HomeMy WebLinkAbout03.18.24 CC Meeting Paperless Packet1
COMMON COUNCIL
MEETING AGENDA
MONDAY, MARCH 18, 2024 – 6:00 P.M.
COUNCIL CHAMBERS/CITY HALL/ONE CIVIC SQUARE
1.CALL TO ORDER
2.AGENDA APPROVAL
3.INVOCATION
4.PLEDGE OF ALLEGIANCE
5.RECOGNITION OF CITY EMPLOYEES AND OUTSTANDING CITIZENS
a.State Representative Jerry Torrb. State Representative Donna Schaibley
6.RECOGNITION OF PERSONS WHO WISH TO ADDRESS THE COUNCIL
7.COUNCIL AND MAYORAL COMMENTS/OBSERVATIONS
8.CONSENT AGENDA
a. Approval of Minutes
1.March 4, 2024 Regular Meeting
b.Claims
1.Payroll - $3,692,136.64
2.General Claims - $2,280,142.193.Retirement - $110,204.164.Wire Transfers - $2,247,223.37
9.ACTION ON MAYORAL VETOES
10.COMMITTEE REPORTS
a.Finance, Utilities and Rules Committee
b.Land Use and Special Studies Committee
c.All reports designated by the Chair to qualify for placement under this category.
11.OTHER REPORTS – (at the first meeting of the month specified below):
a.Carmel Redevelopment Commission (Monthly)
b.Carmel Historic Preservation Commission (Quarterly – January, April, July, October)c.Audit Committee (Bi-annual – May, October)
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d. Redevelopment Authority (Bi-annual – April, October)e.Carmel Cable and Telecommunications Commission (Bi-annual – April, October)
f.Economic Development Commission (Bi-annual – February, August)
g. Library Board (Annual – February)h. Ethics Board (Annual – February)i.Parks Department (Quarterly – February, May, August, November)j. Climate Action Advisory Committee (Quarterly – March, June, September, December)
k. All reports designated by the Chair to qualify for placement under this category.
12.OLD BUSINESS
a.Eighth Reading of Ordinance D-2696-23; An Ordinance of the Common Council of the
City of Carmel, Indiana, Adding Chapter 8, Article 4, Section 8-44 to the Carmel City
Code; Sponsor(s): Councilor(s) Worrell and Aasen. Remains in the Finance, Utilitiesand Rules Committee. (Next Meeting 4/9/24)
Synopsis:
Establishes a speed limit of 20 miles per hour within roundabouts.
b.Resolution CC-03-04-24-03; A Resolution of the Common Council of the City of Carmel,Indiana, Regarding Lease of Real Property to Third Party; Sponsor: Councilor Aasen.Returning from the Land Use and Special Studies Committee.
Synopsis:Resolution approves the lease of real property located at 10583 Lakeshore Drive East thatis not needed for a public purpose and establishes minimum monthly rent.
13.PUBLIC HEARINGS
a.Third Reading of Ordinance Z-687-24; An Ordinance of the Common Council of theCity of Carmel, Indiana, Establishing the Andrews Planned Unit Development District;Sponsor: Councilor Minnaar.
Synopsis:Ordinance Establishes the Andrews Planned Unit Development District Ordinance (the“Andrews PUD”). The Ordinance would rezone the real estate from R-1 Residential to aPlanned Unit Development district allowing the future development of a residential
neighborhood laid out in the style and character as depicted on the attached Concept Plan
which includes single-family homes.
b.First Reading of Ordinance D-2705-24; An Ordinance of the Common Council of theCity of Carmel, Indiana, Authorizing and Approving an Additional Appropriation of
Funds from the General Fund #101 to the 2024 Information and Communication Systems
Department Budget; Sponsor(s): Councilor(s) Aasen, Taylor, Minnaar and Worrell.
Synopsis:This Ordinance authorizes and approves an additional appropriation of $1,033,339.98
from the General Fund into the 2024 Information and Communication Systems Budget to
be used for Carmel Emergency Operation Center technology update and contractedservices fees.
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c.First Reading of Ordinance D-2708-24; An Ordinance of the Common Council of theCity of Carmel, Indiana, Authorizing and Approving an Additional Appropriation of
Funds from the General Fund #101 to the 2024 Carmel Police Department Budget;
Sponsor(s): Councilor(s) Worrell, Minnaar, Green and Joshi.
Synopsis:This ordinance appropriates funds into the Carmel Police Department’s 2024 budget
that were received from federal grant money for the Department’s participation in
the DUI Task Force, Quick Response Team and the Click It to Live It program.
14.NEW BUSINESS
a.First Reading of Ordinance D-2710-24; An Ordinance of the Common Council of the
City of Carmel, Indiana, Authorizing the Issuance of Economic Development TaxIncrement Revenue Bonds to Support the Gramercy Project, and Authorizing andApproving Other Actions in Respect Thereto; Sponsor: Councilor Aasen
Synopsis:
Ordinance authorizes the issuance of developer TIF bonds by the City of Carmel, Indiana,to finance improvements to support the development of the Gramercy Project.
b.First Reading of Ordinance D-2709-24; An Ordinance of the Common Council of the
City of Carmel, Indiana, Authorizing the Refunding of Prior Waterworks Revenue Bonds
of the City of Carmel, Indiana, Authorizing the Issuance of the City of Carmel, IndianaTaxable Waterworks Refunding Revenue Bonds, Series 2024A, and the City of Carmel,Indiana Tax-Exempt Waterworks Revenue and Refunding Revenue Bonds, Series 2024 B,to provide funds for the payment of costs thereof, and addressing other matters connected
therewith; Sponsor: Councilor Green.
Synopsis:Bond Ordinance permitting the issuance of Waterworks Refunding Revenue Bonds of theCity to refund outstanding Waterworks Bonds of the City and adding new money for
additional projects.
c.Resolution CC-03-18-24-01; A Resolution of the Common Council of the City of Carmel,Indiana, Approving a Transfer of Funds Between the Grant Fund (CPD)(#900) and theGeneral Fund (#101); Sponsor(s): Councilor(s) Worrell, Minnaar, Green and Joshi.
Synopsis:Transfers $36,616.60 from the Grant Fund (CPD)(#900) to the General Fund (#101) so thatfederal grant funds received for the Carmel Police Department’s participation in the DUITask Force, Quick Response Team and the Click It to Live It program can be used to pay
overtime earned by officers who worked on the programs.
d.Resolution CC-03-18-24-02; A Resolution of the Common Council of the City of Carmel,Indiana, Recognizing March 2024 as National Disability Awareness Month; Sponsor(s):Councilor(s) Aasen, Worrell, Minnaar and Joshi.
Synopsis:This Resolution recognizes March 2024 as National Disability Awareness Month.
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e.Resolution CC-03-18-24-03; A Resolution of the Common Council of the City of Carmel,Indiana, Approving the Suspension of the Short Term Residential Rental Ordinance During
Certain Periods of the Year; Sponsor(s): Councilor(s) Aasen and Worrell.
Synopsis:Approves dates submitted by the Mayor for the suspension of Unified Development Ordinance Section 5.73, Short Term Residential Rentals in 2024.
15.AGENDA ADD-ON ITEMS
16.OTHER BUSINESS
17.ANNOUNCEMENTS
18.ADJOURNMENT
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COMMON COUNCIL 1
MEETING MINUTES 2
MONDAY, MARCH 4, 2024 – 6:00 P.M. 3
COUNCIL CHAMBERS/CITY HALL/ONE CIVIC SQUARE 4 5
MEETING CALLED TO ORDER 6 7 Council President Anthony Green; Council Vice-President Adam Aasen; Council Members: Jeff 8 Worrell, Ryan Locke, Rich Taylor, Teresa Ayers, Matthew Snyder, Anita Joshi, Shannon Minnaar and 9
Deputy Clerk Jessica Komp were present. 10
11 Council President Green called the meeting to order at 6:00 p.m. 12 13 AGENDA APPROVAL 14
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The agenda was approved unanimously. 16 17 INVOCATION 18 19
Pastor Scott Giger, Cornerstone Lutheran Church, delivered the Invocation. 20
21 Councilor Minnaar led the pledge of allegiance. 22 23 RECOGNITION OF CITY EMPLOYEES AND OUTSTANDING CITIZENS 24
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There were none. 26 27 RECOGNITION OF PERSONS WHO WISH TO ADDRESS THE COUNCIL 28 29
Maureen Morgan shared her concerns regarding the possibility of the Carmel Climate Action Advisory 30
Committee bringing Carmel into some controversial climate control actions, including the use of electric 31 vehicles, which can become stranded in adverse weather, unable to be charged, or the dependence on 32 China to mine the heavy metals used in EV car batteries. Other issues of concern are the concept of 33 eating less meat to reduce CO2 emissions from cows and the construction of CO2 pipelines across 34
farmland. 35
36 COUNCIL AND MAYORAL COMMENTS/OBSERVATIONS 37 38 Councilor Worrell stated that the annual “Taste of Carmel” will be on Friday, March 8, 2024, at 502 39
East Event Center. This is the largest fundraiser for the Carmel Education Foundation. 40
41 There will be a Civility event on Wednesday March 6th, at 6:00 p.m. at the Village of West Clay 42 Meeting House. 43 44
CONSENT AGENDA 45 46 Councilor Minnaar moved to approve the consent agenda. Councilor Aasen seconded. There was no 47 discussion. Council President Green called for the vote. The consent agenda was approved 9-0. 48
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49 a. Approval of Minutes 50
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1. February 19, 2024 Regular Meeting 52 53 b. Claims 54 55
1. Payroll - $3,654,053.37 (2/9/24 payroll), $191,915.12 (uniform allowance) and 56
$293,669.62 (sick vacation payout) 57 2. General Claims - $4,162,045.70 and $35,239.68 (purchase card) 58 59 ACTION ON MAYORAL VETOES 60
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There were none. 62 63 COMMITTEE REPORTS 64 65
Councilor Worrell reported that the Finance, Utilities and Rules Committee will meet on April 9, 2024 66
at 6 p.m. in Council Chambers. 67 68 Councilor Snyder reported that the Land Use and Special Studies Committee met on February 21st to 69 discuss the Andrews PUD. The committee is giving a favorable recommendation to send the item 70
forward to the Plan Commission with a few amendments, including a fine schedule for construction 71
traffic violations, and language changes regarding 2 & 3-car garages, dusk-to-dawn lights, attached 72 living quarters, and a proposed speed hump. The next meeting will be on Wednesday, March 6th at the 73 Carmel Clay Public Library at 6 p.m., to discuss setting a schedule for working through the study of the 74 UDO. 75
76 OTHER REPORTS – (at the first meeting of the month specified below): 77 78 Henry Mestetsky, Director of the Carmel Redevelopment Commission, gave the annual TIF 79 Management report. Mr. Mestetsky also gave a presentation on the assessed value per acre in the City of 80
Carmel. The CRC will remain focused on the central core. Carmel homeowners can be secure that taxes 81
will fall in the future, as more and more projects are assessed at high values per acre, they’re going to hit 82 the city’s tax rolls as these TIF areas expire. 83 84 Mr. Mestetsky explained that the developer bonds are of no risk to the taxpayers or the city, only the 85
developer is taking a risk. Citizens on the east and west sides see benefits of the downtown development 86
beyond the future tax benefits. These developments bring in companies that provide jobs, stores to shop 87 at, areas to walk around and enjoy, free parking garages, and funding for our schools. 88 89 Tony Reck, chair of the Carmel Climate Action Advisory Committee, gave the quarterly report. The first 90
recommendation the committee gave to the City Council was to hire a Sustainability Coordinator. Other 91
recommendations included a Municipal Energy Efficiency Evaluation and Upgrades, a Municipal 92 Energy Benchmarking and Disclosure Program, Water/Wastewater usage assessment, Native and 93 Drought-Resistant Landscaping, Food Composting Pilot Programs, Backyard Compost Bin Vouchers, 94 Public Education about Impacts of Climate Change, a Climate Vulnerability Assessment, and a City EV 95
and Hydrogen Fleet Purchasing and Retrofit Policy. The next meeting will take place on Tuesday, 96
March 26, 2024 at 6 p.m. in Council Chambers. 97 98
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OLD BUSINESS 99 100
Council President Green announced the Seventh Reading of Ordinance D-2696-23; An Ordinance of 101
the Common Council of the City of Carmel, Indiana, Adding Chapter 8, Article 4, Section 8-44 to the 102 Carmel City Code; Sponsor(s): Councilor(s) Worrell and Aasen. This remains in the Finance, Utilities 103 and Rules Committee. (Meeting date 4/9/24) 104 105
Council President Green introduced the Second Reading of Ordinance Z-687-24; An Ordinance of the 106
Common Council of the City of Carmel, Indiana, Establishing the Andrews Planned Unit Development 107 District; Sponsor: Councilor Minnaar. The Land Use and Special Studies Committee has given a 108 favorable recommendation, but there will be a second public hearing on March 18, 2024 before this item 109 is sent on to the Plan Commission. 110
111 PUBLIC HEARINGS 112 113 Councilor Green announced the first reading of Ordinance D-2702-24; An Ordinance of the Common 114 Council of the City of Carmel, Indiana, Authorizing and Approving an Appropriation of Funds from the 115
Parks and Recreation Non-Reverting Capital Fund (Fund #103); Sponsor(s): Councilor(s) Snyder and 116
Taylor. Councilor Taylor moved to introduce the item into business. Councilor Aasen seconded. 117 Councilor Taylor presented the item to Council. Michael Klitzing, Director of Carmel Clay Parks and 118 Recreation, explained that the request is for the appropriation of funds from the Local Income Tax 119 received from Clay Township attributable to the Central Park Bond. This $4.6 million will be used for 120
park capital projects, including the White River Bridge, Hazel Landing Park infrastructure, White River 121
Greenway expansion, Renovations to the Water Park, an indoor playground at the Monon Center, 122 Westermeier commons upgrades, and smaller improvements at almost every park. As there were no 123 questions from Council for Mr. Klitzing, Council President Green started the public hearing at 7:16 p.m. 124 125
Seeing no one who wished to address the Council, Council President Green closed the public hearing at 126
7:17 p.m. Councilor Taylor moved to suspend the rules and act on this item tonight. Councilor Minnaar 127 seconded. There was no discussion. Council President Green called for the vote. The motion was 128 approved 9-0. Councilor Taylor moved to approve. Councilor Aasen seconded. There was no discussion. 129 Council President Green called for the vote. Ordinance D-2702-24 was approved 9-0. 130
131 NEW BUSINESS 132 133 Council President Green introduced the first reading of Ordinance D-2704-24; An Ordinance of the 134 Common Council of the City of Carmel, Repealing Ordinance D-2409-18, as Amended, and Removing 135
Chapter 2, Article 2, Section 25 from the Carmel City Code; Sponsor(s): Councilor(s) Green and 136
Worrell. Councilor Worrell moved to introduce the item into business. Councilor Minnaar seconded. 137 Councilor Worrell presented the item to Council. Sergey Grechukhin, Office of Corporation Counsel, 138 confirmed that a different type of arts commission will be replacing the one being abolished. Council 139 President Worrell moved to suspend the rules and act on this tonight. Councilor Aasen seconded. There 140
was no discussion. Council President Green called for the vote. Motion approved 9-0. Councilor Worrell 141
moved to approve. Councilor Joshi seconded. There was no discussion. Council President Green called 142 for the vote. Ordinance D-2704-24 was approved 9-0. 143 144 Council President Green introduced the first reading of Ordinance D-2706-24; An Ordinance of the 145
Common Council of the City of Carmel, Indiana, Amending Chapter 3, Article 1, Division II, Section 3-146
30 of the Carmel City Code; Sponsor(s): Councilor(s) Green and Worrell. Councilor Worrell moved to 147 introduce the item into business. Councilor Minnaar seconded. Councilor Worrell presented the item to 148
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Council, explaining that this ordinance would remove the report from the public art committee that had 149 just been abolished from the Council agenda. Councilor Worrell then made a motion to suspend the 150
rules and approve this tonight. Councilor Joshi seconded. Councilor Aasen thanked Councilor Worrell 151
for his work in creating the public art committee, as it was a step in the right direction to achieve more 152 community input. Councilor Locke asked if the Council would still receive updates from the new Arts 153 Commission if this report is removed. Sergey Grechukhin, Office of Corporation Counsel, stated that the 154 Council would still be updated, whether through the Mayor’s report to Council, or through a 155
representative giving a report to Council. Council President Green called for the vote. Motion approved 156
9-0. Councilor Worrell moved to approve. Councilor Joshi seconded. Councilor Green called for the 157 vote. Ordinance D-2706-24 approved 9-0. 158 159 Council President Green introduced the first reading of Ordinance D-2707-24; An Ordinance of the 160
Common Council of the City of Carmel, Indiana, Amending Chapter 8, Article 5, Sections 8-36, 8-37, 8-161
47, and 8-48 of the Carmel City Code; Sponsor(s): Councilor(s) Worell, Green, Taylor, and Ayers. 162 Councilor Minnaar moved to introduce the item into business. Councilor Snyder seconded. Councilor 163 Ayers presented the item to Council. Sergey Grechukhin, Office of Corporation Counsel, presented the 164 four items within the Ordinance, which included parking regulations and the regulating/prohibiting of 165
turning of vehicles at certain intersections. The Council was in favor of three of the items, but wanted 166
the fourth item, the parking restrictions on Veterans Way in front of the Carmel Clay Community 167 Building and the Fire Department Administration to be addressed separately. Councilor Aasen moved to 168 amend that section of the ordinance to say no parking before 5 p.m., Monday through Friday. Councilor 169 Taylor seconded. Discussion continued as to concern with loading zones for special events. Councilor 170
Aasen withdrew the motion to amend. Councilor Joshi seconded. The motion was withdrawn. Councilor 171
Locke made a motion to amend the ordinance to exclude the portion pertaining to this parking area. 172 Councilor Joshi seconded. There was no discussion. Council President Green called for the vote. Motion 173 to amend approved 9-0. Councilor Aasen made a motion to suspend the rules and approve this tonight. 174 Councilor Joshi seconded. There was no discussion. Council President Green called for the vote. Motion 175
to suspend the rules approved 9-0. Councilor Taylor made a motion to approve, as amended. Councilor 176
Aasen seconded. There was no discussion. Council President Green called for the vote. Ordinance D-177 2707-24 was approved as amended. The issue of parking on Veteran’s Way was sent to the Finance, 178 Utilities and Rules Committee. (Meeting date 4/9/24). 179 180
Council President Green introduced Resolution CC-03-04-24-01; A Resolution of the Common Council 181
of the City of Carmel, Indiana, Approving a Transfer of Funds in the 2024 Information and 182 Communication Systems Department Budget; Sponsor: Councilor Worrell. Councilor Worrell moved to 183 introduce. Councilor Aasen seconded. Councilor Worrell introduced the item into business. Sergey 184 Grechukhin, Office of Corporation Counsel, noted a change in the originally submitted transfer amount, 185
as it has been decreased to $49,780.00. Both Councilors Worrell and Joshi asked for more information 186
regarding the pricing. Timothy Renick, Director of Information and Communication Systems explained 187 that these funds will pay for consulting services for the 311 non-emergency service. This is for a new 188 initiative of Mayor Finkam’s that was not in last year’s budget. The ICS department is using money that 189 was budgeted for consulting fees, and supplementing that by moving money that was budgeted for 190
cybersecurity into the consulting fees line item, as cybersecurity needs have been covered by federal grant 191
funds. So this is not additional money, it’s just money being moved between line items in the already 192 approved budget. Councilor Minnaar made a motion to amend the requested fund transfer amount. 193 Councilor Joshi seconded. There was no discussion. Council President Green called for the vote. Motion 194 to amend approved 9-0. Councilor Joshi made a motion to approve. Councilor Taylor seconded. Council 195
President Green called for the vote. Resolution CC-03-04-24-01 was approved 9-0. 196
197 198
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Council President Green introduced Resolution CC-03-04-24-02; A Resolution of the Common Council 199 of the City of Carmel, Indiana, Regarding Transfer of Real Property to Third Party; Sponsor(s): 200
Councilor(s) Aasen and Green. Councilor Aasen made a motion to introduce. Councilor Joshi seconded. 201
Councilor Aasen introduced the item into business. Sergey Grechukhin, Office of Corporation Counsel, 202 explained the change being requested for the minimum sales price of the excess real estate located near 203 96th Street and Keystone Parkway that was not needed for a public purpose. Jeremy Kashman explained 204 that the property sat on the market for about 2 years until we received a letter of intent 9 months ago. 205
After the due diligence was performed, we are now ready to move forward, setting the minimum price at 206
the price offered, $1,060,000.00. Councilor Minnaar moved to approve. Councilor Aasen seconded. 207 Council President Green called for the vote. Resolution CC-03-04-24-02 was approved 9-0. 208 209 Council President Green introduced Resolution CC-03-04-24-03; A Resolution of the Common Council 210
of the City of Carmel, Indiana, Regarding the Lease of Real Property to Third Party; Sponsor: Councilor 211
Aasen. Councilor Aasen made a motion to introduce. Councilor Ayers seconded. Councilor Aasen 212 introduced the item into business. Sergey Grechukhin, Office of Corporation Counsel, explained that the 213 property was acquired in anticipation of a roundabout being constructed at the corner of 106th Street and 214 Lakeshore Drive East. While the roundabout has been delayed, the property is sitting vacant. The 215
request is to establish a minimum price per month to lease the property to a tenant. Councilor Aasen 216
asked about the timeline of installing the roundabout. Jeremy Kashman, City Engineer, stated that it is 217 still a priority, but we have to find the right solution to make it happen. He envisions a more compact 218 roundabout with raised crosswalks, and possibly flashing beacons, if needed. Councilor Snyder asked 219 what happens if we cannot find a tenant to pay the minimum price. Mr. Grechukhin responded that a real 220
estate broker would be hired to find a tenant, and then the price may be dropped. This is the process 221
outlined in Indiana Code that we must follow, since the appraisal amount is higher than $25,000 per 222 year. Councilor Minnaar asked if this neighbourhood has restrictions against rentals, and the answer was 223 not known. This item was sent to the Land Use and Special Studies Committee for review. (Meeting 224 date 3/6/24). 225
226 AGENDA ADD-ON ITEMS 227 228 There were none. 229 230
OTHER BUSINESS 231
232 Engagement to Conduct Analysis of the City’s Debt 233 Council President Green announced that the Common Council will be hiring an independent third party 234 to conduct an analysis of the city’s debt. The Council has $20,000 in their budget for this analysis. 235
Currently, the city’s legal department is reviewing the Scope of Work and the Agreement for this 236
analysis. The third party has not yet been hired. Councilors Taylor and Worrell spoke in favor of this 237 action. Councilor Snyder commended this process for being different than what some other cities do, as 238 no findings of the review will be privileged information. It will all be made public. Councilor Aasen 239 commented that there could be findings of this review that could save the city money, and that the 240
Council will not need to increase spending to conduct this analysis, it is already in the budget. 241
242 City Council Appointments 243 Mayor’s Advisory Commission on Arts (Terms expires 12/31/2024, one-year terms); Two 244 appointments. Councilor Joshi moved to nominate Dr. Chandrika Patel. Councilor Snyder seconded. 245
Councilor Ayers then moved to nominate Beth Glynn. Councilor Joshi seconded. Councilor Minnaar 246
moved to close the nominations. Councilor Joshi seconded. There was no discussion. Council President 247 Green called for the vote. Nominations approved 9-0. 248
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Mayor’s Advisory Commission on Arts (Term expires 12/31/2025, two-year term); One appointment. 249 Councilor Taylor moved to nominate Tina Mangos. Councilor Aasen seconded. Councilor Taylor 250
moved to close the nominations. Councilor Aasen seconded. There was no discussion. Council President 251
Green called for the vote. Nomination approved 9-0. 252 253 Approval of Mayoral Nominations 254 Carmel Historic Preservation Commission (Terms expire 12/31/2026, three-year terms); Two 255
appointments. The Mayor has appointed Rosemary Dunkle and Barry Simich to this commission. 256
Councilor Snyder moved to approve the nominations. Councilor Minnaar seconded. There was no 257 discussion. Council President Green called for the vote. Nominations approved 9-0. 258 259 Cancellation of Outstanding Checks for Fiscal Year 2021 - $2,349.60 (Acknowledgement Only) 260
Item was acknowledged/approved unanimously. 261
262 ANNOUNCEMENTS 263 264 Councilor Aasen announced that the Buckingham Companies will be holding a Gramercy Marketplace 265
public meeting at the 502 East Event Center on Monday, March 11th, at 6 p.m. 266 267 ADJOURNMENT 268 269 Council President Green adjourned the meeting at 8:23 p.m. 270
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Respectfully Submitted, 272 273 _______________________________ 274 Jacob Quinn, Clerk 275
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277 Approved, 278 279 _______________________________ 280
Anthony Green, Council President 281 ATTEST: 282 283 _______________________________ 284 Jacob Quinn, Clerk 285
SPONSOR(s): Councilors Aasen, Hannon,
Rider and Worrell
This Ordinance was prepared by Jon Oberlander, Corporation Counsel, on 11/1/2023 at 4:25 p.m. No subsequent revision to this
Ordinance has been reviewed by Mr. Oberlander for legal sufficiency or otherwise.
ORDINANCE NO. D-2696-23 1
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AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, 3
ADDING CHAPTER 8, ARTICLE 4, SECTION 8-44 TO THE CARMEL CITY CODE 4
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Synopsis: Establishes a speed limit of 20 miles per hour within roundabouts. 6
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WHEREAS, the City of Carmel, Indiana, has the authority to establish motor vehicle speed limits 8
pursuant to Indiana Code § 9-21-5-6 and City Code Section 8-15; and 9
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WHEREAS, for the safety of the travelling public, the Common Council now finds it necessary to 11
establish a speed limit of twenty (20) miles per hour within City roundabouts. 12
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NOW, THEREFORE, BE IT ORDAINED, by the Common Council of the City of Carmel, 14
Indiana, as follows: 15
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Section 1. The foregoing Recitals are fully incorporated herein by this reference. 17
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Section 2. Carmel City Code Chapter 8, Article 4, Section 8-44 is hereby added to the Carmel City 19
Code to read as follows: 20
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Ҥ 8-44 Twenty m.p.h. Speed Limit Within Roundabouts. 22
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No person shall drive a motor vehicle in excess of twenty (20) miles per hour within a 24
roundabout.” 25
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Section 3. The Carmel Street Department is directed to promptly add the appropriate signage to 27
fulfill the mandates contained in this Ordinance upon its passage. 28
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Section 4. All prior ordinances or parts thereof inconsistent with any provision of this Ordinance 30
are hereby repealed, to the extent of such inconsistency only, as of the effective date of this Ordinance. 31
However, the repeal or amendment by this Ordinance of any other ordinance does not affect any rights or 32
liabilities accrued, penalties incurred or proceedings begun prior to the effective date of this Ordinance. 33
Those rights, liabilities and proceedings are continued and penalties shall be imposed and enforced under 34
such repealed or amended ordinance as if this Ordinance had not been adopted. 35
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Section 5. If any portion of this Ordinance is for any reason declared to be unconstitutional or 37
invalid, such decision shall not affect the validity of the remaining portions of this Ordinance so long as 38
enforcement of same can be given the same effect. 39
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Section 6. This Ordinance shall be in full force and effect from and after the date of its passage, 41
execution by the Mayor, and publication as required by law. 42
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Ordinance D-2696-23 46
Page One of Two 47
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SPONSOR(s): Councilors Aasen, Hannon,
Rider and Worrell
PASSED, by the Common Council of the City of Carmel, Indiana, this ____ day of ________, 2024,49
by a vote of _____ ayes and _____ nays. 50
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COMMON COUNCIL FOR THE CITY OF CARMEL 52
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Adam Aasen
____________________________________ Teresa Ayers
____________________________________
Ryan Locke
___________________________________ Rich Taylor65
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___________________________________ Anthony Green
___________________________________ Jeff Worrell
___________________________________
Shannon Minnaar
___________________________________ Matthew Taylor
___________________________________ Anita Joshi
ATTEST:
__________________________________ Jacob Quinn, Clerk73
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75 Presented by me to the Mayor of the City of Carmel, Indiana this ____ day of
_________________________ 2024, at _______ __.M.76
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78 ____________________________________ Jacob Quinn, Clerk79
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81 Approved by me, Mayor of the City of Carmel, Indiana, this _____ day
of ________________________ 2024, at _______ __.M.82
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84 ____________________________________ Sue Finkam, Mayor85
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ATTEST:
___________________________________ Jacob Quinn, Clerk
Ordinance D-2696-23
Page Two of Two
This Ordinance was prepared by Jon Oberlander, Corporation Counsel, on 11/1/2023 at 4:25 p.m. No subsequent revision to this
Ordinance has been reviewed by Mr. Oberlander for legal sufficiency or otherwise.
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SPONSOR(s): Councilor Aasen
This resolution was prepared by Sergey Grechukhin, Interim City Attorney, on 2/23/24 at 9:10 AM. No subsequent revision to this Resolution has been reviewed by Mr. Grechukhin for legal sufficiency or otherwise.
RESOLUTION NO. CC-03-04-24-03
A RESOLUTION OF THE COMMON COUNCIL OF THE
CITY OF CARMEL, INDIANA, REGARDING
LEASE OF REAL PROPERTY TO THIRD PARTY
Synopsis: Resolution approves the lease of real property located at 10583 Lakeshore Drive
East that is not needed for a public purpose and establishes minimum monthly rent.
WHEREAS, the City of Carmel, Indiana (the “City”) acquired certain property located at
10583 Lakeshore Drive East, Carmel, Indiana consisting of a residential single-family dwelling
(the “Property”) for the purpose of constructing a roundabout at the intersection of Lakeshore
Drive and 106th Street; and
WHEREAS, due to funding constraints, the construction of said roundabout is not
scheduled for a significant amount of time, and the Property is not currently needed for any public
purpose; and
WHEREAS, pursuant to Ind. Code 36-1-11-4(b), using the average of two appraisals, it
has been determined that a fair market rental value of the Property is Two Thousand Five Hundred
Fifty Dollars per month ($2,550/month) or Thirty-Six Thousand Six Hundred Dollars per year
($36,600/year); and
WHEREAS, pursuant to Ind. Code 36-1-11-3(c), the fiscal body of a unit must approve
every lease of real property for which the total annual rental payments will be Twenty-Five
Thousand Dollars ($25,000) or more.
NOW, THEREFORE, BE IT RESOLVED, by the Common Council of the City of
Carmel, Indiana as follows:
1. The foregoing Recitals are incorporated herein by this reference.
2. The Common Council hereby approves the lease for the Property for up to three-year term or until the Property is needed for the construction of the roundabout or other public
improvement, whichever is earlier. The Property shall be leased pursuant to I.C. 36-1-11-
10. The Property’s legal description is set forth in Exhibit A, which is attached and fully incorporated herein. 3. The minimum monthly rent for the Property shall not be less than Two Thousand Five Hundred Fifty Dollars per month ($2,550.00/month) adjusted by reasonable transactions
costs and other expenses incurred by the City as result of such lease.
Resolution CC-03-04-24-03 Page One of Three
SPONSOR(s): Councilor Aasen
This resolution was prepared by Sergey Grechukhin, Interim City Attorney, on 2/23/24 at 9:10 AM. No subsequent revision to this Resolution has been reviewed by Mr. Grechukhin for legal sufficiency or otherwise.
4. The Common Council hereby approves the BPW designation of James R. Crider, Chief of Staff for the City of Carmel, Indiana, as its agent to complete everything necessary for the
lease transaction. James R. Crider is hereby authorized to execute all documents required
in connection with the lease of the Property pursuant to this Resolution.
5. This Resolution shall take effect immediately upon its passage by the Common Council
and approval of the Mayor.
[Signature page follows]
Resolution CC-03-04-24-03 Page Two of Three
SPONSOR(s): Councilor Aasen
This resolution was prepared by Sergey Grechukhin, Interim City Attorney, on 2/23/24 at 9:10 AM. No subsequent revision to this Resolution has been reviewed by Mr. Grechukhin for legal sufficiency or otherwise.
SO RESOLVED, by the Common Council of the City of Carmel, Indiana this _____ day of _______________, 2024, by a vote of _____ ayes and _____ nays.
COMMON COUNCIL FOR THE CITY OF CARMEL
Anthony Green, President Adam Aasen, Vice-President
Jeff Worrell Teresa Ayers
Shannon Minnaar Ryan Locke
Matthew Snyder Rich Taylor Anita Joshi
ATTEST:
Jacob Quinn, Clerk
Presented by me to the Mayor of the City of Carmel, Indiana this _____ day of
_______________, 2024, at __________ ____. M. Jacob Quinn, Clerk
Approved by me, Mayor of the City of Carmel, Indiana this _____ day of
_______________, 2024, at __________ ____. M.
Sue Finkam, Mayor
ATTEST: Jacob Quinn, Clerk
Resolution CC-03-04-24-03 Page Three of Three
SPONSOR(s): Councilor Aasen
This resolution was prepared by Sergey Grechukhin, Interim City Attorney, on 2/23/24 at 9:10 AM. No subsequent revision to this Resolution has been reviewed by Mr. Grechukhin for legal sufficiency or otherwise.
EXHIBIT A
LEGAL DESCRIPTION
The legal description of the real estate located at 10583 Lakeshore Drive East, Carmel, Indiana,
46033 is:
Section 8, Township 17, Range 4 BRIAR CREEK
Section 1
Lot 6 CONTAINING 21,380 SQUARE FEET, MORE OR LESS.
