in principal amount of the 2020 Bonds shall be
entitled to receive interest payments by wire transfer by providing written wire instructions to the
Paying Agent before the Record Date for any payment. All principal payments and premium
payments, if any, on the 2020 Bonds shall be made upon surrender thereof at the principal office of
the Paying Agent, in any U.S. coin or currency which on the date of such payment shall be legal
tender for the payment of public and private debts,or in the case of a registered owner of$1,000,000
or more in principal amount of the 2020 Bonds, by wire transfer on the due date upon written
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direction of such owner provided at least fifteen (15) days prior to the maturity date or redemption
date. If the 2020 Bonds or BANs are purchased by the Authority as part of the SRF Program, the
principal of and interest on the 2020 Bonds or BANs shall be paid by wire transfer to such financial
institution if and as directed by the Authority as of the due date of such payment or if such due date
is a day when financial institutions are not open for business, on the business day immediately after
such due date. So long as the Authority is the owner of the 2020 Bonds or BANs,such 2020 Bonds
or BANs shall be presented for payment as directed by the Authority.
Interest on the 2020 Bonds or BANs sold to the Authority shall be paid from the dates of
payment for the 2020 Bonds or BANs. Interest on 2020 Bonds shall be payable from the interest
payment date to which interest has been paid next preceding the authentication date thereof unless
such 2020 Bonds are authenticated after the Record Date for an interest payment date and on or
before such interest payment date in which case they shall bear interest from such interest payment
date, or unless authenticated on or before the Record Date for the first interest payment date, in
which case they shall bear interest from the original date, until the principal shall be fully paid.
SECTION 4. Transfer and Exchange of Bonds and BANs. Each 2020 Bond or BAN
shall be transferable or exchangeable only upon the Registration Record, by the registered owner
thereof in writing,or by the registered owner's attorney duly authorized in writing,upon surrender of
such 2020 Bond or BAN,together with a written instrument of transfer or exchange satisfactory to
the Registrar duly executed by the registered owner or such attorney, and thereupon a new fully
registered 2020 Bond or Bonds, or BAN or BANs, in the same aggregate principal amount, and of
the same maturity,shall be executed and delivered in the names of the transferee or transferees or the
registered owner, as the case may be, in exchange therefor. The costs of such transfer or exchange
shall be borne by the City except for any tax or governmental charge required to be paid with respect
to the transfer or exchange, which taxes or governmental charges are payable by the person
requesting such transfer or exchange. The City, the Registrar and the Paying Agent may treat and
consider the persons in whose names such 2020 Bonds or BANs are registered as the absolute
owners thereof for all purposes including for the purpose of receiving payment of,or on account of,
the principal thereof and interest and premium, if any, due thereon.
In the event any 2020 Bond or BAN is mutilated, lost, stolen or destroyed, the City may
execute and the Registrar may authenticate a new bond of like date, maturity and denomination as
that mutilated,lost, stolen or destroyed,which new bond shall be marked in a manner to distinguish
it from the 2020 Bond or BAN for which it was issued, provided that, in the case of any mutilated
2020 Bond or BAN,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 Fiscal Officer and the Registrar, together with indemnity
satisfactory to them. In the event any such 2020 Bond or BAN shall have matured,instead of issuing
a duplicate bond,the City and the Registrar may,upon receiving indemnity satisfactory to them,pay
the same without surrender thereof. The City and the Registrar may charge the owner of such 2020
Bond or BAN with their reasonable fees and expenses in this connection. Any 2020 Bond or BAN
issued pursuant to this paragraph shall be deemed an original,substitute contractual obligation of the
City,whether or not the lost, stolen or destroyed 2020 Bond or BAN 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 2020 Bond or BAN issued hereunder.
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SECTION 5. Registrar and Paying Agent. The Fiscal Officer is hereby authorized to
serve as,or to appoint a qualified financial institution to serve as,Registrar and Paying Agent for the
2020 Bonds and any BANs (together with any successor, the "Registrar" or"Paying Agent"). The
Registrar is hereby charged with the responsibility of authenticating the 2020 Bonds and any BANs,
and shall keep and maintain the Registration Record at its office. The Fiscal Officer is hereby
authorized to enter into such agreements or understandings with any such institution as will enable
the institution to perform the services required of a Registrar and Paying Agent.The Fiscal Officer is
further authorized to pay such fees and the institution may charge for the services its provides as
Registrar and Paying Agent and such fees may be paid from the Sinking Fund established to pay the
principal of and interest on the 2020 Bonds and any BANs as fiscal agency charges.
The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent by
giving thirty(30) days' written notice to the City and by first-class mail to each registered owner of
the 2020 Bonds and any BANs then outstanding, and such resignation will take effect at the end of
such thirty(30)days' or upon the earlier appointment of a successor Registrar and Paying Agent by
the City. Such notice to the City may be served personally or sent by first-class or registered mail.
The Registrar and Paying Agent may be removed at any time as Registrar and Paying Agent by the
City, in which event the City may appoint a successor Registrar and Paying Agent. The City shall
notify each registered owner of the 2020 Bonds and any BANs then outstanding of the removal of
the Registrar and Paying Agent.Notices to the registered owners of the 2020 Bonds and any BANs
shall be deemed to be given when mailed by first-class mail to the addresses of such registered
owners as they appear on the Registration Record.Any predecessor Registrar and Paying Agent shall
deliver all the 2020 Bonds and any BANs,cash and investments related thereto in its possession and
the Registration Record to the successor Registrar and Paying Agent.
SECTION 6. Terms of Redemption. The 2020 Bonds maybe made redeemable at the
option of the City (a) on thirty (30) days' notice, in whole or in part, in any order of maturities
selected by the City,for any 2020 Bonds not purchased by the Authority as part of the SRF Program,
and (b) on sixty (60) days' notice in whole or in part, in inverse order of maturities for any 2020
Bonds purchased by the Authority as part of the SRF Program, and in each case, by lot within a
maturity,on dates and with premiums,if any,and other terms as finally determined by the Executive
and the Fiscal Officer with the advice of the City's Municipal advisor, as evidenced by delivery of
the executed initial issue of the 2020 Bonds to the Registrar for authentication;provided,however if
the 2020 Bonds are sold to the SRF Program and registered in the name of the Authority,the 2020
Bonds shall not be redeemable at the option of the City unless and until consented to by the
Authority. Such determination shall be made and fixed separately for each series of 2020 Bonds
issued.
Notice of redemption shall be mailed by first-class mail to the address of each registered
owner of a 2020 Bond to be redeemed as shown on the Registration Record not more than(a)sixty
(60)days and not less than thirty(30)days prior to the date fixed for redemption for any 2020 Bonds
not purchased by the Authority as part of the SRF Program, and (b) not more than ninety(90) days
and not less than sixty(60)days prior to the date fixed for redemption for any 2020 Bonds purchased
by the Authority as part of the SRF Program, and in each case except to the extent such redemption
notice is waived by owners of the 2020 Bonds redeemed,provided,however,that failure to give such
notice by mailing,or any defect therein,with respect to any 2020 Bond shall not affect the validity of
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any proceedings for the redemption of any other 2020 Bonds. The notice shall specify the date and
place of redemption, the redemption price and the CUSIP numbers of the 2020 Bonds called for
redemption. The place of redemption may be determined by the City. Interest on the 2020 Bonds so
called for redemption shall cease on the redemption date fixed in such notice if sufficient funds are
available at the place of redemption to pay the redemption price on the date so named,and thereafter,
such 2020 Bonds shall no longer be protected by this Ordinance and shall not be deemed to be
outstanding hereunder, and the holders thereof shall have the right only to receive the redemption
price.
All 2020 Bonds which have been redeemed shall be canceled and shall not be reissued;
provided,however,that one or more new registered bonds shall be issued for the unredeemed portion
of any 2020 Bond without charge to the holder thereof.
SECTION 7. Execution and Negotiability. The 2020 Bonds and any BANs shall be
signed in the name of the City by the manual or facsimile signature of the Executive,and attested by
the manual or facsimile signature of the Fiscal Officer, who also shall affix the seal of the City
manually or shall have the seal imprinted or impressed thereon by facsimile or other means. In case
any officer whose signature or facsimile signature appears thereon shall cease to be such officer
before the delivery of the 2020 Bonds and any BANs,such signature shall nevertheless be valid and
sufficient for all purposes as if such officer had remained in office until such delivery.
The 2020 Bonds and any BANs shall also be authenticated by the manual signature of the
Registrar, and no 2020 Bond or BAN shall be valid or become obligatory for any purpose until the
certificate of authentication thereon has been so executed.
The 2020 Bonds and any BANs shall have all of the qualities and incidents of negotiable
instruments under the laws of the State of Indiana, subject to the provisions for registration herein.
SECTION 8. Authorization for Book-Entry System. The 2020 Bonds and any BANs
may, in compliance with all applicable laws, initially be issued and held in book-entry form on the
books of the central depository system, The Depository Trust Company, its successors, or any
successor central depository system appointed by the City from time to time (the "Clearing
Agency"),without physical distribution of bonds to the purchasers.The following provisions of this
Section apply in such event.
One definitive 2020 Bond or BAN of each maturity shall be delivered to the Clearing Agency
(or its agent) and held in its custody. The City and Registrar may, in connection herewith, do or
perform or cause to be done or performed any acts or things not adverse to the rights of the holders
of the 2020 Bonds and any BANs as are necessary or appropriate to accomplish or recognize such
book-entry form 2020 Bonds and any BANs.
During any time that the 2020 Bonds and any BANs are held in book-entry form on the books
of a Clearing Agency, (1)any such 2020 Bond or BAN maybe registered upon Registration Record
in the name of such Clearing Agency, or any nominee thereof, including Cede & Co.; (2) the
Clearing Agency in whose name such 2020 Bond or BAN is so registered shall be,and the City and
the Registrar and Paying Agent may deem and treat such Clearing Agency as,the absolute owner and
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holder of such 2020 Bond or BAN for all purposes of this Ordinance,including,without limitation,
the receiving of payment of the principal of and interest and premium,if any,on such 2020 Bond or
BAN, the receiving of notice and the giving of consent; (3) neither the City nor the Registrar or
Paying Agent shall have any responsibility or obligation hereunder to any direct or indirect
participant,within the meaning of Section 17A of the Securities Exchange Act of 1934,as amended,
of such Clearing Agency, or any person on behalf of which, or otherwise in respect of which, any
such participant holds any interest in any 2020 Bond or BAN, including, without limitation, any
responsibility or obligation hereunder to maintain accurate records of any interest in any 2020 Bond
or BAN or any responsibility or obligation hereunder with respect to the receiving of payment of
principal of or interest or premium,if any, on any 2020 Bond or BAN,the receiving of notice or the
giving of consent; and (4) the Clearing Agency is not required to present any 2020 Bond or BAN
called for partial redemption,if any,prior to receiving payment so long as the Registrar and Paying
Agent and the Clearing Agency have agreed to the method for noting such partial redemption.
If either the City receives notice from the Clearing Agency which is currently the registered
owner of the 2020 Bonds and any BANs to the effect that such Clearing Agency is unable or
unwilling to discharge its responsibility as a Clearing Agency for the 2020 Bonds and any BANs,or
the City elects to discontinue its use of such Clearing Agency as a Clearing Agency for the 2020
Bonds and any BANs,then the City and the Registrar and Paying Agent each shall do or perform or
cause to be done or performed all acts or things,not adverse to the rights of the holders of the 2020
Bonds and any BANs,as are necessary or appropriate to discontinue use of such Clearing Agency as
a Clearing Agency for the 2020 Bonds and any BANs and to transfer the ownership of each of the
2020 Bonds and any BANs to such person or persons,including any other Clearing Agency, as the
holder of the 2020 Bonds and any BANs may direct in accordance with this Ordinance. Any
expenses of such discontinuance and transfer, including expenses of printing new certificates to
evidence the 2020 Bonds and any BANs, shall be paid by the City.
During any time that the 2020 Bonds and any BANs are held in book-entry form on the books
of a Clearing Agency, the Registrar shall be entitled to request and rely upon a certificate or other
written representation from the Clearing Agency or any participant or indirect participant with
respect to the identity of any beneficial owner of the 2020 Bonds and any BANs as of a record date
selected by the Registrar. For purposes of determining whether the consent, advice, direction or
demand of a registered owner of a 2020 Bond or BAN has been obtained, the Registrar shall be
entitled to treat the beneficial owners of the 2020 Bonds and any BANs as the bondholders and any
consent,request,direction,approval,objection or other instrument of such beneficial owner may be
obtained in the fashion described in this Ordinance.
