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HomeMy WebLinkAboutD-2562-20 Police HQ_FinancingSponsors: Councilors Kimball, Rider and Worrell VERSION A – 03/01/2021 ORDINANCE D-2562-20 AS AMENDED AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL APPROVING A FINANCING LEASE AND BONDS TO FINANCE POLICE HEADQUARTERS EXPANSION PROJECT Synopsis: This ordinance approves bonds in an amount not to exceed $38,000,000 to finance an expansion of the existing police headquarters and relocation of the IT facility and a related financing lease with the Carmel Municipal Facilities Building Corporation. WHEREAS, a petition signed by fifty (50) or more taxpaying citizens of the City of Carmel, Indiana (the “City”), has been filed with the Common Council of the City (the “Council”) requesting the Council (1) to enter into negotiations with a nonprofit building corporation for all or a portion of (a) the acquisition of property, construction, renovation, installation, and equipping of buildings and other improvements related thereto comprising an expansion to the police headquarters to be located at or near 998 South Rangeline Road in the City, and (b) the renovation, installation and equipping of buildings, the construction and equipping of a garage and data center, the acquisition and installation of an internet fiber ring, all in connection with the establishment of an information technology (“IT”) facility for the police department and other improvements related thereto, including, but not limited to expenses of physically moving the IT department from the existing police station to such new facilities (clauses (a) and (b), collectively, the “Project”), and (2) to secure, if possible, a lease or leases thereto upon all or any portion of any such facilities described in item (1)(a) above, as such facilities currently exist and as constructed, improved, renovated, rehabilitated, repaired and equipped (the “Premises”); and WHEREAS, such petition has been carefully considered and investigations have been conducted by this Council; and WHEREAS, the Council now finds that a need exists for the Project, and that the City cannot provide the necessary funds to pay the costs of the Project to meet such needs; and WHEREAS, the Carmel Municipal Facilities Building Corporation (the “Building Corporation”) was incorporated to assist the City in financing, from time to time, the construction and renovation of City facilities to be operated by the City, including the Project; and WHEREAS, it is deemed desirable to proceed with the necessary negotiations and all other steps looking toward the completion of the Project; and WHEREAS, there have been prepared drawings, plans, specifications and estimates for the costs of the Project; and WHEREAS, said drawings, plans and specifications will be submitted to the agencies designated by law to pass on plans and specifications for such buildings, and the estimates for DocuSign Envelope ID: 89816A71-26D4-4FAE-8ECE-A48EBE24008A VERSION A – 03/01/2021 2 the costs of the Project have been submitted to and now meet with the approval of this Council; and WHEREAS, it now appears to this Council that said drawings, plans, specifications and estimates provide for necessary facilities; and WHEREAS, this Council now desires, to the extent permitted by law, to take all of the necessary steps to enter into one or more leases and there has been prepared and previously submitted to the members of the Council a proposed form of lease (the “Lease”), by and between the Building Corporation, as lessor, and the City, as lessee, to include the lease of all or any portion of the Premises in accordance with the terms and conditions set forth in this Ordinance and in the Lease; and WHEREAS, the City now owns all or a portion of the Premises and desires to transfer all or any portion of such Premises to the Corporation; and WHEREAS, a notice of public hearing on the proposed Lease was given by publication as required by law; and WHEREAS, a public hearing was conducted in accordance with Indiana Code 36-1-10- 13 as to whether the execution of the Lease is necessary and whether the rentals in the Lease are fair and reasonable for the Project; and WHEREAS, the Council has considered the testimony and other evidence presented at the public hearing; and WHEREAS, the Hamilton County Income Tax Council has imposed a county option income tax pursuant to IC 6-3.5-6 (repealed) on the adjusted gross income of Hamilton County, Indiana (the “County”) taxpayers, which now has been codified at IC 6-3.6 and reclassified as the certified shares component of additional revenue derived from the expenditure rate tax under IC 6-3.6 (referred to herein as the “LIT”); and WHEREAS, IC 6-3.6-9, as amended, provides that revenue derived from the imposition of the LIT shall be distributed to the County monthly on the first day of each month (the City’s share of each such monthly distribution, a “Monthly Distribution”); and WHEREAS, on July 7, 1997, the Council adopted its Ordinance No. D-1302-97 (the “LIT Ordinance”), pursuant to which the Council, on behalf of the City, pledged and assigned the City’s Monthly Distributions of LIT revenues for the payment of any bond, note, warrant or other evidence of indebtedness, any lease or any other obligation (any bond, note, warrant or other evidence of indebtedness, any lease or any other obligation, individually, an “Obligation” and, collectively, the “Obligations”) identified by ordinance of the Council as an obligation secured by the LIT Ordinance (any Obligation so identified as an obligation secured by the LIT Ordinance, individually, a “Secured Obligation” and, collectively, the “Secured Obligations”), if certain conditions are satisfied, and such conditions have been satisfied; and WHEREAS, the Council reasonably expects to pay the lease rentals during the term of any Lease from a portion of the City’s Monthly Distributions of LIT revenues, and the payment DocuSign Envelope ID: 89816A71-26D4-4FAE-8ECE-A48EBE24008A VERSION A – 03/01/2021 3 of the Lease Rentals will be secured solely by (1) a pledge of the City’s Monthly Distributions of LIT revenues, and (2) to the extent that the City’s Monthly Distributions of LIT revenues are insufficient, a back-up pledge of ad valorem property taxes to be levied on all taxable property in the City. NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, that: Section 1. The petition of taxpaying citizens heretofore filed with this Council is hereby approved. Section 2. Need exists for the Project, and the Project cannot be provided from any funds available to the City, and this Council shall proceed to take such steps as may be necessary to secure (1) the acquisition of all or any portion of the Premises by the Building Corporation, if necessary, (2) the payment of all costs of the Project and all of the costs associated therewith by the Building Corporation and the City, and (3) the leasing of all or any portion of the Premises by the Building Corporation to the City as provided by Indiana Code 36-1-10, as amended. Section 3. The drawings, plans, specifications and estimates for the cost of the Project, including, but not limited to, all costs of acquisition associated with the Project, provide for necessary facilities for the City, and the same are hereby approved. Section 4. The proposed Lease hereby is confirmed in accordance with Indiana code 36-1-10-13. The Lease provides for a fair and reasonable rental, and further, the execution of the Lease is necessary and wise. The proposed Lease will have a term ending no later than twenty (20) years beginning on the date of issuance of the Bonds (defined herein). Section 5. The Council hereby ratifies and approves the incorporation of the Building Corporation for the purpose of financing, constructing, renovating, expanding and equipping certain City facilities and leasing the same to the City, including the Project. Section 6. Providing for the financing, acquisition, and equipping of all or any portion of the Project by the Building Corporation and the leasing of the same to the City, as lessee, is in the public interest of the citizens of the City and is a proper public purpose for which this Council agrees to cooperate with the Building Corporation and assist it in fulfilling the requirements of all agencies, including the federal, state and city governments. Section 7. The Clerk of the City is authorized and directed to initial and date a copy of the proposed Lease and to place the same in the record book immediately following the minutes of this meeting, and further, the Lease is hereby made a part of this Ordinance as fully as if the same were set forth herein. Section 8. Subject to the satisfaction of all statutorily required processes, the Mayor is authorized and directed to execute the Lease, including the addenda attached as exhibits to the Lease, in the name and on behalf of the City, and the Controller of the City, is hereby authorized and directed to attest such execution of the Lease. DocuSign Envelope ID: 89816A71-26D4-4FAE-8ECE-A48EBE24008A VERSION A – 03/01/2021 4 Section 9. The Controller of the City is authorized and directed, on behalf of the City to publish notice of the execution of the Lease as required by law. Section 10. Pursuant to Indiana Code 6-3.6-6-18, the Council, on behalf of the City, hereby pledges and assigns the City’s Monthly Distributions of LIT revenues for the payment of the Secured Obligations, including the Lease. The Council hereby identifies the Lease as an obligation secured by the LIT Ordinance. Section 11. The following provisions shall apply to this Ordinance and the Secured Obligations: (a) The provisions of this Ordinance shall constitute a contract by and between the City and the obligees of the Secured Obligations, including the Lease. After the issuance of any Secured Obligations, the Council shall not, except as specifically provided in Section 11(b) or 11(c) hereof, repeal, modify or amend this Ordinance. (b) The Council may, from time to time and at any time, without