Sponsors: Councilor Minnaar
CARMEL, INDIANA
Andrews PUD
PLANNED UNIT DEVELOPMENT DISTRICT
ORDINANCE Z-687-24
January 17February 28, 2024
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TABLE OF CONTENTS
Page
Section 1. Applicability of Ordinance .............................................................................................. 4
Section 2. Definitions and Rules of Construction .......................................................................... 4
Section 3. Accessory Buildings and Uses ....................................................................................... 6
Section 4. Development Standards .................................................................................................. 6
Section 5. Common Area Requirements ......................................................................................8
Section 6. Landscaping Requirements ..........................................................................................9
Section 7. Signage Requirements ...............................................................................................14
Section 8. Additional Requirements and Standards ...................................................................... 14
Section 9. Procedural Provisions ...............................................................................................15
Section 10. Violations and Enforcement .....................................................................................16
Section 11. Exhibits .....................................................................................................................16
Exhibit A Legal Description
Exhibit B Concept Plan
Exhibit C Architectural Character Imagery
Exhibit D Architectural Standards
Exhibit E Amenity Character Imagery
Exhibit F Signage and Barricade Exhibit
Note: All of the above Exhibits (A-F) are attached to this Andrews Ordinance, are incorporated by reference into
this Andrews Ordinance and are part of this Andrews Ordinance.
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Sponsors: Councilor Minnaar
ORDINANCE Z-687-23
AN ORDINANCE OF THE COMMON COUNCIL OF THE
CITY OF CARMEL, INDIANA
ESTABLISHING THE ANDREWS PLANNED UNIT DEVELOPMENT DISTRICT
Synopsis:
Ordinance Establishes the Andrews Planned Unit Development District Ordinance (the
“Andrews PUD”). The Ordinance would rezone the real estate from R-1 Residential to a
Planned Unit Development district allowing the future development of a residential
neighborhood laid out in the style and character as depicted on the attached Concept Plan which
includes single-family homes.
WHEREAS, Articles 4.02 and 9.05 of the Carmel Unified Development Ordinance,
Ordinance Z-625-17, as amended (the “UDO”), provides for the establishment of a Planned Unit
Development District in accordance with the requirements of I.C. § 36-7-4-1500 et seq. (the
“PUD Statute”); and
WHEREAS, Schafer Development, LLC a Michigan limited liability company
(“Schafer”), submitted an application to the Carmel Plan Commission (the “Plan Commission”)
to adopt a PUD District Ordinance for certain real estate in the City of Carmel, Hamilton County,
Indiana, as legally described in Exhibit A attached hereto (the “Real Estate”); and
WHEREAS, the Schafer application is consistent with the provisions of the UDO and
PUD Statute; and
WHEREAS, after proper notice, and pursuant to the provisions of the PUD Statute and
UDO, the Plan Commission conducted a public hearing on May 16, 2023, concerning the
Schafer application for a PUD District Ordinance, which application was docketed as PZ-2023-
00014 PUD, and
WHEREAS, the Plan Commission, at its hearing on January 16, 2024, has given a
Favorable Recommendation to this Andrews PUD (the “Andrews Ordinance”), which
establishes the Andrews Planned Unit Development District (the “Andrews District”).
NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of
Carmel, Indiana (the “Council”), that: (i) pursuant to IC §36-7-4-1500 et seq., the Council adopts
this Andrews Ordinance, as an amendment to the Zone Map; (ii) all prior ordinances or parts
thereof inconsistent with any provision of this Andrews Ordinance and its exhibits are hereby
made inapplicable to the use and development of the Real Estate; (iii) all prior commitments and
restrictions applicable to the Real Estate shall be null and void and replaced and superseded by
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this Andrews Ordinance; and, (iv) this Andrews Ordinance shall be in full force and effect from
and after its passage and signing.
Section 1. Applicability of Ordinance.
Section 1.1 The Zone Map is hereby changed to designate the Real Estate as a Planned
Unit Development District to be known as the Andrews District.
Section 1.2 Development in the Andrews District shall be governed entirely by (i) the
provisions of this Andrews Ordinance and its exhibits, and (ii) those provisions of the
UDO specifically referenced in this Andrews Ordinance. Where this Andrews Ordinance
is silent, the applicable standards of the UDO shall apply.
Section 1.3 The underlying zoning for the Andrews District shall be the R2 residential
zoning designation (the “R2 District”) set forth in the UDO. Except as modified, revised,
supplemented or made inapplicable by this Andrews Ordinance, the standards of the
UDO applicable to the R2 District shall apply to the Andrews District.
Section 2. Definitions and Rules of Construction.
Section 2.1 General Rules of Construction. The following general rules of
construction and definitions shall apply to the Andrews Ordinance:
A. The singular number includes the plural and the plural the singular, unless
the context clearly indicates the contrary.
B. Words used in the present tense include the past and future tenses, and the
future the present.
C. The word “shall” indicates a mandatory requirement. The word “may”
indicates a permissive requirement.
Section 2.2 Definitions. The definitions (i) of the capitalized terms set forth below in
this Section 2.2, as they appear throughout this Andrews Ordinance, shall have the
meanings set forth below in this Section 2.2 and (ii) of all other capitalized terms
included in this Andrews Ordinance and not defined below in this Section 2.2, shall be
the same as set forth in the UDO.
Accessory Use: A use subordinate to the main use, located on the real estate or in
the same Dwelling as the main use, and incidental to the main use.
Architectural Character Imagery: These comprise the elevations and perspectives,
attached hereto as Exhibit C (Architectural Character Imagery), and illustrate the
application of the Development Requirements and Architectural standards. The
Architectural Character Imagery shall be the basis for the development of final
building designs provided all applicable Development Requirements are met.
However, Architectural Character Imagery is general and not intended to
delineate the only final Dwelling designs to be built.
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Architectural Standards: The Architectural Standards incorporated herein under
Exhibit D (Architectural Standards).
Common Area(s): Common Areas (open space) shall comprise a parcel or parcels
of land, areas of water, or a combination of land and water located within the Real
Estate and designed by the Controlling Developer. Common Areas do not include
any area which is divided into individual Dwelling lots or streets. Common Areas
shall be in the areas generally identified on the Concept Plan.
Concept Plan: The general plan for the development of the Real Estate, including
but not limited to lots, streets and common areas attached hereto as Exhibit B
(Concept Plan).
Controlling Developer: Shall mean Schafer Development, LLC a Michigan
limited liability company or the owner of the Real Estate at the time of adoption
of the Andrews Ordinance, until such time as Schafer Development LLC a
Michigan limited liability company or the owner transfers or assigns, in writing,
its rights as Controlling Developer such as to a builder or an Owners Association.
Development Requirements: Written development standards and any written
requirements specified in this Andrews Ordinance, which must be satisfied in
connection with Plat Approval and Building Permits.
Elevation: A scaled, flat representation of one side of a building or structure that
provides a comprehensive view of the exterior façade, highlighting key
architectural features such as doors, windows, materials, ornamentation, rooflines
and proportions. Changes in materials and/or window placement alone do not
constitute “differences” in the elevation. To be considered a different elevation,
any single change including but not limited to a change in roof line (number,
style, or design of gables), inclusion of dormers (zero vs. one or more), porch
design, or porch placement shall qualify as a change.
In-laws Quarters: Living spaces within the primary structure equipped with
bedroom, bathroom, kitchen/kitchenette, and a separate entrance from the primary
residence, whether attached or detached from the primary structure.
Plan Commission: The City of Carmel Plan Commission.
Plat Approval: A primary plat (“Plat”) approved by the Plan Commission
pursuant to the procedures for Plat Approval of the UDO.
Primary/Main Roof: The highest roof plane on the front elevation.
Real Estate: The Real Estate legally described in Exhibit A (Legal Description).
Sign: Any type of sign as further defined and regulated by this Andrews
Ordinance and the UDO.
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Unified Development Ordinance (or “UDO”): The Unified Development
Ordinance, Ordinance Z-625-17, of the City of Carmel, Hamilton County,
Indiana, as amended.
Zone Map: The City’s official Zone Map corresponding to the UDO.
Section 3. Accessory Buildings and Uses. All Accessory Structures and Accessory Uses
allowed under the R1 Residential District of the Zoning Ordinance shall be permitted in the
Andrews District; unless prohibited in the Declaration(s) of Covenants; provided, however, that
any detached Accessory Structure shall have on all sides the same level of architectural features
and shall be architecturally compatible with the principal building with which it is associated.
Accessory Structures and Accessory Uses shall be permitted subject to the provisions of the
UDO.
Section 4. Development Standards.
Section 4.1 Permitted Uses:
A. Single-Family Dwelling.
B. Model Home(s) as a Temporary Use.
C. In-laws Quarters.
D. Common Areas.
E. Amenities (public or private dog park, community garden plots, etc.).
F. Maximum Dwellings: There shall be no more than thirty (30) Dwellings
permitted within the Real Estate.
Section 4.2 Bulk Requirements:
A. Minimum Lot Area: Eight Thousand Seven Hundred and Fifty (8,750)
square feet. Applicable to all lots including Corner Lots.
B. Minimum Lot Width at Building Line: Seventy (70) feet.
C. Minimum Lot Width at Right of Way: Fifty (50) feet.
D. Minimum Front Yard Setback: Variable, Twenty-two (22) feet to
Twenty-Six (26) feet, with minimum two (2) foot offset on adjacent Lots.
Notwithstanding anything in this Andrews Ordinance or the UDO to the
contrary, the front yard setbacks on the corner lots abutting the stub street
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to the east shall be twelve (12) feet on the front yard abutting the stub
street.
E. Minimum Side Yard Setback: Seven and one-half (7.5) feet.
F. Minimum Rear Yard Setback: Twenty (20) feet; provided, however, the
setback of dwellings, on the Lots indicated with a blue dot on Exhibit B,
shall be fifty (50) feet, as measured from the south property line of the
Real Estate.
G. Maximum Lot Coverage: Sixty percent (60%).
H. Maximum Building Height: Thirty-five (35) feet.
I. Minimum Living Area: (exclusive of garage, porches, stoops and patios):
Two-thousand and two hundred (2,200) square feet.
Section 4.3 Architectural Standards:
A. Architectural Character Imagery: The applicable Architectural Character
Imagery, indicating the intended architecture and appearance of Dwellings
are contained within Exhibit C.
B. Dwelling Architecture: Applicable architectural requirements and
standards are contained in Exhibit D (Architectural Standards) of this
Andrews Ordinance.
Section 4.4 Lot Lighting: All Dwellings shall have either (i) a minimum of two (2) light
fixtures flanking the garage door or (ii) a minimum of two (2) goose neck lights above
the garage door, equipped with a photocell so the light is on from dusk to dawn and (iii)
lights at the front door of the dwelling (can be either wall-mounted or can lights above);
provided, however, that on Dwellings with third-car garage, only two (2) lights overall
shall be requiredtwo (2) lights with at least one (1) light flanking the main two-car garage
and another one (1) light flanking the third-car garage or one (1) goose neck light above
the main two-car garage and another one (1) goose neck light above the third car garage).
Both lights shall be equipped with a photocell so the light is on from dusk to dawn.
Lights at the front door of the dwelling can be either wall-mounted or can lights above.
Section 4.5 Street Lighting: Street lighting (lighting in the street right-of-way) shall be
provided per the UDO.
Section 4.6 Parking:
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A. Four (4) spaces are required per Dwelling. Parking Spaces within
driveways and/or garages shall count toward required parking on each lot.
B. Driveways designed to permit parking shall be a minimum of twenty-two
(22) feet in length as measured from the street. Vehicles shall not be
parked in a location that encroaches onto a sidewalk.
C. Driveways shall be concrete.
D. Periodic short-term parking for bicycles shall be provided in two (2) or
more locations to access Common Area amenities. Parking to
accommodate a total of four (4) bikes shall be provided and shall meet the
design requirements as written in Section 5.29 of the UDO.
Section 5. Common Area Requirements. Common Area shall be in the areas generally
identified on the Concept Plan.
Section 5.1 Open Space Standards. The development shall contain a minimum of two
(2) acres of Open Space within the project site as depicted on the Concept Plan. In total,
twenty-five (25) percent of the Real Estate shall be Open Space.
A. Open Space shall be provided in areas as generally depicted on Concept
Plan provided as Exhibit B including tree preservation areas, open space
area, buffer yard area and transmission line easement area.
B. The transmission line easement area shall be left in the natural condition
which exists today subject to any maintenance requirements included in
the easement. The Open Space calculation shall include seventy-five (75)
percent of the transmission line easement area outside of the right-of-way.
C. The Open Space Calculation shall include one-hundred (100) percent of
Common Area 2 (southwest corner) and Common Area 4 (central island).
Section 5.2 Amenities: A Dog Park and Community Garden shall be required within
the two open space areas adjacent to 146th Street. The character of the amenities is
generally illustrated on Exhibit E and detailed below:
A. The Dog Park shall be a minimum of 1/3 acre enclosed by a black
ornamental metal fence a maximum of five (5) feet in height, including
doggy waste stations, seating/benches, and a trash can.
B. The Community Garden shall be a minimum of twenty (20) raised
planting beds (approximately three (3) feet by five (5) feet in area) and
include a compost box and a water source.
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C. A pond overlook area as generally depicted in Exhibit E shall be
incorporated in common area adjacent to the pond.
Section 6. Landscaping Requirements. Landscaping shall comply with the following
standards:
Section 6.1 Landscape Plan. Landscaping shall be integrated, where appropriate, with
other functional and ornamental site design elements (e.g. hardscape materials, entryway
documentation, paths, sidewalks, natural areas, fencing or water features). A detailed
landscape plan showing the size, location and variety of all plantings within the project
site shall be submitted and approved. Landscaping shall substantially comply with the
following general standards:
A. The Landscape Plan shall be submitted electronically (portable document
format (PDF) or equivalent).
B. The Landscape Plan shall exhibit a design that is integral and coordinated
with other corresponding improvements for the site and which clearly
demonstrates the function, location, size, and scale of plants in relation to
buildings and other site improvements, and to minimize conflicts with
commercial signage. (See City of Carmel’s Sign Ordinance Visual Guide
– Available from the Department of Community Services.
C. The Landscape Plan shall be drawn to scale, including dimensions and
distances, and drawn to correspond with all existing and planned buildings
and other physical improvements, including overhead and underground
utilities.
D. The Landscape Plan shall identify locations of all current and proposed
utilities and service areas, including: ground level mechanical equipment,
HVAC compressors, telecommunication equipment, electrical
transformers, utility meters, public approaches and any adjoining
residential zones.
E. The Landscape Plan shall include graphic planting details for trees,
shrubbery, and ground cover/ornamental grass. (See City of Carmel’s
Graphic Planting Details – Available from the Department of Community
Services).
F. The Landscape Plan shall include a schedule of plants: including a symbol
key, botanical name, common name and shall delineate the size, container
type, description and quantity of all plant material.
G. The Landscape Plan shall identify locations of new plant material with
keyed symbols.
H. The Landscape Plan shall identify existing vegetation to remain by
botanical name and size.
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Section 6.2. General Landscaping Standards. Landscaping shall be integrated with,
and complement other functional and ornamental site design elements, such as hardscape
materials, paths, sidewalks, and fencing.
A. All trees, shrubs and ground covers shall be planted according to
American Standard for Nursery Stock (ANSI Z60.1) and following the
standards and best management practices (BMPs) published by the City’s
Urban Forestry Program. Landscaping materials shall be appropriate for
local growing and climatic conditions. Plant suitability, maintenance and
compatibility with site construction features shall be addressed. The
City’s planting details shall be required on the landscape plan. All trees
shall be selected from the City’s recommended tree list published by the
City’s Urban Forestry Program or otherwise approved by the Urban
Forester.
B. Shade trees shall be at least 2.5 inches in caliper when planted.
Ornamental trees shall be at least 1.5 inches in caliper when planted.
Evergreen trees shall be 6 feet in height when planted. Shrubs shall be at
least 18 inches in height when planted. Ornamental grasses must obtain a
mature height of at least 3 feet.
C. All landscaping approved as part of a Primary Plat shall be installed prior
to issuance of the first Certificate of Occupancy for a dwelling in the area
of the Real Estate subject to a Secondary Plat; provided, however, that
when because of weather conditions, it is not possible to install the
approved landscaping before the issuance of a Certificate of Occupancy,
the Controlling Developer shall request a temporary Certificate Of
Occupancy which shall be conditioned upon a determined time to
complete the installation of the uninstalled landscape material.
D. All landscaping is subject to Plat Approval. No landscaping which has
been approved by the Urban Forester with the Primary Plat may later be
substantially altered, eliminated, or sacrificed without first obtaining
further approval from the Urban Forester in order to conform to specific
site conditions.
E. It shall be the responsibility of the owner(s), with respect to any portion of
the Real Estate owned by such owner(s) and on which any landscaped area
exists per the requirements of this Andrews Ordinance, to ensure proper
maintenance of landscaping in accordance with the Andrews Ordinance.
This maintenance is to include, but is not limited to (i) mowing, tree
trimming, planting, maintenance contracting and mulching of planting
areas, (ii) replacing dead or diseased plantings with identical varieties or a
suitable substitute, and (iii) keeping the area free of refuse, debris, rank
vegetation and weeds.
Section 6.3. Areas to be landscaped.
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A. Street Trees.
1. Large growing shade trees shall be planted within public street
right-of-way, parallel to each street, in planting strips. Further,
street trees shall be planted at a spacing of a maximum of fifty (50)
feet and minimum of twenty-five (25) feet.
2. Street Trees shall be a minimum of ten (10) feet from a driveway.
In the event the tree cannot be viably planted, the tree may be
relocated elsewhere on the adjacent lot or common area.
3. Per City standards, no street trees shall be planted in conflict with
drainage or utility easements or structures and underground
detention (unless so designed for that purpose), or within traffic
vision safety clearances. However, where the logical location of
proposed utilities would compromise the desired effect, the
Controlling Developer may solicit the aid of the City’s Urban
Forester in mediating an alternative.
B. Foundation and Lot Planting Standards. The following planting
requirements apply to all Dwellings:
1. Lots shall have a minimum of one (1) shade tree in each Front
Yard. In the event the tree cannot be viably planted, the tree shall
be relocated elsewhere on the lot.
2. Lots shall have a minimum of eight (8) shrubs and/or ornamental
grasses along each Dwelling foundation facing the street.
C. Common Areas:
1. For all sidewalks, the equivalent of at least one (1) deciduous tree
will be provided for every fifty (50) lineal feet of walk included as
street trees.
2. In addition to street trees a minimum of ten (10) new native shade
trees per acre shall be provided in all common areas except that
Common Area 2 (southwest corner) shall be planted as prairie
grasses and three (3) Burr Oak trees.
D. Native Vegetation Areas: Native vegetation shall be provided along the
perimeter of the pond. Areas designated for native vegetation, to comply
with Stormwater Management Requirements, must be protected from
regular mowing and shall be maintained in accordance with the project’s
Stormwater Operation and Maintenance Manual.
E. Perimeter Buffer yards and Landscaping:
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1. Eastern perimeter: There shall be a minimum ten (10) foot buffer
yard that contains a minimum of five (5) shade or evergreen trees
and one (1) ornamental tree per one-hundred (100) lineal feet. Any
native trees that are preserved will count toward the minimum
number of trees required if they are over 4-inch dbh. The buffer
shall be permitted to overlap drainage easements.
2. Western perimeter: There shall be a minimum fifteen (15) foot
buffer yard from the western property lines that contains a
minimum of five (5) shade or evergreen trees and one (1)
ornamental tree per 100 lineal feet. Any native trees that are
preserved will count toward the minimum number of trees required
if they are over 4-inch dbh. Landscaping commitments made by
the adjacent landowner (recorded as commitments under Hamilton
County Recorder instrument #2020036736) shall be satisfied and
all trees shall count toward the tree planting requirements. These
plantings shall be included on the Landscaping Plan submitted
with the Primary Plat. The buffer shall be permitted to overlap
drainage easements.
3. Northern (146th Street) perimeter: There shall be a minimum fifty
(50) foot planting area along 146th Street. This area shall be
planted with six (6) shade trees, one (1) ornamental tree and fifteen
(15) shrubs per one-hundred (100) linear feet. A fence for the dog
park and community garden along with raised planting beds shall
be permitted within the planting area provided a twenty-five (25)
setback from 146th Street is provided.
4. Southern perimeter: There shall be a minimum thirty (30) foot
buffer yard from the southern property line made up of a tree
preservation area. When grading and drives allow, this buffer will
be widened to the extent possible.
5. Drainage infrastructure and swales/grading shall be permitted
within the buffer yards. Drainage Easements are permitted to
overlap.
6. The power transmission line easement that crosses the Real Estate
may restrict plantings. In this event only planting permitted in the
easement area shall be required.
Section 6.4 Tree Preservation. Tree Preservation as illustrated on the Open Space Plan
shall be required as generally illustrated on the Concept Plan. Tree
Preservation areas shall be regulated and maintained in accordance with the
Tree Preservation Area standards described below:
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A. Best management practices for a tree preservation area:
1. Trees to be preserved shall be those approved by the Urban
Forester.
2. Removal of exotic and invasive species, e.g., bush honeysuckle.
(See the Indiana Exotic and Invasive Plant List provided by the
City of Carmel. If you are not able to identify exotic and invasive
species, seek professional assistance. Application of herbicide
should be completed with professional oversight.)
3. Removal of dead, hazardous and at-risk trees.
4. Removal of vines growing on and up a tree.
5. Removal of an overabundance of fallen and cut trees.
6. Planting of native trees. (See the Indiana Native Tree List provided
by the City of Carmel.)
7. Direct discharge of surface drainage of stormwater from the rear
half of any lot that is adjacent to a tree preservation area.
8. Establishment of access easements, unpaved trails, utility and
drainage improvements. This provision is intended to permit the
crossing of the tree preservation area and not one easement to fully
occupy the area.
9. Complete maintenance activities by following industry standard
using the current American National Safety Institute (ANSI) Z-133
and A-300 approved practices and methods.
10. Existing vegetation and earth shall be allowed to be removed for
the purposes of constructing and maintaining paths (including
pavement) through common areas, provided that (i) all attempts be
made to avoid routes that would ultimately damage healthy
hardwood tree species with a dbh greater than twelve inches, (ii)
that the width of the clearing path not exceed ten feet.
11. Grass seeding (native or otherwise) and subsequent maintenance
through mowing shall be allowed within the easement in areas
currently devoid of trees and shrubs, areas (e.g. legal drains)
required to be cleared by governing agencies, and/or areas that will
be cleared for path construction, provided that such
seeding/mowing along constructed paths be restricted to a
maximum width of three feet along either side of the path.
B. Unacceptable activities for a tree preservation area:
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1. Removal of native vegetation except as necessary for constructing
and maintaining paths.
2. Mowing and clearing any portion of a tree preservation area.
3. Dumping of leaves and debris from outside locations into a tree
preservation area.
4. The construction of pools, sheds, garages, fences, playground
equipment, tree houses, fire pits and other permanent or semi-
permanent structures unless approved by the City of Carmel.
5. Recreational activities that adversely impact the health, structure
and integrity of a tree preservation area, including, playground
equipment, basketball or tennis courts and pools.
C. The following shall be required for all Tree Preservation Areas:
1. Permanent signs identifying the Tree Preservation Area shall be
posted every five hundred (500) feet around the perimeter of all
Tree Preservation Areas.
2. Barriers shall be utilized during site development and earth moving
activities, which shall be specified on landscape plans. Such
barriers shall remain in place during the site's construction activity.
Section 7. Signage Requirements. All signage on the Real Estate shall comply with Chapter
5.39 – Sign Standards of the UDO. See Section 8.5 for standards regulating “No
Construction Traffic” signage.
Section 8. Additional Requirements and Standards.
Section 8.1. Home Occupations. Home Occupations shall meet the requirements of the
UDO as amended.
Section 8.2. Rights-of-way standards.
A. The required right-of-way for 146th Street shall be the existing right of
way.
B. Internal streets shall be public and include a 56-foot right of way width.
C. To the extent acceptable to, and permitted by, the Engineering Department
of the City of Carmel, the developer shall install a speed bump at the
neighborhood connection with the Gray Oaks subdivision at Gray Oaks
Court.
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D. Required stub streets shall be provided as illustrated on the Concept Plan.
Section 8.3. Sidewalks and Pedestrian Amenities.
A. A five (5) foot wide sidewalk shall be required along both sides of all
internal streets.
B. A community area including pedestrian amenities and landscaping shall be
provided, an example of which is generally illustrated on Exhibit E
(Amenity Character Imagery). All benches shall be constructed of metal.
Section 8.4. Road Improvement Requirements. Development of the Real Estate shall
meet all applicable Thoroughfare Plan related improvement requirements as identified in
and required under the UDO unless otherwise provided for in this Andrews Ordinance for
only the street connection to 146th Street.
Section 8.5. Construction Traffic. The following standards shall apply:
A. Developer shall post signage on both 146th Street and Gray Road
indicating that construction traffic should enter from the subdivision
entrance on 146th Street.
B. Developer shall also post signage at the neighborhood connection with the
Gray Oaks subdivision at Gray Oaks Court to the effect that “NO
CONSTRUCTION TRAFFIC” is permitted in that location. The sign
shall be substantially in compliance with the form attached as Exhibit F.
C. During the period of land development activities on the Property,
Developer shall also post barricades at the neighborhood connection with
the Gray Oaks subdivision at Gray Oaks Court; provided, however, that
the removal of such barricades shall be permitted when framing activities
begin on any Single-Family Dwelling to allow for emergency access. The
barricade(s) shall be substantially in compliance with the form attached as
Exhibit F.
D. All “NO CONSTRUCTION TRAFFIC” and related signage shall
nevertheless remain posted until certificates of occupancy have been
issued for at least 23 Dwellings in the subdivision.
E. In addition, Developer shall notify all of its trade vendors in writing that
no construction traffic is permitted to enter the subdivision through the
neighborhood connection with the Gray Oaks subdivision at Gray Oaks
Court and shall put in place a system for fining trade vendors who violate
this restriction.
Section 9. Procedural Provisions.
Version 22 01172423 022824
16
Section 9.1. Primary Plat.
A. Primary Plat approval shall be required prior to the issuance of an
Improvement Location Permit to determine if the Primary Plat satisfies the
Development Requirements specified within only this Andrews
Ordinance.
B. The Real Estate shall be developed in substantial compliance with the
Concept Plan hereby incorporated and attached as Exhibit B subject to
Primary Plat approval by the Plan Commission. Substantial
compliance shall be regulated in the same manner as the “substantially
or materially altered” provisions of the UDO.
C. If there is a Substantial Alteration in any approved Primary Plat, review
and approval of the amended plans shall be made by the Plan
Commission, or a Committee thereof, pursuant to the Plan Commission’s
rules of procedure. Minor Alterations shall be approved by the Director.
Section 9.2. Secondary Plat Approval. The Director shall have sole and exclusive
authority to approve, with or without conditions, or to disapprove any Secondary Plat;
provided, however, that the Director shall not unreasonably withhold or delay the
Director's approval of a Secondary Plat that is in substantial conformance with the
Primary Plat and is in conformance with the Development Requirements of this Andrews
Ordinance. If the Director disapproves any Secondary Plat, the Director shall set forth in
writing the basis for the disapproval and schedule the request for hearing before the Plan
Commission.
Section 9.3 Modification of Development Requirements (Zoning Waiver). The Plan
Commission may, after a public hearing, grant an applicant a Zoning Waiver subject to
the requirements of the UDO. A wavier of the provisions of this Andrews Ordinance
may be granted up to a maximum of thirty-five (35) percent of the specified standard.
Section 9.5. Variance of Development Requirements. The BZA may authorize
Variances from the terms of the Andrews Ordinance, subject to the procedures prescribed
in the UDO.
Section 10. Violations and Enforcement. All violations and enforcement of this Andrews
Ordinance shall be subject to the requirements of the UDO.
Section 11. Exhibits. All of the Exhibits (A-E) on the following pages are attached to this
Andrews Ordinance, are incorporated by reference into this Andrews Ordinance and are part of
this Andrews Ordinance.
The remainder of this page is left blank intentionally.
Exhibit “A” – Page 1 of 3
Exhibit “A”
(Legal Description)
Parcel I: (Tax ld. No.: 11-10-20-00-00-010.000/29-10-20-000-010.000-018)
A part of the West Half of the East Half of the Northeast Quarter of Section 20, Township 18 North
Range 4 East, Clay Township, Hamilton County, Indiana, being described as follows: Commencing at
the railroad spike at the Northeast corner of the Northeast Quarter of Section 20, Township 18 North,
Range 4 East; thence North 89 degrees 22 minutes 12 seconds West (assumed bearing) 913.90 feet on and
along the North line of said Northeast Quarter; thence South 00 degrees 10 minutes 50 seconds East 66.61
feet parallel with the West line of the East Half of said Northeast Quarter to a 5/8" iron rod yellow cap
stamped Miller Surveying on the South right-of-way line of 146th Street, said 5/8" iron rod with yellow
cap stamped Miller Surveying also being the point of beginning of the tract of real estate herein
described; thence South 00 degrees 10 minutes 50 seconds East 941.21 feet, more or less parallel with the
West line of the East Half of said Northeast Quarter to a 5/8 iron rod with yellow cap stamped Miller
Surveying on the North line of25 acres off the South end of West Half of the East Half of said Northeast
Quarter; thence South 89 degrees 21 minutes 10 seconds East 312.72 feet on and along the North line of
said 25 acre tract to a 5/8" iron rod with yellow cap stamped Miller Surveying on the East line of the West
Half of the East Half of said Northeast Quarter; thence North 00 degrees 13 minutes 24 seconds West
941.31 feet, more or less on and along the East line of the West Half of the East Half of said Northeast
Quarter to a 5/8" iron rod with yellow cap stamped Miller Surveying on the South right-of-way line of
146th Street; thence North 89 degrees 22 minutes 12 seconds West 312.02 feet to the Point of Beginning.
Containing 6.149 acres, more or less.
Parcel II: (Tax Id. No.: 17-10-20-00-00-010.001/29-10-20-000-010.001-018)
Part of the Northeast Quarter of Section 20, Township 18 North, Range 4 East, in Hamilton County,
Indiana, described as follows: Beginning on the North line of the Northeast Quarter of Section 20,
Township 18 North, Range 4 East 913.90 feet North 89 degrees 59 minutes 54 seconds West (assumed
bearing) from the Northeast corner thereof; thence North 89 degrees 59 minutes 54 seconds West on said
North line 350.00 feet to the West line of the East Half of said Northeast Quarter; thence South 00
degrees 49 minutes 00 seconds East on said West line 990.00 feet; thence South 89 degrees 59 minutes 54
seconds East parallel with said North line 350.00 feet; thence North 00 degrees 49 minutes 00 seconds
West parallel with said West line 990.00 feet to the place of beginning, containing 7.95 acres, more or
less.
EXCEPTING THEREFROM: A part of the East Half of the Northeast Quarter of Section 20, Township
18 North, Range 4 East, Hamilton County, Indiana, described as follows: Beginning at the Northwest
corner of said Half Quarter Section; thence South 89 degrees 22 minutes 12 seconds West 106.68 meters
(350.00 feet) along the North line of said Half Quarter Section to the Northeast corner of the owners' land;
thence South 0 degrees 15 minutes 49 seconds East 19.00 meters (62.34 feet) along the East line of the
owners' land to Point "601" designated on said plat; thence parallel with the North line of said Half
Quarter Section North 89 degrees 22 minutes 12 seconds West 106.68 meters (350.00) feet to the West
line of the owners' land and Point "600" designated on said plat; thence North 0 degrees 15 minutes 49
seconds West 19.00 meters (62.34 feet) along said West line to the point of beginning and containing
0.2027 hectares (0.500 acres, more or less.
Exhibit “A” – Page 2 of 3
Parcel III: (Tax Id. No.: 17-10-20-00-00-010.002/29-10-20-000-010.002-018)
Part of the East Half of the Northeast Quarter of Section 20, Township 18 North, Range 4 East 990.0 feet
South 00 degrees 49 minutes 00 seconds East (assumed bearing) from the Northwest corner of said East
Half; thence South 89 degrees 59 minutes 54 seconds East parallel with the North line of said East Half
350.00 feet; thence South 00 degrees 49 minutes 00 seconds East parallel with said West line 16.54 feet to
the North line of25 acres off the entire South end of the West Half of the East Half of said Northeast
Quarter; thence North 89 degrees 58 minutes 09 seconds West on said North line parallel with the South
line of said Northeast Quarter 350.00 feet to the West line of said East Half; thence North 00 degrees 49
minutes 00 seconds West on said West line 16.37 feet to the place of beginning, containing 0.13 acres,
more or less.
Exhibit “A” – Page 3 of 3
Exhibit “A”
(Legal Description)
Exhibit “B” Page 1 of 1
Exhibit “B”
(Concept Plan)
Exhibit “C” Page 1 of 3
Exhibit “C”
(Architectural Character Imagery)
Exhibit “C” – Page 2 of 3
Exhibit “C”
(Architectural Character Imagery – Standard Side Elevations)
Standard Side Elevation (masonry wainscot):
Exhibit “C” – Page 3 of 3
Exhibit “C”
(Architectural Character Imagery – Standard & Enhanced Rear Elevations)
Standard Rear Elevation:
Enhanced Rear Elevation:
Exhibit “D” Page 1 of 5
Exhibit “D”
(Architectural Standards)
The standards set forth below in this Exhibit D Architectural Standards apply to all Dwellings
on the Real Estate.