During any time that the 2020 Bonds and any BANs are held in book-entry form on the books
of a Clearing Agency,the Executive,the Fiscal Officer and/or the Registrar are authorized to execute
and deliver a Letter of Representations agreement with the Clearing Agency, or a Blanket Issuer
Letter of Representations,and the provisions of any such Letter of Representations or any successor
agreement shall control on the matters set forth therein. The Registrar, by accepting the duties of
Registrar under this Ordinance, agrees that it will (i)undertake the duties of agent required thereby
and that those duties to be undertaken by either the agent or the City shall be the responsibility of the
Registrar,and(ii)comply with all requirements of the Clearing Agency,including without limitation
same day funds settlement payment procedures. Further, during any time that the 2020 Bonds and
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any BANs are held in book-entry form, the provisions of Section 8 of this Ordinance shall control
over conflicting provisions in any other section of this Ordinance.
SECTION 9. Form of the 2020 Bonds. The form and tenor of the 2020 Bonds shall be
substantially as follows(with such additions,deletions and modification as the Executive and Fiscal
Officer may authorize,as conclusively evidenced by their signatures thereon),with all blanks to be
filled in properly prior to delivery thereof:
R-
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF HAMILTON
CITY OF CARMEL,INDIANA
SEWAGE WORKS REVENUE BOND OF 2020
[As follows if sold pursuant to a Financial Assistance Agreement
Interest Maturity Original Authentication
Rate Date Date Date
REGISTERED OWNER:Indiana Finance Authority
PRINCIPAL SUM:
The City of Carmel,in Hamilton,County,State of Indiana(the"City"),for value received,hereby promises to
pay to the Registered Owner set forth above or registered assigns, solely out of the special revenue fund hereinafter
referred to, the Principal Sum set forth above on the Maturity Date set forth 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 May 1 in the years and in the amounts set forth on Exhibit A attached hereto(unless this bond
be subject to and be called for redemption prior to maturity as hereafter provided),and to pay interest hereon until the
Principal Sum shall be fully paid at the Interest Rate per annum set forth above from 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 the interest payment date (the "Record 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, 20_, in which case it shall bear interest from the Original Date, which interest is payable
semiannually on May 1 and November 1 of each year,beginning on 1,20_.Interest shall be calculated on the
basis of a 360-day year comprised of twelve 30-day months.
The principal of and premium, if any, on this bond are payable at the principal office of
(the"Registrar"or"Paying Agent"),in Indianapolis,Indiana.All payments of interest
on this bond shall be paid by check mailed one business day prior to the interest payment date to the Registered Owner as
of the Record Date at the address as it appears on the registration books kept by the Registrar or at such other address as
is provided to the Paying Agent in writing by the Registered Owner.Notwithstanding the foregoing to the contrary, if
payment of this Bond is made to the Indiana Finance Authority under the terms of the Financial Assistance Agreement,
all payments of principal and interest hereon shall be made by wire transfer for deposit to a financial institution as
directed by the Indiana Finance Authority as of the due date or if such due date is a day when financial institutions are not
open for business on the business day immediately after such due date to the registered owner hereof at the address as it
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appears on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in
writing by the registered owner.]
[As follows if not sold pursuant to a Financial Assistance Agreement
Interest Maturity Original Authentication
Rate Date Date Date CUSIP
REGISTERED OWNER:
PRINCIPAL SUM:
The City of Carmel,in Hamilton,County,State of Indiana(the"City"),for value received,hereby promises to
pay to the Registered Owner set forth above or registered assigns, solely out of the special revenue fund hereinafter
referred to,the Principal Sum set forth above on the Maturity Date set forth above(unless this bond be subject to and be
called for redemption prior to maturity as hereafter provided),and to pay interest hereon until the Principal Sum shall be
fully paid at the Interest Rate per annum set forth above from 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 the interest payment date(the"Record 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 15,20_,
in which case it shall bear interest from the Original Date, which interest is payable semiannually on May 1 and
November 1 of each year,beginning on 1,20_.Interest shall be calculated on the basis of a 360-day year
comprised of twelve 30-day months.
The principal of and premium,if any,on this bond are payable at the principal office of the Controller of the
City of Carmel [the principal office of the financial institution so appointed] (the"Registrar" or"Paying Agent"), in
Indianapolis,Indiana.All payments of interest on this bond shall be paid by check mailed one business day prior to the
interest payment date to the Registered Owner as of the Record Date at the address as it appears on the registration books
kept by the Registrar or at such other address as is provided to the Paying Agent in writing by the Registered Owner.
Each Registered Owner of$1,000,000 or more in principal amount of bonds shall be entitled to receive interest payments
by wire transfer by providing written wire instructions to the Paying Agent before the Record Date for any payment.All
payments of principal of,and premium,if any,on this bond shall be made upon surrender thereof at the principal office
of the Paying Agent,in any U.S.coin or currency which on the date of such payment shall be legal tender for the payment
of public and private debts,or in the case of a Registered Owner of$1,000,000 or more in principal amount of the 2020
Bonds,by wire transfer on the due date upon written direction of such owner provided at least fifteen(15)days prior to
the maturity date or redemption date.]
THE CITY SHALL NOT BE OBLIGATED TO PAY THIS BOND OR THE INTEREST HEREON EXCEPT
FROM THE HEREINAFTER DESCRIBED SPECIAL FUND,AND NEITHER THIS BOND NOR THE ISSUE OF
WHICH IT IS A PART SHALL IN ANY RESPECT CONSTITUTE A CORPORATE INDEBTEDNESS OF THE
CITY WITHIN THE PROVISIONS AND LIMITATIONS OF THE CONSTITUTION OF THE STATE OF INDIANA.
This bond is one of an authorized issue of bonds of the City of Carmel, of Hamilton County, Indiana, of like
date,tenor and effect except as to denomination,numbering,rates of interest,redemption terms and dates of maturity,
aggregating Dollars($ ),numbered consecutively from 1 upward(the
"Bonds"), issued for the purpose of providing funds to be applied for construction and acquisition of certain
improvements to the sewage works(the"Project"),and to pay incidental expenses and costs of issuance of the Bonds.
This bond is issued pursuant to an ordinance adopted by the Common Council of said City on the day of
2020,entitled"An Ordinance of the of the Common Council of the City of Carmel,Indiana Authorizing the Acquisition,
Construction and Installation of Certain Improvements for the Sewage Works System of the City of Carmel,Indiana,the
Issuance of Revenue Bonds to Provide the Cost Thereof,the Collection,Segregation and Distribution of the Revenues of
such System, the Safeguarding of the Interests of the Owners of such Revenue Bonds and Other Matters Connected
Therewith, Including the Issuance of Notes in Anticipation of such Bonds, and Repealing Ordinances Inconsistence
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Herewith"(the"Ordinance"),and in accordance with the provisions of Indiana law,including without limitation Indiana
36-9-23, and other applicable laws, as amended (the"Act"), all as more particularly described in the Ordinance.The
owner of this bond,by the acceptance hereof,agrees to all the terms and provisions contained in the Ordinance and the
Act.
Pursuant to the provisions of the Act and the Ordinance,the principal of and interest on this bond and all other
bonds of said issue and any hereafter issued bonds ranking on a parity therewith are payable solely from the Sinking Fund
(the "Sinking Fund") maintained under the Ordinance to be provided from the Net Revenues (defined as the gross
revenues of the works after deduction only for the payment of the reasonable expenses of operation, repair and
maintenance,and after such time as no Prior Bonds(as defined herein)remain outstanding,defined as gross revenues,
inclusive of System Development Charges (as defined in the Ordinance), of the works after deduction only for the
payment of the reasonable expenses of operation,repair and maintenance excluding transfers for payment in lieu of taxes)
of the works,including all additions and improvements thereto and replacements thereof subsequently constructed or
acquired on a basis that is on a parity with the Prior Bonds.
[Reference is hereby made to the Financial Assistance Agreement,as amended from time to time,between the
City and the Indiana Finance Authority as to certain terms and covenants pertaining to the Project and this Bond(the
"Financial Assistance Agreement").]
The City irrevocably pledges the entire Net Revenues of the works to the prompt payment of the principal of and
interest on the Bonds on a parity with the payment of the principal of and interest on the City of Carmel,Indiana Sewage
Works Revenue Bonds of 2005(the"2005 Bonds"),the City of Carmel,Indiana Sewage Works Revenue bonds of 2009
(the"2009 Bonds")and the City of Carmel, Indiana Sewage Works Revenue Bonds of 2012(the"2012 Bonds")(the
2005 Bonds,the 2009 Bonds,and the 2012 Bonds,collectively,the"Prior Bonds")as authorized by the Prior Ordinances
(as defined in the Ordinance) and any hereafter issued bonds ranking on a parity therewith,to the extent necessary for
such purposes, and covenants that it will establish proper rates and charges for services rendered by the utility as are
sufficient in each year for the payment of the proper[Operation and Maintenance(as defined in the Financial Assistance
Agreement) of the Utility] [and reasonable expenses of operation, repair and maintenance of the works ]and for the
payment of the sums required to be paid into the Sinking Fund under the provisions of the Act and the Ordinance.If the
City or the proper officers thereof shall fail or refuse to so fix and collect such rates or charges,or if there be a default in
the payment of the interest on or principal of this bond,the owner of this bond shall have all of the rights and remedies
provided for in the Act.
The City covenants that for so long as the Bonds and any hereafter issued bonds ranking on a parity therewith
remain outstanding it will set aside and pay into the Sinking Fund a sufficient amount of the Net Revenues for the
payment of(a)the principal of and interest on all bonds which by their terms are payable from the Net Revenues,as such
principal and interest shall fall due,(b)the necessary fiscal agency charges for paying bonds and(c)an additional amount
as a margin of safety to accumulate and maintain the reserve required by the Ordinance. Such required payments of the
Bonds and any hereafter issued bonds ranking on a parity therewith, shall constitute a first charge upon all the Net
Revenues.Reference is made to the Ordinance for a more complete statement of the revenues from which and conditions
under which this bond is payable,a statement of the conditions on which obligations may hereafter be issued on parity
with this bond,the manner in which the Ordinance may be amended and the general covenants and provisions pursuant to
which this bond has been issued.
The bonds of this issue maturing on and after May 1, 20 are redeemable at the option of the City on
,20 or any date thereafter,on[sixty(60)] [thirty(30)]days'notice,in whole or in part,[in inverse order of
maturities] [in any order of maturities selected by the City] and by lot within a maturity,at 100%of face value,together
with the following premiums:
%if redeemed on May 1,20 , or thereafter
on or before April 30,20 ;
%if redeemed on May 1,20 , or thereafter
on or before April 30,20_;
%if redeemed on May 1,20 , or thereafter
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prior to maturity;
plus accrued interest to the date fixed for redemption[;provided however if the Bonds are registered in the name of
the Authority,the Bonds shall not be redeemable at the option of the City unless and until consented to by the
Authority].Each minimum authorized denomination in principal amount shall be considered a separate bond for
purposes of partial redemption.
[The bonds maturing on May 1,20 are subject to mandatory sinking fund redemption prior to maturity,at a
redemption price equal to the principal amount thereof,plus accrued interest,on May 1 in the years and in the amounts
set forth below:
Year Amount
*Final Maturity]
Notice of such redemption shall be mailed by first-class mail not more than[ninety(90)] [sixty(60)]days and
not less than[sixty(60)] [thirty(30)]days prior to the date fixed for redemption to the address of the registered owner of
each bond to be redeemed as shown on the registration record of the City except to the extent such redemption notice is
waived by owners of the bond or bonds redeemed,provided,however,that failure to give such notice by mailing,or any
defect therein,with respect to any bond shall not affect the validity of any proceedings for the redemption of any other
bonds.The notice shall specify the date and place of redemption,the redemption price[and the CUSIP numbers]of the
bonds called for redemption.The place of redemption may be determined by the City.Interest on the bonds so called for
redemption shall cease on the redemption date fixed in such notice if sufficient funds are available at the place of
redemption to pay the redemption price on the date so named,and thereafter,such bonds shall no longer be protected by
the Ordinance and shall not be deemed to be outstanding thereunder.