the consent of or notice to any obligees under any Secured Obligations, adopt a supplemental ordinance to modify or amend this Ordinance for any one or more of the following purposes: (i) To cure any ambiguity or formal defect or omission in this Ordinance or in any supplemental ordinance; (ii) To grant to or confer upon any obligees under any Secured Obligations any additional benefits, rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon such obligees under such Secured Obligations; (iii) To modify or amend this Ordinance to permit the qualification of any Secured Obligations for sale under the securities laws of the United States of America or any of the states of the United States of America; (iv) To provide for the refunding or advance refunding of any Secured Obligations; (v) To procure a rating on any Secured Obligations from a nationally recognized securities rating agency, designated in such supplemental ordinance, if such supplemental ordinance will not materially adversely affect the interests of any obligees under any Secured Obligations; (vi) To make changes to reflect the identification of any Obligation as an obligation secured by the LIT Ordinance in accordance with Section 3 thereof; or (vii) Any other purpose which, in the judgment of the Council, does not materially adversely affect the interests of any obligees under any Secured Obligations. DocuSign Envelope ID: 89816A71-26D4-4FAE-8ECE-A48EBE24008A VERSION A – 03/01/2021 5 (c) This Ordinance, and the rights and obligations of the City and any obligees under any Secured Obligations, may be modified or amended from time to time at any time by a supplemental ordinance adopted by the Council with the consent of the obligees under the Secured Obligations affected by such modification or amendment, holding at least a majority in aggregate principal amount of such Secured Obligations then outstanding (exclusive of Secured Obligations, if any, owned by the City); provided, however, that no such modification or amendment shall, without the express consent of all of the obligees under the Secured Obligations affected by such modification or amendment, permit a privilege or priority of any of such Secured Obligations over any other of such Secured Obligations, or create a lien securing any of such Secured Obligations other than a lien ratably securing all of such Secured Obligations, nor shall any such modification or amendment reduce the percentage of consent required for amendment or modification of this Ordinance. Any act done pursuant to a modification or amendment so consented to shall be binding upon all the obligees under the Secured Obligations and shall not be deemed an infringement of any of the provisions of this Ordinance, and may be done and performed as fully and freely as if expressly permitted by the terms of this Ordinance, and, after such consent relating to such specified matters has been given, no obligees under the Secured Obligations shall have any right or interest to object to such action or in any manner to question the propriety thereof or to enjoin or restrain the City or any officer thereof from taking any action pursuant thereto. If the City shall desire to obtain any such consent to any modification or amendment of this Ordinance, it shall mail or cause to be mailed a notice, postage prepaid, to the respective obligees under the Secured Obligations affected by such modification or amendment. Such notice shall briefly set forth the nature of the proposed supplemental ordinance and shall state that a copy thereof is on file for inspection by all obligees under such Secured Obligations. The City shall not, however, be subject to any liability to any obligees under any Secured Obligations by reason of its failure to mail the notice described in this Section 11, and any such failure shall not affect the validity of such supplemental ordinance when consented to and approved as provided in this Section 11. Whenever, at any time within one year after the date of the mailing of such notice, the City shall receive an instrument or instruments purporting to be executed by the obligees under such Secured Obligations of not less than a majority in aggregate principal amount of such Secured Obligations then outstanding (exclusive of Secured Obligations, if any, owned by the City), 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, thereupon, but not otherwise, the Council may adopt such supplemental ordinance in substantially such form, without liability or responsibility to any obligees under the Secured Obligations, whether or not such obligee shall have consented thereto. (d) Upon the adoption of any supplemental ordinance pursuant to the provisions of this Section 11, this Ordinance shall be, and is deemed to be, modified and amended in accordance therewith, and the respective rights, duties and obligations under this Ordinance shall DocuSign Envelope ID: 89816A71-26D4-4FAE-8ECE-A48EBE24008A VERSION A – 03/01/2021 6 thereafter be determined, exercised and enforced hereunder, subject