Section 1. Character Imagery: Applicable Architectural Character Imagery indicating the
architecture and appearance of Single-family Dwellings are included in Exhibit
C. All Single-family Dwellings on the Real Estate shall be developed in
substantial compliance with the associated Architectural Character Imagery.
This Substantial Compliance provision shall not limit the Developer from
introducing elevations not included in Exhibit C provided the elevations are
in compliance with all applicable Architectural Standards of this Exhibit D.
Section 2. Dwelling Design:
A. Permitted Building Materials.
1. Acceptable exterior siding materials shall include brick, stone, cast
stone, limestone, fiber cement, wood, and engineered wood.
2. EIFS, Vinyl and aluminum siding shall be prohibited. Vinyl
shutters, aluminum facia, aluminum soffits, aluminum
downspouts/gutters shall be permitted.
3. Visible roofs shall be asphalt shingle roofing. Porch roofs and other
architectural accent areas can be asphalt shingles or prefinished
standing seam metal roofing.
4. Porches and stoops on fronts of buildings shall be concrete. All
handrails at exterior steps shall be metal.
5. Exterior doors, including overhead doors, shall be fiberglass, vinyl,
or painted metal in either smooth or paintbrush texture finish.
6. Rainwater management shall be in prefinished metal scuppers and
gutters with prefinished metal downspouts.
B. Garages:
1. All Dwellings shall have a minimum two (2) car attached garage.
All three (3) car garages shall be offset bygarage including a
minimum of two (2) feetfoot offset.
Exhibit “D” – Page 2 of 5
2. Garage doors shall include windows and may include hardware.
Garage door colors shall match or compliment either the siding or
trim color of the Dwelling.
3. All garage doors shall have trim of not less than four-inch (4”)
nominal width.
C. Porches:
1. All homes shall incorporate one (1) of the following: (i) a front
porch that extends forward of the 2-car garage bay by a minimum of
six (6) feet or (ii) a front porch which is a minimum of eighty (80)
square feet in area.
2. There shall be a minimum of five (5) homes including a porch that
extends forward of the 2-car garage by a minimum of six (6) feet.
3. Porches on all homes shall be a minimum of six (6) feet in depth.
Columns shall be permitted within the six (6) foot area.
D. Front Building Façade: At a minimum, each Dwelling shall utilize the following
architectural elements on the Front Building Façade:
1. The exterior building materials shall consist of masonry material and
two (2) of the following materials: composite/engineered wood trim,
composite veneer panels, horizontal siding, shake siding, and board
and batten siding.
2. All buildings shall have a brick or stone wainscot on the front
building facade of the dwelling. The wainscot shall be a minimum
height of the lower of (i) 30” above grade or (ii) the bottom of the
windows of the home.
E. Side Building Façade: At a minimum, the side elevation for each Dwelling shall
utilize the following architectural elements:
1. The exterior building materials (composite/engineered wood trim,
composite veneer panels, horizontal siding, shake siding, and board
and batten siding) provided on front elevation of the Dwelling shall
be used on the side elevations as generally illustrated in Exhibit C.
2. All side building facades shall incorporate a masonry wainscot a
minimum height of the lower of (i) 30” above grade or (ii) the
bottom of the windows of the home. The masonry material on the
wainscot shall match the masonry material used on the front building
façade masonry wainscot.
Exhibit “D” – Page 3 of 5
3. All lots identified with black dots on Exhibit B which have a gable
end on the side building façade shall incorporate one (1) of the
following additional elements on the side building façade. A variety
of the following elements shall be used, and the incorporated
element(s) shall be consistent with the elements on the front building
façade:
i. A change in the exterior color separated by trim;
ii. A change in the exterior material pattern separated by trim;
iii. A change in the exterior material separated by trim;
iv. A minimum of ten (10) square foot gable window; or
v. A gable peak with a change in exterior material.
4. A minimum of two (2) windows shall apply to each exterior side
elevation. In the case of a finished second level / half level one (1)
additional window shall be required on the subject side elevation.
F. Rear Building Façade: At a minimum, the Rear Building Façade for each
Dwelling shall utilize the following architectural elements:
1. A minimum of three (3) windows and door shall apply to each rear
elevation of a Dwelling. The door is permitted to face a side
elevation or interior patio in which case it shall still count toward the
door on the rear building façade.
2. All rear building facades shall incorporate a masonry wainscot a
minimum height of the lower of (i) 30” above grade or (ii) the
bottom of the windows of the home. The masonry material on the
wainscot shall match the masonry material used on the front building
façade masonry wainscot.
G. Windows:
1. All windows which include shutters, where provided, shall be duly
functional with all necessary hardware or shall be provided with
adequate hardware to make them appear functional.
2. All windows shall have either (i) shutters with trim board sill and
cornice or (ii) a nominal four-inch (4”) trim board on all sides;
provided, however, that neither shutters nor wood trim shall be
required for windows that are set in masonry.
Exhibit “D” – Page 4 of 5
3. Windows shall be vinyl in manufacturer’s standard color (black or
white).
4. Windows intended to satisfy minimum requirements of this Andrews
Ordinance shall have a minimum area of eight (8) square feet. The
square footage of multiple windows grouped together may be
aggregated to satisfy this minimum area requirement.
H. Roof:
1. The minimum Primary/Main Roof pitch shall be 6:12. Other
secondary accent roof planes shall not be less than 4:12.
2. The roof design shall consist of at least one (1) of the following
features: hip roof, dormer, Dutch hip, jerkinhead, shed roof accent,
cornice returns, multiple gables, or two (2) or more roof planes.
3. The primary/main roof overhang or eaves shall be a minimum of
eleven (11) inches on all facades of each Building, as measured prior
to the installation of any masonry materials.
Section 3. Monotony Mitigation:
A. The development shall have a minimum of three (3) floor plans. Each floor plan
shall have a minimum number of four (4) Elevations.
B. Front Façade: The same front building Elevation shall not be constructed for two
(2) lots on each side of the subject lot on the same side of the street and for five
(5) lots across the street from the subject lot as illustrated in the below diagram.
C. Exterior Siding Color: No two side by side homes on contiguous lots or the lot
across the street from the subject lot shall have the same primary exterior color on
the primary structure of the home.
D. Exterior Masonry Color: No two side by side homes on contiguous lots shall have
the same masonry color.
Exhibit “D” – Page 5 of 5
E. Anti-Monotony Exemption: Lots that either a) do not front the same street with
front doors facing the same street, or b) lots that share the same street frontage
and are separated by a street/ROW or 50’ wide green/open space shall be exempt
from this anti-monotony requirement. In this scenario, the pattern shall reset.
Exhibit “E” – Page 1 of 1
Exhibit “E”
(Amenity Character Imagery)
Community Garden:
Dog Park:
Pond Overlook with Seating/Swing:
Exhibit “F” Page 1 of 1
Exhibit “F”
(Signage & Barricade Exhibit)
PASSED by the Common Council of the City of Carmel, Indiana, this ____ day of
________, 2024, by a vote of _____ ayes and _____ nays.
COMMON COUNCIL FOR THE CITY OF CARMEL
______________________________ ______________________________
Anthony Green, President Adam Aasen, Vice-President
______________________________ ______________________________
Jeff Worrell Teresa Ayers
______________________________ ______________________________
Shannon Minnaar Ryan Locke
______________________________ ______________________________
Matthew Snyder Rich Taylor
______________________________
Anita Joshi
ATTEST:
______________________________
Jacob Quinn, Clerk
Presented by me to the Mayor of the City of Carmel, Indiana this ____ day of _________________,
2024, at ______ __.M.
_________________________________
Jacob Quinn, Clerk
Approved by me, Mayor of the City of Carmel, Indiana this ____ day of _________________, 2024,
at ______ __.M.
_________________________________
Sue Finkam, Mayor
ATTEST:
_________________________________
Jacob Quinn, Clerk
This Instrument prepared by: James E. Shinaver, attorney at law, NELSON & FRANKENBERGER and Jon C.
Dobosiewicz, land use professional, NELSON & FRANKENBERGER. 550 Congressional Blvd, Carmel, IN 46032.
Andrews PUD 22 01172423 022824
Construction Memo
Traffic Pattern – Gray Oaks
Trade Partners,
The purpose of this memo is to notify all Pulte Trade Partners of the strict enforcement of traffic
restrictions in the “Andrews PUD” community. No construction traffic is permitted to enter the
subdivision through the neighborhood connection with the Gray Oaks subdivision at Gray Oaks Court.
All construction traffic must enter off of 146th Steet. Pulte will install signage and barriers to further
prevent access to our subdivision through Gray Oaks.
Failure to comply with this written policy shall follow the below escalation procedures.
First offense – written warning from Pulte and formal response from trade partner to be provided
explaining reason for non-compliance.
Second offense - $200 fine issued through Pulte FPO system.
Third offense (and above) - $300 fine issued through Pulte FPO system.
This policy should be distributed to any employee traveling to “Andrews PUD”. In addition, Pulte will
post the policy on our Build with Pulte (BWP) trade partner portal. This alert will help reiterate the
message to all trade partner scheduling personnel.
Pulte appreciates the adherence to the traffic restrictions policy in “Andrews PUD”. If continual fines
occur from a particular trade partner, further actions may occur to remove the trade partner from this
community. Thank you for your attention to this matter which will allow Pulte to build in another great
Carmel location.
Sincerely,
Trey E. McFarland
VP of Procurement, Pulte Group
SPONSOR(S): Councilors Aasen, Taylor, Minnaar and Worrell
This Ordinance was prepared by Sergey Grechukhin, Interim City Attorney, on 2/20/2024 at 11:50 a.m. No subsequent revision to this Ordinance has been reviewed by Mr. Grechukhin for legal sufficiency or otherwise.
ORDINANCE D-2705-24 1 2
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, 3 AUTHORIZING AND APPROVING AN ADDITIONAL APPROPRIATION OF FUNDS 4 FROM THE GENERAL FUND #101 TO THE 2024 INFORMATION AND 5 COMMUNICATION SYSTEMS DEPARTMENT BUDGET 6 7
Synopsis: This ordinance authorizes and approves an additional appropriation of $1,033,339.98 8 from the General Fund into the 2024 Information and Communication Systems Budget to be 9 used for Carmel Emergency Operation Center technology update and contracted services fees. 10 11 WHEREAS, Hamilton County, Indiana deposits the City of Carmel’s (“Carmel”) share of 911 12
Communications Local Income Tax (“LIT”) funds into Carmel’s general account intended to be used 13
for improvements to emergency communications operations; and 14 15 WHEREAS, the sum of One Million Thirty Three Thousand Three Hundred Thirty Nine Dollars 16 and Ninety Eight Cents ($1,033,339.98) is needed to pay for a comprehensive update to Carmel 17
Emergency Operation Center to improve emergency response and communications operations within 18
Carmel; and 19 20 WHEREAS, the General Fund (Fund #101) has excess funds in the amount of One Million 21 Thirty Three Thousand Three Hundred Thirty Nine Dollars and Ninety Eight Cents ($1,033,339.98) in 22
the operating balance to appropriate into the 2024 Information and Communication Systems Department 23
budget in the following line item: #44- 631.00 Communications Equipment. 24 25 NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of Carmel, 26 Indiana, that the following additional sum of money is hereby appropriated out of the General Fund 27
Operating Balance and for the purposes specified, subject to applicable laws, as follows: 28
29 $1,033,339.98 from the GENERAL FUND OPERATING, Fund #101 Balance 30 31 To 32
33 Information and Communication Systems (#1115) Line Item # 44-631.00 – Communications 34 Equipment $1,033,339.98 35 36 37
38
39 40 41 42
Ordinance D-2705-24 43
Page One of Two 44 45
SPONSOR(S): Councilors Aasen, Taylor, Minnaar and Worrell
This Ordinance was prepared by Sergey Grechukhin, Interim City Attorney, on 2/20/2024 at 11:50 a.m. No subsequent revision to this Ordinance has been reviewed by Mr. Grechukhin for legal sufficiency or otherwise.
PASSED, by the Common Council of the City of Carmel, Indiana, this day of 46 , 2024, by a vote of ayes and nays. 47 48 COMMON COUNCIL FOR THE CITY OF CARMEL 49 50 51 Anthony Green, President Adam Aasen, Vice-President 52 53 54 Rich Taylor Matthew Snyder 55 56 57 Jeff Worrell Teresa Ayers 58
59 60 Shannon Minnaar Ryan Locke 61
62 _ 63 Anita Joshi 64
65 ATTEST: 66 67 ______________________________ 68 Jacob Quinn, Clerk 69 70 Presented by me to the Mayor of the City of Carmel, Indiana this day of 71 2024, at __.M. 72 73 74 Jacob Quinn, Clerk 75 76 Approved by me, Mayor of the City of Carmel, Indiana, this day of 77 2024, at __.M. 78
79 80 81
Sue Finkam, Mayor 82 83 ATTEST: 84
85 86 87 Jacob Quinn, Clerk 88 89 90
Ordinance D-2705-24 91 Page Two of Two Pages 92
Sponsors: Councilors; Worrell, Minnaar, Green and Joshi
This Ordinance was prepared by Benjamin Legge, Interim Corporation Counsel, on March 6, 2024 at 5:00 p.m. No subsequent revision to this Ordinance has been reviewed by Mr. Legge for legal sufficiency or otherwise.
ORDINANCE D-2708-24 1 2
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, 3 AUTHORIZING AND APPROVING AN ADDITIONAL APPROPRIATION OF FUNDS 4 FROM THE GENERAL FUND #101 TO THE 2024 CARMEL POLICE DEPARMENT 5 BUDGET 6 7
Synopsis: This ordinance appropriates funds into the Carmel Police Department’s 2024 8
budget that were received from federal grant money for the Department’s participation 9
in the DUI Task Force, Quick Response Team and the Click It to Live It program. 10 11 WHEREAS, CPD receives federal grant funds to compensate overtime earned by CPD officers 12 who participate in the DUI Task Force, Quick Response Team and the Click It to Live It program 13 (collectively, the “Programs”); and 14 15
WHEREAS, CPD has received Thirty Six Thousand Six Hundred Sixteen Dollars and Sixty 16
Cents ($36,616.60) in federal grant funds for the Programs thus far this year; and 17 18 WHEREAS, the Council must appropriate the grant funds from the Programs into the 19 2024 Carmel Police Department Budget in order for CPD to spend the funds for their intended 20
purpose; and 21
22
WHEREAS, the General Fund (#101) has excess funds in the amount of Thirty Six 23
Thousand Six Hundred Sixteen Dollars and Sixty Cents ($36,616.60) in the operating balance to 24
appropriate into the 2024 Carmel Police Department Budget. 25 26 NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of Carmel, 27 Indiana, that the following additional sum of money is hereby appropriated out of the General Fund 28
Operating Balance and for the purposes specified, subject to applicable laws, as follows: 29
30 FROM 31 32 $36,616.60 from the GENERAL FUND OPERATING Balances 33
34 To 35 36 Carmel Police Department (#1110): Line item 4112000 – Overtime $ 36,616.60 37 38
This Ordinance shall be in full force and effect from and after the date of its passage, execution 39
by the Mayor. 40 41 42 43
44
Ordinance D-2708-24 45 Page One of Two 46
Sponsors: Councilors; Worrell, Minnaar, Green and Joshi
This Ordinance was prepared by Benjamin Legge, Interim Corporation Counsel, on March 6, 2024 at 5:00 p.m. No subsequent revision to this Ordinance has been reviewed by Mr. Legge for legal sufficiency or otherwise.
PASSED, by the Common Council of the City of Carmel, Indiana, this day of 47 ________, 2024, by a vote of _____ ayes and _____ nays. 48
49 COMMON COUNCIL FOR THE CITY OF CARMEL 50 51 52 Anthony Green, President Adam Aasen, Vice-President 53
54
55 Rich Taylor Matthew Snyder 56 57 ______________________________ 58
Jeff Worrell Teresa Ayers 59
60 61 Shannon Minnaar Ryan Locke 62 63
______________________________ 64
Anita Joshi 65 66 ATTEST: 67 68
______________________________ 69
Jacob Quinn, Clerk 70 71 Presented by me to the Mayor of the City of Carmel, Indiana this day of 72 _________________________ 2024, at _______ __.M. 73
74
75 Jacob Quinn, Clerk 76 77 Approved by me, Mayor of the City of Carmel, Indiana, this day of 78
________________________ 2024, at _______ __.M. 79
80 81 82 Sue Finkam, Mayor 83
84
ATTEST: 85 86 87 88
Jacob Quinn, Clerk 89
90 Ordinance D-2708-24 91 Page Two of Two Pages 92
Sponsor: Councilor Aasen 1
ORDINANCE D-2710-24 2
AN ORDINANCE OF THE COMMON COUNCIL OF THE 3
CITY OF CARMEL, INDIANA, AUTHORIZING THE 4 ISSUANCE OF ECONOMIC DEVELOPMENT TAX 5 INCREMENT REVENUE BONDS TO SUPPORT THE 6 GRAMERCY PROJECT, AND AUTHORIZING AND 7
APPROVING OTHER ACTIONS IN RESPECT THERETO 8
Synopsis: 9
Ordinance authorizes the issuance of developer TIF bonds by the City of Carmel, 10 Indiana, to finance improvements to support the development of the Gramercy Project. 11
WHEREAS, the City of Carmel, Indiana (the “City”), is a municipal corporation and 12
political subdivision of the State of Indiana and by virtue of I.C. 36-7-11.9 and I.C. 36-7-12 13
(collectively, the “Act”), is authorized and empowered to adopt this ordinance (this “Bond 14 Ordinance”) and to carry out its provisions; 15
WHEREAS, Buckingham Properties, LLC or an affiliate thereof (the “Company”), 16 desires to finance the design and construction of certain improvements described in Exhibit A 17
hereto which are, or will be, located in the Gramercy Economic Development Area (collectively, 18
the “Projects”); 19
WHEREAS, the Company has advised the City of Carmel Economic Development 20 Commission (the “Commission”) and the City that it proposes that the City issue its taxable or 21 tax-exempt Economic Development Tax Increment Revenue Bonds, Series 20__ (Gramercy 22
Development Partners, LLC Project)), in one or more series (with such different or additional 23
series designation determined to be necessary or appropriate) in an aggregate amount not to 24 exceed Fifty-Three Million Dollars ($53,000,000) (the “Bonds”), under the Act and provide the 25 proceeds of such Bonds to the Company for the purpose of financing the Projects; 26
WHEREAS, the completion of the Projects results in the diversification of industry, the 27
creation of jobs and the creation of business opportunities in the City; 28
WHEREAS, pursuant to I.C. § 36-7-12-24, the Commission published notice of a public 29 hearing (the “Public Hearing”) on the proposed issuance of the Bonds to finance the Projects; 30
WHEREAS, on the date specified in the notice of the Public Hearing, the Commission 31 held the Public Hearing on the Projects; and 32
WHEREAS, the Commission has performed all actions required of it by the Act 33
preliminary to the adoption of this Bond Ordinance and has approved and forwarded to the 34 Common Council the forms of: (1) a Financing Agreement between the City and the Company 35 (the “Financing Agreement”); (2) a Trust Indenture between the City a trustee to be selected by 36 the Controller of the City (the “Trustee”) (the “Indenture”); (3) the Bonds; and (4) this Bond 37
Ordinance (the Financing Agreement, the Indenture, the Bonds, and this Bond Ordinance, 38
collectively, the “Financing Agreements”); 39
2
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE 40 CITY OF CARMEL, INDIANA, THAT: 41
Section 1. Findings; Public Benefits. The Common Council hereby finds and 42
determines that the Projects involve the acquisition, construction and equipping of an 43 “economic development facility” as that phrase is used in the Act; that the Projects will 44 increase employment opportunities and increase diversification of economic development 45 in the City, will improve and promote the economic stability, development and welfare in 46
the City, will encourage and promote the expansion of industry, trade and commerce in 47
the City and the location of other new industries in the City; that the public benefits to be 48 accomplished by this Bond Ordinance, in tending to overcome insufficient employment 49 opportunities and insufficient diversification of industry, are greater than the cost of 50 public services (as that phrase is used in the Act) which will be required by the Projects; 51
and, therefore, that the financing of the Projects by the issue of the Bonds under the Act: 52
(i) will be of benefit to the health and general welfare of the City; and (ii) complies with 53 the Act. 54
Section 2. Approval of Financing. The proposed financing of the Projects by 55 the issuance of the Bonds under the Act, in the form that such financing was approved by 56
the Commission, is hereby approved. 57
Section 3. Authorization of the Bonds. The issuance of the Bonds, payable 58 solely from revenues and receipts derived from the Financing Agreements, is hereby 59 authorized. 60
Section 4. Terms of the Bonds. (a) The Bonds, in the aggregate principal 61
amount not to exceed Fifty-Three Million Dollars ($53,000,000), shall (i) be executed at 62
or prior to the closing date by the manual or facsimile signatures of the Mayor and the 63 Clerk of the City; (ii) be dated as of the date of their delivery; (iii) for each series of the 64 Bonds, mature on a date not later than twenty-five years after the date of the first draw of 65 principal on such series of the Bonds; (iv) bear interest at such rates as determined with 66
the purchaser thereof (the “Purchaser”) in an amount not to exceed eight percent (8.00%), 67
with such interest payable as provided in the Financing Agreements, and which interest 68 may be taxable or tax-exempt, as determined by the Mayor and the Controller of the City, 69 with the advice of the City’s bond counsel, prior to the issuance of the Bonds; (v) be 70 issuable in such denominations as set forth in the Financing Agreements; (vi) be issuable 71
only in fully registered form; (vii) be subject to registration on the bond register as 72
provided in the Indenture; (viii) be payable in lawful money of the United States of 73 America; (ix) be payable at an office of the Trustee as provided in the Indenture; (x) be 74 subject to optional redemption prior to maturity and subject to redemption as otherwise 75 provided in the Financing Agreements; (xi) be issued in one or more series; and (xii) 76
contain such other terms and provisions as may be provided in the Financing 77
Agreements. 78
(b) The Bonds and the interest thereon do not and shall never constitute an 79 indebtedness of, or a charge against the general credit or taxing power of, the City, but 80 shall be special and limited obligations of the City, payable solely from revenues and 81
other amounts derived from the Financing Agreements. Forms of the Financing 82
Agreements are before this meeting and are by this reference incorporated in this Bond 83
3
Ordinance, and the Clerk of the City is hereby directed, in the name and on behalf of the 84 City, to insert them into the minutes of the Common Council and to keep them on file. 85
Section 5. Sale of the Bonds. The Mayor is hereby authorized and directed, 86
in the name and on behalf of the City, to sell the Bonds to the Purchaser at such prices as 87 are determined on the date of sale and approved by the Mayor of the City. 88
Section 6. Execution and Delivery of Financing Agreements. The Mayor and 89 the Clerk of the City are hereby authorized and directed, in the name and on behalf of the 90
City, to execute or endorse and deliver the Financing Agreement, the Indenture, and the 91
Bonds, submitted to the Common Council, which are hereby approved in all respects. 92
Section 7. Changes in Financing Agreements. The Mayor and the Clerk of 93 the City are hereby authorized, in the name and on behalf of the City, without further 94 approval of the Common Council or the Commission, to approve such changes in the 95
Financing Agreements as may be permitted by Act, such approval to be conclusively 96
evidenced by their execution thereof. 97
Section 8. Reimbursement from Bond Proceeds. The City hereby declares its 98 intent to issue the Bonds for the purpose of financing the Projects, which Bonds will not 99 exceed $53,000,000, and pursuant to Treas. Reg. §1.150-2 and IC 5-1-14-6(c), to 100
reimburse costs of the Projects (including costs of issuing the Bonds) from proceeds of 101
the sale of such Bonds. 102
Section 9. General. The Mayor and any other officer of the City, and each of 103 them, are hereby authorized and directed, in the name and on behalf of the City, to 104 execute or endorse any and all agreements, documents and instruments, perform any and 105
all acts, approve any and all matters, and do any and all other things deemed by them, or 106
either of them, to be necessary or desirable in order to carry out and comply with the 107 intent, conditions and purposes of this Bond Ordinance (including the preambles hereto 108 and the documents mentioned herein), the Projects, the issuance and sale of the Bonds, 109 and the securing of the Bonds under the Financing Agreements, and any such execution, 110
endorsement, performance or doing of other things heretofore effected be, and hereby is, 111
ratified and approved. 112
Section 10. Binding Effect. The provisions of this Bond Ordinance and the 113 Financing Agreements shall constitute a binding contract between the City and the 114 holders of the Bonds, and after issuance of the Bonds this Bond Ordinance shall not be 115
repealed or amended in any respect which would adversely affect the rights of the holders 116
of the Bonds as long as the Bonds or interest thereon remains unpaid. 117
Section 11. Repeal. All ordinances or parts of ordinances in conflict herewith 118 are hereby repealed. 119
Section 12. Effective Date. This Bond Ordinance shall be in full force and 120
effect immediately upon adoption and compliance with I.C. § 36-4-6-14. 121
Section 13. Copies of Financing Agreements on File. Two copies of the 122 Financing Agreements incorporated into this Bond Ordinance were duly filed in the 123 office of the Clerk of the City, and are available for public inspection in accordance with 124 I.C. § 36-1-5-4. 125
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PASSED by the Common Council of the City of Carmel, this _____ day of _____________, 126 2024, by a vote of ______ ayes and ____ nays. 127
128 COMMON COUNCIL FOR THE CITY OF CARMEL 129 130 131 Anthony Green, President Adam Aasen, Vice-President 132
133
134 Rich Taylor Matthew Snyder 135 136 137
Jeff Worrell Teresa Ayers 138
139 140 Shannon Minnaar Ryan Locke 141 142
143
Anita Joshi 144 145 ATTEST: 146 147
______________________________ 148
Jacob Quinn, Clerk 149 150 Presented by me to the Mayor of the City of Carmel, Indiana this day of 151 2024, at __.M. 152
153
154 Jacob Quinn, Clerk 155 156 Approved by me, Mayor of the City of Carmel, Indiana, this day of 157
2024, at __.M. 158
159 160 161 Sue Finkam, Mayor 162
163
ATTEST: 164 165 166 167
Jacob Quinn, Clerk 168
169 170 Prepared by: Bradley J. Bingham 171
Barnes & Thornburg LLP 172 11 South Meridian Street 173 Indianapolis, IN 46204 174 175
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EXHIBIT A 176
DESCRIPTION OF THE PROJECTS 177
All or any portion of the design and construction of a mixed use project which includes 178
townhomes, condos, apartments, retail, structured parking, and related road improvements, storm 179 water improvements, utility relocation costs, site development costs, and other infrastructure 180 costs, all to be located along Kinzer Avenue, south of City Center Drive, and at 452, 502, and 181 508 E. Carmel Drive, which will be added to the Gramercy Economic Development Area. 182
DMS 40581668.2 183
FINANCING AGREEMENT
BETWEEN [COMPANY]
AND
CITY OF CARMEL, INDIANA Dated as of ______________ 1, 20___
Certain of the rights of the Issuer hereunder have been assigned to [Trustee] as trustee under a Trust Indenture dated as of the date hereof, from the Issuer.
i
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND EXHIBITS ............................................................................ 2
Section 1.1. Terms Defined .................................................................................................. 2
Section 1.2. Rules of Interpretation ...................................................................................... 3
ARTICLE II REPRESENTATIONS; USE OF BOND PROCEEDS ........................................ 5
Section 2.1. Representations by Issuer ................................................................................. 5
Section 2.2. Representations by Company ........................................................................... 5
ARTICLE III PARTICULAR COVENANTS OF THE ISSUER AND COMPANY .............. 7
Section 3.1. Consent to Assignments to Trustee................................................................... 7
Section 3.2. Payment of Principal and Interest ..................................................................... 7
Section 3.3. Maintenance of Existence ................................................................................. 7
Section 3.4. Company Duties Under Indenture .................................................................... 7
Section 3.5. Indemnity .......................................................................................................... 7
Section 3.6. Payment of Expenses of Issuance of Bonds ..................................................... 8
Section 3.7. Completion and Use of Projects ....................................................................... 8
Section 3.8. Other Amounts Payable by the Company ......................................................... 9
ARTICLE IV EVENTS OF DEFAULT AND REMEDIES THEREFOR .............................. 10
Section 4.1. Events of Default ............................................................................................ 10
Section 4.2. Remedies Cumulative ..................................................................................... 10
Section 4.3. Delay or Omission Not a Waiver .................................................................... 10
ARTICLE V IMMUNITY ........................................................................................................... 12
Section 5.1. Extent of Covenants of the Issuer; No Personal Liability............................... 12
Section 5.2. Liability of Issuer ............................................................................................ 12
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ARTICLE VI SUPPLEMENTS AND AMENDMENTS TO THIS FINANCING AGREEMENT .................................................................................................................. 13
Section 6.1. Supplements and Amendments to this Financing Agreement ........................ 13
ARTICLE VII MISCELLANEOUS PROVISIONS ................................................................. 14
Section 7.1. Financing Agreement for Benefit of Parties Hereto ....................................... 14
Section 7.2. Severability ..................................................................................................... 14
Section 7.3. Addresses for Notice and Demands ................................................................ 14
Section 7.4. Successors and Assigns................................................................................... 14
Section 7.5. Counterparts .................................................................................................... 15
Section 7.6. Governing Law ............................................................................................... 15
FINANCING AGREEMENT
This FINANCING AGREEMENT, dated as of ___________ 1, 20___ (the “Financing
Agreement”) between [Company], a _______________ (the “Company”), and the CITY OF
CARMEL, INDIANA (the “Issuer” or “City”), a municipal corporation duly organized and validly existing under the laws of the State of Indiana.
PRELIMINARY STATEMENT
WHEREAS, the City of Carmel Redevelopment Commission (the “Redevelopment
Commission”) has established the City Center Redevelopment Area and, within such area, the
Gramercy Allocation Area (the “Allocation Area”) located in the City of Carmel; and
WHEREAS, Indiana Code, Title 36, Article 7, Chapters 11.9 and 12, as supplemented and amended (collectively, the “Act”), authorizes and empowers the Issuer to issue revenue bonds and enter into agreements with companies to allow companies to construct economic
development facilities and vests the Issuer with powers that may be necessary to enable it to
accomplish such purposes; and
WHEREAS, the Issuer, upon finding that the Projects (as hereinafter defined) and the proposed financing of the construction thereof will create additional employment opportunities in the City of Carmel; will benefit the health, safety, morals, and general welfare of the citizens
of the City of Carmel and the State of Indiana; and will comply with the purposes and provisions
of the Act, adopted an ordinance approving the proposed financing; and
WHEREAS, the Issuer intends to issue its Economic Development Tax Increment Revenue Bonds, Series 20__ (Gramercy Project) in the aggregate principal amount of $[XX,XXX,XXX] (the “Bonds”), pursuant to the Trust Indenture dated as of _____________ 1,
20__ (the “Indenture”) between the Issuer and [Trustee], as trustee, and intends to provide the
proceeds of the Bonds pursuant to the provisions of this Financing Agreement to the Company to finance the Projects; and
WHEREAS, this Financing Agreement provides for the use of the financing by the Company through the issuance by the Issuer of its Bonds; and
WHEREAS, pursuant to the Indenture, the Issuer will assign certain of its rights under
this Financing Agreement, and the Bonds issued under the Indenture will be payable solely from TIF Revenues (as defined in the Indenture) of the Issuer’s Redevelopment Commission derived from the Allocation Area.
In consideration of the premises, the transfer of certain infrastructure to the Issuer, and
other good and valuable consideration, the receipt of which is hereby acknowledged, the
Company and the Issuer hereby further covenant and agree as follows:
2
ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1.1. Terms Defined. Capitalized terms used in this Financing Agreement that are not otherwise defined herein, shall have the meanings provided for such terms in the Indenture. As used in this Financing Agreement, the following terms shall have the following meanings unless the context clearly otherwise requires:
“Act” means, collectively, Indiana Code 36-7-11.9 and 36-7-12.
“Allocation Area” means the Gramercy Allocation Area established as an allocation area by the Redevelopment Commission, all in accordance with IC 36-7-14-39 for the purposes of capturing incremental ad valorem real property taxes levied and collected in such allocation area.
“Bond Fund” means the Bond Fund established by Section 4.2 of the Indenture.
“Bondholder” or “owner of a Bond” or any similar term means the owner of a Bond.
“Bonds” means the Issuer’s Economic Development Tax Increment Revenue Bonds, Series 20__ (Gramercy Project) and any additional series of bonds issued pursuant to the Ordinance.
“Company” means [Company], or any successors thereto permitted under Section 7.4
hereof.
“Construction Fund” means the Construction Fund for the Bonds established in Section 4.4 of the Indenture.
“Government Obligations” means bonds, notes, certificates of indebtedness, treasury bills or other securities constituting direct obligations of, or obligations the timely payment of the
principal of and the interest on which are fully and unconditionally guaranteed by, the United
States of America or any agency or instrumentally thereof when such obligations are backed by the full faith and credit of the United States of America.
“Indenture” means the Trust Indenture dated as of __________ 1, 20__ between the Issuer and [Trustee], as trustee, related to the Bonds.
“Issuer” means the City of Carmel, Indiana, a municipal corporation duly organized and
validly existing under the laws of the State.