This bond is subject to defeasance prior to payment or redemption as provided in the Ordinance.
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 or another paying agent,an amount sufficient to pay such bond or the redemption price,as the
case may be,and thereafter the Registered Owner shall look only to the funds so deposited in trust for payment and the
City shall have no further obligation or liability in respect thereto.
This bond is transferable or exchangeable only upon the registration record kept for that purpose at the office of
the Registrar by the Registered Owner in person, or by his attorney duly authorized in writing,upon surrender of this
bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the
Registered Owner or such attorney,and thereupon a new fully registered bond or bonds in the same aggregate principal
amount, and of the same maturity, shall be executed and 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 except for any tax or governmental charge required to be paid with respect to the transfer or
exchange.The City,the Registrar,the Paying Agent and any other registrar or 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 interest and premium,if any,due hereon.
The bonds maturing on any maturity date are issuable only in the denomination of[$1.00] [$5,000] or any
integral multiple thereof.
[A Continuing Disclosure Contract from the City to each registered owner or holder of any bond,dated as of the
date of initial issuance of the Bonds(the"Contract"),has been executed by the City,a copy of which is available from
the City and the terms of which are incorporated herein by this reference.The Contract contains certain promises of the
City to each registered owner or holder of any bond,including a promise to provide certain continuing disclosure.By its
14
payment for and acceptance of this bond,the registered owner or holder of this bond assents to the Contract and to the
exchange of such payment and acceptance for such promises.]
It is hereby certified and recited that all acts,conditions and things required to be done precedent to and in the
execution,issuance and delivery of this bond have been done and performed in regular and due form as provided by law.
This bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon
shall have been executed by an authorized representative of the Registrar.
IN WITNESS WHEREOF, the City of Carmel, in Hamilton County, Indiana, has caused this bond to be
executed in its corporate name by the manual or facsimile signature of its Mayor,its corporate seal to be hereunto affixed,
imprinted or impressed by any means and attested manually or by facsimile by its Controller.
CITY OF CARMEL,INDIANA
By:
Mayor
(SEAL)
ATTEST:
Controller
REGISTRAR'S CERTIFICATE OF AUTHENTICATION
It is hereby certified that this bond is one of the bonds described in the within-mentioned Ordinance duly
authenticated by the Registrar.
as Registrar
By:
Authorized Representative
The following abbreviations,when used in the inscription of the face of this bond,shall be construed as though
they were written out in full according to applicable laws or regulations:
TEN. COM. as tenants in common
TEN. ENT. as tenants by the entireties
JT.TEN. as joint tenants with right of survivorship and not as tenants in common
UNIF.TRAN.
MIN. ACT Custodian
(Cust.) (Minor)
under Uniform Transfer to Minors Act of
15
(State)
Additional abbreviations may also be used although not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,assigns and transfers unto(Please Print or Typewrite
Name and Address and Social Security or Other Identifying Number) $ principal amount (must be a
multiple of[$1.00][$5,000])of 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 Guaranteed:
NOTICE: Signature(s)must be guaranteed by an eligible
guarantor institution participating in a Securities Transfer
Association recognized signature guarantee program.
[As follows if sold pursuant to a Financial Assistance Agreement
EXHIBIT A
Date* Amount Date* Amount
*Pursuant to the Financial Assistance Agreement,the final maturity of this Bond may occur prior to those set forth above
in order that the final maturity of this Bond not exceed 20 years from Substantial Completion of Construction (as
defined in the Financial Assistance Agreement).]
[End of form of bonds]
SECTION 10. Sale of Bonds.
(a) The 2020 Bonds shall be sold in a competitive sale or by negotiation with a
purchaser(s) selected by the Executive and Fiscal Officer on the advice of the City's municipal
advisor,to the Authority as part of its SRF Program,or to the Indiana Bond Bank pursuant to I.C. 5-
1.5, as determined by the Executive and Fiscal Officer. If sold in a competitive sale, the Fiscal
Officer shall cause to be published either (i) a notice of sale once each week for two consecutive
weeks in accordance with I.C. §5-3-1-2, in which case the date fixed for the sale shall not be earlier
than fifteen (15) days after the first of such publications and not earlier than three (3) days after the
second of such publications, or(ii)a notice of intent to sell bonds once each week for two weeks in
accordance with I.C. §5-1-11-2 and I.C. §5-3-1-4 and in a newspaper of general circulation published
in the State capital,in which case bids may not be received more than ninety(90)days after the first
16
of such publications. Said sale notice shall state the time and place of sale,the purpose for which the
2020 Bonds are being issued, the total amount thereof, the amount and date of each maturity, the
maximum rate or rates of interest thereon,their denominations,the time and place of payment,the
terms and conditions upon which bids will be received and the sale made and such other information
as is required by law or as the Fiscal Officer shall deem necessary.
If sold by a competitive sale,bids for the 2020 Bonds shall be sealed and shall be presented
to the Fiscal Officer in accord with the terms set forth in the sale notice.Bidders for the 2020 Bonds
shall be required to name the rate or rates of interest which the 2020 Bonds are to bear,which shall
be the same for all 2020 Bonds maturing on the same date and the interest rate bid on any maturity of
the 2020 Bonds must be no less than the interest rate bid on any and all prior maturities, not
exceeding five percent(5.00%)per annum,and such interest rate or rates shall be in multiples of one
hundredth of one percent.The Fiscal Officer shall award the 2020 Bonds to the bidder who offers the
lowest interest cost, to be determined by computing the total interest on all the 2020 Bonds to their
maturities and deducting therefrom the premium bid, if any, or adding thereto the amount of the
discount, if any. No bid for less than ninety-eight percent (98.0%) of the par value of the 2020
Bonds, plus accrued interest, shall be considered. The Fiscal Officer may require that all bids be
accompanied by certified or cashier's checks payable to the order of the City,or a surety bond,in an
amount not to exceed one percent of the aggregate principal amount of the 2020 Bonds as a guaranty
of the performance of said bid,should it be accepted.In the event no satisfactory bids are received on
the day named in the sale notice,the sale may be continued from day to day thereafter for a period of
thirty (30) days without readvertisement; provided, however, that if said sale is continued, no bid
shall be accepted which offers an interest cost which is equal to or higher than the best bid received
at the time fixed for sale in the bond sale notice.The Fiscal Officer shall have full right to reject any
and all bids.
If the 2020 Bonds are sold by negotiated sale, the Executive is authorized to negotiate and
execute a bond purchase agreement with one or more selected purchaser(s)on terms recommended
by the City's municipal advisor, consistent with the parameters set forth in this Ordinance.
After the 2020 Bonds have been properly sold and executed,the Fiscal Officer shall receive
from the purchasers payment for the 2020 Bonds and shall provide for delivery of the 2020 Bonds to
the purchasers.
(b) The 2020 Bonds, when fully paid for and delivered to the purchaser shall be the
binding special revenue obligations of the City,payable out of the Net Revenues.The proper officers
of the City are hereby directed to sell the 2020 Bonds to the purchaser, to draw all proper and
necessary warrants, and to do whatever acts and things which may be necessary to carry out the
provisions of this Ordinance.
(c) If necessary,the Executive and the Fiscal Officer each are hereby authorized to deem
final an official statement with respect to the 2020 Bonds, as of its date, in accordance with the
provisions of Rule 15c2-12 of the U.S. Securities and Exchange Commission,as amended(the"SEC
Rule"), subject to completion as permitted by the SEC Rule, and the City further authorizes the
distribution of the deemed final official statement, and the execution, delivery and distribution of
17
such document as further modified and amended with the approval of the Executive or the Fiscal
Officer in the form of a final official statement.
In order to assist any underwriter of the 2020 Bonds in complying with paragraph (b)(5) of
the SEC Rule by undertaking to make available appropriate disclosure about the City and the 2020
Bonds to participants in the municipal securities market, the City hereby covenants, agrees and
undertakes, in accordance with the SEC Rule, unless excluded from the applicability of the SEC
Rule or otherwise exempted from the provisions of paragraph (b)(5) of the SEC Rule, that it will
comply with and carry out all of the provisions of the continuing disclosure contract. "Continuing
disclosure contract"shall mean that certain continuing disclosure contract executed by the City and
dated the date of issuance of the 2020 Bonds,as originally executed and as it may be amended from
time to time in accordance with the terms thereof. The execution and delivery by the City of the
continuing disclosure contract, and the performance by the City of its obligations thereunder by or
through any employee or agent of the City,are hereby approved, and the City shall comply with and
carry out the terms thereof
(d) The Fiscal Officer is hereby authorized and directed to obtain a legal opinion as to the
validity of the 2020 Bonds from Barnes & Thornburg LLP, and to furnish such opinion to the
purchasers of the 2020 Bonds or to cause a copy of said legal opinion to be printed on each 2020
Bond. The cost of such opinion shall be paid out of the proceeds of the 2020 Bonds.
(e) In connection with the sale of the 2020 Bonds, the Executive and the Fiscal Officer
each are authorized to take such actions and to execute and deliver such agreements and instruments
as they deem advisable to obtain a rating and/or to obtain bond insurance for the 2020 Bonds,and the
taking of such actions and the execution and delivery of such agreements and instruments are hereby
approved.
(f) In connection with the sale of the BANs,the Executive and the Fiscal Officer each are
authorized to take all or a part of the same authorized actions, and to execute and deliver the
agreements and instruments,as they deem advisable with respect to the BANs to the same extent as
if the foregoing provisions of this Section applicable to the 2020 Bonds were applied to the sale of
the BANs,provided they shall not be required to take each and every such act as would relate to the
2020 Bonds unless by law it is required with respect to the BANs.
(g) Notwithstanding anything in this Ordinance and in lieu of a public sale of the 2020
Bonds pursuant to this Section, the 2020 Bonds may, in the discretion of the Fiscal Officer, based
upon the advice of the City's municipal advisor,be sold to the Indiana Bond Bank or to the Authority
as part of the SRF Program.In the event of such determination of sale to the Indiana Bond Bank,the
2020 Bonds shall be sold to the Indiana Bond Bank in such denomination or denominations as the
Indiana Bond Bank may request, and pursuant to a qualified entity purchase agreement (the
"Purchase Agreement") between the City and the Indiana Bond Bank, hereby authorized to be
entered into and executed by the Executive on behalf of the City, and attested by the Fiscal Officer,
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 2020 Bonds which shall not exceed the maximum rate of interest for the 2020 Bonds
18
authorized pursuant to this Ordinance. Bonds sold to the Indiana Bond Bank shall be accompanied
by all documentation required by the Indiana 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 2020 Bonds to the Indiana Bond Bank, challenging the
validity or issuance of the 2020 Bonds. In the event the Fiscal Officer determines to sell the 2020
Bonds to the Indiana Bond Bank, the submission of an application to the Indiana Bond Bank, the
entry by the City into the Purchase Agreement, and the execution and delivery of the Purchase
Agreement on behalf of the City by the Executive in accordance with this Ordinance are hereby
authorized, approved and ratified.
In the event of such determination of sale to the Authority as part of the SRF Program,The
Executive and Fiscal Officer with the advice of the City's municipal advisor are hereby authorized to
(i) submit an application to the SRF Program, (ii) negotiate the terms of and execute and deliver a
Financial Assistance Agreement between the City and the Authority pursuant to Indiana Code 5-1.2-
1 through Indiana Code 5-1.2-4 and Indiana Code 5-1.2-10 (in a form substantially similar to that
attached hereto as Exhibit B, but with such changes in form or substances as such officials may
approve, as conclusively evidenced by their signature thereof) (including any amendment thereof),
and (iii) sell one or more series of the 2020 Bonds upon such terms as are acceptable to the
Executive and the Fiscal Officer consistent with the terms of this Ordinance. The Financial
Assistance Agreement(including any amendment thereof)for one or more series of the 2020 Bonds
and the Project shall be executed by the Executive and Fiscal Officer and the Authority. The
Executive and the Fiscal Officer are hereby authorized to execute and deliver an amended and
restated Financial Assistance Agreement or a subsequent Financial Assistance Agreement if an
earlier series of 2020 Bonds has been purchased by the Authority and may approve any changes in
form or substance to Financial Assistance Agreement as they determined to be necessary or desirable
in connection therewith, and such approval shall be conclusively evidenced by its execution.