in all respects to such modifications and amendments. Section 12. To the extent the City’s Monthly Distribution of LIT revenues is insufficient for such purpose, an annual ad valorem property tax levy on all taxable property in the City shall be authorized in each year during the term of the Lease to provide the necessary funds with which to pay the rent under the Lease. Section 13. The issuance, sale and delivery by the Building Corporation of its bonds (the “Bonds”) and/or its bond anticipation notes (the “BANs”) in an amount not to exceed Thirty- Eight Million Dollars ($38,000,000) to finance all or any portion of the Project are hereby approved, and the refunding of the BANs by the Building Corporation, if issued, is hereby approved. Section 14. Upon the redemption or retirement of the Bonds to be issued by the Building Corporation in connection with the financing of the Project, the City will accept all or any portion of the Premises from the Building Corporation, as renovated and expanded, free and clear of all liens and encumbrances thereon, except as otherwise provided therefor in the Lease. Section 15. If necessary, a Continuing Disclosure Agreement, dated as of the date the Bonds are issued (the “Undertaking”), executed by the City, substantially in the form to be approved by the Mayor, be, and hereby is, ratified and approved. The Mayor be, and hereby is, authorized and directed to execute and deliver the Undertaking, with such changes to the form thereof as such officer deems necessary or advisable, in the name and on behalf of the City, and the Controller be, and hereby is, authorized and directed to attest such execution, and any such execution and delivery and any such attestation heretofore effected be, and hereby is, ratified and approved. Section 16. Any officer of the City and the Corporation Counsel are authorized pursuant to Indiana Code 36-1-10-11, to appoint appraisers (the “Appraisers”) to determine the fair market value of any portion of the Premises. Following the issuance of each series of the Bonds and upon receipt of cash in an amount not less than the amount fixed by the Appraisers as the fair market value of such respective portion of the Premises, the Mayor be, and hereby is, authorized and directed, in the name and on behalf of the City, to execute and deliver one or more special warranty deeds conveying title to all or a portion of the Premises to the Corporation. Section 17. The City shall utilize the Build-Operate-Transfer (BOT) construction procurement method for the Project pursuant to IC 5-23. The President of the Council shall appoint one member to the committee, acting on behalf of the City, in charge of conducting the procurement process under the BOT statute. The Council shall approve the final terms of the BOT contract, and the BOT contract shall not be amended in a way that increases the guaranteed maximum price established thereunder without the approval of a majority of the members of the Council. Section 18. Any officer of the City and the Corporation Counsel be, and hereby is, authorized, empowered and directed, on behalf of the City to publish notices of said public DocuSign Envelope ID: 89816A71-26D4-4FAE-8ECE-A48EBE24008A VERSION A – 03/01/2021 7 hearings and to take any other action as such officer deems necessary or desirable to effectuate the foregoing, and any such publication or other actions heretofore made or taken be, and hereby are, ratified and approved. Section 19. This Ordinance shall be in full force and effect from and after its passage by the Council and approval by the Mayor as required by law. PASSED by the Common Council of the City of Carmel, this _____ day of _____________, 2021, by a vote of ______ ayes and _____ nays. COMMON COUNCIL FOR THE CITY OF CARMEL, INDIANA ___________________________________ Sue Finkam, President Kevin D. Rider, Vice-President ___________________________________ ____________________________________ Laura Campbell H. Bruce Kimball ___________________________________ ____________________________________ Jeff Worrell Anthony Green ___________________________________ ___________________________________ Adam Aasen Tim Hannon ___________________________________ Miles Neslon ATTEST: __________________________________ Sue Wolfgang, Clerk DocuSign Envelope ID: 89816A71-26D4-4FAE-8ECE-A48EBE24008A 0 17th March 8 Not Present VERSION A – 03/01/2021 8 Presented by me to the Mayor of the City of Carmel, Indiana this ____ day of _________________________ 2021, at _______ __.M. ____________________________________ Sue Wolfgang, Clerk Approved by me, Mayor of the City of Carmel, Indiana, this _____ day of ________________________ 2021, at _______ __.M. ____________________________________ James Brainard, Mayor ATTEST: ___________________________________ Sue Wolfgang, Clerk Prepared by: Bruce D. Donaldson Barnes & Thornburg LLP 11 South Meridian Street Indianapolis, IN 46204 DMS 18553819.4 DocuSign Envelope ID: 89816A71-26D4-4FAE-8ECE-A48EBE24008A 17th March A 17th 10:30 11:00 March A