“Ordinance” means Ordinance No. ____________ adopted by the Common Council of the Issuer on ________________, 20__, authorizing the issuance of the Bonds in one or more series in an aggregate principal amount not to exceed $_______________.
“Plans and Specifications” means the plans and specifications for the Projects as provided
to the Issuer.
3
“Pledge Resolution” means Resolution No. ______________ adopted by the Redevelopment Commission on ___________, 20__, pledging the TIF Revenues to the Issuer.
“Projects” means all or any portion of the design and construction of a mixed use project
which includes townhomes, condos, apartments, retail, structured parking, and related road improvements, storm water improvements, utility relocation costs, site development costs, and other infrastructure costs, all to be located along Kinzer Avenue, south of City Center Drive, and at 452, 502, and 508 E. Carmel Drive, which are physically located in, or directly serving or
benefiting, the Allocation Area.
“Redevelopment Commission” means the City of Carmel Redevelopment Commission.
“State” means the State of Indiana.
“Tax Increment” means all real property tax proceeds attributable to the assessed valuation within the Allocation Area as of each January 1 in excess of the base assessed value as
established as of [January 1, 20__]. The incremental assessed value is multiplied by the current
property tax rate (per $100 assessed value).
“TIF Revenues” means Tax Increment received by the Redevelopment Commission and pledged to the Issuer pursuant to the Pledge Resolution, equal, for any given year, to ninety percent (90%) of the Tax Increment generated from Allocation Area.
“Trustee” means the trustee at the time serving as such under the Indenture.
Section 1.2. Rules of Interpretation. For all purposes of this Financing Agreement, except as otherwise expressly provided, or unless the context otherwise requires:
(a) “This Financing Agreement” means this instrument as originally executed and as it may from time to time be supplemented or amended pursuant to the applicable provisions
hereof.
(b) All references in this instrument to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as originally executed. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Financing Agreement as a whole and not to any particular Article, Section or
other subdivision.
(c) The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular and the singular as well as the plural.
(d) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles as consistently applied.
(e) Any terms not defined herein but defined in the Indenture shall have the same
meaning herein.
4
(f) The terms defined elsewhere in this Financing Agreement shall have the meanings therein prescribed for them.
(End of Article I)
5
ARTICLE II
REPRESENTATIONS; USE OF BOND PROCEEDS
Section 2.1. Representations by Issuer. Issuer represents and warrants that:
(a) Issuer is a municipal corporation organized and existing under the laws of the State. Under the provisions of the Act, Issuer is authorized to enter into the transactions contemplated by this Financing Agreement and to carry out its obligations hereunder. Issuer has
been duly authorized to execute and deliver this Financing Agreement. Issuer agrees that it will
do or cause to be done all things within its control and necessary to preserve and keep in full force and effect its existence.
(b) The Issuer shall issue its Bonds in the amount of $[XX,XXX,XXX] to provide funds to the Company for the costs associated with the Projects, subject to the consideration of
the execution and delivery of this Financing Agreement, all for the benefit of the holders of the
Bonds, to retain employment opportunities in the City of Carmel, Indiana and to benefit the health and general welfare of the citizens of the City of Carmel and the State of Indiana, and to secure the Bonds by pledging certain of its rights and interest in this Financing Agreement to the Trustee.
Section 2.2. Representations by Company. Company represents and warrants that:
(a) It is a __________________ validly existing under the laws of the State of ______________ [and authorized to do business in the State of Indiana], is not in violation of any laws in any manner material to its ability to perform its obligations under this Financing Agreement, has full power to enter into and by proper action has duly authorized the execution
and delivery of this Financing Agreement.
(b) The provision of financial assistance to be made available to it under this Financing Agreement from the proceeds of the Bonds and the commitments therefor made by the Issuer have induced the Company to undertake the Projects and such project will preserve jobs and employment opportunities within the boundaries of the City of Carmel, Indiana.
(c) Neither the execution and delivery of this Financing Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Financing Agreement, conflicts with or results in a breach of the terms, conditions or provisions of the Company’s Operating Agreement or any restriction or any agreement or instrument to which the Company is now a party or by which it is bound or to
which any of its property or assets is subject or (except in such manner as will not materially
impair the ability of the Company to perform its obligations hereunder) of any statute, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or its property, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of
the Company under the terms of any instrument or agreement, except as set forth in this
Financing Agreement and the Indenture.
6
(d) There are no actions, suits or proceedings pending, or, to the knowledge of the Company, threatened, before any court, administrative agency or arbitrator which, individually
or in the aggregate, might result in any material adverse change in the financial condition of the
Company or might impair the ability of the Company to perform its obligations under this Financing Agreement.
(e) No event has occurred and is continuing which with the lapse of time or the giving of notice would constitute an event of default under this Financing Agreement.
(End of Article II)
7
ARTICLE III
PARTICULAR COVENANTS OF THE ISSUER AND COMPANY
Section 3.1. Consent to Assignments to Trustee. The Company acknowledges and consents to the pledge and assignment of the Issuer’s rights hereunder to the Trustee pursuant to the Indenture and agrees that the Trustee may enforce the rights, remedies and privileges granted to the Issuer hereunder other than the rights of the Issuer to execute and deliver supplements and
amendments to this Financing Agreement pursuant to Section 6.1 hereof and in addition to the
rights retained by the Issuer pursuant to Section 4.1(c) hereof as well as those rights granted to the Issuer under Section 3.5 hereof and Section 6.7 of the Indenture.
Section 3.2. Payment of Principal and Interest. (a) In accordance with the Indenture, the Bonds are payable from the TIF Revenues derived from the Allocation Area.
(b) The Issuer covenants to collect and apply the Tax Increment and the TIF
Revenues in the manner required by Article IV of the Indenture.
Section 3.3. Maintenance of Existence. The Company agrees that it will maintain its existence as a _____________________, will not dissolve or otherwise dispose of all or substantially all of its assets, and will not consolidate with or merge into another entity, or permit
one or more other entities to consolidate or merge with it; provided, that the Company may,
without violating the agreement contained in this Section, consolidate or merge with another entity, permit one or more other entities to consolidate or merge into it, or transfer to another entity organized under the laws of one of the states of the United States all or substantially all of its assets as an entirety and thereafter dissolve provided (a) the surviving, resulting or transferee
entity, as the case may be, is organized under the laws of one of the states of the United States,
and (b) such entity assumes in writing all of the obligations of the Company herein, including the obligations of the Company under this Financing Agreement.
Section 3.4. Company Duties Under Indenture. The Company agrees to perform all matters provided by the Indenture to be performed by the Company and to comply with all
provisions of the Indenture applicable to the Company.
Section 3.5. Indemnity The Company will pay, and protect, indemnify and save the Issuer (including members, directors, officials, officers, agents, attorneys and employees thereof), the Bondholders and the Trustee harmless from and against, all liabilities, losses, damages, costs, expenses (including attorneys’ fees and expenses of the Issuer and the Trustee),
causes of action, suits, claims, demands and judgments of any nature arising from or relating to:
(a) Violation by the Company of any agreement or condition of this Financing Agreement;
(b) Violation of any contract, agreement or restriction by the Company relating to the Projects, or a part thereof;
8
(c) Violation of any law, ordinance or regulation by the Company in connection with the Projects, or a part thereof;
(d) Any act, failure to act or misrepresentation by the Company, or any of the
Company’s agents, contractors, servants, employees or licensees; and
(e) The provision of any information or certification furnished by the Company to the Bondholders in connection with the issuance and sale of the Bonds or the Projects.
The Company hereby further agrees to indemnify and hold harmless the Trustee from and
against any and all costs, claims, liabilities, losses or damages whatsoever (including reasonable
costs and fees of counsel, auditors or other experts), asserted or arising out of or in connection with the acceptance or administration of the trusts established pursuant to the Indenture, except costs, claims, liabilities, losses or damages resulting from the gross negligence or willful misconduct of the Trustee, including the reasonable costs and expenses (including the reasonable
fees and expenses of its counsel) of defending itself against any such claim or liability in
connection with its exercise or performance of any of its duties hereunder and of enforcing this indemnification provision. The indemnifications set forth herein shall survive the termination of the Indenture and/or the resignation or removal of the Trustee for so long as the Bonds are outstanding.
The foregoing shall not be construed to prohibit the Company from pursuing its remedies
against either the Issuer or the Trustee for damages to the Company resulting from personal injury or property damage caused by the intentional misrepresentation or misconduct of either the Issuer or the Trustee.
Section 3.6. Payment of Expenses of Issuance of Bonds. The Company shall pay or
cause to be paid from the proceeds of the Bonds the costs of issuance of the Bonds.
Section 3.7. Completion and Use of Projects.
(a) Company agrees that it will, within _____________ (___) months of the closing of the Bonds, make, execute, acknowledge and deliver any contracts, orders, receipts, writings and instructions with any other persons, firms or corporations and in general do all things
reasonably within its power which may be requisite or proper, all for the acquisition,
construction, equipping and improvement of the Projects in compliance with the Plans and Specifications and, upon completion, the Projects will be operated and maintained in such manner as reasonably possible so as to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and so as to be consistent with the
Act.
(b) The Issuer shall deposit all proceeds from the sale of the Bonds in the manner specified in Article III of the Indenture, and the Issuer shall maintain such proceeds in the manner specified in Article IV of the Indenture. Under the Indenture, the Trustee, on behalf of the Issuer, is authorized and directed to make payments from the Project Fund to pay for the
costs of the Projects, or to reimburse Company for any costs of the Projects, and to pay or
reimburse the costs of issuance for the Bonds. The Company agrees to direct such requisitions to
9
the Trustee as may be necessary to effect payments out of the Project Fund, as the case may be, for costs of the Projects in accordance with Section 4.4 of the Indenture and this Section 3.7.
(c) The Company shall provide a completion certificate with respect to the Projects in
the manner provided in Section 4.4(d) of the Indenture and any moneys remaining in the Project Fund after completion of the Projects shall be transferred and applied in the manner therein provided.
Section 3.8. Other Amounts Payable by the Company. The Company covenants and
agrees to pay the following, to the extent that such expenses are not included in the Bonds:
(a) All reasonable fees, charges and expenses, including agent and counsel fees and expenses, of the Trustee incurred under the Indenture, as and when the same become due to the extent TIF Revenues of the Redevelopment Commission are not available.
(b) An amount sufficient to reimburse the Issuer for all expenses reasonably incurred
by the Issuer under this Financing Agreement and in connection with the performance of its
obligations under this Financing Agreement or the Indenture.
(c) All reasonable expenses incurred in connection with the enforcement of any rights under this Financing Agreement or the Indenture by the Issuer, the Trustee or the Bondholders.
(d) All other payments of whatever nature which the Company has agreed to pay or
assume under the provisions of the Financing Agreement.
Notwithstanding anything in this Section 3.8 to the contrary, the Company may, without creating an event of default as herein defined, after making the payments required by this Section 3.8, contest in good faith the necessity for any such services, fees, charges or expenses of the Issuer or the Trustee.
(End of Article III)
10
ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES THEREFOR
Section 4.1. Events of Default.
(a) It shall be an Event of Default upon the failure of the Company to perform any covenant, condition or provision hereof and to remedy such default within 30 days after written notice thereof from the Trustee to the Company.
(b) During the occurrence and continuance of any Event of Default hereunder, the
Trustee, as assignee of the Issuer pursuant to the Indenture, and in addition to the rights retained by the Issuer as provided in Section 4.1(c) hereof, on behalf of any unpaid Bondholders shall have the rights and remedies hereinafter set forth, in addition to any other remedies herein or by law provided. The Trustee, personally or by attorney, may in its discretion, proceed to protect
and enforce its rights by a suit or suits in equity or at law, whether for damages or for the specific
performance of any covenant or agreement contained in this Financing Agreement or in aid of the execution of any power herein granted, or for the enforcement of any other appropriate legal or equitable remedy, as the Trustee shall deem most effectual to protect and enforce any of its rights or duties hereunder. If after any Event of Default occurs and prior to the Trustee
exercising any of the remedies provided in this Financing Agreement, the Company will have
completely cured such Event of Default, and shall have provided the Trustee with evidence thereof to the reasonable satisfaction of the Trustee, then in every case such Event of Default will be waived, rescinded and annulled by the Trustee by written notice given to the Company. No such waiver, annulment or rescission will affect any subsequent default or impair any right or
remedy consequent thereon.
(c) Notwithstanding anything herein to the contrary, during the occurrence and continuance of an Event of Default by the Company arising from a breach of representations as set forth in Section 2.2 hereof, or a breach of the covenants of the Company set forth in Section 3.7 or 3.8 hereof, the Issuer may in its discretion, proceed to protect and enforce its rights under
this Agreement by a suit or suits in equity or at law, whether for damages or for the specific
performance, including the recovery of reasonable attorney’s fees.
Section 4.2. Remedies Cumulative. No remedy herein conferred upon or reserved to the Trustee or Issuer is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
Section 4.3. Delay or Omission Not a Waiver. No delay or omission of the Trustee or Issuer to exercise any right or power accruing upon any Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and every power and remedy given by this Financing Agreement to the
Trustee and Issuer may be exercised from time to time and as often as may be deemed expedient
by the Trustee or Issuer, as the case may be.
11
(End of Article IV)
12
ARTICLE V
IMMUNITY
Section 5.1. Extent of Covenants of the Issuer; No Personal Liability. No recourse shall be had for the payment of the principal of or interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained in the Bonds, the Indenture or this Financing Agreement against any past, present or future member, director, officer, agent,
attorney or employee of the Issuer, or any incorporator, member, director, officer, employee,
agent, attorney or trustee of any successor thereto, as such, either directly or through the Issuer or any successor thereto, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such incorporator, member, director, officer, employee, agent, attorney or trustee as such is hereby
expressly waived and released as a condition of and consideration for the execution of the
Indenture and this Financing Agreement (and any other agreement entered into by the Issuer with respect thereto) and the issuance of the Bonds.
Section 5.2. Liability of Issuer. Any and all obligations of the Issuer under this Financing Agreement are special, limited obligations of the Issuer, payable solely out of the TIF Revenues
and as otherwise provided under the Indenture. The obligations of the Issuer hereunder shall not
be deemed to constitute an indebtedness or an obligation of the Issuer, the State or any political subdivision or taxing authority thereof within the purview of any constitution limitation or provision, or a pledge of the faith and credit or a charge against the credit or general taxing powers, if any, of the Issuer, the State or any political subdivision or taxing authority thereof.
(End of Article V)
13
ARTICLE VI
SUPPLEMENTS AND AMENDMENTS TO THIS FINANCING AGREEMENT
Section 6.1. Supplements and Amendments to this Financing Agreement. Subject to the provisions of Article X of the Indenture, the Company and the Issuer may from time to time enter into such supplements and amendments to this Financing Agreement as to them may seem necessary or desirable to effectuate the purposes or intent hereof.
(End of Article VI)
14
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Financing Agreement for Benefit of Parties Hereto. Nothing in this Financing Agreement, express or implied, is intended or shall be construed to confer upon, or to give to, any person other than the parties hereto, their successors and assigns, any right, remedy or claim under or by reason of this Financing Agreement or any covenant, condition or
stipulation hereof; and the covenants, stipulations and agreements in this Financing Agreement
contained are and shall be for the sole and exclusive benefit of the parties hereto, their successors and assigns, and the Trustee.
Section 7.2. Severability. In case any one or more of the provisions contained in this Financing Agreement shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and therein shall not in
any way be affected or impaired thereby.
Section 7.3. Addresses for Notice and Demands. All notices, demands, certificates or other communications hereunder shall be sufficiently given when received or your first refusal thereof and mailed by registered or certified mail, postage prepaid, or sent by nationally
recognized overnight courier with proper address as indicated below. The Issuer, the Company
and the Trustee may, by written notice given by each to the others, designate any address or addresses to which notices, demands, certificates or other communications to them shall be sent when required as contemplated by this Financing Agreement. Until otherwise provided by the respective parties, all notices, demands, certificates and communications to each of them shall be
addressed as follows:
To the Issuer: City of Carmel, Indiana Attention: Mayor One Civic Square Carmel, Indiana 46032
To the Company: [Company] Attention: ____________ _____________________ _____________________
To the Trustee: [Trustee] ______________________ ______________________ ______________________
Section 7.4. Successors and Assigns. Whenever in this Financing Agreement any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included and all the covenants, promises and agreements in this Financing Agreement contained by or on behalf of the Company, or by or on behalf of the Issuer, shall bind and inure
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to the benefit of the respective successors and assigns, whether so expressed or not. Provided, however, the Company may not assign its rights or obligations under this Financing Agreement
to any party other than an affiliate of the Company without the consent of the Issuer.
Section 7.5. Counterparts. This Financing Agreement is being executed in any number of counterparts, each of which is an original and all of which are identical. Each counterpart of this Financing Agreement is to be deemed an original hereof and all counterparts collectively are to be deemed but one instrument.
Section 7.6. Governing Law. It is the intention of the parties hereto that this Financing
Agreement and the rights and obligations of the parties hereunder shall be governed by and construed and enforced in accordance with, the laws of Indiana.
(End of Article IX)
DMS 40742679.1
IN WITNESS WHEREOF, the Issuer and the Company have caused this Financing Agreement to be executed in their respective names as of the date first above written.
[COMPANY, a ______________]
By: _______________________________
Printed: Title:
“THE ISSUER”
CITY OF CARMEL, INDIANA
Mayor
Attest:
Clerk
[SIGNATURE PAGE OF THE FINANCING AGREEMENT BETWEEN [COMPANY] AND THE CITY OF CARMEL, INDIANA]
TRUST INDENTURE
BETWEEN CITY OF CARMEL, INDIANA
AND [TRUSTEE],
Indianapolis, Indiana As Trustee
$[XX,XXX,XXX]
CITY OF CARMEL, INDIANA ECONOMIC DEVELOPMENT TAX INCREMENT REVENUE BONDS, SERIES 20____ (GRAMERCY PROJECT)
Dated as of _____________ 1, 20___
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ........................................................................................................ 10
Section 1.1. Terms Defined .............................................................................................. 10 Section 1.2. Rules of Interpretation .................................................................................. 13 Section 1.3. Exhibits ......................................................................................................... 14
ARTICLE II. THE BONDS .......................................................................................................... 15
Section 2.1. Authorized Amount of Series 20__ Bonds ................................................... 15
Section 2.2. Issuance of Series 20__ Bonds ..................................................................... 15 Section 2.3. Payment on Bonds ........................................................................................ 16 Section 2.4. Execution; Limited Obligation ..................................................................... 17 Section 2.5. Authentication ............................................................................................... 17
Section 2.6. Form of Bonds .............................................................................................. 17
Section 2.7. Delivery of Series 20__ Bonds ..................................................................... 18 Section 2.8. Issuance of Additional Bonds ....................................................................... 18 Section 2.9. Mutilated, Lost, Stolen, or Destroyed Bonds ................................................ 19 Section 2.10. Registration and Exchange of Bonds; Persons Treated as Owners .............. 20
ARTICLE III. APPLICATION OF SERIES 20__ BONDS PROCEEDS ................................... 21
Section 3.1. Deposit of Funds ........................................................................................... 21
ARTICLE IV. REVENUE AND FUNDS .................................................................................... 22 Section 4.1. Source of Payment of Bonds......................................................................... 22 Section 4.2. Bond Fund ..................................................................................................... 22
Section 4.3. Surplus Fund ................................................................................................. 23
Section 4.4. Construction Fund ......................................................................................... 23 Section 4.5. TIF Revenues ................................................................................................ 24 Section 4.6. Trust Funds ................................................................................................... 25 Section 4.7. Investment ..................................................................................................... 25
ARTICLE V. REDEMPTION OF SERIES 20__ BONDS BEFORE MATURITY ................... 26
Section 5.1. Redemption Dates and Prices ....................................................................... 26 Section 5.2. Notice of Redemption ................................................................................... 26 Section 5.3. Cancellation .................................................................................................. 26 Section 5.4. Redemption Payments .................................................................................. 26
Section 5.5. Partial Redemption of Bonds ........................................................................ 26
ARTICLE VI. GENERAL COVENANTS................................................................................... 28 Section 6.1. Payment of Principal and Interest ................................................................. 28 Section 6.2. Performance of Covenants ............................................................................ 28 Section 6.3. Ownership; Instruments of Further Assurance ............................................. 29
Section 6.4. Filing of Indenture, Financing Agreement and Security Instruments ........... 29
Section 6.5. Inspection of Books ...................................................................................... 29 Section 6.6. List of Bondholders....................................................................................... 29
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Section 6.7. Rights Under Financing Agreement ............................................................. 29 Section 6.8. Investment of Funds ...................................................................................... 29
Section 6.9. Non-presentment of Bonds ........................................................................... 29
ARTICLE VII. DEFAULTS AND REMEDIES .......................................................................... 31 Section 7.1. Events of Default .......................................................................................... 31 Section 7.2. Acceleration .................................................................................................. 31 Section 7.3. Remedies; Rights of Bondholders ................................................................ 31
Section 7.4. Right of Bondholders to Direct Proceedings ................................................ 32
Section 7.5. Application of Moneys ................................................................................. 32 Section 7.6. Remedies Vested In Trustee ......................................................................... 33 Section 7.7. Rights and Remedies of Bondholders ........................................................... 34 Section 7.8. Termination of Proceedings .......................................................................... 34
Section 7.9. Waivers of Events of Default ........................................................................ 34
ARTICLE VIII. THE TRUSTEE AND PAYING AGENT ......................................................... 36 Section 8.1. Acceptance of the Trusts ............................................................................... 36 Section 8.2. Fees, Charges and Expenses of Trustee and Paying Agent .......................... 39 Section 8.3. Notice to Bondholders if Default Occurs...................................................... 39
Section 8.4. Intervention by Trustee ................................................................................. 39
Section 8.5. Successor Trustee.......................................................................................... 39 Section 8.6. Resignation by the Trustee............................................................................ 40 Section 8.7. Removal of the Trustee ................................................................................. 40 Section 8.8. Appointment of Successor Trustee by the Bondholders; Temporary
Trustee .......................................................................................................... 40
Section 8.9. Concerning Any Successor Trustees ............................................................ 40 Section 8.10. Trustee Protected in Relying Upon Resolutions, etc .................................... 41 Section 8.11. Appointment of Paying Agent and Registrar; Resignation or Removal of Paying Agent ........................................................................................... 41
ARTICLE IX. SUPPLEMENTAL INDENTURES ..................................................................... 42
Section 9.1. Supplemental Indentures Not Requiring Consent of Bondholders ............... 42 Section 9.2. Supplemental Indentures Requiring Consent of Bondholders ...................... 42 Section 9.3. Opinion ......................................................................................................... 43
ARTICLE X. AMENDMENTS TO THE FINANCING AGREEMENT .................................... 44
Section 10.1. Amendments, etc........................................................................................... 44
Section 10.2. Amendments, etc........................................................................................... 44 Section 10.3. Opinion ......................................................................................................... 44
ARTICLE XI. MISCELLANEOUS ............................................................................................. 45 Section 11.1. Satisfaction and Discharge ............................................................................ 45
Section 11.2. Defeasance of Bonds..................................................................................... 45
Section 11.3. Cancellation of Series 20__ Bonds ............................................................... 46 Section 11.4. Application of Trust Money .......................................................................... 46 Section 11.5. Consents, etc., of Bondholders ..................................................................... 47 Section 11.6. Limitation of Rights ...................................................................................... 47
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Section 11.7. Severability ................................................................................................... 47 Section 11.8. Notices .......................................................................................................... 48
Section 11.9. Counterparts .................................................................................................. 48
Section 11.10. Applicable Law ............................................................................................. 48 Section 11.11. Immunity of Officers and Directors .............................................................. 48 Section 11.12. Holidays ........................................................................................................ 48
TRUST INDENTURE
THIS TRUST INDENTURE dated as of the ____ day of _____________, 20___, by and
between the CITY OF CARMEL, INDIANA (“Issuer”), a municipal corporation duly organized
and existing under the laws of the State of Indiana and [TRUSTEE], a [national banking association duly organized, existing and authorized to accept and execute trusts of the character herein set out under the laws of the United States of America with its Indiana corporate trust office in the City of Indianapolis, Indiana], as Trustee (“Trustee”);
WITNESSETH:
WHEREAS, Indiana Code, Title 36, Article 7, Chapters 11.9, 12, 14 and 25 (collectively, “Act”), authorize and empower the Issuer to issue revenue bonds and to provide the proceeds therefrom for the purpose of financing economic development facilities and vests such Issuer with powers that may be necessary to enable it to accomplish such purposes; and
WHEREAS, in accordance with the provisions of the Act, the Issuer has induced
[Company or an affiliate thereof] (the “Company”), to proceed with the construction of the projects described in Exhibit A attached hereto (the “Projects”) in the jurisdiction of the Issuer by offering to issue its Economic Development Tax Increment Revenue Bonds, Series 20_____ (Gramercy Project) in the aggregate principal amount of $[XX,XXX,XXX] (“Series 20__
Bonds”) pursuant to this Trust Indenture and to provide the proceeds thereof to the Company
pursuant to the Financing Agreement, dated as of _____________ 1, 20___ (“Financing Agreement”) for the purpose of paying certain costs of the Projects[, including capitalized interest on the Series 20__ Bonds]; and
WHEREAS, the execution and delivery of this Indenture and the issuance of revenue
bonds under the Act as herein provided have been in all respects duly and validly authorized by
proceedings duly passed on and approved by the Issuer; and
WHEREAS, after giving notice in accordance with the Act and IC 5-3-1-4, the Issuer held a public hearing, and upon finding that the Projects and the proposed financing thereof will create additional employment opportunities in the City of Carmel; will benefit the health, safety,
morals, and general welfare of the citizens of the Issuer and the State of Indiana; and will comply
with the purposes and provisions of the Act, adopted an ordinance approving the proposed financing; and
WHEREAS, the Act provides that such bonds may be secured by a trust indenture between the Issuer and a corporate trustee; and
WHEREAS, the execution and delivery of this Trust Indenture (“Indenture”), and the
issuance of the Series 20__ Bonds hereunder have been in all respects duly and validly authorized by an ordinance duly passed and approved by the Issuer (the “Ordinance”); and
WHEREAS, Indiana Code, Title 36, Article 7, Chapter 14 provides that a redevelopment commission of the Issuer may pledge certain incremental property taxes to pay, in whole or in
part, amounts due on the Series 20__ Bonds; and
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WHEREAS, the Carmel Redevelopment Commission has, by resolution, irrevocably dedicated and pledged to the Issuer the TIF Revenues (as hereinafter defined) to pay the Series
20__ Bonds; and
WHEREAS, the Series 20__ Bonds and the Trustee’s certificate of authentication to be endorsed thereon are all to be in substantially the following forms, and any Additional Bonds and Trustee’s certificate of authentication are also to be in substantially the following forms (except as to redemption, sinking fund and other provisions peculiar to such Additional Bonds), with
necessary and appropriate variations, omissions and insertions as permitted or required by this
Indenture, to-wit:
(Form of Series 20__ Bond) R - __
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF HAMILTON
CITY OF CARMEL, INDIANA ECONOMIC DEVELOPMENT TAX INCREMENT REVENUE BOND, SERIES 20__ (GRAMERCY PROJECT)
MATURITY
DATES
INTEREST
RATE
ORIGINAL
DATE
AUTHENTICATION
DATE
As set forth in Exhibit A _____% ___________, 20___ _________, 20___ REGISTERED OWNER: _____________________________
PRINCIPAL AMOUNT: ___________________________ DOLLARS ($[XX,XXX,XXX])
The City of Carmel, Indiana (“Issuer”), a municipal corporation duly organized and existing under the laws of the State of Indiana, for value received, hereby promises to pay in lawful money of the United States of America to the Registered Owner listed above, but solely
from available amounts held in the Trust Estate (including TIF Revenues) hereinafter referred to
pledged and assigned for the payment hereof, the Principal Amount set forth above or such lesser amount as has been advanced and remains unpaid on the Maturity Dates specified on Exhibit A, unless this Series 20__ Bond shall have previously been called for redemption and payment of the redemption price made or provided for or unless payments shall be accelerated as provided in
the Indenture, and to pay interest thereon until the Principal Amount shall be fully paid at the
Interest Rate stated above on the unpaid principal amount hereof in like money, but solely from those payments, payable on ________ 1, 20____, and on each February 1 and August 1 thereafter (“Interest Payment Dates”) until the unpaid Principal Amount advanced is paid in full.
The unpaid principal amount of this Series 20__ Bond shall be the total amounts
advanced by the Registered Owner from time to time, less any prior redemption of the principal
amount due, as set forth on Exhibit B hereto. The aggregate amount of advances made under this Series 20__ Bond may not exceed $[XX,XXX,XXX]. The principal amounts advanced shall
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be evidenced by the execution by the Controller of the City of a Disbursement Request in form and substance satisfactory to the Registered Owner.
Interest on this bond shall be payable 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 immediately 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
semi-annually on February 1 and August 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 and premium, if any, of this Series 20__ Bond are payable at the office of [Trustee], as Trustee, in the Indianapolis, Indiana, or at the principal office of any successor
trustee or paying agent, or, if payment is made to a depository, by wire transfer of immediately
available funds on the payment date. All payments of interest hereon will be made by the Trustee by check mailed on each Interest Payment Date to the Registered Owner hereof at the address shown on the registration books of the Trustee as maintained by the Trustee, as registrar, determined on the Record Date next preceding such Interest Payment Date, or, if payment is
made to a depository, by wire transfer of immediately available funds on the Interest Payment
Date. If the payment date occurs on a date when financial institutions are not open for business, the wire transfer shall be made on the next succeeding business day. The Trustee shall wire transfer payments so such payments are received at the depository by 2:30 p.m. (New York City time).
This Series 20__ Bond is the only one of the Issuer’s Economic Development Tax
Increment Revenue Bonds, Series 20_____ (Gramercy Project) (hereinbefore and hereinafter the “Series 20__ Bonds”) which are being issued under the hereinafter described Indenture in the aggregate principal amount of $[XX,XXX,XXX]. The Series 20__ Bonds are being issued for the purpose of providing funds to finance the construction of certain infrastructure and related
improvements (“Projects”) located in or directly serving and benefiting the City Center
Redevelopment Area in the City of Carmel, Indiana, to be constructed by [Company] (“Company”), by providing such funds to the Company pursuant to the Financing Agreement dated as of _______________ 1, 20___ (“Financing Agreement”) between the Company and the Issuer. Except as otherwise provided in Section 2.2 of the Indenture, each Series 20__ Bond will
be payable on parity with all other Series 20__ Bonds.
The Series 20__ Bonds are issued under and entitled to the security of a Trust Indenture dated as of _______________ 1, 201___ (“Indenture”) duly executed and delivered by the Issuer to [Trustee], as Trustee (the term “Trustee” where used herein referring to the Trustee or its successors), pursuant to which Indenture, the Trust Estate including the TIF Revenues (each as
defined in the Indenture ) and all rights of the Issuer under the Financing Agreement, except
certain rights to payment for expenses, indemnity rights and rights to perform certain discretionary acts as set forth in the Financing Agreement, are pledged and assigned by the Issuer to the Trustee as security for the Series 20__ Bonds.
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THE OWNER OF THIS BOND, BY ACCEPTANCE OF THIS SERIES 20__ BOND, HEREBY AGREES TO ALL OF THE TERMS AND PROVISIONS IN THE INDENTURE
AND THIS SERIES 20__ BOND AND ACKNOWLEDGES THAT:
1. It is an “accredited investor” (as defined in Rule 501(a)(8) under the Securities Act of 1933, as amended (“1933 Act”)), purchasing bonds for its own account, and it is acquiring the Series 20__ Bonds for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the 1933 Act. It has such knowledge and
experience in financial and business matters as to be capable of evaluating the merits and risk of
its investment in the Series 20__ Bonds, and it, and any investor accounts for which it is acting are able to bear the economic risk of their or its investment for an indefinite period of time. It confirms that neither the Issuer nor any person acting on its behalf has offered to sell the Series 20__ Bonds by, and that it has not been made aware of the offering of the Series 20__ Bonds by,
any form of general solicitation or general advertising, including, but not limited to, any
advertisement, article, notice or other communication published in any newspaper, magazine or similar media or a broadcast over television or radio.
2. It is familiar with the Issuer and the Company; it has received such information concerning the Issuer and the Company, the Series 20__ Bonds and the Trust Estate including
the TIF Revenues (as defined in the Indenture), as it deems to be necessary in connection with
investment in the Series 20__ Bonds. It has received, read and commented upon copies of the Indenture and the Financing Agreement. Prior to the purchase of the Series 20__ Bonds, it has been provided with the opportunity to ask questions of and receive answers from the representatives of the Issuer and the Company concerning the terms and conditions of the Series
20__ Bonds, the tax status of the Series 20__ Bonds, legal opinions and enforceability of
remedies, the security therefor, and property tax reform, and to obtain any additional information needed in order to verify the accuracy of the information obtained to the extent that the Issuer and the Company possess such information or can acquire it without unreasonable effort or expense. It is not relying on Barnes & Thornburg LLP or Baker Tilly Municipal Advisors, LLC
for information concerning the financial status of the Issuer and the Company or the ability of the
Issuer and the Company to honor their respective financial obligations or other covenants under the Series 20__ Bonds, the Indenture or the Financing Agreement. It understands that the projection of TIF Revenues prepared in connection with the issuance of the Series 20__ Bonds has been based on estimates of the investment in real property provided by the Company.