SECTION 11. Use of Proceeds. Any accrued interest received at the time of delivery of
the 2020 Bonds or BANs (and, if deemed by the Executive or the Fiscal Officer to be in excess of
Project and Refunding needs, any premium), shall be deposited in the Sinking Fund (as hereafter
defined) and applied to payments on the 2020 Bonds and any BANs on the first interest payment
date. The remaining proceeds from the sale of the 2020 Bonds and any BANs shall be deposited in a
fund of the utility hereby created and designated as "City of Carmel, Indiana 2020 Sewage Works
Bond Project Fund" (the "Project Fund") or applied to the payment of costs of the Project as
contemplated by the Financial Assistance Agreement. The proceeds deposited in the Project Fund,
together with all investment earnings thereon, shall be expended only for the purpose of paying the
costs of the Project,refunding the BANs if issued and the costs of selling and issuing the 2020 Bonds
and any BANs, including the premium for any bond insurance obtained for the 2020 Bonds.
The City hereby declares that it reasonably expects to reimburse the City's advances to the
Project from proceeds of any BANs or the 2020 Bonds, as anticipated by this Ordinance, and such
declaration shall be deemed one within the meaning of the Reimbursement Regulations.
Any balance remaining in the Project Fund after the completion of the Project which is not
required to meet unpaid obligations incurred in connection therewith and on account of the sale and
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issuance of the 2020 Bonds shall be paid(a)paid into the Sinking Fund(to be part of the hereinafter
referenced Principal and Interest Amount) or (b) used for the same purpose or type of project for
which the 2020 Bonds were originally issued, all in accordance with I.C. 5-1-13, as amended or as
otherwise permitted by law.
SECTION 12. Revenue Fund. There is hereby continued a fund of the utility designated
as the Revenue Fund (the "Revenue Fund"), into which there shall be deposited upon receipt all
revenues(including any System Development Charges that are not considered Net Revenues)of the
works for application as set forth below. Nothing in this Ordinance shall require the City to keep
such revenues in such a fund so long as the City is able to account for all such revenue and have it
available for the funds of the Funds and Accounts of the works as set forth below on a regular,
consistently applied monthly cycle. The orderly allocation of revenues of the works may be
processed on a combined billing basis with other utilities of the City, provided that the cycle is
complete by the end of the month next following the receipt of any payment made in respect of the
works. Other than as provided by Section 15 herein, no moneys derived from the revenues of the
sewage works shall be transferred to the general fund of the City or be used for any purpose not
connected with the sewage works.
SECTION 13. Operation and Maintenance Fund. There is hereby continued an
operating fund of the utility designated as the Operation and Maintenance Fund(the"Operation and
Maintenance Fund").There shall be transferred from the Revenue Fund and credited to the Operation
and Maintenance Fund, on the last day of each calendar month, a sufficient amount to meet the
expenses of operation, repair and maintenance for the then next succeeding two calendar months;
provided however,that the amount credited to the Operation and Maintenance Fund may only exceed
the estimated expenses of the operation, repair and maintenance for the then next succeeding two
calendar months after meeting the requirements of the Sinking Fund. The moneys credited to this
Fund shall be used for the payment of the reasonable and proper operation,repair and maintenance
expenses of the works on a day-to-day basis, but none of the moneys in the Operation and
Maintenance Fund shall be used for depreciation, replacements, improvements, extensions or
additions and after such time as no Prior Bonds remain outstanding, none of the moneys in the
Operation and Maintenance Fund shall be used for transfers for payment in lieu of property taxes.
Any balance in Operation and Maintenance Fund in excess of the expected expenses of operation,
repair and maintenance for the next succeeding month may be transferred to the Sinking Fund if
necessary to prevent a default in the payment of principal of or interest on the outstanding bonds of
the works.
SECTION 14. Sinking Fund.There is hereby continued a fund of the utility designated as
the Sinking Fund(the"Sinking Fund"),to be used for the payment of the principal of and interest on
2020 Bonds and any bonds which by their terms are payable from the Net Revenues, and the
payment of any fiscal agency charges in connection with such payment. All deposits into the Sinking
Fund shall be tracked,allocated and applied either as part of a Principal and Interest Amount or Debt
Service Reserve Amount, each of which is pledged and to be applied for the purposes set forth
below. The Principal and Interest Amount and the Debt Service Reserve Amount need not be
separated into different accounts,but may be held as separate accounts if such is from time to time
determined by the utility to be convenient to track, allocate and apply monies held in the Sinking
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Fund as part of the Principal and Interest Amount and Debt Service Reserve Amount as set forth
below.
(a) Principal and Interest Amount. There shall be transferred on the last day of each
calendar month,from the Revenue Fund and credited to the Sinking Fund,which shall be part of the
Principal and Interest Amount, an amount equal to the sum of at least (i) one-twelfth (1/12) of the
principal and at least one-sixth (1/6) of the interest on all the then outstanding bonds payable from
the Net Revenues on the next succeeding principal and interest payment dates(except in the instance
of the first principal and interest payment dates next succeeding the issuance of the 2020 Bonds, an
appropriately greater percentage as would result in such equal monthly transfers equaling the
required payments), until the amount available therein shall equal the principal payable during the
next succeeding twelve(12)calendar months and the interest payable during the next six(6)calendar
months. There shall similarly be credited to the account any amount necessary to pay when due the
bank fiscal agency charges for paying principal of and interest on the bonds as the same become
payable. The City shall, from the sums deposited in the Sinking Fund and held as part of the
Principal and Interest Amount, remit promptly to the registered owner or to the bank fiscal agency
sufficient moneys to pay the principal and interest on the due dates thereof together with the amount
of bank fiscal agency charges.
(b) Debt Service Reserve Amount. There shall be transferred, on the last day of each
calendar month following the issuance of the 2020 Bonds,after making any required transfer to the
Sinking Fund held as part of the Principal and Interest Amount,from the Revenue Fund and credited
to the Sinking Fund, which shall be part of the Debt Service Reserve Amount, an amount to
constitute an appropriate reserve to facilitate the marketing of the 2020 Bonds, which monthly
deposits shall be in an amount sufficient to build the balance in the Sinking Fund constituting part of
the Debt Service Reserve Amount (after consideration of any transfers made pursuant to the next
following sentence)to an amount equal to such required reserve within no more than five(5)years
on a level monthly basis (after accounting for earnings thereon), which reserve amount shall not
exceed the hereinafter Reserve Requirement. The Fiscal Officer, with the advice of the City's
municipal advisor,may transfer an amount of the funds of the utility now on hand,or apply proceeds
of the 2020 Bonds, in full or partial satisfaction of the Reserve Requirement. After the issuance of
the 2020 Bonds,the City shall maintain the balance in the Sinking Fund constituting part of the Debt
Service Reserve Amount in an amount equal to the Reserve Requirement,subject to the provisions
of this Ordinance or any ordinance authorizing and any hereafter issued bonds ranking on a parity
therewith,which allows the Reserve Requirement to be accumulated over time. For these purposes,
"Reserve Requirement"means the least of ten percent(10%)of the proceeds of the 2020 Bonds and
any bonds ranking on a parity therewith (including the outstanding Prior Bonds), the maximum
annual debt service on the 2020 Bonds and any such parity bonds (including the outstanding Prior
Bonds), or 125% of the average annual debt service on the 2020 Bonds and any parity bonds
(including the outstanding Prior Bonds),provided, however, that if the 2020 Bonds are sold to the
Authority as part of its SRF Program, the Reserve Requirement shall mean the maximum annual
debt service on the 2020 Bonds and any parity bonds (including the outstanding Prior Bonds).
All money designated as part of the Debt Service Reserve Amount shall be used and
reallocated to the Principal and Interest Amount,in the event of and to the extent of any deficiency in
the Sinking Fund constituting part of the Principal and Interest Amount with respect to the payments
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then due on the 2020 Bonds and any parity bonds (including the Prior Bonds), or to make the final
payments on such bonds when the Sinking Fund constituting part of the Debt Service Reserve
Amount, together with other funds available for such purpose, is sufficient to make all remaining
payments thereon to final maturity.Any amount designated as the Debt Service Reserve Amount in
excess of the Reserve Requirement shall be withdrawn from time to time, and at least as frequently
as annually,to the Principal and Interest Amount. Any deficiency in the balance required to be held
in the Sinking Fund constituting part of the Debt Service Reserve Amount shall be promptly made
up from the next available Net Revenues after credits to the Sinking Fund constituting part of the
Principal and Interest Amount.
Notwithstanding the foregoing, the Fiscal Officer, with the advice of the City's municipal
advisor and bond counsel,may enable the City to satisfy all or any part of its obligation to maintain
the Sinking Fund constituting part of the Debt Service Reserve Amount equal to the Reserve
Requirement by depositing a Reserve Fund Credit Facility in the Sinking Fund and allocating it as
part of the Debt Service Reserve Amount. A"Reserve Fund Credit Facility"is hereby defined as a
letter of credit, liquidity facility, insurance policy or comparable instrument furnished by a bank,
insurance company, financial institution or other entity pursuant to a reimbursement agreement or
similar instrument between such entity and the City,for the purpose of satisfying in whole or in part
the City's obligation to maintain the Reserve Requirement,provided that the Reserve Fund Credit
Facility must be issued by a provider(a) that is rated in one of the two highest rating categories by
Standard & Poor's Corporation and Moody's Investors Service at the time of the issuance of such
Reserve Fund Credit Facility,and(b)if the 2020 Bonds or BANs are purchased by the Authority as
part of the SRF Program, such provider shall be acceptable to the Authority.
In the event the Debt Service Reserve Amount applicable to any series of 2020 Bonds or any
bonds ranking on a parity therewith (including the outstanding Prior Bonds) is met by a Reserve
Fund Credit Facility and such facility is not available to pay the principal of and interest on all such
outstanding bonds payable from Net Revenues,then(i)the bonds so secured by such a Reserve Fund
Credit Facility shall only be secured by(and payable from)such allocable portion of the Debt Service
Reserve Amount attributable to such bonds as if such Reserve Fund Credit Facility were held in a
separate account from the portion of the Debt Service Reserve Amount applicable to the remainder
of the bonds,(ii)any required deposits(including as a result of any deficiency in the balance required
to be held) in the Sinking Fund constituting part of the Debt Service Reserve Amount shall be
allocated to such separate reserves on a pro rata, party basis to meet such allocable portion of the
Debt Service Reserve Amount attributable to such bonds, and (iii) any cash allocated to a separate
reserve shall be applied to pay the principal of and interest on the outstanding bonds secured by it
before a draw is made to make such a payment from a Reserve Fund Credit Facility that is also held
in the same reserve.
If the 2020 Bonds or BANs are purchased by the Authority as part of the SRF Program and to
the extent required by the SRF Program, the Sinking Fund and the Project Fund may be held by a
financial institution acceptable to the SRF Program pursuant to terms acceptable to the SRF
Program. If the Sinking Fund and the accounts therein are so held in trust,the City shall transfer the
monthly required amounts of Net Revenues to the Sinking Fund in accordance with this Section 14
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 2020 Bonds. The
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Council hereby authorizes the Executive and the Fiscal Officer to execute and deliver an agreement
with a financial institution to reflect this trust arrangement for the Sinking Fund and Project Fund.
The financial institution selected to serve in this role may also serve as Registrar and Paying Agent
for the 2020 Bonds or the Prior Bonds of the City.
SECTION 15. Improvement Fund.After meeting the requirements of the Operation and
Maintenance Fund and the Sinking Fund,any excess revenues may be transferred from the Revenue
Fund and credited to the special utility fund, to be expended in making good depreciation in the
works and new construction, hereby continued and designated as the "Improvement Fund" (the
"Improvement Fund"). Said Fund shall be used for(a)replacements,improvements,extensions and
additions to the works and(b)any other lawful purpose(including without limitation and subject to
applicable law,payments in lieu of property taxes to the City)provided that if any of the 2020 Bonds
are owned by the Authority as part of the SRF Program, unless otherwise approved by the prior
written consent of the Authority, such uses and transfers pursuant to clause(b)(including payments
in lieu of taxes and any transfers to the General Fund of the City) shall be made only (i) no more
frequently than semiannually on May 2 and November 2,and(ii)if all monthly deposits required by
this Ordinance are current and held as of such dates in the Operation and Maintenance Fund and the
Sinking Fund.Moneys in the Improvement Fund shall be transferred to the Sinking Fund ifnecessary
to prevent a default in the payment of principal of and interest on the then outstanding bonds of the
works, or may be transferred to the Operation and Maintenance Fund to meet unforeseen
contingencies in the operation, repair and maintenance of the works.
SECTION 16. Investment of Funds. The funds and accounts described herein shall be
accounted for separate and apart from each other and from all other funds and accounts of the City.
All moneys deposited in the funds and accounts shall be deposited,held and secured as public funds
in accordance with the public depository laws of the State of Indiana;provided that moneys therein
may be invested in obligations in accordance with the applicable laws,including particularly Indiana
Code,Title 5,Article 13,as amended or supplemented,Indiana Code 5-1.2-1 through Indiana Code
5-1.2-4 and Indiana Code 5-1.2-10, and in the event of such investment the income therefrom shall
become a part of the funds invested and shall be used only as provided in this Ordinance.
The Fiscal Officer is hereby authorized pursuant to Indiana Code 5-1-14-3 to invest moneys
pursuant to the provisions of this Ordinance (subject to applicable requirements of federal law to
ensure such yield is then current market rate) to the extent necessary or advisable to preserve the
exclusion from gross income of interest on the 2020 Bonds under federal law.
The Fiscal Officer 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 Fiscal Officer 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. The Fiscal Officer may pay any fees as operation expenses of the utility.
SECTION 17. Financial Records and Accounts.The City shall keep proper records and
books of account,separate from all of its other records and accounts,in which complete and correct
entries shall be made showing all revenues received on account of the operation of the utility and all
disbursements made therefrom and all transactions relating to the utility. The City shall maintain on
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file the audited financial statements of the utility prepared by the State Board of Accounts. There
shall be furnished, upon written request, to any owner of the 2020 Bonds and any BANs, the most
recent copy of the audited financial statements of the utility prepared by the State Board of Accounts.
Copies of all such statements and reports shall be kept on file in the office of the Fiscal Officer.
If the 2020 Bonds are sold to the Authority as part of the SRF Program, 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 Utility in accordance with
(i) generally accepted governmental accounting standards for utilities on an accrual basis as
promulgated by the Governmental Accounting Standards Board, and (ii) the rules,regulations and
guidance of the State Board of Accounts.
SECTION 18. Rate Covenant. (a) The City covenants and agrees that,by ordinance of
the Council,it will establish and maintain just and equitable rates and charges for the use of and the
service rendered by the 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 works by or through any part of the utility, or that in
any way uses or is served by such works;that such rates or charges shall be sufficient in each year for
the payment of the proper and reasonable expenses of operation, repair and maintenance of the
works,and for the payment of the sums required to be paid into the Sinking Fund by the Act and this
Ordinance. Such rates or charges shall,if necessary,be changed and readjusted from time to time so
that the revenues therefrom shall always be sufficient to meet the expenses of operation,repair and
maintenance of the works and the requirements of the Sinking Fund. The rates or charges so
established shall apply to any and all use of such works by and service rendered to the City and all
departments thereof, and shall be paid by the City or the various departments thereof as the charges
accrue.
(b) This subsection(b) shall apply in lieu of the provision of subsection (a) above with
respect to the 2020 Bonds owned by the Authority as part of the SRF Program. The City covenants
and agrees that by ordinance of the Council,it will establish and maintain just and equitable rates and
charges,provided that System Development Charges shall be excluded, to the extent permitted by
law, when determining if such rates and charges are sufficient so long as the 2020 Bonds are
outstanding and owned by the Authority as part of its SRF Program, for the use of and the service
rendered by the 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 works by or through any part of the utility or that in any way
uses or is served by such works,that such rates or charges shall be sufficient in each year to provide
for the proper Operation and Maintenance(as defined in the Financial Assistance Agreement)of the
Utility and for the payment of the sums required to be paid into the Sinking Fund by the Act and this
Ordinance. Such rates or charges shall,if necessary,by changed and readjusted from time to time so
that the revenues therefrom shall always be sufficient to meet the expenses of operation,repair and
maintenance of the works and the requirements of the Sinking Fund. The rates or charges so
established shall apply to any and all use of such works by and service rendered to the City and all
departments thereof and shall be paid by the City or the various departments thereof as the charges
accrue.
SECTION 19. Defeasance. If, when the 2020 Bonds and any BANs or a portion thereof
shall have become due and payable in accordance with their terms or shall have been duly called for
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redemption or irrevocable instructions to call the 2020 Bonds and any BANs or a portion thereof for
redemption shall have been given, and the whole amount of the principal,premium, if any, and the
interest so due and payable upon such 2020 Bonds and any BANs or any portion 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 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 the 2020 Bonds and any BANs issued hereunder
or any designated portion thereof shall no longer be deemed outstanding or entitled to the pledge of
the Net Revenues of the works.
SECTION 20. Additional Obligations.The City reserves the right to authorize and issue
additional BANs at any time ranking on a parity with the BANs. The City reserves the right to
authorize and issue additional bonds payable out of the Net Revenues ranking on a parity with the
2020 Bonds for the purpose of financing the cost of future additions, extensions and improvements
to the works,or to provide for a complete or partial refunding of obligations,subject to the following
conditions precedent:
(a) The interest on and principal of all bonds payable from the Net
Revenues shall have been paid to date in accordance with the terms thereof,provided,
this condition shall be satisfied if any required amount is to be provided from the
proceeds of such additional bonds or other funds.
(b) The balance in Sinking Fund constituting part of the Debt Service
Reserve Amount shall be equal to the amount required herein, provided, this
condition shall be satisfied if any required amount is to be provided from the
proceeds of such additional bonds or other funds either (i) at the time of their
issuance or(ii) by monthly deposits in an amount sufficient to build the balance in
the Sinking Fund constituting part of the Debt Service Reserve Amount to an amount
equal to the Reserve Requirement with no more than five (5) years after the
additional bonds are issued, on a level monthly basis (after accounting for earnings
thereon).
(c) The Net Revenues in the fiscal year immediately preceding the
issuance of any such bonds ranking on a parity with the 2020 Bonds (provided,
within the 90 day period following the end of such preceding fiscal year, if such
year's account records are not final as of the sale date of the additional bonds, the
fiscal year preceding such year may be used in lieu of the immediately preceding
year) shall be not less than one hundred twenty five percent (125%) of the annual
principal and interest requirements of the then outstanding parity bonds (including
the 2020 Bonds) and the additional parity bonds proposed to be issued for each
respective year during the term of such outstanding parity bonds and the proposed
additional bonds; or, prior to the issuance of the additional bonds, the rates and
charges shall be increased sufficiently so that said increased rates and charges applied
to the previous fiscal year's operations(provided,within the 90 day period following
the end of such preceding fiscal year,if such year's account records are not final as of
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the sale date of the additional bonds,the fiscal year preceding such year may be used
in lieu of the immediately preceding year) would have produced Net Revenues for
said year equal to not less than one hundred twenty five percent(125%)of the annual
principal and interest requirements of the then outstanding parity bonds for each
respective year during the term of such outstanding parity bonds and the proposed
additional bonds. For purposes of this subsection, the records of the works shall be
analyzed and all showings shall be prepared by a certified public accountant
employed by the City for that purpose. In addition, for purposes of this subsection
with respect to any additional parity bonds proposed to be issued, while the 2020
Bonds remain outstanding and owned by the Authority as part of its SRF Program,
Net Revenues may not include any revenues from the System Development Charges
unless the Authority provides its consent to include all or some portion of the System
Development Charges as part of the Net Revenues or otherwise consents to the
issuance of such additional parity bonds without satisfying this subsection (c).
(d) The principal of said additional parity bonds shall be payable on May
1 and the interest shall be payable on May 1 and November 1 during the periods such
principal and interest are payable.
(e) If the 2020 Bonds are sold to the Authority: (i) the City obtains 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
System permits,except for noncompliance,the elimination of which is a purpose for
which the 2020 Bonds or the additional bonds are issued, including any refunding
bonds, are issued, so long as such issuance constitutes part of an overall plan to
eliminate such noncompliance.
SECTION 21. Further Covenants of the City. For the purpose of further safeguarding
the interests of the owners of the 2020 Bonds and any BANs, it is hereby specifically provided as
follows:
(a) The City shall at all times maintain the works in good condition,and
operate the same in an efficient manner and at a reasonable cost.
(b) If the 2020 Bonds are sold to the Authority as part of the SRF
Program, the City shall acquire and maintain insurance coverage as required by the
Authority including fidelity bonds to protect the Utility and its operations,provided
that if the City is not so directed by the Authority, so long as any of the 2020 Bonds
or BANs are outstanding,the City shall maintain insurance on the insurable parts of
the works, of a kind and in an amount such as would normally be carried by private
entities 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. Insurance proceeds shall be used in replacing or repairing the property
destroyed or damaged, or if not used for that purpose, shall be treated and applied as
Revenues of the Sinking Fund, provided that if the 2020 Bonds are sold to the
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Authority as part of the SRF Program, the Authority must consent to a different use
of such proceeds or awards.
(c) So long as any of the 2020 Bonds and any BANs are outstanding,the
City shall not mortgage,pledge or otherwise encumber the works,or any part thereof,
and shall not sell,lease or otherwise dispose of any part of the same,excepting only
such machinery, equipment or other property as may be replaced, or shall no longer
be necessary for use in connection with said utility,provided that if such outstanding
BANs or 2020 Bonds are sold to the Authority as part of the SRF Program, such
exception shall only apply if the Authority consents.
(d) If the BANs or 2020 Bonds are sold to the Authority as part of the
SRF Program, the City shall not borrow any money, enter into any contract or
agreement or incur any other liabilities in connection with the Utility 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 Utility.
(e) Except as otherwise specifically provided in Section 20 of this
Ordinance, so long as any of the 2020 Bonds and any BANs are outstanding, no
additional bonds or other obligations pledging any portion of the revenues of the
works shall be issued by the City, except such as shall be made junior and
subordinate in all respects to the 2020 Bonds, unless all of the 2020 Bonds are
defeased, redeemed or retired coincidentally with the delivery of such additional
bonds or other obligations.
(f) 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 sewer. The City shall,insofar as
possible, cause all such sanitary sewers to be connected with the utility or otherwise
cause an equivalent availability charged to be enforced against such property.
Notwithstanding the foregoing to the contrary, the City shall not be required to
enforce this subsection(e)so long as sufficient payments into the Sinking Fund shall
have been made to meet the monthly transfer requirements of Section 14, and the.
interest on and principal of all bonds payable from the revenues of the works shall
have been paid to date in accordance with the terms thereof.
(g) The provisions of this Ordinance shall constitute a contract by and
between the City and the owners of the 2020 Bonds and any BANs, all the terms of
which shall be enforceable by any such owner by any and all appropriate proceedings
in law or in equity. After the issuance of the 2020 Bonds and any BANs and so long
as any of the principal thereof or interest or premium,if any,thereon remains unpaid,
except as expressly provided herein,this Ordinance shall not be repealed or amended
in any respect which will adversely affect the rights of such owners, nor shall the
Council or any other body of the City adopt any law,ordinance or resolution which in
any way adversely affects the rights of such owners. Except in the case of changes
described in Section 22(a) through (f) hereof, this Ordinance may be amended,
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however, without the consent of bond owners, if the Council determines, in its sole
discretion, that such amendment would not adversely affect the owners of the 2020
Bonds,provided,however,that if the 2020 Bonds or BANs are sold to the Authority
as part of the SRF Program,the City shall also obtain the prior written consent of the
Authority.
(h) The provisions of this Ordinance shall be construed to create a trust in
the proceeds of the sale of the 2020 Bonds and any BANs for the uses and purposes
herein set forth, and the owners of the 2020 Bonds and any BANs shall retain a lien
on such proceeds until the same are applied in accordance with the provisions of this
Ordinance and the Act. The provisions of this Ordinance shall also be construed to
create a trust in the Net Revenues herein directed to be set apart and paid into the
Sinking Fund for the uses and purposes of that Fund as set forth in this Ordinance.