3. It is acquiring the Series 20__ Bonds for its own account with no present intent to
resell; and will not sell, convey, pledge or otherwise transfer the Series 20__ Bonds to an entity that is not an accredited investor without prior compliance with applicable registration and disclosure requirements of state and federal securities laws.
4. It understands that the Series 20__ Bonds have not been registered under the 1933
Act and, unless so registered, may not be sold to an entity that is not an accredited investor
without registration under the 1933 Act or an exemption therefrom. It is aware that it may transfer or sell the Series 20__ Bonds to an entity that is not an accredited investor only if the Trustee shall first have received (i) a satisfactory opinion of counsel that the sale or transfer will not violate the 1933 Act, the Securities Exchange Act of 1934 and the Investment Company Act
of 1940 and regulations issued pursuant to such Acts, or (ii) a no-action letter of the staff of the
5
Securities and Exchange Commission that the staff will recommend that no action be taken with respect to such sale or transfer, or (iii) a certificate stating that it reasonably believes that the
transferee is a “Qualified Institutional Buyer” within the meaning of Section (a) of Rule 144A
(“Rule 144A”) promulgated by the Securities and Exchange Commission pursuant to the 1933 Act and has informed the transferee of the transfer restrictions applicable to the Series 20__ Bonds and that the transferor may be relying upon Rule 144A with respect to the transfer of the Series 20__ Bonds.
5. It understands that the sale or transfer of the Series 20__ Bonds in principal
amounts less than $100,000 to an entity that is not an accredited investor is prohibited other than through a primary offering.
6. It has investigated the security for the Series 20__ Bonds, including the availability of the Trust Estate including the TIF Revenues to its satisfaction, and it understands
that the Series 20__ Bonds are payable from the available Trust Estate including the TIF
Revenues. It further understands that the Issuer does not have the power or the authority to levy a tax to pay the principal of or interest on the Series 20__ Bonds.
It is provided in the Indenture that the Issuer may hereafter issue Additional Bonds (as defined in the Indenture) from time to time under certain terms and conditions contained therein
(such Additional Bonds and the Series 20__ Bonds are hereinafter collectively referred to as the
“Bonds”). Reference is made to the Indenture and to all indentures supplemental thereto and to the Financing Agreement for a description of the nature and extent of the security, the rights, duties and obligations of the Issuer and the Trustee, the rights of the holders of the Bonds, the issuance of Additional Bonds and the terms on which the Bonds are or may be issued and
secured, and to all the provisions of which the holder hereof by the acceptance of this Series
20__ Bond assents.
The Series 20__ Bonds are issuable in registered form without coupons in the denominations of $100,000 and any $1.00 integral multiples thereafter. The sale or transfer of this Series 20__ Bond in principal amounts of less than $100,000 is prohibited to an entity that is
not an accredited investor other than through a primary offering. This Series 20__ Bond is
transferable by the registered holder hereof in person or by its attorney duly authorized in writing at the designated office of the Trustee, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture and upon surrender and cancellation of this Series 20__ Bond. Upon such transfer a new registered Bond will be issued to the transferee in
exchange therefor.
The Issuer, the Trustee and the Paying Agent may deem and treat the Registered Owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal hereof and premium, if any, hereon and interest due hereon and for all other purposes and neither the Issuer nor the Trustee nor the Paying Agent shall be affected by any notice to the
contrary.
If sufficient funds are on deposit in the Bond Fund, the Series 20__ Bonds shall be subject to redemption prior to maturity at the option of the Issuer on any date, upon thirty (30) days’ notice, in whole or in part in such order of maturity as the Issuer shall direct and by lot
6
within maturities on any date, from any moneys made available for that purpose, at face value and without premium, plus in each case accrued interest to the date fixed for redemption.
If any of the Series 20__ Bonds are called for redemption as aforesaid, notice thereof
identifying the Series 20__ Bonds to be redeemed will be given by mailing a copy of the redemption notice by first class mail not less than thirty (30) days nor more than sixty (60) days prior to the date fixed for redemption to the Registered Owner of the Series 20__ Bonds to be redeemed at the address shown on the registration books; provided, however, that failure to give
such notice by mailing, or any defect therein with respect to any registered Series 20__ Bond,
shall not affect the validity of any proceedings for the redemption of other Series 20__ Bonds.
All Series 20__ Bonds so called for redemption will cease to bear interest on the specified redemption date, provided funds for their redemption are on deposit at the place of payment at that time, and shall no longer be protected by the Indenture and shall not be deemed
to be outstanding under the provisions of the Indenture.
This Series 20__ Bond is transferable by the Registered Owner hereof at the principal corporate trust office of the Trustee upon surrender and cancellation of this Series 20__ Bond and on presentation of a duly executed written instrument of transfer and thereupon a new Series 20__ Bond or Series 20__ Bonds of the same aggregate principal amount and maturity and in
authorized denominations will be issued to the transferee or transferees in exchange therefor.
The Series 20__ Bonds, and the interest payable thereon, do not and shall not represent or constitute a debt of the Issuer within the meaning of the provisions of the constitution or statutes of the State of Indiana or a pledge of the faith and credit of the Issuer. The Series 20__ Bonds, as to both principal and interest, are not an obligation or
liability of the State of Indiana, or of any political subdivision or taxing authority thereof, but are a special limited obligation of the Issuer and payable solely and only from the trust estate consisting of funds and accounts held under the Indenture and the TIF Revenues pledged and assigned for their payment in accordance with the Indenture (“Trust Estate”). Neither the faith and credit nor the taxing power of the Issuer, the State of Indiana or any
political subdivision or taxing authority thereof is pledged to the payment of the principal of, premium, if any, or the interest on this Series 20__ Bond. The Series 20__ Bonds do not grant the owners or holders thereof any right to have the Issuer, the State of Indiana or its General Assembly, or any political subdivision or taxing authority of the State of Indiana, levy any taxes or appropriate any funds for the payment of the principal of, premium, if
any, or interest on the Series 20__ Bonds. No covenant or agreement contained in the Series 20__ Bonds or the Indenture shall be deemed to be a covenant or agreement of the Redevelopment Commission, the Carmel Economic Development Commission (“Commission”), the Issuer or of any member, director, officer, agent, attorney or employee of the Redevelopment Commission, the Commission or the Issuer in his or her
individual capacity, and neither the Redevelopment Commission, Commission, the Issuer nor any member, director, officer, agent, attorney or employee of the Redevelopment Commission, the Commission or the Issuer executing the Series 20__ Bonds shall be liable personally on the Series 20__ Bonds or be subject to any personal liability or accountability by reason of the issuance of the Series 20__ Bonds.
7
The holder of this Series 20__ Bond shall have no right to enforce the provisions of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect
to any event of default under the Indenture, or to institute, appear in or defend any suit or other
proceedings with respect thereto, except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect set forth in the Indenture, the principal of all the Bonds issued under the Indenture and then outstanding may become or may be declared due and payable before the stated maturity thereof, together with interest accrued thereon. Modifications
or alterations of the Indenture, or of any supplements thereto, may be made to the extent and in
the circumstances permitted by the Indenture. The Issuer’s obligation to pay TIF Revenues shall not be subject to acceleration.
It is hereby certified that all conditions, acts and things required to exist, happen and be performed under the laws of the State of Indiana and under the Indenture precedent to and in the
issuance of this Series 20__ Bond, exist, have happened and have been performed, and that the
issuance, authentication and delivery of this Series 20__ Bond have been duly authorized by the Issuer.
This Series 20__ Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Indenture until the certificate of authentication
hereon shall have been duly executed by the Trustee.
IN WITNESS WHEREOF, the City of Carmel, Indiana, in Hamilton County, has caused this Series 20__ Bond to be executed in its name and on its behalf by the manual or facsimile signature of its Mayor and its corporate seal to be hereunto affixed manually or by facsimile and attested to by the manual or facsimile signature of its Clerk all as of the Original Date.
CITY OF CARMEL, INDIANA
By: Mayor (SEAL)
Attest:
Clerk
(FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION)
This Series 20__ Bond is one of the Series 20__ Bonds described in the within mentioned Trust Indenture.
8
[TRUSTEE], Trustee
By: Authorized Signatory ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
____________________________ (Please Print or Typewrite Name and Address) the within Series 20__ Bond and all rights, title and interest thereon, and hereby irrevocably constitutes and appoints ____________________________ attorney to transfer the within Series 20__ Bond on the books kept for registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by an eligible guarantor institution participating in a Securities Transfer Association recognized signature guarantee program.
NOTICE: The signature of this assignment
must correspond with the name of the registered owner as it appears upon the face of the within Series 20__ Bond in every particular, without alteration or enlargement
or any change whatever.
The following abbreviations, when used in the inscription on the face of this certificate, 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. TRANS. MIN. ACT Custodian
(Cust.) (Minor)
under Uniform Transfers to Minors Act of
(State)
9
Additional abbreviations may also be used though not in the above list.
Exhibit A
Maturity Date Amount
Exhibit B
SCHEDULE OF OUTSTANDING BALANCE OF CITY OF CARMEL, INDIANA ECONOMIC DEVELOPMENT
REVENUE BOND, SERIES 20__ (GRAMERCY PROJECT)
Date Amount Advance Amount of Payment Outstanding Balance Acknowledgment of City Acknowledgment of Trustee
(End of Bond Form)
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That in order to secure the payment of the principal of and interest and premium, if any, on the Bonds to be issued under this Indenture according to their tenor, purport and effect, and in order to secure the performance
and observance of all the covenants and conditions herein and in the Bonds contained, and in order to declare the terms and conditions upon which the Bonds are issued, authenticated, delivered, secured and accepted by all persons who shall from time to time be or become holders thereof, and for and in consideration of the mutual covenants herein contained, of the acceptance by the Trustee of the trust hereby created, and of the purchase and acceptance of the Bonds by
the holders or obligees thereof, the Issuer has executed and delivered this Indenture, and by these
10
presents does hereby convey, grant, assign, pledge and grant a security interest in, unto the Trustee, its successor or successors and its or their assigns forever, with power of sale, all and
singular, the property hereinafter described (“Trust Estate”):
GRANTING CLAUSE
All right, title and interest of the Issuer in and to the TIF Revenues (such pledge to be effective as set forth in IC 5-1-14-4 and IC 36-7-14-39 without filing or recording of this Indenture or any other instrument), the Financing Agreement (except the rights reserved to the
Issuer) and all moneys and the Qualified Investments held by the Trustee from time to time in
the Funds and Accounts created hereunder;
TO HAVE AND TO HOLD the same unto the Trustee, and its successor or successors and its or their assigns forever;
IN TRUST, NEVERTHELESS, upon the terms and trusts herein set forth, to secure the
payment of the Bonds to be issued hereunder, and premium, if any, payable upon redemption or
prepayment thereof, and the interest payable thereon, and to secure also the observance and performance of all the terms, provisions, covenants and conditions of this Indenture, and for the benefit and security of all and singular the holders of all Bonds issued hereunder, and it is hereby mutually covenanted and agreed that the terms and conditions upon which the Bonds are to be
issued, authenticated, delivered, secured and accepted by all persons who shall from time to time
be or become the holders thereof, and the trusts and conditions upon which the pledged moneys and revenues are to be held and disbursed, are as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Terms Defined. In addition to the words and terms elsewhere defined in this Indenture, the following words and terms as used in this Indenture shall have the following meanings unless the context or use indicates another or different meaning or intent:
“Additional Bonds” shall have the meaning assigned in Section 2.8 of this Indenture.
“Annual Fees” means annual Trustee Fees and any other ongoing fees relating to
payment of debt service on the Series 20__ Bonds.
“Area” means the Gramercy Allocation Area as such allocation area may be expanded from time to time.
“Authorized Representative” means any officer of the Company as evidence by written
certificate furnished to the Trustee containing the specimen signature of such person and signed
on behalf of the Company by its President.
“Bonds” means any Bonds issued pursuant to this Indenture, including the Series 20__ Bonds and any Additional Bonds.
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“Business Day” means a day on which the office of the Trustee is open for business.
“Company” means [Company], or its permitted successor or assign, as more fully
provided in the Financing Agreement.
“Controller” means the Controller of the City.
“Costs of Construction” means the following categorical costs of providing for an “economic development project” as defined and set forth in the Act:
(i) the “Bond Issuance Costs”, namely the costs, fees and expenses incurred
or to be incurred by the Issuer and the Company in connection with the issuance and sale
of the Series 20__ Bonds, including placement or other financing fees (including applicable counsel fees), the fees and disbursements of bond counsel, fees of the Issuer’s financial advisor, the acceptance fee of the Trustee, application fees and expenses, publication costs, the filing and recording fees in connection with any filings or recording
necessary under the Indenture or to perfect the lien thereof, the out-of-pocket costs of the
Issuer, the fees and disbursements of counsel to the Company, the fees and disbursements of the Company’s accountants and advisers, the fees and disbursements of counsel to the Issuer, the fees and disbursements of counsel to the purchaser of the Bonds, the costs of preparing or printing the Series 20__ Bonds and the documentation supporting the
issuance of the Series 20__ Bonds, the costs of reproducing documents, and any other
costs of a similar nature reasonably incurred;
(ii) the “Capitalized Interest Costs”, namely a portion of the interest on the Series 20__ Bonds from the date of their original delivery through and including _________ 1, 20___;
(iii) the cost of insurance of all kinds that may be required or necessary in
connection with the construction of the Projects;
(iv) all costs and expenses which Issuer or Company shall be required to pay, under the terms of any contract or contracts (including the architectural and engineering, development, and legal services with respect thereto), for the construction of the Projects;
and
(v) any sums required to reimburse Issuer or Company for advances made by either of them subsequent to the date of inducement by the Issuer for any of the above items or for any other costs incurred and for work done by either of them which are properly chargeable to the Projects.
“Event of Default” means those events of default specified in and defined by Section 7.1
hereof.
“Financing Agreement” means the Financing Agreement, dated as of ____________ 1, 20___, between the Company and the Issuer and all amendments and supplements thereto.
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“Fiscal Year” shall mean a period of twelve consecutive months constituting the fiscal year of the Company commencing on the first day of January of any year and ending on the last
day of December of such year, both inclusive, or such other period as hereafter may be
established from time to time for budgeting and accounting purposes by the Company or by the governing body of any successor entity to the Company.
“Indenture” means this instrument as originally executed or as it may from time to time be amended or supplemented pursuant to Article IX.
“Interest Payment Date” on the Series 20__ Bonds means each February 1 and August 1,
commencing ____________ 1, 20___.
“Interest Period” has the meaning set forth in the form of Series 20__ Bond set forth in the recitals to this Indenture.
“Issuer” means the City of Carmel, Indiana, a municipal corporation organized and
validly existing under the laws of the State of Indiana or any successor to its rights and
obligations under the Financing Agreement and the Indenture.
“Opinion of Counsel” shall mean an opinion in writing signed by legal counsel who may be an employee of or counsel to the Company.
“Ordinance” means Ordinance No. ___________ adopted by the Common Council of the
Issuer on _____________, 20__ authorizing the issuance of the Bonds in or more series in the
aggregate principal amount not to exceed $______________.
“Outstanding” or “Bonds outstanding” means all Bonds which have been duly authenticated, and delivered by the Trustee under this Indenture, except:
(b) Bonds canceled after purchase in the open market or because of payment at or
redemption prior to maturity;
(c) Bonds for the redemption of which cash or investments (but only to the extent that the full faith and credit of the United States of America are pledged to the timely payment thereof) shall have been theretofore deposited with the Trustee (whether upon or prior to the maturity or redemption date of any such Bonds); provided that if such Bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given or arrangements
satisfactory to the Trustee shall have been made therefor, or waiver of such notice satisfactory in form to the Trustee, shall have been filed with the Trustee; and
(d) Bonds in lieu of which others have been authenticated under Section 2.9.
“Paying Agent” means [Trustee], in its capacity as paying agent hereunder, and any
successor paying agent or co-paying agent.
“Pledge Resolution” means Resolution No. __________ adopted by the Redevelopment Commission on ______________, 20__, pledging the TIF Revenues to the Issuer.
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“Qualified Investments” shall have the meaning assigned in the Financing Agreement.
“Record Date” means the fifteenth day of the month immediately preceding any Interest
Payment Date.
“Redevelopment Commission” means the City of Carmel Redevelopment Commission.
“Requisite Bondholders” means the holders of a majority in aggregate principal amount of Bonds.
“Series 20__ Bonds” means the City of Carmel, Indiana Economic Development Tax
Increment Revenue Bonds, Series 20_____ (Gramercy Project) in the aggregate principal amount
of $[XX,XXX,XXX].
“Tax Increment” means all real property tax proceeds attributable to the assessed valuation within the Area as of each January 1 in excess of the base assessed value as established as of [January 1, 20__]. The incremental assessed value is multiplied by the current property tax
rate (per $100 assessed value).
“TIF Revenues” means Tax Increment received by the Redevelopment Commission and pledged to the Issuer pursuant to the Pledge Resolution, equal, for any given year, to ninety percent (90%) of the Tax Increment generated from Area.
“Trust Estate” means the funds and accounts, TIF Revenues and other assets described in
the Granting Clauses of this Indenture.
“Trustee” means [Trustee], Indianapolis, Indiana, in its capacity as trustee hereunder, the party of the second part hereto, and any successor trustee or co-trustee.
Section 1.2. Rules of Interpretation. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) “This Indenture” means this instrument as originally executed and as it may from
time to time be supplemented or amended pursuant to the applicable provisions hereof.
(b) All references in this instrument to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as originally executed. The words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
(c) The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular and the singular as well as the plural.
(d) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as consistently applied.
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(e) Any terms not defined herein but defined in the Financing Agreement shall have the same meaning herein.
(f) The terms defined elsewhere in this Indenture shall have the meanings therein
prescribed for them.
Section 1.3. Exhibits. The following Exhibits are attached to and by reference made a part of this Indenture:
Exhibit A: Description of Projects
(End of Article I)
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ARTICLE II.
THE BONDS
Section 2.1. Authorized Amount of Series 20__ Bonds. No Bonds may be issued under the provisions of this Indenture except in accordance with this Article. The principal amount of the Series 20__ Bonds (other than Bonds issued in substitution therefor pursuant to Section 2.8 hereof) that may be issued is hereby expressly limited to $[XX,XXX,XXX].
Additional Bonds may be issued as provided in Section 2.8 hereof.
Section 2.2. Issuance of Series 20__ Bonds. The Series 20__ Bonds shall be designated “City of Carmel, Indiana Economic Development Tax Increment Revenue Bonds, Series 20_____ (Gramercy Project).” The Series 20__ Bonds shall be originally issuable as fully registered Bonds without coupons in denominations of $100,000 and any $1.00 integral
multiples thereafter and shall be lettered and numbered R-1 and upward. Interest on the Series
20__ Bonds shall be paid to the owners of such Bonds determined as of the close of business of the Record Date next preceding each Interest Payment Date at the registered addresses of such owners as they shall appear on the registration books of the Trustee notwithstanding the cancellation of any such Bonds upon any exchange or transfer thereof subsequent to the Record
Date and prior to such Interest Payment Date, except that, if and to the extent that there shall be a
default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid to the owners in whose name any such Bonds (or any Bond issued upon transfer or exchange thereof) are registered at the close of business of the Special Record Date (defined below) next preceding the date of payment of such defaulted interest. Payment of interest to all
Bondholders shall be by check drawn on the main office of the Paying Agent and mailed to such
Bondholder on each Interest Payment Date. The “Special Record Date” shall be the date established by the Trustee for the payment of defaulted interest. The Series 20__ Bonds shall be dated as of the date of their delivery. Interest shall be computed on the basis of a 360 day year consisting of twelve 30-day months. The interest on the Series 20__ Bonds shall be payable on
each February 1 and August 1, commencing on _________ 1, 20____.
Principal on the Series 20__ Bond shall be advanced from time to time by the Registered Owner upon request of the Issuer. The unpaid principal amount of the Series 20__ Bond shall be the total amounts advanced by the Registered Owner from time to time, less any prior redemption of the principal amount due, as set forth on Exhibit B to the Series 20__ Bond. The
aggregate amount of advances made under this Series 20__ Bond may not exceed
$[XX,XXX,XXX]. The principal amounts advanced shall be evidenced by the execution by the Controller of the City of a Disbursement Request in form and substance satisfactory to the Registered Owner.
The Series 20__ Bonds shall bear interest from the Interest Payment Date next preceding
the date of authentication thereof, unless such date of authentication shall be subsequent to a
Record Date in which case they shall bear interest from the Interest Payment Date with respect to such Record Date, provided, however that if, as shown by the records of the Trustee, interest on the Series 20__ Bonds shall be in default, Series 20__ Bonds issued in exchange for Series 20__ Bonds surrendered for transfer or exchange shall bear interest from the date to which interest has
been paid in full on the Series 20__ Bonds or, if no interest has been paid on the Series 20__
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Bonds, from the date of issuance and delivery of the Series 20__ Bonds. Series 20__ Bonds authenticated on or prior to _____________ 15, 201___ shall bear interest from the date of
delivery of the Series 20__ Bonds.
The Series 20__ Bonds shall mature on the dates set forth below, beginning on _____ 1, 20___, and ending on ________ 1, 20___, in the amounts set forth below at the interest rate of ______% per annum:
Payment Date Amount Payment Date Amount
Section 2.3. Payment on Bonds. The principal of and interest on the Bonds shall be
payable in any coin or currency of the United States of America which, at the respective dates of payment thereof, is legal tender for the payment of public and private debts. The final payments on the Series 20__ Bonds shall be payable at the designated corporate trust office of the Trustee. All other payments on the Series 20__ Bonds shall be made to the person appearing on the Bond
registration books of the Trustee as the registered owner of the Series 20__ Bonds by check
mailed to the registered owner thereof as shown on the registration books of the Trustee, or, if payment is made to a depository, by wire transfer of immediately available funds on the interest payment date. If the payment date occurs on a date when financial institutions are not open for business, the wire transfer shall be made on the next succeeding business day. The Trustee shall
be instructed to wire transfer payments so that such payments are received at the depository by
2:30 p.m. (New York City time).
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Section 2.4. Execution; Limited Obligation. The Bonds shall be executed on behalf of the Issuer with the manual or facsimile signature of its Mayor and attested with the manual or the
facsimile signature of its Clerk and shall have impressed or printed thereon the corporate seal of
the Issuer. Such facsimiles shall have the same force and effect as if such officer had manually signed each of the Bonds. If any officer whose signature or facsimile signature shall appear on the Bonds shall cease to be such officer before the delivery of such Bonds, such signature or such facsimile shall, nevertheless, be valid and sufficient for all purposes, the same as if he had
remained in office until delivery.
The Bonds, and the interest payable thereon, do not and shall not represent or constitute a debt of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof within the meaning of the provisions of the constitution or statutes of the State of Indiana or a pledge of the faith and credit of the Issuer, the State of Indiana or any
political subdivision or taxing authority thereof. The Bonds, as to both principal and interest, are not an obligation or liability of the State of Indiana, or of any political subdivision or taxing authority thereof, but are a special limited obligation of the Issuer and are payable solely and only from the trust estate consisting of funds and accounts held under the Indenture and the TIF Revenues pledged and assigned for their payment in
accordance with the Indenture (“Trust Estate”). Neither the faith and credit nor the taxing power of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof is pledged to the payment of the principal of, premium, if any, or the interest on the Bond. The Bonds do not grant the owners or holders thereof any right to have the Issuer, the State of Indiana or its General Assembly, or any political subdivision or taxing
authority of the State of Indiana, levy any taxes or appropriate any funds for the payment of the principal of, premium, if any, or interest on the Bonds. No covenant or agreement contained in the Bonds or the Indenture shall be deemed to be a covenant or agreement of the Redevelopment Commission, the Carmel Economic Development Commission (“Commission”), or of any member, director, officer, agent, attorney or employee of the
Redevelopment Commission, the Commission or the Issuer in his or her individual capacity, and neither the Redevelopment Commission, the Commission nor any member, director, officer, agent, attorney or employee of the Redevelopment Commission, the Commission or the Issuer executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds.
Section 2.5. Authentication. No Bond shall be valid or obligatory for any purpose or
entitled to any security or benefit under this Indenture unless and until the certificate of authentication on such Bond substantially in the form hereinabove set forth shall have been duly executed by the Trustee, and such executed certificate of the Trustee upon any such Bond shall be conclusive evidence that such Bond has been authenticated and delivered under this
Indenture. The Trustee’s certificate of authentication on any Bond shall be deemed to have been
executed by it if signed by an authorized signatory of the Trustee, but it shall not be necessary that the same person sign the certificate of authentication on all of the Bonds issued hereunder.
Section 2.6. Form of Bonds. The Bonds issued under this Indenture shall be substantially in the form hereinabove set forth with such appropriate variations, omissions and
insertions as are permitted or required by this Indenture.
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Section 2.7. Delivery of Series 20__ Bonds. Upon the execution and delivery of this Indenture, the Issuer shall execute and deliver to the Trustee the Series 20__ Bonds in the
aggregate principal amount of $[XX,XXX,XXX]. The Trustee shall authenticate such Series
20__ Bonds and deliver them to the purchasers thereof upon receipt of:
(i) A copy, duly certified by the Clerk of the Issuer, of the Ordinance adopted and approved by the Issuer authorizing the execution and delivery of the Financing Agreement and this Indenture and the issuance of the Series
20__ Bonds.
(ii) A copy, duly certified by the Secretary of the Redevelopment Commission, of the Pledge Resolution adopted and approved by the Redevelopment Commission pledging the TIF Revenues to the payment of the Series 20__ Bonds.
(iii) Executed counterparts of the Financing Agreement and Indenture.
(iv) A written request of the Issuer to the Trustee requesting the Trustee to authenticate, or cause to be authenticated, and deliver the Series 20__ Bonds in the principal amount of $[XX,XXX,XXX] to the purchasers thereof.
(v) Such other documents as shall be required by the Requisite Bondholders.
The proceeds of the Series 20__ Bonds shall be paid over to the Trustee and deposited to the credit of various Funds as hereinafter provided under Section 3.1 hereof.
Section 2.8. Issuance of Additional Bonds. One or more series of Bonds payable from the TIF Revenues in addition to the Series 20__ Bonds (“Additional Bonds”), may be
authenticated and delivered from time to time for one or more of the purposes of (i) refunding
entirely one or more series of Bonds outstanding hereunder, if such Bonds may otherwise be refunded, (ii) advance refunding entirely one or more series of Bonds outstanding hereunder, regardless of whether such Bonds may otherwise be refunded, if the same is then permitted by law by depositing with the Trustee, in trust for the sole benefit of such series of Bonds, cash or
investments (but only to the extent that the full faith and credit of the United States of America
are pledged to the timely payment thereof) in a principal amount which will, together with the income or increment to accrue thereon, be sufficient to pay and redeem (when redeemable) and discharge such series of Bonds at or before their respective maturity dates, and (iii) financing the cost or estimated cost incurred or to be incurred by the Company in completing the Projects or
acquiring and/or constructing additional improvements, but not otherwise, and, in each case,
obtaining additional funds to pay the costs to be incurred in connection with the issuance of such Additional Bonds, to establish reserves with respect thereto and to pay interest during the estimated construction period of completing the additional improvements, if any.
Prior to the delivery by the Issuer of any such Additional Bonds there shall be filed with
the Trustee:
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(i) A supplement to this Indenture executed by the Issuer and the Trustee authorizing the issuance of such Additional Bonds, specifying the terms
thereof and providing for the disposition of the proceeds of the sale
thereof.
(ii) The supplement or amendment to the Financing Agreement and the other instruments, documents, certificates, and opinions referred to in Section 6.1 of the Financing Agreement.
(iii) A copy, duly certified by the Clerk of the Issuer, of the Ordinance, and, if
necessary, any amendments or supplements theretofore adopted and approved by the Issuer authorizing the execution and delivery of such supplemental indenture and such supplement to the Financing Agreement and the issuance of such Additional Bonds.
(iv) A written request of the Issuer to the Trustee to authenticate and deliver
such Additional Bonds.
(v) Satisfaction of the provisions of the Pledge Resolution for the issuance of Additional Bonds.
Any Additional Bonds issued in accordance with the terms of this Section 2.8 shall be
secured by this Indenture, but such Additional Bonds may bear such date or dates, such interest
rate or rates, and with such maturities, redemption dates and premiums as may be agreed upon by the Issuer, at the direction of the Company, and the purchaser of such Additional Bonds. Notwithstanding anything in this Indenture or the Bonds to the contrary, no Additional Bonds shall be issued under this Indenture without the prior consent of the Requisite Bondholders and
the Company.
Section 2.9. Mutilated, Lost, Stolen, or Destroyed Bonds. If any Bond is mutilated, lost, stolen or destroyed, then, in the absence of notice to the Trustee that such Bond has been acquired by a bona fide purchaser, the Issuer may execute and the Trustee may authenticate a new Bond of like date, maturity and denomination as that mutilated, lost, stolen or destroyed;
provided that, in the case of any mutilated Bond, such mutilated Bond shall first be surrendered
to the Issuer, and in the case of any lost, stolen or destroyed Bond, there shall be first furnished to the Trustee evidence of such loss, theft or destruction satisfactory to the Trustee, together with indemnity satisfactory to it.
If any such Bond shall have matured, instead of issuing a duplicate Bond the Issuer may
pay the same without surrender thereof; provided, however, that in the case of a lost, stolen or
destroyed Bond, there shall be first furnished to the Trustee evidence of such loss, theft or destruction satisfactory to the Trustee, together with indemnity satisfactory to it. The Trustee may charge the holder or owner of such Bond with their reasonable fees and expenses in this connection. Any Bond issued pursuant to this Section 2.9 shall be deemed part of the original
series of Bonds in respect of which it was issued and an original additional contractual obligation
of the Issuer.
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Section 2.10. Registration and Exchange of Bonds; Persons Treated as Owners. The Issuer shall cause books for the registration and for the transfer of the Bonds as provided in this
Indenture to be kept by the Trustee which is hereby constituted and appointed the registrar of the
Issuer. Upon surrender for transfer of any fully registered Bond at the principal office of the Trustee, duly endorsed by, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Trustee and duly executed by the registered owner or his attorney duly authorized in writing, the Issuer shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new fully registered Bond or Bonds of the same series
and the same maturity for a like aggregate principal amount. The execution by the Issuer of any fully registered Bond without coupons of any denomination shall constitute full and due authorization of such denomination, and the Trustee shall thereby be authorized to authenticate and deliver such registered Bond. The Trustee shall not be required to transfer or exchange any
fully registered Bond during the period between the Record Date and any interest payment date
of such Bond, nor to transfer or exchange any Bond after the mailing of notice calling such Bond for redemption has been made, nor during a period of fifteen (15) days next preceding mailing of a notice of redemption of any Bonds.
As to any fully registered Bond, the person in whose name the same shall be registered
shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of
principal or interest thereon, shall be made only to or upon the order of the registered owner thereof or its legal representative, but such registration may be changed as hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid.
(End of Article II)
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ARTICLE III.
APPLICATION OF SERIES 20__ BONDS PROCEEDS
Section 3.1. Deposit of Funds. The initial amount of principal drawn on the Series 20__ Bonds at closing shall be in the amount of $______________, of which $_____________ shall be deposited with the Trustee in the Bond Interest Account of the Construction Fund and be used to pay Capitalized Interest Costs, and $___________ shall be deposited with the Trustee in
the Construction Account of the Construction Fund and used to pay Costs of Construction,
including the Bond Issuance Costs set forth in Exhibit B which the Trustee is hereby authorized to pay. The Issuer shall deposit with Trustee in the Construction Fund all remaining draws of principal on the Series 20__ Bonds which shall be disbursed as provided in Section 4.4. The deposit of the proceeds of any Additional Bonds shall be as set forth in a supplement to this
Indenture in connection with the issuance of such series of Additional Bonds.
(End of Article III)
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ARTICLE IV.
REVENUE AND FUNDS
Section 4.1. Source of Payment of Bonds. The Bonds herein authorized and all payments to be made by the Issuer hereunder are not general obligations of the Issuer but are limited obligations payable solely from the Trust Estate as authorized by the Act and as provided herein. No covenant or agreement contained in the Bonds or this Indenture shall be deemed to
be a covenant or agreement of the Issuer or of any member, director, officer, agent, attorney or
employee of the Issuer in his or her individual capacity, and neither the Issuer nor any member, director, officer, agent, attorney, or employee of the Issuer executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds.
Section 4.2. Bond Fund. The Trustee shall establish and maintain, so long as any of
the Bonds are outstanding, a separate fund to be known as the “Bond Fund.” Money in the Bond Fund shall be applied as provided in this Section 4.2.
There shall be deposited in the Bond Fund, as and when received, (a) TIF Revenues in an amount not to exceed the payments due on the Series 20__ Bonds on the next February 1 or
August 1 plus Annual Fees; (b) proceeds of the Series 20__ Bonds to be used to pay interest
thereon; (c) any amount remaining in the Construction Fund to be transferred to the Bond Fund pursuant to Section 4.4 of the Indenture, and any amount remaining in the Construction Fund to be transferred to the Bond Fund pursuant to the Indenture upon acceleration of the maturity of the Series 20__ Bonds; and (d) all interest and other income derived from investments of Bond
Fund moneys as provided herein. The Issuer hereby covenants and agrees that so long as any of
the Bonds issued hereunder are outstanding it will deposit, or cause to be paid to Trustee for deposit in the Bond Fund for its account, all revenues and receipts derived from the TIF Revenues (taking into account any Parity TIF Obligations (as defined below)) promptly to meet and pay the principal of, premium, if any, and interest on the Bonds as the same become due and
payable. Nothing herein should be construed as requiring Issuer to deposit or cause to be paid to
Trustee for deposit in the Bond Fund, funds from any source other than receipts derived from the TIF Revenues.
The Controller of the Issuer shall set aside immediately upon receipt the Tax Increment into the Issuer’s Allocation Fund as created by IC 36-7-14 and transfer the TIF Revenues to the
Trustee as set forth in Section 4.5. The Trustee is hereby directed to deposit the TIF Revenues
into the Bond Fund in the manner prescribed in this Section 4.2 and in Section 4.5.
Moneys in the Bond Fund shall be used by the Trustee to pay interest, premium, if any, and principal on the Bonds as they become due at maturity, redemption or upon acceleration. The Trustee shall transmit such funds to the Paying Agent for any series of Bonds in sufficient
time to insure that such interest will be paid as it becomes due. Any TIF Revenues not needed to
pay debt service on the Series 20__ Bonds on the next February 1 or August 1 shall be transferred to the Surplus Fund.
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Section 4.3. Surplus Fund. The Trustee shall establish and maintain a separate fund to be known as the “Surplus Fund.” Money in the Surplus Fund shall be applied as provided in this
Section 4.3.
The Trustee shall deposit in the Surplus Fund, as and when received, all TIF Revenues in excess of payments due on the Series 20__ Bonds on the next February 1 or August 1 as provided in Section 4.2. At the direction of the Company, TIF Revenues in the Surplus Fund shall, without further authorization, be used first, to pay amounts due on the Series 20__ Bonds
and amounts due on any obligations issued on a parity with the Series 20__ Bonds as to the
pledge of Tax Increment (“Parity TIF Obligations”). Any remaining TIF Revenues shall be used as directed by the Issuer (i) to redeem or defease the Series 20__ Bonds in whole or in part, or (ii) for return to the Redevelopment Commission to be used for any other purpose permitted by law.
Section 4.4. Construction Fund. The Issuer shall establish with the Trustee a separate
fund to be known as the Construction Fund, to the credit of which the deposits are to be made as required by Section 3.1 hereof. The Construction Fund shall consist of the Construction Account and the bond Interest Account. The Bond Interest Account shall be used to pay Capitalized Interest Costs, and the Construction Account shall be used to pay Costs of Construction (other
than Capitalized Interest Costs, except to the extent moneys in the Bond Interest Account are
insufficient to pay Capitalized Interest Costs when due).
(a) Bond Issuance Costs of the Series 20__ Bonds that are not identified or are in addition to those identified in Exhibit B shall only be paid or reimbursed upon submission of a requisition signed by the Issuer and the Company.
(b) Except as set forth in subparagraph (a) of this Section 4.4, moneys on deposit in
the Construction Account shall be paid out from time to time by the Trustee to or upon the order of the Company to pay or reimburse costs of issuance of the Series 20__ Bonds and to or upon the order of the Company in order to pay, or as reimbursement to the Company for payment made, for the Costs of Construction, upon receipt by the Trustee of the written request signed by
the Authorized Representative of the Company:
(1) stating that the costs of an aggregate amount set forth in such written request have been made or incurred and were necessary for the construction of the Projects and were made or incurred in accordance with the construction contracts, plans and specifications, or purchase contracts therefor
then in effect or that the amounts set forth in such written request are for
allowable Costs of Construction of the Projects;
(2) stating that the amount paid or to be paid, as set forth in such written request, is reasonable and represents a part of the amount payable for the Costs of Construction of the Projects all in accordance with the cost budget; and
that such payment was not paid in advance of the time, if any, fixed for payment
and was made in accordance with the terms of any contracts applicable thereto and in accordance with usual and customary practice under existing conditions;
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(3) stating that no part of the said costs was included in any written request previously filed with the Trustee under the provisions hereof;
(4) stating that such costs are appropriate for the expenditure of
proceeds of the Bonds under the Act; and
(5) stating a recap of vendors and the amount paid .
(c) The Trustee shall rely fully on any such request delivered pursuant to this Section and shall not be required to make any investigation in connection therewith.
(d) The Issuer shall deliver to the Trustee within fifteen (15) days of completion of
the Projects, in addition to the items required by (b) above, a certificate of its Authorized Representative of the Company:
(i) stating the date that the Projects were completed; and
(ii) stating that it has made such investigation of such sources of information
as are deemed by him to be necessary, including pertinent records of the
Issuer, and is of the opinion that the Projects have been fully paid for, and that no claim or claims exist against the Issuer or against the properties of either out of which a lien based on furnishing labor or material for the Projects exists or might ripen; provided, however, there may be excepted
from the foregoing statement any claim or claims out of which a lien
exists or might ripen if the Company intends to contest such claim or claims, in which event such claim or claims shall be described; provided, further, however, that it shall be stated that funds are on deposit in the Construction Fund sufficient to make payment of the full amount which
might in any event be payable in order to satisfy such claim or claims.
If such certificate shall state that there is a claim or claims in controversy which create or might ripen into a lien, there shall be filed with the Issuer and the Trustee a certificate of the Company when and as such claim or claims shall have been fully paid.
If, after payment by the Trustee of all orders theretofore tendered to the Trustee under the
provisions of subparagraph (b) of this Section 4.4 and after receipt of the statement mentioned in
subparagraph (d)(i) and (ii) of this Section 4.4, there shall remain any balance of moneys in the Construction Fund, Trustee shall transfer all moneys then in the Construction Fund (except any disputed claims described in the completion certificate required in Section 4.3(d) hereof) to the Bond Fund. The Trustee, as directed in writing by the Issuer, shall use any amount transferred to
the Bond Fund to prepay the Series 20__ Bonds at the earliest redemption date.
Section 4.5. TIF Revenues. On or before each January 15 and July 15, commencing ___________ 15, 20___, the Issuer shall transfer to the Bond Fund and the Surplus Fund, the TIF Revenues for the payment of the Series 20__ Bonds. The balance of any TIF Revenues in excess of such requirements of the Bond Fund shall be deposited into the Surplus Fund.
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Section 4.6. Trust Funds. All moneys and securities received by the Trustee under the provisions of this Indenture, shall be trust funds under the terms hereof and shall not be subject
to lien or attachment of any creditor of the Issuer or of the Company. Such moneys shall be held
in trust and applied in accordance with the provisions of this Indenture.
Section 4.7. Investment. Moneys on deposit in the Funds established in this Article IV hereof shall be invested as provided in Section 6.8 hereof.
(End of Article IV)
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ARTICLE V.
REDEMPTION OF SERIES 20__ BONDS BEFORE MATURITY
Section 5.1. Redemption Dates and Prices.
(a) The Series 20__ Bonds are subject to optional redemption by the Issuer, prior to maturity, on any date, in whole or in part, in such order of maturity as the Issuer shall direct and within maturities, at face value, without premium, plus in each case accrued interest to the date
fixed for redemption.
Section 5.2. Notice of Redemption. In the case of redemption of Series 20__ Bonds pursuant to Section 5.1(a) hereof, notice of the call for any such redemption identifying the Series 20__ Bonds, or portions of fully registered Series 20__ Bonds, to be redeemed shall be given by mailing a copy of the redemption notice by first class mail not less than thirty (30) days
nor more than sixty (60) days prior to the date fixed for redemption to the registered Owner of
each Series 20__ Bond to be redeemed at the address shown on the registration books. Such notice of redemption shall specify the CUSIP number, if any, and, in the event of a partial redemption the Series 20__ Bond numbers and called amounts of each Series 20__ Bond, the redemption date, principal amount, interest rate, maturity date and the name and address of the
Trustee and the Paying Agent; provided, however, that failure to give such notice by mailing, or
any defect therein, with respect to any such registered Series 20__ Bond shall not affect the validity of any proceedings for the redemption of other Series 20__ Bonds.
On and after the redemption date specified in the aforesaid notice, such Series 20__ Bonds, or portions thereof, thus called shall not bear interest, shall no longer be protected by this
Indenture and shall not be deemed to be outstanding under the provisions of this Indenture, and
the holders thereof shall have the right to receive only the redemption price thereof plus accrued interest thereon to the date fixed for redemption.
Section 5.3. Cancellation. All Bonds which have been redeemed in whole shall be canceled or otherwise destroyed by the Trustee in accordance with the customary practices of the
Trustee and applicable record retention requirements and shall not be reissued.
Section 5.4. Redemption Payments. Prior to the date fixed for redemption in whole, funds shall be deposited with Trustee to pay, and Trustee is hereby authorized and directed to apply such funds to the payment of the Bonds or portions thereof called, together with accrued interest thereon to the redemption date. Upon the giving of notice and the deposit of funds for
redemption, interest on the Bonds thus called shall no longer accrue after the date fixed for
redemption. No payment shall be made by the Paying Agent upon any Bond until such Bond shall have been delivered for payment or cancellation or the Trustee shall have received the items required by Section 2.8 hereof with respect to any mutilated, lost, stolen or destroyed Bond.
Section 5.5. Partial Redemption of Bonds. If fewer than all of the Series 20__ Bonds
at the time outstanding are to be called for redemption, the maturities of Series 20__ Bonds or portions thereof to be redeemed shall be selected by the Trustee at the written direction of the
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Company. If fewer than all of the Series 20__ Bonds within a maturity are to be redeemed, the Trustee shall select in such equitable manner as the Trustee may determine, the Series 20__
Bonds or portions of Series 20__ Bonds within such maturity that shall be redeemed. The
Trustee shall call for redemption in accordance with the foregoing provisions as many Series 20__ Bonds or portions thereof as will, as nearly as practicable, exhaust the moneys available therefor. Particular Series 20__ Bonds or portions thereof shall be redeemed only in the minimum principal amount of $100,000 and any $1 integral multiples thereafter.
If less than the entire principal amount of any registered Series 20__ Bond then
outstanding is called for redemption, then upon notice of redemption given as provided in Section 5.2 hereof, the owner of such registered Series 20__ Bond shall surrender such Series 20__ Bond to the Paying Agent in exchange for (a) payment of the redemption price of, plus accrued interest on the principal amount called for redemption and (b) a new Series 20__ Bond
or Series 20__ Bonds of like series in an aggregate principal amount equal to the unredeemed
balance of the principal amount of such registered Series 20__ Bond, which shall be issued without charge therefor.
(End of Article V)
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ARTICLE VI.
GENERAL COVENANTS
Section 6.1. Payment of Principal and Interest. The Issuer covenants that it will promptly pay the principal of, premium, if any, and interest on every Bond issued under this Indenture at the place, on the dates and in the manner provided herein and in the Bonds according to the true intent and meaning thereof. The principal, interest and premium, if any, on
the Bonds are payable solely and only from the Trust Estate including the TIF Revenues which
are hereby specifically pledged and assigned to the payment thereof in the manner and to the extent herein specified, and nothing in the Bonds or in this Indenture should be considered as pledging any other funds or assets of the Issuer. The Bonds, and the interest payable thereon, do not and shall not represent or constitute a debt of the Issuer within the meaning of the
provisions of the constitution or statutes of the State of Indiana or a pledge of the faith and credit of the Issuer. The Bonds, as to both principal and interest, are not an obligation or liability of the State of Indiana, or of any political subdivision or taxing authority thereof, but are a special limited obligation of the Issuer and are payable solely and only from the Trust Estate including the TIF Revenues pledged and assigned for their payment in
accordance with the Indenture. Neither the faith and credit nor the taxing power of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof is pledged to the payment of the principal of, premium, if any, or the interest on the Bonds. The Bonds do not grant the owners or holders thereof any right to have the Issuer, the State of Indiana or its General Assembly, or any political subdivision or taxing authority of
the State of Indiana, levy any taxes or appropriate any funds for the payment of the principal of, premium, if any, or interest on the Bonds. The Issuer has no taxing power with respect to the Bonds. No covenant or agreement contained in the Bonds or this Indenture shall be deemed to be a covenant or agreement of the Redevelopment Commission, the Commission, or of any member, director, officer, agent, attorney or
employee of the Redevelopment Commission, the Commission or the Issuer in his or her individual capacity, and neither the Redevelopment Commission, the Commission nor any member, director, officer, agent, attorney or employee of the Redevelopment Commission, Commission or the Issuer executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds.
Section 6.2. Performance of Covenants. The Issuer covenants that it will faithfully
perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all proceedings of its members pertaining thereto. The Issuer represents that it is duly authorized under the constitution and laws of the State of Indiana to issue the Bonds authorized hereby and
to execute this Indenture, and to pledge the TIF Revenues in the manner and to the extent herein
set forth; that all action on its part for the issuance of the Bonds and the execution and delivery of this Indenture has been duly and effectively taken, and that the Bonds in the hands of the holders and owners thereof are and will be valid and enforceable obligations of the Issuer according to the import thereof, subject to bankruptcy, insolvency, reorganization, moratorium
and other similar laws, judicial decisions and principles of equity relating to or affecting
creditors’ rights generally and subject to the valid exercise of the constitutional powers of the Issuer, the State of Indiana and the United States of America.
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Section 6.3. Ownership; Instruments of Further Assurance. The Issuer covenants that it will defend its interest in the Financing Agreement to the Trustee, for the benefit of the holders
and owners of the Bonds against the claims and demands of all persons whomsoever. The Issuer
covenants that it will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such indentures supplemental hereto and such further acts, instruments and transfers as the Trustee may reasonably require for the better assuring, transferring, mortgaging, conveying, pledging, assigning and confirming unto the Trustee, the
Financing Agreement.
Section 6.4. Filing of Indenture, Financing Agreement and Security Instruments. The Issuer, upon the written direction and at the sole expense of the Company, shall cause this Indenture, the Financing Agreement and all supplements thereto as well as such other security instruments, financing statements and all supplements thereto and other instruments (other than
continuation statements, which, if applicable, will be filed by the Trustee) as may be required
from time to time to be filed in such manner and in such places as may be required by law in order to fully preserve and protect the lien hereof and the security of the holders and owners of the Bonds and the rights of the Trustee hereunder. This Section 6.4 shall impose no duty to record or file the instruments noted above where filing or recordation is not required by law in
order to perfect a security interest. Continuation of financing statements may be filed without
consent of the debtor parties thereto.
Section 6.5. Inspection of Books. The Issuer covenants and agrees that all books and documents in its possession relating to the Projects and the revenues derived from the Projects shall at all times be open to inspection by such accountants or other agents as the Trustee may
from time to time designate.
Section 6.6. List of Bondholders. The Trustee will keep on file at the corporate trust office of the Trustee a list of names and addresses of the holders of all Bonds. At reasonable times and under reasonable regulations established by the Trustee, said list may be inspected and copied by the Company or by holders and/or owners (or a designated representative thereof) of
25% or more in principal amount of Bonds then outstanding, such ownership and the authority of
any such designated representative to be evidenced to the satisfaction of the Trustee.
Section 6.7. Rights Under Financing Agreement. The Issuer agrees that the Trustee in its name or in the name of the Issuer may enforce all rights of the Issuer and all obligations of the Company under and pursuant to the Financing Agreement for and on behalf of the Bondholders,
whether or not the Issuer is in default hereunder.
Section 6.8. Investment of Funds. Moneys in the Funds established hereunder may be invested in Qualified Investments to the extent and in the manner provided for in Section 3.9 of the Financing Agreement. The Trustee shall not be liable or responsible for any loss resulting from any such investment. The interest accruing thereon and any profit realized from such
investments shall be credited, and any loss resulting from such investments shall be charged to
the fund in which the money was deposited.
Section 6.9. Non-presentment of Bonds. If any Bond shall not be presented for payment when the principal thereof becomes due, either at maturity, or at the date fixed for
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redemption thereof, or otherwise, if funds sufficient to pay any such Bond shall have been made available to Paying Agent for the benefit of the holder or holders thereof, all liability of Issuer to
the holder thereof for the payment of such Bond shall forthwith cease, determine and be
completely discharged, and thereupon it shall be the duty of Paying Agent to hold such funds for four (4) years without liability for interest thereon, for the benefit of the holder of such Bond, who shall thereafter be restricted exclusively to such funds, for any claim of whatever nature on his part under this Indenture or on, or with respect to, such Bond.
(End of Article VI)
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ARTICLE VII.
DEFAULTS AND REMEDIES
Section 7.1. Events of Default. Each of the following events is hereby declared an “event of default,” that is to say, if:
(a) payment of any amount payable on the Bonds shall not be made when the same is due and payable, unless the Requisite Bondholders shall have consented thereto; or
(b) any event of default as defined in Section 4.1 of the Financing Agreement shall
occur and be continuing, unless the Requisite Bondholders shall have consented thereto; or
(c) the Issuer shall default in the due and punctual performance of any other of the covenants, conditions, agreements and provisions contained in the Bonds or in this Indenture or any agreement supplemental hereof on the part of the Issuer to be performed, and such default
shall continue for thirty (30) days after written notice specifying such default and requiring the
same to be remedied shall have been given to the Issuer and the Company by the Trustee, which may give such notice in its discretion and shall give such notice at the written request of the holders of all of the Bonds then outstanding hereunder; or
(d) the Issuer shall fail to apply collected TIF Revenues as required by Article IV of
this Indenture.
Section 7.2. Acceleration. Upon the happening of any event of default specified in clause (a), (b) or (c) of Section 7.1 and the continuance of the same for the period, if any, specified in that Section, and with the prior consent of Requisite Bondholders, the Trustee, by notice in writing delivered to the Issuer and the Company may declare the entire unpaid principal
amount of the Bonds and Parity TIF Obligations then outstanding, and the interest accrued
thereon, to be immediately due and payable. The Issuer’s obligation to pay TIF Revenues shall not be subject to acceleration.
Section 7.3. Remedies; Rights of Bondholders.
(i) If an event of default occurs, with the consent of Requisite Bondholders,
the Trustee may pursue any available remedy by suit at law or in equity to
enforce the payment of the principal of, premium, if any, and interest on the Bonds then outstanding, to enforce any obligations of the Issuer hereunder, and of the Company under the Financing Agreement and the Notes.
(ii) Upon the occurrence of an event of default, if directed to do so by the
Requisite Bondholders and if indemnified as provided in Section 8.1 hereof, the Trustee shall be obliged to exercise such one or more of the rights and powers conferred by this Article as the Trustee, being advised by counsel, shall deem most expedient in the interests of the Bondholders.
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(iii) No remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or to the Bondholders) is intended to be exclusive of any
other remedy, but each and every such remedy shall be cumulative and
shall be in addition to any other remedy given to the Trustee or to the Bondholders hereunder or now or hereafter existing at law or in equity or by statute.
(iv) No delay or omission to exercise any right or power accruing upon any
event of default shall impair any such right or power or shall be construed
to be a waiver of any event of default or acquiescence therein, and every such right and power may be exercised from time to time as may be deemed expedient.
(v) No waiver of any event of default hereunder, whether by the Trustee or by
the Bondholders, shall extend to or shall affect any subsequent event of
default or shall impair any rights or remedies consequent thereon.
Section 7.4. Right of Bondholders to Direct Proceedings. Anything in this Indenture to the contrary notwithstanding, the Requisite Bondholders shall have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the time, the
method and place of conducting all proceedings to be taken in connection with the enforcement
of the terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings hereunder; provided, that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture, and provided that the Trustee is obligated to pursue its remedies under the provisions of Section 7.2 hereof before any other remedies are
sought.
Section 7.5. Application of Moneys. Notwithstanding anything herein to the contrary, all moneys received by the Trustee pursuant to any right given or action taken under the provisions of this Article and any other moneys held as part of the Trust Estate shall, after payment of the cost and expenses of the proceedings resulting in the collection of such moneys
and of the outstanding fees, expenses, liabilities and advances incurred or made by the Trustee or
the Issuer, and the creation of a reasonable reserve for anticipated fees, costs and expenses, be deposited in the Bond Fund and all moneys in the Bond Fund shall be applied as follows:
(a) Unless the principal of all the Bonds shall have become or shall have been declared due and payable, all such moneys shall be applied:
First: To the payment to the persons entitled thereto of all installments of interest
then due on the Bonds, in the order of the maturity of the installments of such interest, and if the amount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the persons entitled thereto, without any discriminations or privilege; and
Second: To the payment to the persons entitled thereto of the unpaid principal of
and premium, if any, of the Bonds which shall have become due (other than Bonds called for redemption for the payment of which moneys are held pursuant to the provisions of
33
this Indenture), in the order of their due dates, with interest on such Bonds from the respective dates upon which they become due, and if the amount available shall not be
sufficient to pay in full Bonds due on any particular date, together with such interest, then
to the payment ratably, according to the amount of principal due on such date, to the persons entitled thereto without any discrimination or privilege.
Third: To the payment of the balance, if any, to the Company or its successors or assigns, upon the written request of the Company or to whomsoever may be lawfully
entitled to receive the same upon its written request, or as any court of competent
jurisdiction may direct, except for any remaining TIF Revenues which shall be paid to the Redevelopment Commission.
(b)If the principal of all the Bonds shall have become due or shall have beendeclared due and payable, all such moneys shall be applied to the payment of the principal and
interest then due and unpaid upon the Bonds, without preference or priority of principal over
interest or of interest over any other installment of interest, according to the amounts due respectively for principal and interest, to the persons entitled thereto without any discrimination or privilege.
(c)If the principal of all the Bonds shall have been declared due and payable, and if
such declaration shall thereafter have been rescinded and annulled under the provisions of this
Article then, subject to the provisions of subsection (b) of this Section in the event that the principal of all the Bonds shall later become due or be declared due and payable, the moneys shall be applied in accordance with the provisions of subsection (a) of this Section.
Whenever moneys are to be applied pursuant to the provisions of this Section, such
moneys shall be applied at such times, and from time to time, as the Trustee shall determine,
having due regard to the amount of such moneys available for application and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee shall apply such funds, it shall fix the date (which shall be an interest payment date unless it shall deem another date more suitable) upon which such application is to be made and upon such date
interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee
shall give such notice as it may deem appropriate of the deposit with it of any such moneys and of the fixing of any such date and shall not be required to make payment to the holder of any Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid.
Section 7.6. Remedies Vested In Trustee. All rights of action (including the right to
file proof of claims) under this Indenture or under any of the Bonds may be enforced by the Trustee without the possession of any of the Bonds or the production thereof in any trial or other proceedings relating thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any
holders of the Bonds, and any recovery of judgment shall, subject to the provisions of Section
7.5 hereof, be for the equal benefit of the holders of the outstanding Bonds. However, the Trustee may only act with the consent and direction of the Requisite Bondholders.
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Section 7.7. Rights and Remedies of Bondholders. No holder of any Bond shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of this
Indenture or for the execution of any trust thereof or for the appointment of a receiver or any
other remedy hereunder, unless a default has occurred of which the Trustee has been notified as provided in subsection (g) of Section 8.1, or of which by said subsection it is deemed to have notice, nor unless also such default shall have become an Event of Default and the holders of all Bonds then outstanding shall have made written request to the Trustee and shall have offered
reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name, nor unless also they have offered to the Trustee indemnity as provided in Section 8.1 hereof, nor unless the Trustee shall thereafter fail or refuse to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding in its, his, or their own name or names. Such notification, request and offer of indemnity are
hereby declared in every case at the option of the Trustee to be conditions precedent to the
execution of the powers and trusts of this Indenture, and to any action or cause of action for the enforcement of this Indenture, or for the appointment of a receiver or for any other remedy hereunder; it being understood and intended that no one or more holders of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by
its, his or their action or to enforce any right hereunder except in the manner herein provided,
and that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of the holders of all Bonds then outstanding. Nothing in this Indenture contained shall, however, affect or impair the right of any Bondholder to enforce the covenants of the Issuer to pay the principal of and interest on each of the Bonds
issued hereunder to the respective holders thereof at the time, place, from the source and in the
manner in said Bonds expressed.
Section 7.8. Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a receiver, or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case the Issuer, the Company and the Trustee shall
be restored to their former positions and rights hereunder, respectively, with respect to the Trust Estate, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken.
Section 7.9. Waivers of Events of Default. At the direction of the Requisite
Bondholders, the Trustee may in its discretion waive any event of default hereunder and its
consequences and rescind any declaration of maturity of principal of and interest on the Bonds, and shall do so upon the written request of the holders of (1) all the Bonds then outstanding in respect of which default in the payment of principal and/or premium, if any, and/or interest exists, or (2) all Bonds then outstanding in the case of any other default; provided, however, that
there shall not be waived (a) any event of default in the payment of the principal of any
outstanding Bonds at the date of maturity specified therein, or (b) any default in the payment when due of the interest on any such Bonds unless prior to such waiver or rescission, arrears of interest, with interest (to the extent permitted by law) at the rate borne by the Bonds in respect of which such default shall have occurred on overdue installments of interest or all arrears of
payments of principal and premium, if any, when due, as the case may be, and all expenses of the
Trustee in connection with such default shall have been paid or provided for, and in case of any such waiver or rescission, or in case any proceeding taken by the Trustee on account of any such
35
default shall have been discontinued or abandoned or determined adversely, then and in every such case the Issuer, the Trustee and the Bondholders shall be restored to their former positions
and rights hereunder, respectively, but no such waiver or rescission shall extend to any
subsequent or other default, or impair any right consequent thereon.
(End of Article VII)
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ARTICLE VIII.
THE TRUSTEE AND PAYING AGENT
Section 8.1. Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed upon it by this Indenture, and agrees to perform said trusts as a corporate trustee ordinarily would perform said trusts under a corporate indenture, but only upon the terms and conditions set forth herein, and no implied covenants or obligations shall be read into this Indenture against the
Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations should be read into this Indenture against the Trustee. If any Event of Default under this Indenture shall have occurred and be continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and shall use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in the conduct of such prudent person's own affairs in exercising any rights or remedies or performing any of its duties hereunder. The Trustee agrees to perform such trusts only upon and subject to the following expressed terms and conditions:
(a) The Trustee may execute any of the trusts or powers hereof and perform any of its
duties by or if appointed through attorneys, agents, receivers or employees but shall not be answerable for the conduct of the same if appointed with due care, and shall be entitled to the opinion and advice of counsel concerning all matters of trusts hereof and the duties hereunder, and may in all cases pay such reasonable compensation to all such attorneys, agents, receivers
and employees as may reasonably be employed in connection with the trusts hereof. The Trustee
may act upon the opinion or advice of any attorney (who may be the attorney or attorneys for the Issuer or the Company). The Trustee shall not be responsible for any loss or damage resulting from any action or non-action in good faith in reliance upon such opinion or advice.
(b) The Trustee shall not be responsible for any recital herein, or in the Bonds (except
in respect to the certificate of the Trustee endorsed on the Bonds), or for the recording or re-
recording, filing or re-filing of this Indenture or any financing statements (other than continuation statements, if applicable) in connection therewith, or for insuring the property herein conveyed or collecting any insurance moneys, or for the validity of the execution by the Issuer of this Indenture or of any supplements thereto or instruments of further assurance, or for
the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby,
or for the value, condition or title of the property herein conveyed or otherwise as to the maintenance of the security hereof or as to the validity or sufficiency of this Indenture or of the Bonds; and the Trustee shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of the Issuer or on the part of
the Company under the Financing Agreement; but the Trustee may require of the Issuer or the
Company full information and advice as to the performance of the covenants, conditions and agreements aforesaid as to the condition of the property herein conveyed. The Trustee shall have no obligation to perform any of the duties of the Issuer under the Financing Agreement, and the Trustee shall not be responsible or liable for any loss suffered in connection with any investment
of funds made by it in accordance with the provisions of this Indenture.
37
(c) The Trustee shall not be accountable for the use of any Bonds, or the proceeds thereof, authenticated by it or the Paying Agent or delivered hereunder or for any money paid to
or upon the order of the City under any provision of this Indenture or of the Financing
Agreement. The Trustee, in its individual or any other capacity, may become the owner of Bonds secured hereby with the same rights which it would have if not Trustee.
(d) The Trustee may rely and shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be
genuine and correct and to have been signed or sent by the proper person or persons. Any action
taken by the Trustee pursuant to this Indenture upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is the owner of any Bond, shall be conclusive and binding upon all future owners of the same Bond and upon Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or non-existence of any fact or as to the sufficiency or validity
of any instrument, paper or proceeding, or whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee shall be entitled to rely upon a certificate signed on behalf of the Issuer or the Company by its duly authorized officers as sufficient evidence of the
facts therein contained and prior to the occurrence of a default of which the Trustee has been
notified as provided in subsection (g) of this Section, or of which said subsection it is deemed to have notice, shall also be at liberty to accept a similar certificate to the effect that any particular dealing, transaction or action is necessary or expedient, but may at its discretion secure such further evidence deemed necessary or advisable, but shall in no case be bound to secure the
same. The Trustee may accept a certificate of the Issuer or the Company under its seal to the
effect that an ordinance or resolution in the form therein set forth has been adopted by the Issuer or the Company as conclusive evidence that such ordinance or resolution has been duly adopted, and is in full force and effect.
(f) The permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty, and the Trustee shall not be answerable for other than its gross
negligence or willful misconduct; provided, however, that the provisions of this subsection shall not affect the duties of the Trustee hereunder, including the provisions of Article VII hereof.
(g) The Trustee shall not be required to take notice or be deemed to have notice of any event of default hereunder (other than payment of the principal and interest on the Bonds)
unless the Trustee shall be specifically notified in writing of such default by the Issuer or by the
holders of at least twenty-five percent (25%) in aggregate principal amount of all Bonds then outstanding and all notices or other instruments required by this Indenture to be delivered to the Trustee must, in order to be effective, be delivered at the corporate trust office of the Trustee, and in the absence of such notice so delivered, the Trustee may conclusively assume there is no
default except as aforesaid.
(h) The Trustee shall not be personally liable for any debts contracted or for damages to persons or to personal property injured or damaged, or for salaries or nonfulfillment of contracts during any period in which it may be in possession of or managing the Trust Estate.
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(i) At any and all reasonable times and upon reasonable prior written notice, the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right, but shall not be required, to fully inspect the Trust Estate,
and to take such memoranda from and in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall
have the right, but shall not be required, to demand, in respect of the authentication of any
Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Indenture, any showings, certificates, opinions, appraisals or other information, or corporate action or evidence thereof, in addition to that by the terms hereof required as a condition of such action by the Trustee, deemed desirable for the authentication of
any Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee.
(l) Before taking any action under this Indenture, the Trustee may require that a satisfactory indemnity bond be furnished for the reimbursement of all costs and expenses to which it may be put (including without limitation attorney’s fees and expenses) and to protect it against all liability, except liability which is adjudicated to have resulted from its gross
negligence or willful misconduct in connection with any action so taken. Such indemnity shall
survive the termination of this Indenture.
(m) All moneys received by the Trustee or the Paying Agent shall, until used or applied or invested as herein provided, be held in trust for the purposes for which they were received but need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor the Paying Agent shall be under any liability for interest on any moneys
received hereunder.
(n) The Trustee shall have no responsibility with respect to any information, statement or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Bonds and shall have no responsibility for
compliance with any state or federal securities laws in connection with the Bonds
(o) The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail or other similar unsecured electronic methods, provided, however, that the Issuer and the Company shall provide to the Trustee an incumbency certificate listing designated persons authorized to provide such instructions, which incumbency certificate
shall be amended whenever a person is to be added or deleted from the listing. If the Issuer and
the Company elect to give the Trustee e-mail instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon
and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. The Issuer and the Company agree to assume all risks arising out of the use of such electronic methods to submit instructions and directions to
39
the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Section 8.2. Fees, Charges and Expenses of Trustee and Paying Agent. The Trustee
and Paying Agent shall be entitled to payment and/or reimbursement for reasonable fees for its services rendered hereunder (which compensation shall not be limited by an provision of law in regard to the compensation of a trustee of an express trust) and all advances, counsel fees and other expenses reasonably and necessarily made or incurred by the Trustee or Paying Agent in
connection with such services. In the event that it should become necessary for the Trustee to
perform extraordinary services, the Trustee shall be entitled to reasonable additional compensation therefor and to reimbursement for reasonable and necessary extraordinary expenses in connection therewith; provided that if such extraordinary services or extraordinary expenses are occasioned by the gross negligence or willful misconduct of the Trustee it shall not
be entitled to compensation or reimbursement therefore. The Trustee shall have a first lien with
right of payment prior to payment on account of interest or principal of, or premium, if any, on any Bond for the foregoing advances, fees, costs and expenses incurred. The Trustee shall be entitled to payment and reimbursement for the reasonable fees and charges of the Trustee as Paying Agent for the Bonds.
Section 8.3. Notice to Bondholders if Default Occurs. If an Event of Default occurs of
which the Trustee is by subsection (g) of Section 8.1 hereof required to take notice or if notice of an Event of Default be given as in said subsection (g) provided, then the Trustee shall give written notice thereof by registered or certified mail to the Company and the last known holders of all Bonds then outstanding shown by the list of Bondholders required by the terms of this
Indenture to be kept at the office of the Trustee, unless such Event of Default has been cured or
waived; provided, however, that the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notices is in the interests of the Bondholders.
Section 8.4. Intervention by Trustee. In any judicial proceeding to which the Issuer is
a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the
interests of holders of the Bonds, the Trustee may intervene on behalf of Bondholders and, subject to the provisions of Section 8.1(l), shall do so if requested in writing by the owners of at least twenty-five percent (25%) in aggregate principal amount of all Bonds then outstanding. The rights and obligations of the Trustee under this Section are subject to the approval of a court
of competent jurisdiction.