The owners of the 2020 Bonds and any BANs shall have all the rights,remedies and
privileges set forth in the,Act, including the right to have a receiver appointed to
administer the utility in the event the City shall fail or refuse to fix and collect
sufficient rates and charges for those purposes, or shall fail or refuse to operate and
maintain said utility and to apply properly the revenues derived from the operation
thereof, or if there be a default in the payment of the interest on or principal of the
2020 Bonds or any BANs.
(h) None of the provisions of this Ordinance shall be construed as
requiring the expenditure of any funds of the City derived from any sources other
than the proceeds of the 2020 Bonds and any BANs and the operation of the utility.
SECTION 22. Amendments With Consent of Bondholders. Subject to the terms and
provisions contained in this section and Sections 21 and 23,the owners of not less than sixty-six and
two-thirds percent (66 2/3%) in aggregate principal amount of the 2020 Bonds and any BANs and
then outstanding shall have the right, from time to time,to consent to and approve the adoption by
the Council of such ordinance or ordinances supplemental hereto, as shall be deemed necessary or
desirable by the City for the purpose of amending in any particular any of the terms or provisions
contained in this Ordinance, or in any supplemental Ordinance provided however that if the 2020
Bonds or BANs are sold to the Authority as part of the SRF Program,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) An extension of the maturity of the principal of or interest or
premium, if any, on, or any mandatory sinking fund redemption date for, or an
advancement of the earliest redemption date on,any 2020 Bond or BAN,without the
consent of the holder of each 2020 Bond or BAN so affected; or
(b) A reduction in the principal amount of any 2020 Bond or BAN or the
redemption premium or the rate of interest thereon, or a change in the monetary
medium in which such amounts are payable, without the consent of the holder of
each 2020 Bond or BAN so affected; or
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(c) The creation of a lien upon or a pledge of the Net Revenues ranking
prior to the pledge thereof created by this Ordinance, without the consent of the
holders of all 2020 Bonds then outstanding; or
(d) A preference or priority of any 2020 Bond or BAN over any other
2020 Bond or BAN, without the consent of the holders of all 2020 Bonds and any
BANs then outstanding; or
(e) A reduction in the aggregate principal amount of the 2020 Bonds and
any BANs required for consent to such supplemental ordinance,without the consent
of the holders of all 2020 Bonds and any BANs then outstanding; or
(f) A reduction in the Reserve Requirement.
If the City shall desire to obtain any such consent,it shall cause the Registrar to mail a notice,
postage prepaid,to the addresses appearing on the Registration Record. Such notice shall briefly set
forth the nature of the proposed supplemental ordinance and shall state that a copy thereof is on file
at the office of the Registrar for inspection by all owners of the 2020 Bonds and any BANs. The
Registrar shall not, however, be subject to any liability to any owners of the 2020 Bonds and any
BANs by reason of its failure to mail such notice,and any such failure shall not affect the validity of
such supplemental ordinance when consented to and approved as herein provided.
Whenever at any time within one year after the date of the mailing of such notice, the City
shall receive any instrument or instruments purporting to be executed by the owners of the 2020
Bonds and any BANs of not less than sixty-six and two-thirds per cent (66-2/3%) in aggregate
principal amount of the 2020 Bonds and any BANs then outstanding, which instrument or
instruments shall refer to the proposed supplemental ordinance described in such notice, and shall
specifically consent to and approve the adoption thereof in substantially the form of the copy thereof
referred to in such notice as on file with the Registrar, thereupon, but not otherwise, the City may
adopt such supplemental ordinance in substantially such form,without liability or responsibility to
any owners of the 2020 Bonds and any BANs, whether or not such owners shall have consented
thereto.
No owner of any 2020 Bond or BAN 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 Council 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 the
2020 Bonds and any BANs 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 2020 Bonds and any BANs, and the terms and
provisions of the 2020 Bonds and any BANs and this Ordinance, or any supplemental ordinance,
29
may be modified or amended in any respect with the consent of the City and the consent of the
owners of all the 2020 Bonds and any BANs then outstanding.
SECTION 23. Amendments Without Consent of Bondholders.The Council may,from
time to time and at any time, and without notice to or consent of the owners of the 2020 Bonds and
any BANs,adopt such ordinances supplemental hereto as shall not be inconsistent with the terms and
provisions hereof(which supplemental ordinances shall thereafter form a part hereof):
(a) To cure any ambiguity or formal defect or omission in this Ordinance
or in any supplemental ordinance;
(b) To grant to or confer upon the owners of the 2020 Bonds and any
BANs any additional rights,remedies,powers,authority or security that may lawfully
be granted to or conferred upon the owners of the 2020 Bonds and any BANs;
(c) To procure a rating on the 2020 Bonds and any BANs from a
nationally recognized securities rating agency designated in such supplemental
ordinance,if such supplemental ordinance will not adversely affect the owners of the
2020 Bonds and any BANs;
(d) To obtain or maintain bond insurance with respect to the 2020 Bonds;
(e) To provide for the refunding or advance refunding of the 2020 Bonds;
(f) To provide for the issuance of additional bonds or BANs as provided
in Section 20 hereof; or
(g) To make any other change which,in the determination of the Council
in its sole discretion, does not in any way adversely affect the rights of such owners
of the 2020 Bonds and any BANs.
Provided, however, that if the 2020 Bonds or BANs are sold to the Authority as part of the
SRF Program, the City shall obtain the prior written consent of the Authority to the foregoing.
SECTION 24. Tax Matters. In order to preserve the exclusion of interest on the 2020
Bonds and any BANs from gross income for federal income tax purposes and as an inducement to
purchasers of the 2020 Bonds and any 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 2020 Bonds and any BANs or property
financed by the 2020 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 2020 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.
30
(b) No portion of the principal of or interest on the 2020 Bonds and any
BANs is (under the terms of the 2020 Bonds and any BANs, this Ordinance or any
underlying arrangement), directly or indirectly, secured by an interest in property
used or to be used for any private business use or payments in respect of any private
business use or payments in respect of such property or to be derived from payments
(whether or not to the City)in respect of such property or borrowed money used or to
be used for a private business use.
(c) No 2020 Bond or BAN proceeds will be loaned to any entity or person
other than a state or local governmental unit.No 2020 Bond or BAN proceeds will be
transferred,directly or indirectly,or deemed transferred to a nongovernmental person
in any manner that would in substance constitute a loan of the 2020 Bond or BAN
proceeds.
(d) The City will not take any action or fail to take any action with respect
to the 2020 Bonds and any BANs that would result in the loss of the exclusion from
gross income for federal income tax purposes of interest on the 2020 Bonds and any
BANs pursuant to Section 103 of the Internal Revenue Code of 1986, as amended
(the"Code"),and the regulations thereunder as applicable to the 2020 Bonds and any
BANs, including, without limitation, the taking of such action as is necessary to
rebate or cause to be rebated arbitrage profits on 2020 Bond or BAN proceeds or
other monies treated as 2020 Bond or BAN proceeds to the federal government as
provided in Section 148 of the Code, and will set aside such monies,which may be
paid from investment income on funds and accounts notwithstanding anything else to
the contrary herein, in trust for such purposes.
(e) The City will file an information report on Form 8038-G with the
Internal Revenue Service as required by Section 149 of the Code.
(f) The City will not make any investment or do any other act or thing
during the period that any 2020 Bond or BAN is outstanding hereunder which would
cause any 2020 Bond or BAN to be an "arbitrage bond" within the meaning of
Section 148 of the Code and the regulations thereunder as applicable to the 2020
Bonds and any BANs.
(g) It shall not be an event of default under this Ordinance if the interest
on any 2020 Bonds or BANs is not excludable from gross income for federal tax
purposes or otherwise pursuant to any provision of the Code which is not currently in
effect and in existence on the date of issuance of the 2020 Bonds and any BANs,
respectively. These covenants are based solely on current law in effect and in
existence on the date of delivery of the 2020 Bonds and any BANs, respectively.
Notwithstanding any other provisions of this Ordinance, the foregoing covenants and
authorizations (the"Tax Sections")which are designed to preserve the exclusion of interest on the
2020 Bonds and any BANs from gross income under federal law(the"Tax Exemption")need not be
31
complied with to the extent the City receives an opinion of nationally recognized bond counsel that
compliance with such Tax Section is unnecessary to preserve the Tax Exemption.
SECTION 25. Additional Authority. (a) The Executive and Fiscal Officer,and either of
them, is hereby authorized and directed to do and perform all acts and execute in the name of the
City all such instruments, documents, papers or certificates which are necessary, desirable or
appropriate to carry out the transactions contemplated by this Ordinance in such forms as the
Executive or Fiscal Officer executing the same shall deem proper,to be conclusively evidenced by
the execution thereof.Any provision of this Ordinance authorizing the Executive or Fiscal Officer to
act shall mean either of them, individually rather than collectively, is so authorized and any action
taken and agreement or undertaking executed in the name of the City by them in further of the same
shall be deemed a proper use of such authority and will be conclusively evidenced by their execution
of any agreement or undertaking, or by their taking of any such authorized action.
(b) In the event the Executive and Fiscal Officer with the advice of the municipal advisor
to the City certifies to the City that it would be economically advantageous for the City to obtain a
municipal bond insurance policy for any of the 2020 Bonds issued hereunder, the City hereby
authorizes the purchase of such an insurance policy. The acquisition of a municipal bond insurance
policy is hereby deemed economically advantageous in the event the difference between the present
value cost of(a)the total debt service on the 2020 Bonds if issued without municipal bond insurance
and(b)the total debt service on the 2020 Bonds if issued with municipal bond insurance,is greater
than the cost of the premium on the municipal bond insurance policy. The City also authorizes the
purchase of a debt service reserve surety bond based upon the advice of the City's municipal advisor
for the 2020 Bonds. If such an insurance policy or surety bond is purchased,the Executive or Fiscal
Officer are hereby authorized to execute and deliver all agreements with the provider of the policy or
surety bond, as the case may be,to the extent necessary to comply with the terms of such insurance
policy, surety bond and the commitments to issue such policy or surety bond, as the case may be.
SECTION 26. Non-Business Days.If the date of making any payment or the last date for
performance of any act or the exercising of any right,as provided in this Ordinance, shall be a legal
holiday or a day on which banking institutions in the City or the jurisdiction in which the Registrar or
Paying Agent is located are typically closed, such payment may be made or act performed or right
exercised on the next succeeding day not a legal holiday or a day on which such banking institutions
are typically closed, with the same force and effect as if done on the nominal date provided in this
Ordinance, and no interest shall accrue for the period after such nominal date.
SECTION 27. No Conflict.The Council hereby finds and determines that the adoption of
this Ordinance and the issuance of the 2020 Bonds and any BANs is in compliance with the Prior
Bond Ordinances. The Prior Bond Ordinances shall remain in full force and effect, except as
modified herein. The Council determines that to the extent this Ordinance modifies or amends the
Prior Bond Ordinances, there is no adverse effect to the holders of the Prior Bonds. All ordinances
and resolutions and parts thereof in conflict,are to the extent of such conflict hereby repealed.None
of the provisions of this Ordinance shall be construed to adversely affect the rights of the owners of
the Prior Bonds.
32
SECTION 28. Severability.If any section,paragraph or provision of this Ordinance shall
be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such
section,paragraph or provision shall not affect any of the remaining provisions of this Ordinance.
SECTION 29. Headings.The headings or titles of the several sections shall be solely for
convenience of reference and shall not affect the meaning, construction or effect of this Ordinance.
SECTION 30. Interpretation. Unless the context or laws clearly require otherwise,
references herein to statutes or other laws include the same as modified,supplemented or superseded
from time to time. The headings or titles of the several sections shall be solely for convenience of
reference and shall not affect the meaning, construction or effect of this Ordinance.
SECTION 31. Estimates of Rates and Charges. The estimates of the rates and charges
of the utility are set forth in Ordinance S-74-18, Version A (the "Rate Ordinance"), which Rate
Ordinance is incorporated herein by reference.
SECTION 32. Effectiveness. This Ordinance shall be in full force and effect from and
after its passage and signing by the Executive.
33
PASSED by the Common Council of the City of Carmel,Indiana this, day of IAWC
2020, by a vote of ct ayes and 0 nays.
COMMON COUNCIL FOR THE CITY OF CARMEL, INDIANA
Lau . Campbell, President Su nk .President
H. Bruce Kimball Kevi D. e
Anthony G n Jeff
Tim H nno Miles Nelson
i
Adam ' sen
ATTEST:
Sue Wolfgang, C er
Presented by me to the Mayor of the City of Carmel, Indiana this/ ' ' /day of
i 2020, at 7"9 C�j� .M.
Sue Wolfgang, erk
•
Approved by me, Mayor of the Cit of Carmel, Indiana, this (614/day of
- OA 2020, at 1 f.M.
J mes Brainard, Mayor
ATT 'T:
Sue Wolfgang, Cle
Prepared by: Bruce D. Donaldson
Barnes&Thornburg LLP
11 South Meridian Street
Indianapolis, IN 46204
34
EXHIBIT A
Capital Improvement Projects
Wastewater Utility
Carmel, Indiana
The following is a list of capital improvement projects needed for the wastewater utility along with a
brief description of each capital improvement project and budgetary costs.
1. Wastewater Plan Secondary Expansion, C-100. This project entails the installation of two new
aeration tanks (39-ft by 100-ft/ea.) one new 80-ft diameter final clarifier, replacement of two
existing 80-ft diameter final clarifier mechanisms,two submersible RAS pumps,infrastructure as
needed for biological phosphorus removal including 12 new mixers, four partition walls and
associated meters and controls. The improvements also include revisions to the return sludge
piping and replacement of the ultraviolet disinfection system.
Estimated Project Costs—$12,843,000
2. Chemical Phosphorous Removal, Contract No. 101. This project entails the construction of a
new 30-ft by 50-ft masonry chemical feed building with two 7,000 gal. fiberglass storage tanks,
chemical feed pumps, controls,phosphorus meters and associated infrastructure as required for
chemical phosphorus removal from the wet stream of the wastewater treatment plant.
Estimated Project Costs - $1,269,000
3. Sewer Lining,Contract No. 97.This project entails the installation of approximately 22,200 ft.of
cured in place synthetic lining for 8", 10"and 12"sanitary sewers along with rehabilitation and
coating of approximately 45 manholes.
Estimated Project Costs - $1,007,000
4. Solar Array Equipment and Installation. This project entails the installation of 1,116 of solar
array panels for 300kWac located adjacent to Hazeldell Pkwy with cabling to supplement the
power requirements for the 106th St. Pump Station.
Estimated Project Costs - $835,000
Total Project Cost $15,954,000
EXHIBIT B
Form of Financial Assistance Agreement
DMS 16318659.3
STATE OF INDIANA
WASTEWATER REVOLVING LOAN PROGRAM
FINANCIAL ASSISTANCE AGREEMENT made as of this day of 20 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 Carmel,Indiana(the"Participant"), a political subdivision as defined in I.C. 5-1.2-2-57 and
existing under I.C. 36-5, 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. 5-1.2-10 (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,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
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
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 Participant has previously entered into a Financial Assistance Agreement
with the Finance Authority,dated as of October 2,2009 to borrow money from the Wastewater SRF
Program, to construct and acquire separate projects as described and defined therein (the "Prior
Agreement"); 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
20844806.1
DEFINITIONS
Section 1.01. Definitions. The following terms shall, for all purposes of this Agreement,
have the following meaning:
"Agency" shall mean the United States Environmental Protection Agency or its successor.
"Asset Management Program" means programs, plans and documentation (including a
Fiscal Sustainability Plan) that demonstrates that the Participant has the financial, managerial,
technical, and legal capability to operate and maintain its Treatment Works and which is consistent
with SRF Policy Guidelines including applicable requirements of the Wastewater SRF Act.
"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 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)which evidence(s)the Loan,as authorized
by the Authorizing Instrument and containing the terms set forth in Section 2.02 of this Agreement.
"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
2014 Appropriations Act and the Water Resources Reform and Development Act of 2014), 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
2
20844806.1
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.
"Deposit Agreement Counterparty" 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 Counterparty as the party
disbursing amounts that 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.
"Finance Authority"shall mean the Indiana Finance Authority,a body politic and corporate,
3
20844806.1
not a state agency but an independent instrumentality of the State.
"Finance Authority Bonds" shall mean 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.
"Fiscal Sustainability Plan"means in connection with a project that provides for the repair,
replacement,or expansion of an existing Treatment Works,a plan that is consistent with SRF Policy
Guidelines including applicable requirements of the Wastewater SRF Act and includes (a) an
inventory of critical assets that are a part of the Treatment Works,(b)an evaluation of the condition
and performance of inventoried assets or asset groupings; (b)a certification that the Participant has
evaluated and will be implementing water and energy conservation efforts as part of the plan;and(d)
a plan for maintaining, repairing, and, as necessary, replacing the Treatment Works and a plan for
funding such activities.
"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.
"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.
4
20844806.1
"Non-Use Assessment Date" shall mean [ 1, 20 ] and the first day of each
sixth(6t1i)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.
"Plans 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 to determine the technical,economic and environmental
adequacy of the 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.
"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. •
5
20844806.1
"System Development Charges" shall mean the proceeds and balances from any non-
recurring charges such as tap fees,subsequent connector fees,capacity or contribution fees,and other
similar one-time charges applicable to the Treatment Works that are available for deposit under the
Authorizing Instrument.
"Treatment Works" shall mean any devices and systems used in the storage, treatment,
recycling,and reclamation of municipal sewage or industrial wastes of a liquid nature to implement
section 201 of the Clean Water Act, or necessary to recycle or reuse water at the most economical
cost over the estimated life of the works, including intercepting sewers, outfall sewers, sewage
collection systems, pumping, power, and other equipment, and their appurtenances; extensions,
improvements,remodeling,additions,and alterations thereof;elements essential to provide a reliable
recycled supply such as standby treatment units and clear well facilities; and acquisition of the land
that will be an integral part of the treatment process (including land use for the storage of treated
wastewater in land treatment systems prior to land application)or will be used for ultimate disposal
of residues resulting from such treatment and acquisition of other land,and interests in land,that are
necessary for construction.
"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.
"2014 Appropriations Act" shall mean the Consolidated Appropriations Act, 2014 (also
known as H.R. 3457),and other laws,regulations and guidance supplemental thereto(including the
Clean Water Act), as amended and supplemented from time to time.
"Wastewater SRF Fund"shall mean the wastewater revolving loan fund as established by
I.C. 5-1.2-10-2.
"Wastewater SRF Indenture"shall mean the Seventh Amended and Restated Wastewater
SRF Trust Indenture,dated as of September 1,2019 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)
6
20844806.1
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 available proceeds of the Finance Authority
Bonds contained in the Purchase Account or from other sources 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 610026840C,Account Name: City of Carmel Sewage Works,Attn:Derick Rush.
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 Bonds will bear interest at the per annum rate of[ ] 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. 5-1.2-10-15 and-20. Interest,if any,on the Bonds will be
payable on May 1 and November 1 of each year,commencing[ 11,20[ ].The Bonds will
be in the aggregate principal amount of[ ] Dollars ($[ ]). Subject to
Section 2.05 and 2.06 herein,the Bonds will mature on May 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 Bonds to the contrary, no maturity of
Bonds shall extend beyond the date which is thirty-five(35)years after the date of this Agreement.If
the maturity date for any Bonds is beyond such date, unless otherwise agreed to, such Bonds,
together with accrued and unpaid interest thereon, will be due and payable on such date.
(b) The Bonds will be subject to redemption by the Participant as provided in the
Authorizing Instrument; provided however that in no event shall the Participant exercise any
provision contained in the Authorizing Instrument or the Bonds permitting a redemption of the
Bonds at the option of the Participant unless and until such has been consented by the Authority.
The Loan, and the Bonds evidencing it,will be subject to payment by the Participant as provided in
this Agreement.
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20844806.1
(c) The form and other terms of the Bonds will be in conformity with the Authorizing
Instrument.
(d) The additional terms contained in the attached Exhibit D are applicable to this Loan(as
and to the extent set forth in Exhibit D) to the same effect as if such were set forth in this section.
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. Additionally costs related Planning and Design shall only be
Eligible Costs upon compliance with paragraph A of the attached Exhibit D. (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 Finance Authority Bonds in the Purchase Account or from other sources 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.
(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. 5-1.2-10, 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
8
20844806.1
Reduction Payment pursuant to Section 2.06 herein 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.
Section 2.05. Effect of Disbursements. Loan disbursements made to or for the benefit of
the Participant shall be deemed to be a purchase of the Bonds in such amounts and with such
maturities as achieves as level debt service as practicable, and with no maturity longer than the
original maturity schedule;provided that any principal payments originally scheduled under Section
2.02 herein as being due prior to one year after Substantial Completion of Construction shall first be
deemed to be a purchase of the Bonds in order of maturity. 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
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20844806.1
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;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 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, to the Finance Authority within 10 days after any Finance Authority
written demand.Any Loan Reduction Payment shall be applied to pay principal in such amounts and
with such maturities as achieves as level debt service as practicable consistent with methodology
prescribed in the Authorizing Instrument and as originally applied to the Bonds,and with no maturity
longer than the original maturity schedule;provided that any principal payments originally scheduled
under Section 2.02 herein as being due prior to the Loan Reduction Payment shall be unaffected by
such payment. If the Participant fails to make such Loan Reduction Payment 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,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 may be 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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20844806.1
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 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 such other forms as may be required by the
Clean Water Act or SRF Policy Guidelines.
(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 of Project change orders, (2) obtaining approval from
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20844806.1
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.
(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
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20844806.1
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) in
accordance with(1)generally accepted governmental accounting principles,as promulgated
by the Government Accounting Standards Board(including GASB No. 34 standards relating
to the reporting of infrastructure) 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 to the Finance Authority audited financial statements of the Participant
inclusive of the activities of the Treatment Works,commencing with financial statements for
a calendar year period that ends not more than two(2)years after the date of this Agreement
(and for each calendar year period that ends every two(2)years thereafter until the Loan has
been repaid), which audit (i) shall have been performed by the Indiana State Board of
Accounts or by an independent public accountant and(ii) shall be submitted to the Finance
Authority no later than nine (9) months following the end of the calendar year period to
which such audit pertains.
(h) Develop, certify, implement and maintain an Asset Management Program
(including a Fiscal Sustainability Plan) of the Participant that meets SRF Policy Guidelines
including applicable requirements of the Wastewater SRF Act. The Participant
acknowledges that its agreement to develop, certify, implement and maintain an Asset
Management Program(including a Fiscal Sustainability Plan)as provided in this subsection
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20844806.1
was a condition of the Loan. Unless the Participant's Asset Management Program(including
a Fiscal Sustainability Plan)was certified prior to the date of this Agreement,the Participant
agrees to submit a certification (on and in a form as provided by the Finance Authority)
related to the Participant's Asset Management Program (including a Fiscal Sustainability
Plan) prior to submitting its request for a final Loan disbursement related to the Project.
Over the term of the Loan, the Participant further agrees to continue to update, implement
and maintain the Participant's Asset Management Program(including a Fiscal Sustainability
Plan)to assure it has the financial,managerial,technical,and legal capability to operate and
maintain its Treatment Works consistent with SRF Policy Guidelines including applicable
requirements of the Wastewater SRF Act.
(i) Provide notice to the Finance Authority under the circumstances contemplated,
and undertake inspections as required, by SRF Policy Guidelines.
(j) (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 and maintain rates
and charges at a level adequate to produce and maintain sufficient revenue(when determined
including user and other charges, fees, income or revenues available to the Participant,
provided that to the extent permitted by law System Development Charges shall be excluded
when determining if such are sufficient)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.
(k) 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.
(1) Comply with the Civil Rights Act of 1964,as amended,42 U.S.C. Section 2000d
et seq., 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.
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20844806.1
(m) 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.
(n) Not modify, alter, amend, add to or rescind any provision of the Authorizing
Instrument without the prior written consent of the Finance Authority.
(o)In the event the Participant adopts an ordinance or resolution to refund the Bonds,
within 5 days of the adoption of the 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.
(p) In any year in which total expenditures of Federal financial assistance received
from all sources exceeds$750,000 the Participant shall comply with the Federal Single Audit
Act(SAA)of 1984,as amended by the Federal Single Audit Act Amendments of 1996(see
2 CFR 200 Subpart F) and have an audit of their use of Federal financial assistance. The
Participant agrees to provide the Finance Authority with a copy of the SAA audit within 9
months of the audit period.