Section 8.5. Successor Trustee. Any corporation or association into which the Trustee may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, ipso facto, shall be and become successor Trustee hereunder and
vested with all of the title to the whole property or trust estate and all the trusts, powers, discretions, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
40
Section 8.6. Resignation by the Trustee. The Trustee and any successor Trustee may at any time resign from the trusts hereby created by giving thirty days’ written notice to the Issuer
and the Company and by first class mail to each registered owner of Bonds then outstanding and
to each holder of Bonds as shown by the list of Bondholders required by this Indenture to be kept at the office of the Trustee, and such resignation shall take effect at the end of such thirty (30) days, or upon the earlier appointment of a successor Trustee by the Bondholders or by the Issuer. Such notice to the Issuer and the Company may be served personally or sent by registered or
certified mail.
Section 8.7. Removal of the Trustee. The Trustee may be removed at any time by an instrument or concurrent instruments in writing delivered to the Trustee and to the Issuer and signed by the Requisite Bondholders.
Section 8.8. Appointment of Successor Trustee by the Bondholders; Temporary
Trustee. In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in
course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case it shall be taken under control of any public officer or officers, or of a receiver appointed by a court, a successor may be appointed by the owners of a majority in aggregate principal amount of Bonds then outstanding, by an instrument or concurrent instruments in writing signed by such
owners, or by their attorneys-in-fact, duly authorized; provided, nevertheless, that in case of such
vacancy, the Issuer, by an instrument executed by one of its duly authorized officers, may appoint a temporary Trustee to fill such vacancy until a successor Trustee shall be appointed by the Bondholders in the manner above provided; and any such temporary Trustee so appointed by the Issuer shall immediately and without further act be superseded by the Trustee so appointed
by such Bondholders. Every such Trustee appointed pursuant to the provisions of this Section
shall be a trust company or bank, having a reported capital and surplus of not less than One Hundred Million Dollars ($100,000,000) if there be such an institution willing, qualified and able to accept the trust upon reasonable or customary terms.
Section 8.9. Concerning Any Successor Trustees. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to the Issuer and the
Company an instrument in writing accepting such appointment hereunder, and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of its predecessor and thereupon the duties and obligations of the predecessor shall cease and terminate; but such predecessor
shall, nevertheless, on the written request of the Issuer, or of its successor, and upon approval by
the Issuer of the records and accounts of the predecessor Trustee, a release of the predecessor Trustee by the Issuer, and the payment of the fees and expenses owed to the predecessor Trustee, execute and deliver an instrument transferring to such successor Trustee all the estates, properties, rights, powers and trusts of such predecessor hereunder; and every predecessor
Trustee shall deliver all securities and moneys held by it as Trustee hereunder to its successor.
Should any instrument in writing from the Issuer be required by any successor Trustee for more fully and certainly vesting in such successor the estate, rights, powers and duties hereby vested or intended to be vested in the predecessor any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Issuer. The resignation of any Trustee
and the instrument or instruments removing any Trustee and appointing a successor hereunder,
41
together with all other instruments provided for in this Article shall be filed by the successor Trustee in each office, if any, where the Indenture shall have been filed.
Section 8.10. Trustee Protected in Relying Upon Resolutions, etc. Subject to the
conditions contained herein, the resolutions, ordinances, opinions, certificates and other instruments provided for in this Indenture may be accepted by the Trustee as conclusive evidence of the facts and conclusions stated therein and shall be full warrant, protection and authority to the Trustee for the release of property and the withdrawal of cash hereunder.
Section 8.11. Appointment of Paying Agent and Registrar; Resignation or Removal of
Paying Agent. The Trustee is hereby appointed “Paying Agent” under this Indenture. Any Paying Agent may at any time resign and be discharged of the duties and obligations created by this instrument and any supplemental indenture by giving at least 30 days’ written notice to the Issuer, the Company and the Trustee. Any Paying Agent may be removed at any time by an
instrument, filed with such Paying Agent and the Trustee and signed by the Issuer and the
Company. Any successor Paying Agent shall be appointed by the Issuer at the direction of the Company and shall be a bank or trust company duly organized under the laws of any state of the United States or a national banking association, in each case having a capital stock and surplus aggregating at least $100,000,000, willing and able to accept the office on reasonable and
customary terms and authorized by law to perform all the duties imposed upon it by this
Indenture.
In the event of the resignation or removal of any Paying Agent, such Paying Agent shall pay over, assign and deliver any moneys or securities held by it as Paying Agent to its successors, or if there if no successor, to the Trustee.
(End of Article VIII)
42
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Not Requiring Consent of Bondholders. With the prior consent of the Company, the Issuer and the Trustee may without the consent of, or notice to, any of the Bondholders, enter into an indenture or indentures supplemental to this Indenture, as shall not be inconsistent with the terms and provisions hereof, for any one or more
of the following purposes:
(a)To cure any ambiguity or formal defect or omission in this Indenture;
(b)To grant to or confer upon the Trustee for the benefit of the Bondholders anyadditional rights, remedies, powers or authority that may lawfully be granted to or conferred upon the Bondholders or the Trustee or any of them;
(c)To subject to this Indenture additional security, revenues, properties or collateral;
or
(d)To make any other change in this Indenture which, in the judgment of the Trustee,who may rely on the advice and opinion of counsel, is not to the material prejudice of the Trustee, the Company, the Issuer or the holders of the Bonds; or
(e)To modify, amend or supplement the Indenture in such manner as required to
permit the qualification thereof under the Trust Indenture Act of 1939, as amended, or any similar Federal statute hereafter in effect, and, if they so determine, to add to the Indenture such other terms, conditions and provisions as may be required by said Trust Indenture Act of 1939, as amended, or similar federal statute.
Section 9.2. Supplemental Indentures Requiring Consent of Bondholders. Exclusive of
supplemental indentures covered by Section 9.1 hereof, and subject to the terms and provisions contained in this Section, and not otherwise, the Requisite Bondholders shall have the right, from time to time, anything contained in this Indenture to the contrary notwithstanding, to consent to and approve the execution by the Issuer and the Trustee of such other indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by the Issuer for the purpose of
modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any supplemental indenture; provided however, that no such supplemental indenture may be entered into without the prior consent of the Company; and provided further that nothing in this section contained shall permit or be construed as
permitting (except as otherwise permitted in this Indenture) (a) an extension of the stated
maturity or reduction in the principal amount of, or reduction in the rate or extension of the time of paying of interest on, or reduction of any premium payable on the redemption of, any Bonds, without the consent of the holder of such Bond, or (b) a reduction in the amount or extension of the time of any payment required by any sinking fund applicable to any Bonds without the
consent of the holders of all the Bonds which would be affected by the action to be taken, or (c)
the creation of any lien prior to or, except for the lien of Parity Obligations (including Additional Bonds), on a parity with the lien of this Indenture without the consent of the holders of all the
43
Bonds at the time outstanding, or (d) a reduction in the aforesaid aggregate principal amount of Bonds the holders of which are required to consent to any such supplemental indenture, without
the consent of the holders of all the Bonds at the time outstanding which would be affected by
the action to be taken, or (e) a modification of the rights, duties or immunities of the Trustee, without the written consent of the Trustee, or (f) a privilege or priority of any Bond over any other Bonds, or (g) a derivation of the Owners of any Series 20__ Bonds then Outstanding of the lien thereby created.
Anything herein to the contrary notwithstanding, a supplemental indenture under this
Article which affects any rights of the Company shall not become effective unless and until the Company shall have consented in writing to the execution and delivery of such supplemental indenture. In this regard, the Trustee shall cause notice of the proposed execution and delivery of any such supplemental indenture together with a copy of the proposed supplemental indenture
to be mailed by certified or registered mail to the Company at least fifteen (15) days prior to the
proposed date of execution and delivery of any such supplemental indenture.
Section 9.3. Opinion. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, the opinion of any counsel approved by it, as conclusive evidence that any such proposed supplemental indenture complies with the provisions of this Indenture, and
that it is proper for the Trustee, under the provisions of this Article, to join in the execution of
such supplemental indenture.
(End of Article IX)
44
ARTICLE X.
AMENDMENTS TO THE FINANCING AGREEMENT
Section 10.1. Amendments, etc. to Financing Agreement Not Requiring Consent of Bondholders. The Issuer and the Trustee with the consent of the Company shall, without the consent of or notice to the Bondholders, consent to any amendment, change or modification of the Financing Agreement as may be required (i) by the provisions of the Financing Agreement
and this Indenture, or (ii) for the purpose of curing any ambiguity or formal defect or omission,
or (iii) in connection with any other change therein which, in the judgment of the Trustee (who may rely upon the advice and opinion of counsel), is not to the prejudice of the Trustee, the Issuer or the holders of the Bonds.
Section 10.2. Amendments, etc. to Financing Agreement Requiring Consent of
Bondholders. Except for the amendments, changes or modifications as provided in Section 10.1
hereof, neither the Issuer nor the Trustee shall consent to any other amendment, change or modification of the Financing Agreement without the written approval or consent of the Requisite Bondholders given and procured as in Section 9.2 provided.
Section 10.3. Opinion. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, the opinion of any counsel approved by it, as conclusive evidence that
any such proposed amendment complies with the provisions of this Indenture and Financing Agreement, and that it is proper for the Trustee, under the provisions of this Article, to join in the execution of such amendment.
(End of Article X)
45
ARTICLE XI.
MISCELLANEOUS
Section 11.1. Satisfaction and Discharge. All rights and obligations of the Issuer and the Company under the Financing Agreement and this Indenture shall terminate, and such instruments shall cease to be of further effect, and the Trustee shall execute and deliver all appropriate instruments evidencing and acknowledging the satisfaction of this Indenture, and
shall assign and deliver to the Company any moneys and investments in all Funds established
hereunder when
(a) all fees and expenses of the Trustee and the Paying Agent shall have been paid;
(b) the Issuer and the Company shall have performed all of their covenants and promises in the Financing Agreement and in this Indenture; and
(c) all Bonds theretofore authenticated and delivered (i) have become due and
payable, or (ii) are to be retired or called for redemption under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee at the expense of the Company, or (iii) have been delivered to the Trustee canceled or for cancellation; and, in the case of (i) and (ii) above, there shall have been deposited with the Trustee either cash in an amount which shall be
sufficient, or investments (but only to the extent that the full faith and credit of the United States
of America are pledged to the timely payment thereof) the principal of and the interest on which when due will provide moneys which, together with the moneys, if any, deposited with the Trustee, shall be sufficient, to pay when due the principal or redemption price, if applicable, and interest due and to become due on the Bonds and prior to the redemption date or maturity date
thereof, as the case may be.
Section 11.2. Defeasance of Bonds. Any Bond shall be deemed to be paid and no longer Outstanding within the meaning of this Article and for all purposes of this Indenture when (a) payment of the principal and interest of and premium, if any, on such Bond either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have
been provided for by irrevocably depositing with the Trustee in trust and irrevocably set aside
exclusively for such payment, (1) moneys sufficient to make such payment or (2) Governmental Obligations maturing as to principal and interest in such amounts and at such times as will insure the availability of sufficient moneys to make such payment, and (b) all necessary and proper fees, compensation, indemnities and expenses of the Trustee and the Issuer pertaining to the
Bonds with respect to which such deposit is made shall have been paid or the payment thereof
provided for. At such time as a Bond shall be deemed to be paid hereunder, as aforesaid, such Bond shall no longer be secured by or entitled to the benefits of this Indenture, except for the purposes of any such payment from such moneys or Governmental Obligations.
Notwithstanding the foregoing, no deposit under clause (a)(ii) of the immediately
preceding paragraph shall be deemed payment of such Bonds as aforesaid until (a) proper notice
of redemption of such Bonds shall have been previously given in accordance with Section 5.2 of this Indenture, or if the Bonds are not by their terms subject to redemption within the next succeeding sixty (60) days, until the Company shall have given the Trustee in form satisfactory
46
to the Trustee irrevocable instructions to notify, as soon as practicable, the owners of the Bonds, that the deposit required by the preceding paragraph has been made with the Trustee and that the
Bonds are deemed to have been paid in accordance with this Section 11.2 and stating the
maturity or redemption date upon which moneys are to be available for the payment of the principal of and the applicable redemption premium, if any, on said Bonds, plus interest thereon to the due date thereof; or (b) the maturity of such Bonds.
All moneys so deposited with the Trustee as provided in this Section 11.2 may also be
invested and reinvested, at the written direction of the Company, in Governmental Obligations,
maturing in the amounts and at the times as hereinbefore set forth, and all income from all Governmental Obligations in the hands of the Trustee pursuant to this Section 11.2 which is not required for the payment of principal of the Bonds and interest and premium, if any, thereon with respect to which such moneys shall have been so deposited shall be deposited in the Bond Fund
as and when realized and collected for use and application as are other moneys deposited in the
Bond Fund.
Notwithstanding any provision of any other Article of this Indenture which may be contrary to the provisions of this Section 11.2, all moneys or Governmental Obligations set aside and held in trust pursuant to the provisions of this Section 11.2 for the payment of Bonds
(including premium thereon, if any) shall be applied to and used solely for the payment of the
particular Bonds (including the premium thereon, if any) with respect to which such moneys or Governmental Obligations have been so set aside in trust.
Anything in Article 9 hereof to the contrary notwithstanding, if moneys or Governmental Obligations have been deposited or set aside with the Trustee pursuant to this Section 11.2 for
the payment of Bonds and such Bonds shall not have in fact been actually paid in full, no
amendment to the provisions of this Section 11.2 shall be made without the consent of the owner of each Bond affected thereby.
The right to register the transfer of or to exchange Bonds shall survive the discharge of this Indenture.
Section 11.3. Cancellation of Series 20__ Bonds. If the owner of any Series 20__
Bonds presents that Bond to the Trustee with an instrument satisfactory to the Trustee waiving all claims for payment of that Bond, the Trustee shall cancel that Series 20__ Bond and the Bondholder shall have no further claim against the Trust Estate, the Issuer or the Company with respect to that Series 20__ Bond.
Section 11.4. Application of Trust Money. All money or investments deposited with or
held by the Trustee pursuant to Section 11.1 shall be held in trust for the holders of the Bonds, and applied by it, in accordance with the provisions of the Bonds and this Indenture, to the payment, either directly or through the Paying Agent, to the persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money or obligations need not be segregated from other funds except
to the extent required by law.
47
Section 11.5. Consents, etc., of Bondholders. Any consent, request, direction, approval, objection or other instrument required by this Indenture to be executed by the Bondholders may
be in any number of concurrent writings of similar tenor and may be executed by such
Bondholders in person or by agent appointed in writing. Provided, however, that wherever this Indenture or the Financing Agreement requires that any such consent or other action be taken by the holders of a specified percentage, fraction or majority of the Bonds outstanding, any such Bonds held by or for the account of the following persons shall not be deemed to be outstanding
hereunder for the purpose of determining whether such requirement has been met: the Issuer,
any of its members, the Company, or the directors, trustees, officers or members of the Company. For all other purposes, Bonds held by or for the account of such person shall be deemed to be outstanding hereunder. Proof of the execution of any such consent, request, direction, approval, objection or other instrument or of the writing appointing any such agent and
of the ownership of Bonds, if made in the following manner, shall be sufficient for any of the
purposes of this Indenture, and shall be conclusive in favor of the Trustee with regard to any action taken under such request or other instrument, namely:
(a) The fact and date of the execution by any person of any such writing may be proved by the certificate of any officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person signing such writing acknowledged
before him the execution thereof, or by affidavit of any witness to such execution.
(b) The fact of the holding by any person of Bonds transferable by delivery and the amounts and numbers of such Bonds, and the date of the holding of the same, may be proved by a certificate executed by any trust Company, bank or bankers, wherever situated, stating that at
the date thereof the party named therein did exhibit to an officer of such trust Company or bank
or to such banker, as the property of such party, the Bonds therein mentioned if such certificate shall be deemed by the Trustee to be satisfactory. The Trustee may, in its discretion, require evidence that such Bonds have been deposited with a bank, bankers or trust Company, before taking any action based on such ownership. In lieu of the foregoing, the Trustee may accept
other proofs of the foregoing as it shall deem appropriate.
For all purposes of this Indenture and of the proceedings for the enforcement hereof, such person shall be deemed to continue to be the holder of such Bond until the Trustee shall have received notice in writing to the contrary.
Section 11.6. Limitation of Rights. With the exception of rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from this Indenture, or the Bonds
is intended or shall be construed to give to any person other than the parties hereto, and the Company, and the holders of the Bonds, any legal or equitable right, remedy or claim under or in respect to this Indenture or any covenants, conditions and provisions herein contained, this Indenture and all of the covenants, conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and the Company and the holders of
the Bonds as herein provided.
Section 11.7. Severability. If any provision of this Indenture shall be held or deemed to be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions or in all jurisdictions, or in all cases because it conflicts with any
48
other provision or provisions hereof or any constitution or statute or rule of public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in
question inoperative or unenforceable in any other case or circumstance, or of rendering any
other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses or Sections in this Indenture contained, shall not affect the remaining portions of this Indenture, or any part thereof.
Section 11.8. Notices. All notices, demands, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when mailed by registered or certified mail, postage prepaid, with proper address as indicated below; however, notices to the Trustee shall be deemed given upon receipt by the Trustee. The Issuer, the Company, and the Trustee may, by written notice given by each to the others, designate any address or addresses to
which notices, demands, certificates or other communications to them shall be sent when
required as contemplated by this Indenture. Until otherwise provided by the respective parties, all notices, demands, certificates and communications to each of them shall be addressed as provided in Section 7.3 of the Financing Agreement.
Section 11.9. Counterparts. This Indenture may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument. The parties hereto agree that the transaction described herein may be conducted and related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing
of any claim, action or suit in the appropriate court of law.
Section 11.10. Applicable Law. This Indenture shall be governed exclusively by the applicable laws of the State of Indiana.
Section 11.11. Immunity of Officers and Directors. No recourse shall be had for the payment of the principal of or premium or interest on any of the Bonds or for any claim based
thereon or upon any obligation, covenant or agreement in this Indenture contained against any
past, present or future members, officer, directors, agents, attorneys or employees of the Issuer, or any incorporator, member, officer, director, agents, attorneys, employees or trustee of any successor corporation, as such, either directly or through the Issuer or any successor corporation, under any rule of law or equity, statute or constitution or by the enforcement of any assessment
or penalty or otherwise, and all such liability of any such incorporator, members, officers,
directors, agents, attorneys, employees or trustees as such is hereby expressly waived and released as a condition of and consideration for the execution of this Indenture and issuance of such Bonds.
Section 11.12. Holidays. If any date for the payment of principal or interest on the Bonds
is not a business day then such payment shall be due on the first business day thereafter.
(End of Article XI)
S-1
IN WITNESS WHEREOF, the City of Carmel, Indiana, has caused these presents to be signed in its name and behalf by its Mayor and its corporate seal to be hereunto affixed and
attested by its Clerk, and to evidence its acceptance of the trusts hereby created, [Trustee], in
Indianapolis, Indiana has caused these presents to be signed in its name and behalf by, its official seal to be hereunto affixed, and the same to be attested by, its duly authorized officers, all as of the day and year first above written.
CITY OF CARMEL, INDIANA
By:
Mayor (SEAL)
Attest:
Clerk
S-2
[TRUSTEE], as Trustee
By: (Written Signature)
(Printed Signature)
A-1
EXHIBIT A
DESCRIPTION OF THE PROJECTS
All or any portion of the design and construction of a mixed use project which includes
townhomes, condos, apartments, retail, structured parking, and related road improvements, storm water improvements, utility relocation costs, site development costs, and other infrastructure costs, all to be located along Kinzer Avenue, south of City Center Drive, and at 452, 502, and 508 E. Carmel Drive, which are physically located in, or directly serving or benefiting, the
Gramercy Allocation Area.
B-1
DMS 40742662.1
EXHIBIT B
COSTS OF ISSUANCE
DMS 41746678.6
SPONSOR: Councilor Green 1
2 ORDINANCE D-2709-24 3 4
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, 5 INDIANA, AUTHORIZING THE REFUNDING OF PRIOR WATERWORKS 6
REVENUE BONDS OF THE CITY OF CARMEL, INDIANA, AUTHORIZING THE 7 ISSUANCE OF THE CITY OF CARMEL, INDIANA TAXABLE WATERWORKS 8 REFUNDING REVENUE BONDS, SERIES 2024A, AND THE CITY OF CARMEL, 9 INDIANA TAX-EXEMPT WATERWORKS REVENUE AND REFUNDING REVENUE 10 BONDS, SERIES 2024B, TO PROVIDE FUNDS FOR THE PAYMENT OF COSTS 11
THEREOF, AND ADDRESSING OTHER MATTERS CONNECTED THEREWITH 12
Synopsis: 13
Bond Ordinance permitting the issuance of Waterworks Refunding Revenue Bonds of the City to 14 refund outstanding Waterworks Bonds of the City 15 and adding New Money for Additional Projects. 16
WHEREAS, the City of Carmel, Indiana (the “City”) has heretofore established, 17
constructed and financed a municipal waterworks and now owns and operates said waterworks 18 (the “Waterworks”) pursuant to Indiana Code 8-.1.5, as amended, and other applicable laws (the 19 “Act”); and 20
WHEREAS, the Common Council of the City (the “Council”) hereby now finds: (i) that 21
the acquisition, construction and installation of certain improvements for the Waterworks, as set 22
forth in Exhibit A (the “Project”), are necessary; (ii) that plans, specifications and cost estimates 23 for the Project (the “Engineering Report”) have been prepared by the engineer (the “Engineer”), 24 employed by the City for the acquisition, construction and installation of the Project, and (iii) that 25 the Engineering Report has been or will be submitted to all government authorities having 26
jurisdiction, particularly the Indiana Department of Environmental Management (“IDEM”), if and 27
to the extent IDEM approval is required under Indiana law, and has been or will be approved by 28 the aforesaid government authorities; and 29
WHEREAS, the City will advertise for and receive bids for the construction of the Project, 30 and such bids will be subject to the Council’s determination to acquire, construct and install the 31
Project and the City obtaining funds for the Project; and 32
WHEREAS, on the basis of the Engineer’s estimates, the cost of the Project, including 33 incidental expenses, is in an amount not to exceed $20,000,000; and 34
WHEREAS, the Council hereby finds that certain hereinafter described outstanding bonds 35 of the Waterworks of the City should be refunded to enable the City to restructure all remaining 36
outstanding bonds of the Waterworks so that they will be on parity with each other; that the 37
refunding of those outstanding bonds, together with redemption premium and accrued interest 38 thereon and including all costs related to the refunding cannot be provided for out of funds of the 39 Waterworks now on hand and the refunding should be accomplished by the issuance of revenue 40 bonds of the Waterworks; and 41
2 DMS 41746678.6
WHEREAS, the Council finds that there are now outstanding bonds of the City’s 42
Waterworks payable out of the revenues therefrom, designated “City of Carmel, Indiana Amended 43
Waterworks Revenue Bonds of 2008 (Current Interest Bonds),” dated September 22, 2008, 44 originally issued in the amount of $63,770,000 (the “2008 Current Interest Bonds”), now 45 outstanding in the aggregate principal amount of $37,865,000, authorized and issued pursuant to 46 Ordinance No. D-1-1887-08 as Amended, adopted by the Council on July 7, 2008, and as further 47
amended by Ordinance No. D-2305-16, adopted by the Council on August 1, 2016 (collectively, 48
the “2008 Bond Ordinance”); and 49
WHEREAS, the 2008 Current Interest Bonds are not redeemable until May 1, 2026 for 50 Bonds maturing on or after May 1, 2027, but may be advanced refunded as taxable bonds; and 51
WHEREAS, the Council finds that there are now outstanding bonds of the City’s 52
Waterworks payable out of the revenues therefrom, designated “City of Carmel, Indiana Junior 53
Waterworks Revenue Bonds of 2008, Series A,” dated September 22, 2008, originally issued in 54 the amount of $20,667,342 (the “2008 Capital Appreciation Bonds”), now outstanding in the 55 aggregate principal amount of $20,644,480, authorized and issued pursuant to the 2008 Bond 56 Ordinance; and 57
WHEREAS, the 2008 Capital Appreciation Bonds are not redeemable prior to maturity, 58
but may be advanced refunded as taxable bonds; and 59
WHEREAS, the Common Council finds that there are now outstanding bonds of the City’s 60 Waterworks and payable out of the revenues therefrom designated “Junior Waterworks Revenue 61 Bonds of 2012,” dated February 9, 2012, originally issued in the amount of $21,625,000 (the “2012 62
Bonds”), now outstanding in the aggregate principal amount of $13,035,000, authorized by 63
Ordinance No. D-2070-11 adopted by the Council on December 19, 2011, as amended by 64 Ordinance No. D-2080-12, adopted by the Council on January 23, 2012; and 65
WHEREAS, the 2012 Bonds may be redeemed, at the option of the City, in whole or in 66 part, on May 1, 2022, or any date thereafter, at a redemption price of one hundred percent (100%) 67
of the principal amount to be redeemed, plus accrued interest to the date of redemption; and 68
WHEREAS, the Council finds that there are now outstanding bonds of the City’s 69 Waterworks payable out of the revenues therefrom designated “Junior Waterworks Refunding 70 Revenue Bonds of 2017,” dated August 30, 2017, originally issued in the amount of $13,000,000 71 (the “2017 Bonds”), authorized by Ordinance No. D-2364-17 adopted by the Council on May 15, 72
2017; 73
WHEREAS, the Council finds that there are now outstanding bond anticipation notes 74 designated the “Amended and Restated Waterworks Revenue Bond Anticipation Notes, Series 75 2019” (the “2019 BAN”), originally issued in the amount of $17,745,000, payable from the 76 issuance of bonds payable out of the revenues of the Waterworks authorized in the maximum 77
principal amount $18,000,000, authorized by Ordinance No. D-2486-19, adopted by the Council 78
on November 18, 2019, as amended by Ordinance No. D-2689-23, adopted by the Council on 79 November 20, 2023 (collectively, the “2019 Ordinance”); and 80
WHEREAS, the 2019 BAN will mature on May 1, 2024; and 81
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WHEREAS, the Council finds that there are now outstanding bonds of the City’s 82
Waterworks payable out of the revenues therefrom designated “Junior Waterworks Revenue 83
Bonds of 2021,” dated June 24, 2021, originally issued in the amount of $5,100,000 (the “2021 84 Bonds”), authorized by Ordinance No. D-2550-20, adopted by the Council on November 5, 2020 85 (the “2021 Ordinance”); and 86
WHEREAS, the 2017 Ordinance, the 2019 Ordinance and the 2021 Ordinance allow for 87
the issuance of additional bonds payable from the revenues of the Waterworks ranking on a parity 88
with the 2017 Bonds and the 2021 Bonds; and 89
WHEREAS, the Council finds that it may be beneficial to advance refund (i) the 90 outstanding 2008 Current Interest Bonds (the “2008 Refunded Current Interest Bonds”) and (ii) 91 the outstanding 2008 Capital Appreciation Bonds (the “2008 Refunded Capital Appreciation 92
Bonds”), and currently refund the (i) outstanding 2012 Bonds (the “2012 Refunded Bonds”) and 93
(ii) the outstanding 2019 BAN (the “2019 Refunded BAN”) (the 2008 Refunded Current Interest 94 Bonds, the 2008 Refunded Capital Appreciation Bonds, the 2012 Refunded Bonds and the 2019 95 Refunded BAN, collectively, the “Refunded Bonds”), pursuant the provisions of Indiana Code 5-96 1-5 to enable the City to restructure the Refunded Bonds in order to have all of the Refunded Bonds 97
on parity with each other, and the City hereby authorizes the same by issuance of one or more 98
series of taxable advance refunding bonds in an amount not to exceed One Hundred Sixteen 99 Million Eight Hundred Sixty Thousand Dollars ($116,860,000) and one or more series of tax-100 exempt revenue bonds and current refunding revenue bonds in an amount not to exceed Fifty 101 Million Five Hundred Thousand Twenty-Five Thousand Dollars ($50,525,000), all of which bonds 102
shall be on parity with the 2017 Bonds and the 2021 Bonds; and 103
WHEREAS, the conditions precedent to the issuance of additional revenue bonds set forth 104 in the 2017 Ordinance, the 2019 Ordinance and the 2021 Ordinance, as described above, will be 105 satisfied under this Ordinance for the issuance of such additional revenue bonds on parity with the 106 2017 Bonds and the 2021 Bonds; and 107
WHEREAS, upon the current and advance refunding of the Refunded Bonds, the 2017 108
Bonds and the 2021 Bonds shall no longer rank junior and subordinate to the 2024 Bonds (as 109 hereinafter defined); and 110
WHEREAS, upon the current and advance refunding of the Refunded Bonds, it is 111 appropriate to re-name the 2017 Bonds as the “City of Carmel, Indiana, Waterworks Refunding 112
Revenue Bonds of 2017” and to re-name the 2021 Bonds as the “City of Carmel, Indiana, 113
Waterworks Revenue Bonds of 2021;” and 114
WHEREAS, the Council now finds that all conditions precedent to the adoption of an 115 ordinance authorizing the issuance of revenue bonds have been complied with in accordance with 116 the applicable provisions of the Act. 117
NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of Carmel, 118
Indiana, as follows: 119
SECTION 1. Issuance of New Money Bonds and 2024 Bonds. The City, being the 120 owner of and engaged in operating the Waterworks system of the City, now finds it necessary to 121
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provide funds for the issuance of revenue bonds and refunding the Refunded Bonds in order to 122
restructure the Refunded Bonds as advised by the City’s municipal advisor, Baker Tilly Municipal 123
Advisors, LLC (the “Municipal Advisor”). The terms “works,” “utility” and “system” and other 124 like terms where used in this Ordinance shall be construed to mean and include all structures and 125 property of the City’s Waterworks utility. 126
127
SECTION 2. Authorization of Obligations. 128
(a) The City shall issue its “City of Carmel, Indiana Taxable Waterworks Refunding 129 Revenue Bonds, Series 2024A” (the “Taxable Bonds”), in one or more series, in an original 130 principal amount not to exceed One Hundred Sixteen Million Eight Hundred Sixty Thousand 131 Dollars ($116,860,000) as negotiable, fully registered bonds, for the purpose of procuring funds to 132
be applied to the costs of advance refunding the 2008 Refunded Current Interest Bonds and the 133
2008 Refunded Capital Appreciation Bonds, including without limitation all incidental expenses 134 incurred in connection therewith, the funding of a reserve account and the costs of selling and 135 issuing the Taxable Bonds. The City shall issue its “City of Carmel, Indiana Tax-Exempt 136 Waterworks Revenue and Refunding Revenue Bonds, Series 2024B” (the “Tax-Exempt Bonds”) 137
(the Taxable Bonds and the Tax-Exempt Bonds, collectively, the “2024 Bonds”), in one or more 138
series, in an original principal amount not to exceed Fifty Million Five Hundred Twenty-Five 139 Thousand Dollars ($50,525,000) as negotiable, fully registered bonds, for the purpose of procuring 140 funds for the Project and the costs of refunding the 2012 Refunded Bonds and the 2019 Refunded 141 BAN, including without limitation all incidental expenses incurred in connection therewith, the 142
funding of a reserve account and the costs of selling and issuing the Tax-Exempt Bonds. The 2024 143
Bonds shall rank on parity with the 2017 Bonds and the 2021 Bonds. Upon the issuance of the 144 2024 Bonds, no remaining outstanding bonds shall rank junior to any other remaining outstanding 145 bonds or to the 2024 Bonds, and any references to the 2017 Bonds and the 2021 Bonds thereafter 146 shall omit references to such junior status, such that the 2017 Bonds shall be named, “City of 147
Carmel, Indiana Waterworks Refunding Revenue Bonds of 2017,” and the 2021 Bonds shall be 148
named, “City of Carmel, Indiana Waterworks Revenue Bonds of 2021.” 149
(b) The Taxable Bonds shall be issued in denominations of Five Thousand Dollars ($5,000) 150 or any integral multiple thereof (or such higher denominations as may be determined by the Mayor 151 of the City (the “Executive”) at the time of the sale of the Taxable Bonds with the advice of the 152
City’s Municipal Advisor), numbered consecutively from 1 upward, and dated as of the first day 153
of the month in which they are sold or the date of delivery, as evidenced by the execution thereof. 154 The Taxable Bonds shall bear interest at a rate or rates not exceeding eight percent (8.00%) per 155 annum (the exact rate or rates to be determined by bidding or, if applicable, negotiations), and 156 interest shall be payable semiannually on May 1 and November 1 in each year, beginning on the 157
first May 1 or November 1 following the date of issuance of the Taxable Bonds, provided such 158
date of issuance is not after the fifteenth (15th) day of the month preceding such May 1 or 159 November 1. Interest on the Taxable Bonds shall be calculated according to a three hundred sixty 160 (360) day calendar year containing twelve (12) thirty (30) day months. The Taxable Bonds shall 161 mature annually on May 1 of each year thereafter over a period ending not later than May 1, 2053, 162
as finally estimated, determined and fixed by the Executive or the fiscal officer of the City (the 163
“Fiscal Officer”) with the advice of the City’s municipal advisor, as evidenced by delivery of the 164 executed initial issue of the Taxable Bonds to the Registrar for authentication. 165