(q) Inform the Finance Authority of any findings and recommendations pertaining to
the SRF program contained in an audit of 2 CFR 200 Subpart F (a/k/a "Super Circular")
matters in which SRF Federal financial assistance was less than $750,000.
(r) Initiate within 6 months of the audit period corrective actions for those audit
reports with findings and recommendations that impact the SRF financial assistance.
(s) 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 a long
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
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20844806.1
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 known as MBIA Insurance Corp. of Illinois) shall not be treated as a Disqualified
Instrument.
(t) (i) comply with Title 40 CFR Part 34 (New Restrictions on Lobbying) and the
Byrd Anti-Lobbying Amendment("Lobbying Restrictions"); (ii)provide certifications 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.
(u) Comply with all federal requirements applicable to the Loan (including those
imposed by the 2014 Appropriations Act and related SRF Policy Guidelines) which the
Participant understands includes, among other, requirements that all of the iron and steel
products used in the Project are to be produced in the United States ("American Iron and
Steel Requirement")unless(i)the Participant has requested and obtained a waiver from the
Agency pertaining to the Project or (ii) the Finance Authority has otherwise advised the
Participant in writing that the American Iron and Steel Requirement is not applicable to the
Project.
(v)Comply with all record keeping and reporting requirements under the Clean Water
Act, including any reports required by a Federal agency or the Finance Authority such
as performance indicators of program deliverables, information on costs and project
progress. The Participant understands that (i) each contract and subcontract related to the
Project is subject to audit by appropriate federal and state entities and(ii) failure to comply
with the Clean Water Act and this Agreement may be a default hereunder that results in a
repayment of the Loan in advance of the maturity of the Bonds and/or other remedial actions.
(w) Whenever from time to time requested by the Finance Authority, submit
evidence satisfactory to the Finance Authority demonstrating that the Participant's 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)and,in the event the Participant's rates and charges
are insufficient to demonstrate such coverage, then to the extent permitted by law annually
16
20844806.1
enact an increase in its rates and charges reasonably designed to be consistent with SRF
Policy Guidelines regarding such coverage.
(x)Notwithstanding any provision of the Authorization Instrument to the contrary,
not make any payment in lieu of property taxes from any account of the Treatment Works(i)
if the Finance Authority provides notice to the Participant that the Finance Authority has
determined in its reasonable discretion that such a transfer adversely affects the Finance
Authority and(ii)more frequently than semiannually if the Authority provides notice to the
Participant so requiring such a limitation on frequency.
(y)Comply with all requirements of this Agreement applicable to the Loan(including
those imposed by the attached Exhibit D).
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. 5-1.2-2-57)and a"participant"within the
meaning of I.C. 5-1.2-2-54. 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.
17
20844806.1
(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 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
18
20844806.1
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)
19
20844806.1
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
herein 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 of the 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 Prior Agreement. The Participant and the Finance Authority
agree that any event of default occurring under the Prior Agreement 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
entered into between the Participant and the Finance Authority, shall constitute an event of default
under the Prior Agreement and the subsequent financial assistance agreement,if any,as the case may
be.
20
20844806.I
(End of Article IV)
21
20844806.1
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.
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, 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 Agreement except as expressly set forth in Section
4.03 herein.
Section 5.06. Execution of Counterparts. This Agreement may be executed in any number
22
20844806.1
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
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 Carmel
One Civic Square
Carmel, Indiana 46032
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(d) the same day as it is
sent by facsimile transmission with telephonic confirmation of receipt by the person to whom it is
sent.
23
20844806.1
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 thirty(30)days after any
request), a Non-Use Fee in connection with the Loan, which may not be paid from a Loan
disbursement; (4) 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 (5) 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 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.
24
20844806.I
Section 5.13. Federal Award Information. The CFDA Number for the Finance
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]
25
20844806.1
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 CARMEL,INDIANA (1) INDIANA FINANCE AUTHORITY
"Participant"
"Finance Authority"
By:
By:
Printed: James P. McGoff
Title: Director of Environmental Programs
Attested by Finance Authority Staff:
Attest: By:
(Signature Page to Financial Assistance Agreement)
20844806.1
EXHIBIT A
Project Description
The Project consists of the following improvements to the Participant's Treatment Works:
• Construction of components at the wastewater treatment facility, including the addition of
two (2) aeration tanks, with diffusers; the conversion of one aeration tank into an anaerobic
pass for the proposed biological phosphorus removal process Green Project Reserve
(GPR); one (1) final settling tank with return sludge chamber, RAS pumps with energy
efficient premium motors (GPR), gates, and actuators; closed-loop generator; replacement
of existing boiler with hot water boiler-dual fuel burner for waste-heat recovery (GPR);
upgrades to the UV disinfection system; chemical feed building with chemical feed system;
struvite recovery and mixing tank; renovation of an existing building (GPR) for additional
office space; miscellaneous ductile iron piping (GPR) and related appurtenances.
• Construction of approximately 4900 linear feet of 60-inch diameter ("North-South")
interceptor sewer with associated manhole structures and the upgrade/expansion of a
regional (106th Street) lift station, including a diversion structure and manholes, gates and
slide plates, new wet well, bar screens/washer, two (2) pumps with energy efficient
premium motors (GPR) and associated piping/valving, including ductile iron piping (GPR)
superstructure housing with hoist and monorail for removal of screenings, solar arrays with
control panels (GPR) and buried, connection conduit routed from solar array to the lift
station control panel, and related appurtenances.
• Repair and rehabilitation of select sanitary sewer segments, including the lining of
approximately 22,200 linear feet of existing sanitary sewer main, the rebuilding of
approximately 35 manhole flow channels, and the installation of approximately 100 vertical
feet of manhole lining.
The Project contains components that are GPR Projects, which GPR Projects Expenditures have
been determined and are expected as of the date of this Agreement to be in the amount as set
forth in the Participant's business case or categorical exclusion which is posted at
www.srf.in.gov.
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).
[End of Exhibit A]
A-1
20844806.1
EXHIBIT B
Principal Payment Schedule for the Bonds
Maturity Date Principal
Amount
5/1/2021 $
5/1/2022
5/1/2023
5/1/2024
5/1/2025
5/1/2026
5/1/2027
5/1/2028
5/1/2029
5/1/2030
5/1/2031
5/1/2032
5/1/2033
5/1/2034
5/1/2035
5/1/2036
5/1/2037
5/1/2038
5/1/2039
5/1/2040
5/1/2041
5/1/2042
5/1/2043
5/1/2044
5/1/2045
5/1/2046
5/1/2047
5/1/2048
5/1/2049
5/1/2050
5/1/2051
5/1/2052
5/1/2053
5/1/2054
TOTAL $
[End of Exhibit B]
20844806.1
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:
• None.
[End of Exhibit C]
D-3
20844806.1
Exhibit D
Additional Terms
A. The following additional terms in this Paragraph A (related to costs of Planning or Design
being treated as Eligible Costs under this Agreement and the related defined terms)are[NOT]
applicable to the Loan:
"Equivalency Project"shall mean a project designated by the Finance Authority as
an "equivalency project" under the Clean Water Act related to the "US Environmental
Protection Agency Capitalization Grant for Clean Water State Revolving Funds" for the
federal fiscal year ending September 30,2019(or such later federal fiscal year as the Finance
Authority may otherwise designate).
"A/E Services"shall mean professional services related to the Planning or Design of
the Project including for program management,construction management,feasibility studies,
preliminary engineering, design, engineering, surveying, mapping, or architectural related
services.
The Participant understands and acknowledges that the Project has been designated as an
Equivalency Project and is required to meet the related applicable requirements of the Clean
Water Act which among other requirements requires that for costs of Planning or Design
(including costs for A/E Services)to be treated as Eligible Costs under this Agreement,such
services (and the related contract) are required to be negotiated in the same manner as a
contract for architectural and engineering services as negotiated under chapter 11 of title 40,
United States Code (as amended). In connection with any request for disbursement of the
Loan that is submitted by the Participant to the Finance Authority to provide for the payment
of any costs of Planning or Design (including costs for A/E Services), the Participant
represents and warrants that such costs relate only to services provided under a contract
negotiated in the same manner as a contract for architectural and engineering services as
negotiated under chapter 11 of title 40, United States Code (as amended).
B. The following additional terms in this Paragraph B (related to GPR Projects and the related
defined terms) are applicable to the Loan.
"GPR Projects" shall mean Project components that meet the requirement of the
"Green Project Reserve (GPR) Sustainability Incentive Program" consistent with SRF Policy
Guidelines including applicable requirements of the Wastewater SRF Act.
"GPR Projects Adjustment Fee" shall mean an amount which would equal the gross
additional interest that would have accrued on the Bonds from the date of this Agreement
through their scheduled final maturity, had such Bonds been issued at an interest rate
determined under the Wastewater SRF Program's interest rate policies and practices using the
final,actual GPR Projects Expenditures(rather than the GPR Projects Business Case Amount),
D-1
20844806.1
all as determined by the Finance Authority.
"GPR Projects Business Case Amount" shall mean the amount referenced in the
Participant's business case related to GPR Projects as was set in the Participant's Preliminary
Engineering Report (or categorical exclusion) posted at www.srf.in.gov, uses of funds
information submitted to the Finance Authority after the Project was bid or some other
submitted information that was used by the Finance Authority prior to the date of this
Agreement to set a special interest rate under the Wastewater SRF Program's interest rate
policies and practices applicable to the Bonds.
"GPR Projects Expenditures" shall mean those costs and expenses incurred by the
Participant that are part of the Project which are GPR Projects in nature(within the meaning of
the Wastewater SRF Act) as determined by the Finance Authority, in order for the Bonds to
receive special interest rate treatment under the Wastewater SRF Program's interest rate policies
and practices.
The Participant understands and acknowledges that a special interest rate has been applied to the
Bonds as a result of a portion of the Project having been identified by the Participant as being a
GPR Projects project. In the event GPR Projects Expenditures are hereafter determined by the
Finance Authority to be less than the GPR Projects Business Case Amount, then the Finance
Authority may request and the Participant shall promptly pay(no later than thirty(30)days after
any request),a GPR Projects Adjustment Fee in connection with the Loan. The Participant shall
certify to the Finance Authority those Loan disbursements it represents to be its GPR Projects
Expenditures when and as required by SRF Policy Guidelines.The Participant understands and
acknowledges that it is required to submit a business case or categorical exclusion documenting
the GPR Projects and the GPR Projects Business Case Amount prior to loan closing or if a
request is made pursuant to Section 3.02(f) of this Agreement.
C. The following additional terms in this Paragraph C(related to Non point Source Projects and
the related defined terms) are[NOT] applicable to the Loan:
"Non-point Source Adjustment Fee"shall mean an amount which would equal the
gross additional interest that would have accrued on the Bonds from the date of this
Agreement through their scheduled final maturity,had such Bonds been issued at an interest
rate determined under the Wastewater SRF Program's interest rate policies and practices
using the final, actual Non-point Source Expenditures(rather than the amount referenced in
the Participant's post-bid and other documents submitted to the Finance Authority), all as
determined by the Finance Authority.
"Non-point Source Expenditures"shall mean those costs and expenses incurred by
the Participant that are Non-point Source Projects in order for the Bonds to receive special
interest rate treatment under the Wastewater SRF Program's interest rate policies and
practices.
D-2
20844806.1
"Non-point Source Projects Amount" shall mean the amount referenced in the
Participant's post-bid and other documents submitted to the Finance Authority prior to the date
of this Agreement to set a special interest rate under the Wastewater SRF Program's interest rate
policies and practices applicable to the Bonds
"Non-point Source Projects" shall mean Project components that meet the
requirement of SRF Policy Guidelines and the Wastewater SRF Act to be non-point source in
nature as determined by the Finance Authority.
The Participant understands and acknowledges that a special interest rate has been applied to
the Bonds as a result of a portion of the Project having been identified by the Participant as
being a non-point source project. In the event Non-point Source Expenditures are hereafter
determined by the Finance Authority to be less than the Non-point Source Projects Amount,
then the Finance Authority may request and the Participant shall promptly pay(no later than
thirty(30)days after any request),a Non-point Source Adjustment Fee in connection with the
Loan. The Participant shall certify to the Finance Authority those Loan disbursements it
represents to be its Non-point Source Expenditures when and as requested by SRF Policy
Guidelines.
[End of Exhibit D]
D-3
20844806.1