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(c) The Tax-Exempt Bonds shall be issued in denominations of Five Thousand Dollars 166
($5,000) or any integral multiple thereof (or such higher denominations as may be determined by 167
the Executive at the time of the sale of the Tax-Exempt Bonds with the advice of the City’s 168 Municipal Advisor), numbered consecutively from 1 upward, and dated as of the first day of the 169 month in which they are sold or the date of delivery, as evidenced by the execution thereof. The 170 Tax-Exempt Bonds shall bear interest at a rate or rates not exceeding six percent (6.00%) per 171
annum (the exact rate or rates to be determined by bidding or, if applicable, negotiations), and 172
interest shall be payable semiannually on May 1 and November 1 in each year, beginning on the 173 first May 1 or November 1 following the date of issuance of the Tax-Exempt Bonds, provided 174 such date of issuance is not after the fifteenth (15th) day of the month preceding such May 1 or 175 November 1. Interest on the Tax-Exempt Bonds shall be calculated according to a three hundred 176
sixty (360) day calendar year containing twelve (12) thirty (30) day months. The Tax-Exempt 177
Bonds shall mature annually on May 1 of each year thereafter over a period ending not later than 178 May 1, 2049, as finally estimated, determined and fixed by the Executive or the Fiscal Officer with 179 the advice of the City’s municipal advisor, as evidenced by delivery of the executed initial issue 180 of the Tax-Exempt Bonds to the Registrar for authentication. 181
(d) All or a portion of each series of the 2024 Bonds may be aggregated into and issued as 182
one or more term bonds. The term bonds will be subject to mandatory sinking fund redemption 183 with sinking fund payments and final maturities corresponding to the serial maturities described 184 above. Sinking fund payments shall be applied to retire a portion of the term bonds as though it 185 were a redemption of serial bonds, and, if more than one term bond of any maturity is outstanding, 186
redemption of such maturity shall be made by lot. Sinking fund redemption payments shall be 187
made in a principal amount equal to such serial maturities, plus accrued interest to the redemption 188 date, but without premium or penalty. For all purposes of this Ordinance, such mandatory sinking 189 fund redemption payments shall be deemed to be required payments of principal which mature on 190 the date of such sinking fund payments. Appropriate changes shall be made in the definitive form 191
of the 2024 Bonds, relative to the form of the 2024 Bonds contained in this Ordinance, to reflect 192
any mandatory sinking fund redemption and optional redemption terms. 193
SECTION 3. Pledge of Net Revenues; Payment of Principal and Interest. The 2024 194 Bonds, and any hereafter issued bonds ranking on a parity therewith, as to principal, premium, if 195 any, and interest, shall be payable solely from and are hereby secured by an irrevocable pledge of 196
and shall constitute a charge upon all the net revenues (defined as gross revenues of the works 197
after deduction only for the payment of the reasonable expenses of operation, repair and 198 maintenance) of the works (the “Net Revenues”), on parity with the 2017 Bonds and the 2021 199 Bonds. The City shall not be obligated to pay the 2024 Bonds except from the Net Revenues, and 200 the 2024 Bonds shall not constitute an indebtedness of the City within the meaning of the 201
provisions and limitations of the constitution of the State of Indiana. 202
All payments of interest on the 2024 Bonds shall be paid by check mailed one (1) business 203 day prior to the interest payment date to the registered owners thereof as of the fifteenth (15th) day 204 of the month preceding the interest payment date (the “Record Date”) at the addresses as they 205 appear on the registration and transfer books of the City kept for that purpose by the Registrar (the 206
“Registration Record”) or at such other address as is provided to the Paying Agent in writing by 207
such registered owner. Each registered owner of $1,000,000 or more in principal amount of the 208 2024 Bonds shall be entitled to receive interest payments by wire transfer by providing written 209
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wire instructions to the Paying Agent before the Record Date for any payment. All principal 210
payments and premium payments, if any, on the 2024 Bonds shall be made upon surrender thereof 211
at the principal office of the Paying Agent, in any U.S. coin or currency which on the date of such 212 payment shall be legal tender for the payment of public and private debts, or in the case of a 213 registered owner of $1,000,000 or more in principal amount of the 2024 Bonds, by wire transfer 214 on the due date upon written direction of such owner provided at least fifteen (15) days prior to 215
the maturity date or redemption date. 216
Interest on the 2024 Bonds shall be payable from the interest payment date to which interest 217 has been paid next preceding the authentication date thereof unless such 2024 Bonds are 218 authenticated after the Record Date for an interest payment date and on or before such interest 219 payment date in which case they shall bear interest from such interest payment date, or unless 220
authenticated on or before the Record Date for the first interest payment date, in which case they 221
shall bear interest from the original date, until the principal shall be fully paid. 222
SECTION 4. Transfer and Exchange of 2024 Bonds. Each Refunding Bond shall be 223 transferable or exchangeable only upon the Registration Record, by the registered owner thereof 224 in writing, or by the registered owner’s attorney duly authorized in writing, upon surrender of such 225
Refunding Bond, together with a written instrument of transfer or exchange satisfactory to the 226
Registrar duly executed by the registered owner or such attorney, and thereupon a new fully 227 registered Refunding Bond or 2024 Bonds in the same aggregate principal amount, and of the same 228 maturity, shall be executed and delivered in the names of the transferee or transferees or the 229 registered owner, as the case may be, in exchange therefor. The costs of such transfer or exchange 230
shall be borne by the City except for any tax or governmental charge required to be paid with 231
respect to the transfer or exchange, which taxes or governmental charges are payable by the person 232 requesting such transfer or exchange. The City, the Registrar and the Paying Agent may treat and 233 consider the persons in whose names such 2024 Bonds are registered as the absolute owners 234 thereof for all purposes including for the purpose of receiving payment of, or on account of, the 235
principal thereof and interest and premium, if any, due thereon. 236
In the event any Refunding Bond is mutilated, lost, stolen or destroyed, the City may 237 execute and the Registrar may authenticate a new bond of like date, maturity and denomination as 238 that mutilated, lost, stolen or destroyed, which new bond shall be marked in a manner to distinguish 239 it from the Refunding Bond for which it was issued, provided that, in the case of any mutilated 240
Refunding Bond, such mutilated bond shall first be surrendered to the Registrar, and in the case of 241
any lost, stolen or destroyed bond there shall be first furnished to the Registrar evidence of such 242 loss, theft or destruction satisfactory to the Fiscal Officer and the Registrar, together with 243 indemnity satisfactory to them. In the event any such Refunding Bond shall have matured, instead 244 of issuing a duplicate bond, the City and the Registrar may, upon receiving indemnity satisfactory 245
to them, pay the same without surrender thereof. The City and the Registrar may charge the owner 246
of such Refunding Bond with their reasonable fees and expenses in this connection. Any 247 Refunding Bond issued pursuant to this paragraph shall be deemed an original, substitute 248 contractual obligation of the City, whether or not the lost, stolen or destroyed Refunding Bond 249 shall be found at any time, and shall be entitled to all the benefits of this Ordinance, equally and 250
proportionately with any and all other Refunding Bond issued hereunder. 251
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SECTION 5. Registrar and Paving Agent. The Fiscal Officer is hereby authorized to 252
serve as, or to appoint a qualified financial institution to serve as, Registrar and Paying Agent for 253
the 2024 Bonds (together with any successor, the “Registrar” or “Paying Agent”). The Registrar 254 is hereby charged with the responsibility of authenticating the 2024 Bonds, and shall keep and 255 maintain the Registration Record at its office. The Fiscal Officer is hereby authorized to enter into 256 such agreements or understandings with any such institution as will enable the institution to 257
perform the services required of a Registrar and Paying Agent. The Fiscal Officer is further 258
authorized to pay such fees and the institution may charge for the services it provides as Registrar 259 and Paying Agent and such fees may be paid from the Taxable Bonds Sinking Fund or the Tax-260 Exempt Bonds Sinking Fund established to pay the principal of and interest on the respective series 261 of the 2024 Bonds as fiscal agency charges. 262
The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent by 263
giving thirty (30) days’ written notice to the City and by first-class mail to each registered owner 264 of the 2024 Bonds then outstanding, and such resignation will take effect at the end of such thirty 265 (30) days’ or upon the earlier appointment of a successor Registrar and Paying Agent by the City. 266 Such notice to the City may be served personally or sent by first-class or registered mail. The 267
Registrar and Paying Agent may be removed at any time as Registrar and Paying Agent by the 268
City, in which event the City may appoint a successor Registrar and Paying Agent. The City shall 269 notify each registered owner of the 2024 Bonds then outstanding of the removal of the Registrar 270 and Paying Agent. Notices to the registered owners of the 2024 Bonds shall be deemed to be given 271 when mailed by first-class mail to the addresses of such registered owners as they appear on the 272
Registration Record. Any predecessor Registrar and Paying Agent shall deliver all the 2024 Bonds, 273
cash and investments related thereto in its possession and the Registration Record to the successor 274 Registrar and Paying Agent. 275
SECTION 6. Terms of Redemption. The 2024 Bonds may be made redeemable at 276 the option of the City on thirty (30) days’ notice, in whole or in part, in any order of maturities 277
selected by the City and by lot within a maturity, on dates and with premiums, if any, and other 278
terms as finally determined by the Executive or the Fiscal Officer with the advice of the City’s 279 municipal advisor, as evidenced by delivery of the executed initial issue of the 2024 Bonds to the 280 Registrar for authentication. 281
Official notice of such redemption shall be mailed by the Registrar and Paying Agent by 282
certified or registered mail at least thirty (30) days prior to the date fixed for redemption except to 283
the extent such redemption notice is waived by owners of the 2024 Bonds redeemed, provided, 284 however, that failure to give such notice by mailing, or any defect therein, with respect to any 285 Refunding Bond shall not affect the validity of any proceedings for the redemption of any other 286 2024 Bonds. Such notice shall be mailed to the address of the registered owner as shown on the 287
Registration Record as of the date which is forty-five (45) days prior to such redemption date for 288
such 2024 Bonds. The notice shall specify the date and place of redemption, the redemption price 289 and the CUSIP numbers of the 2024 Bonds called for redemption. The place of redemption may 290 be determined by the City. Interest on the 2024 Bonds so called for redemption shall cease on the 291 redemption date fixed in such notice if sufficient funds are available at the place of redemption to 292
pay the redemption price on the date so named, and thereafter, such 2024 Bonds shall no longer 293
be protected by this Ordinance and shall not be deemed to be outstanding hereunder, and the 294 holders thereof shall have the right only to receive the redemption price. 295
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All 2024 Bonds which have been redeemed shall be canceled and shall not be reissued; 296
provided, however, that one or more new registered bonds shall be issued for the unredeemed 297
portion of any Refunding Bond without charge to the holder thereof. 298
No later than the date fixed for redemption, funds shall be deposited with the Paying Agent 299 or another paying agent to pay, and such agent is hereby authorized and directed to apply such 300 funds to the payment of, the 2024 Bonds or portions thereof called for redemption, including 301
accrued interest thereon to the redemption date. No payment shall be made upon any Refunding 302
Bond or portion thereof called for redemption until such Refunding Bond shall have been delivered 303 for payment or cancellation or the Registrar shall have received the items required by this 304 Ordinance with respect to any mutilated, lost, stolen or destroyed bond. 305
SECTION 7. Execution and Negotiability. The 2024 Bonds shall be signed in the 306
name of the City by the manual or facsimile signature of the Executive, and attested by the manual 307
or facsimile signature of the Fiscal Officer, who also shall affix the seal of the City manually or 308 shall have the seal imprinted or impressed thereon by facsimile or other means. In case any officer 309 whose signature or facsimile signature appears thereon shall cease to be such officer before the 310 delivery of the 2024 Bonds, such signature shall nevertheless be valid and sufficient for all 311
purposes as if such officer had remained in office until such delivery. 312
The 2024 Bonds shall also be authenticated by the manual signature of the Registrar, and 313 no Refunding Bond shall be valid or become obligatory for any purpose until the certificate of 314 authentication thereon has been so executed. 315
The 2024 Bonds shall have all of the qualities and incidents of negotiable instruments under 316
the laws of the State of Indiana, subject to the provisions for registration herein. 317
SECTION 8. Authorization for Book-Entry System. The 2024 Bonds may, in 318 compliance with all applicable laws, initially be issued and held in book-entry form on the books 319 of the central depository system, The Depository Trust Company, its successors, or any successor 320 central depository system appointed by the City from time to time (the “Clearing Agency”), 321
without physical distribution of bonds to the purchasers. The following provisions of this Section 322
apply in such event. 323
One definitive Refunding Bond of each maturity shall be delivered to the Clearing Agency 324 (or its agent) and held in its custody. The City and Registrar may, in connection herewith, do or 325 perform or cause to be done or performed any acts or things not adverse to the rights of the holders 326
of the 2024 Bonds as are necessary or appropriate to accomplish or recognize such book-entry 327
form 2024 Bonds. 328
During any time that the 2024 Bonds are held in book-entry form on the books of a Clearing 329 Agency, (1) any such Refunding Bond may be registered upon the Registration Record in the name 330 of such Clearing Agency, or any nominee thereof, including Cede & Co.; (2) the Clearing Agency 331
in whose name such Refunding Bond is so registered shall be, and the City and the Registrar and 332
Paying Agent may deem and treat such Clearing Agency as, the absolute owner and holder of such 333 Refunding Bond for all purposes of this Ordinance, including, without limitation, the receiving of 334 payment of the principal of and interest and premium, if any, on such Refunding Bond, the 335 receiving of notice and the giving of consent; (3) neither the City nor the Registrar or Paying Agent 336
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shall have any responsibility or obligation hereunder to any direct or indirect participant, within 337
the meaning of Section 17A of the Securities Exchange Act of 1934, as amended, of such Clearing 338
Agency, or any person on behalf of which, or otherwise in respect of which, any such participant 339 holds any interest in any Refunding Bond, including, without limitation, any responsibility or 340 obligation hereunder to maintain accurate records of any interest in any Refunding Bond or any 341 responsibility or obligation hereunder with respect to the receiving of payment of principal of or 342
interest or premium, if any, on any Refunding Bond, the receiving of notice or the giving of 343
consent; and (4) the Clearing Agency is not required to present any Refunding Bond called for 344 partial redemption, if any, prior to receiving payment so long as the Registrar and Paying Agent 345 and the Clearing Agency have agreed to the method for noting such partial redemption. 346
If either the City receives notice from the Clearing Agency which is currently the registered 347
owner of the 2024 Bonds to the effect that such Clearing Agency is unable or unwilling to 348
discharge its responsibility as a Clearing Agency for the 2024 Bonds, or the City elects to 349 discontinue its use of such Clearing Agency as a Clearing Agency for the 2024 Bonds, then the 350 City and the Registrar and Paying Agent each shall do or perform or cause to be done or performed 351 all acts or things, not adverse to the rights of the holders of the 2024 Bonds, as are necessary or 352
appropriate to discontinue use of such Clearing Agency as a Clearing Agency for the 2024 Bonds 353
and to transfer the ownership of each of the 2024 Bonds to such person or persons, including any 354 other Clearing Agency, as the holder of the 2024 Bonds may direct in accordance with this 355 Ordinance. Any expenses of such discontinuance and transfer, including expenses of printing new 356 certificates to evidence the 2024 Bonds, shall be paid by the City. 357
During any time that the 2024 Bonds are held in book-entry form on the books of a Clearing 358
Agency, the Registrar shall be entitled to request and rely upon a certificate or other written 359 representation from the Clearing Agency or any participant or indirect participant with respect to 360 the identity of any beneficial owner of the 2024 Bonds as of a record date selected by the Registrar. 361 For purposes of determining whether the consent, advice, direction or demand of a registered 362
owner of a Refunding Bond has been obtained, the Registrar shall be entitled to treat the beneficial 363
owners of the 2024 Bonds as the bondholders and any consent, request, direction, approval, 364 objection or other instrument of such beneficial owner may be obtained in the fashion described 365 in this Ordinance. 366
During any time that the 2024 Bonds are held in book-entry form on the books of a Clearing 367
Agency, the Executive, the Fiscal Officer and/or the Registrar are authorized to execute and deliver 368
a Letter of Representations agreement with the Clearing Agency, or a Blanket Issuer Letter of 369 Representations, and the provisions of any such Letter of Representations or any successor 370 agreement shall control on the matters set forth therein. The Registrar, by accepting the duties of 371 Registrar under this Ordinance, agrees that it will (i) undertake the duties of agent required thereby 372
and that those duties to be undertaken by either the agent or the City shall be the responsibility of 373
the Registrar, and (ii) comply with all requirements of the Clearing Agency, including without 374 limitation same day funds settlement payment procedures. Further, during any time that the 2024 375 Bonds are held in book-entry form, the provisions of Section 8 of this Ordinance shall control over 376 conflicting provisions in any other section of this Ordinance. 377
SECTION 9. Form of the 2024 Bonds. (a) The form and tenor of the Taxable Bonds 378
shall be substantially as follows (with such additions, deletions and modification as the Executive 379
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or Fiscal Officer may authorize, as conclusively evidenced by their signatures thereon), with all 380
blanks to be filled in properly prior to delivery thereof: 381
382 R-2024A 383 384 UNITED STATES OF AMERICA 385 STATE OF INDIANA COUNTY OF HAMILTON 386 CITY OF CARMEL, INDIANA 387 TAXABLE WATERWORKS REFUNDING REVENUE BOND, SERIES 2024A 388 389 Interest Rate Maturity Date Original Date Authentication Date CUSIP
390
REGISTERED OWNER: 391 392
PRINCIPAL SUM: 393 394
The City of Carmel, in Hamilton, County, State of Indiana (the “City”), for value received, hereby promises 395 to pay to the Registered Owner set forth above or registered assigns, solely out of the special revenue fund hereinafter 396
referred to, the Principal Sum set forth above on the Maturity Date set forth in Exhibit A attached hereto (unless this 397 bond be subject to and be called for redemption prior to maturity as hereafter provided), and to pay interest hereon 398
until the Principal Sum shall be fully paid at the Interest Rate per annum set forth in Exhibit A attached hereto from 399 the interest payment date to which interest has been paid next preceding the Authentication Date of this bond unless 400
this bond is authenticated after the fifteenth day of the month preceding the interest payment date (the “Record Date”) 401 and on or before such interest payment date in which case it shall bear interest from such interest payment date, or 402
unless this bond is authenticated on or before _____ 15, 20__, in which case it shall bear interest from the Original 403 Date, which interest is payable semiannually on May 1 and November 1 of each year, beginning on ______ 1, 202_. 404
Interest shall be calculated on the basis of a three hundred sixty (360) day year comprised of twelve (12) thirty (30) 405 day months. 406
The principal of and premium, if any, on this bond are payable at the principal office of the [Controller] of 407 the City of Carmel [_______________] (the “Registrar” or “Paying Agent”), in Carmel, Indiana. All payments of 408
interest on this bond shall be paid by check mailed one business day prior to the interest payment date to the Registered 409 Owner as of the Record Date at the address as it appears on the registration books kept by the Registrar or at such 410
other address as is provided to the Paying Agent in writing by the Registered Owner. Each Registered Owner of 411 $1,000,000 or more in principal amount of bonds shall be entitled to receive interest payments by wire transfer by 412
providing written wire instructions to the Paying Agent before the Record Date for any payment. All payments of 413 principal of, and premium, if any, on this bond shall be made upon surrender thereof at the principal office of the 414
Paying Agent, in any U.S. coin or currency which on the date of such payment shall be legal tender for the payment 415 of public and private debts, or in the case of a Registered Owner of $1,000,000 or more in principal amount of the 416
2024 Bonds, by wire transfer on the due date upon written direction of such owner provided at least fifteen (15) days 417 prior to the maturity date or redemption date. 418
THE CITY SHALL NOT BE OBLIGATED TO PAY THIS BOND OR THE INTEREST HEREON 419 EXCEPT FROM THE HEREINAFTER DESCRIBED SPECIAL FUND, AND NEITHER THIS BOND NOR THE 420
ISSUE OF WHICH IT IS A PART SHALL IN ANY RESPECT CONSTITUTE A CORPORATE INDEBTEDNESS 421 OF THE CITY WITHIN THE PROVISIONS AND LIMITATIONS OF THE CONSTITUTION OF THE STATE OF 422
INDIANA. 423
This bond is one of an authorized series of bonds of the City of Carmel, of Hamilton County, Indiana, of like 424
date, tenor and effect except as to denomination, numbering, rates of interest, redemption terms and dates of maturity, 425 aggregating _____________________________ Dollars ($_________), numbered consecutively from 1 upward (the 426
“2024A Bonds”), issued for the purpose of advance refunding the outstanding 2008 Current Interest Bonds and the 427
11 DMS 41746678.6
outstanding 2008 Capital Appreciation Bonds, to fund a debt service reserve account, and to pay incidental expenses 428 and costs of issuance of the 2024A Bonds. This bond is issued pursuant to an ordinance adopted by the Common 429 Council of said City on the ____ day of ________, 2024, entitled “An Ordinance of the Common Council of the City 430 of Carmel, Indiana, Authorizing the Refunding of Prior Waterworks Revenue Bonds of the City of Carmel, Indiana, 431 Authorizing the Issuance of the City Of Carmel, Indiana Taxable Waterworks Refunding Revenue Bonds, Series 432 2024A, And the City of Carmel, Indiana Tax-Exempt Waterworks Revenue and Refunding Revenue Bonds, Series 433 2024B, to Provide Funds for the Payment of Costs Thereof, and Addressing Other Matters Connected Therewith” (the 434 “Ordinance”), and in accordance with the provisions of Indiana law, including without limitation Indiana Code 8-1.5, 435 and other applicable laws, as amended (the “Act”), all as more particularly described in the Ordinance. The owner of 436 this bond, by the acceptance hereof, agrees to all the terms and provisions contained in the Ordinance and the Act. 437
Pursuant to the provisions of the Act and the Ordinance, the principal of and interest on this bond and all 438 other bonds of said issue and any prior or hereafter issued bonds ranking on a parity therewith are payable solely from 439 the Taxable Bonds Sinking Fund (the “Sinking Fund”) maintained under the Ordinance to be provided from the Net 440 Revenues (defined as the gross revenues of the works remaining after the payment of the reasonable expenses of 441 operation, repair and maintenance) of the works, including all additions and improvements thereto and replacements 442 thereof subsequently constructed or acquired. 443
The City irrevocably pledges the entire Net Revenues of the works to the prompt payment of the principal of 444 and interest on the 2024A Bonds on parity with the pledge thereof to the City’s outstanding Junior Waterworks 445 Refunding Revenue Bonds of 2017 (the “2017 Bonds”), the Junior Waterworks Revenue Bonds of 2021 (the “2021 446 Bonds”), and the Tax-Exempt Waterworks Revenue and Refunding Revenue Bonds, Series 2024B (the “2024B 447 Bonds”) and any hereafter issued bonds ranking on a parity therewith, and covenants that it will establish proper rates 448 and charges for services rendered by the utility as are sufficient in each year for the payment of the proper and 449 reasonable expenses of operation, repair and maintenance of the works and for the payment of the sums required to 450 be paid into the Taxable Bonds Sinking Fund under the provisions of the Act and the Ordinance. If the City or the 451 proper officers thereof shall fail or refuse to so fix and collect such rates or charges, or if there be a default in the 452 payment of the interest on or principal of this bond, the owner of this bond shall have all of the rights and remedies 453 provided for in the Act. 454
The City covenants that for so long as the 2024A Bonds, the 2017 Bonds, the 2021 Bonds, the 2024B Bonds 455 and any hereafter issued bonds ranking on a parity therewith, remain outstanding it will set aside and pay into the 456 Taxable Bonds Sinking Fund a sufficient amount of the Net Revenues for the payment of (a) the principal of and 457 interest on all bonds which by their terms are payable from the Net Revenues, as such principal and interest shall fall 458 due, (b) the necessary fiscal agency charges for paying bonds and (c) an additional amount as a margin of safety to 459 accumulate and maintain the reserve required by the Ordinance. Reference is made to the Ordinance for a more 460 complete statement of the revenues from which and conditions under which this bond is payable, a statement of the 461 conditions on which obligations may hereafter be issued on parity with this bond, the manner in which the Ordinance 462 may be amended and the general covenants and provisions pursuant to which this bond has been issued. 463
The bonds of this issue maturing on and after May 1, 20__ are redeemable at the option of the City on 464 __________, 20__ or any date thereafter, on thirty (30) days’ notice, in whole or in part, in any order of maturities 465 selected by the City and by lot within a maturity, at one hundred percent (100%) of face value, and without premium, 466 plus accrued interest to the date fixed for redemption. Each minimum authorized denomination in principal amount 467 shall be considered a separate bond for purposes of partial redemption. 468
469 [The 2024A Bonds maturing on May 1, 20____ are subject to mandatory sinking fund redemption prior to 470 maturity, at a redemption price equal to the principal amount thereof, plus accrued interest, on May 1 in the years and 471 in the amounts set forth below: 472
Year Amount
*
473
12 DMS 41746678.6
* Final Maturity] 474
Notice of such redemption shall be mailed by certified or registered mail not less than thirty (30) days prior 475 to the date fixed for redemption to the address of the registered owner of each bond to be redeemed as shown on the 476 registration record of the City except to the extent such redemption notice is waived by owners of the bond or bonds 477 redeemed, provided, however, that failure to give such notice by mailing, or any defect therein, with respect to any 478 bond shall not affect the validity of any proceedings for the redemption of any other bonds. The notice shall specify 479 the date and place of redemption, the redemption price and the CUSIP numbers of the bonds called for redemption. 480 The place of redemption may be determined by the City. Interest on the bonds so called for redemption shall cease on 481 the redemption date fixed in such notice if sufficient funds are available at the place of redemption to pay the 482 redemption price on the date so named, and thereafter, such bonds shall no longer be protected by the Ordinance and 483 shall not be deemed to be outstanding thereunder. 484
This bond is subject to defeasance prior to payment or redemption as provided in the Ordinance. 485
If this bond shall not be presented for payment or redemption on the date fixed therefor, the City may deposit 486 in trust with the Paying Agent or another paying agent, an amount sufficient to pay such bond or the redemption price, 487 as the case may be, and thereafter the Registered Owner shall look only to the funds so deposited in trust for payment 488 and the City shall have no further obligation or liability in respect thereto. 489
This bond is transferable or exchangeable only upon the registration record kept for that purpose at the office 490 of the Registrar by the Registered Owner in person, or by his attorney duly authorized in writing, upon surrender of 491 this bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the 492 Registered Owner or such attorney, and thereupon a new fully registered bond or bonds in the same aggregate principal 493 amount, and of the same maturity, shall be executed and delivered in the name of the transferee or transferees or the 494 Registered Owner, as the case may be, in exchange therefor. This bond may be transferred or exchanged without cost 495 to the Registered Owner except for any tax or governmental charge required to be paid with respect to the transfer or 496 exchange. The City, the Registrar, the Paying Agent and any other registrar or paying agent for this bond may treat 497 and consider the person in whose name this bond is registered as the absolute owner hereof for all purposes including 498 for the purpose of receiving payment of, or on account of, the principal hereof and interest and premium, if any, due 499 hereon. 500
The 2024A Bonds maturing on any maturity date are issuable only in the denomination of $5,000 or any 501 integral multiple thereof. 502
[A Continuing Disclosure Contract from the City to each registered owner or holder of any bond, dated as of 503 the date of initial issuance of the 2024A Bonds (the “Contract”), has been executed by the City, a copy of which is 504 available from the City and the terms of which are incorporated herein by this reference. The Contract contains certain 505 promises of the City to each registered owner or holder of any bond, including a promise to provide certain continuing 506 disclosure. By its payment for and acceptance of this bond, the registered owner or holder of this bond assents to the 507 Contract and to the exchange of such payment and acceptance for such promises.] 508
It is hereby certified and recited that all acts, conditions and things required to be done precedent to and in 509 the execution, issuance and delivery of this bond have been done and performed in regular and due form as provided 510 by law. 511
This bond shall not be valid or become obligatory for any purpose until the certificate of authentication 512 hereon shall have been executed by an authorized representative of the Registrar. 513
514 IN WITNESS WHEREOF, the City of Carmel, in Hamilton County, Indiana, has caused this bond to be 515 executed in its corporate name by the manual or facsimile signature of its Mayor, its corporate seal to be hereunto 516 affixed, imprinted or impressed by any means and attested manually or by facsimile by its Controller. 517
CITY OF CARMEL, INDIANA
13 DMS 41746678.6
By: Mayor (SEAL) ATTEST: Controller 518 REGISTRAR’S CERTIFICATE OF AUTHENTICATION 519 520 It is hereby certified that this bond is one of the bonds described in the within-mentioned Ordinance duly 521 authenticated by the Registrar. 522
as Registrar By: Authorized Representative 523 524 The following abbreviations, when used in the inscription of the face of this bond, shall be construed as 525 through they were written out in full according to applicable laws or regulations: 526
TEN. COM. as tenants in common 527
TEN. ENT. as tenants by the entireties 528
JT. TEN. as joint tenants with right of survivorship and not as tenants in common 529
UNIF. TRAN. 530 MIN. ACT ________ Custodian __________ 531 (Cust.) (Minor) 532 533 under Uniform Transfer to Minors Act of 534 535 536 (State) 537 538 Additional abbreviations may also be used although not in the above list. 539 540 ASSIGNMENT 541 542 FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please Print or Typewrite 543 Name and Address and Social Security or Other Identifying Number) $___________ principal amount (must be a 544 multiple of $5,000) of the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints 545 ___________, attorney to transfer the within bond on the books kept for the registration thereof with full power of 546 substitution in the premises. 547
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.
14 DMS 41746678.6
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by an eligible guarantor institution participating in a Securities Transfer Association recognized signature guarantee program.
548
[End of form of Taxable Bonds] 549
550 (b) The form and tenor of the Tax-Exempt Bonds shall be substantially as follows (with 551 such additions, deletions and modification as the Executive or Fiscal Officer may authorize, as 552 conclusively evidenced by their signatures thereon), with all blanks to be filled in properly prior 553
to delivery thereof: 554
R-2024B 555 556 UNITED STATES OF AMERICA 557 STATE OF INDIANA COUNTY OF HAMILTON 558 CITY OF CARMEL, INDIANA 559 TAX-EXEMPT WATERWORKS REVENUE AND REFUNDING REVENUE BOND, SERIES 2024B 560 561 Interest Rate Maturity Date Original Date Authentication Date CUSIP
562 REGISTERED OWNER: 563
564 PRINCIPAL SUM: 565
566 The City of Carmel, in Hamilton, County, State of Indiana (the “City”), for value received, hereby promises 567
to pay to the Registered Owner set forth above or registered assigns, solely out of the special revenue fund hereinafter 568 referred to, the Principal Sum set forth above on the Maturity Date set forth in Exhibit A attached hereto (unless this 569
bond be subject to and be called for redemption prior to maturity as hereafter provided), and to pay interest hereon 570 until the Principal Sum shall be fully paid at the Interest Rate per annum set forth in Exhibit A attached hereto from 571
the interest payment date to which interest has been paid next preceding the Authentication Date of this bond unless 572 this bond is authenticated after the fifteenth day of the month preceding the interest payment date (the “Record Date”) 573
and on or before such interest payment date in which case it shall bear interest from such interest payment date, or 574 unless this bond is authenticated on or before _____ 15, 20__, in which case it shall bear interest from the Original 575
Date, which interest is payable semiannually on May 1 and November 1 of each year, beginning on ______ 1, 202_. 576 Interest shall be calculated on the basis of a three hundred sixty (360) day year comprised of twelve (12) thirty (30) 577
day months. 578
The principal of and premium, if any, on this bond are payable at the principal office of the [Controller] of 579
the City of Carmel [_______________] (the “Registrar” or “Paying Agent”), in Carmel, Indiana. All payments of 580 interest on this bond shall be paid by check mailed one business day prior to the interest payment date to the Registered 581
Owner as of the Record Date at the address as it appears on the registration books kept by the Registrar or at such 582 other address as is provided to the Paying Agent in writing by the Registered Owner. Each Registered Owner of 583
$1,000,000 or more in principal amount of bonds shall be entitled to receive interest payments by wire transfer by 584 providing written wire instructions to the Paying Agent before the Record Date for any payment. All payments of 585
principal of, and premium, if any, on this bond shall be made upon surrender thereof at the principal office of the 586 Paying Agent, in any U.S. coin or currency which on the date of such payment shall be legal tender for the payment 587
15 DMS 41746678.6
of public and private debts, or in the case of a Registered Owner of $1,000,000 or more in principal amount of the 588 2024 Bonds, by wire transfer on the due date upon written direction of such owner provided at least fifteen (15) days 589 prior to the maturity date or redemption date. 590
THE CITY SHALL NOT BE OBLIGATED TO PAY THIS BOND OR THE INTEREST HEREON 591 EXCEPT FROM THE HEREINAFTER DESCRIBED SPECIAL FUND, AND NEITHER THIS BOND NOR THE 592 ISSUE OF WHICH IT IS A PART SHALL IN ANY RESPECT CONSTITUTE A CORPORATE INDEBTEDNESS 593 OF THE CITY WITHIN THE PROVISIONS AND LIMITATIONS OF THE CONSTITUTION OF THE STATE OF 594 INDIANA. 595
This bond is one of an authorized series of bonds of the City of Carmel, of Hamilton County, Indiana, of like 596 date, tenor and effect except as to denomination, numbering, rates of interest, redemption terms and dates of maturity, 597 aggregating _____________________________ Dollars ($_________), numbered consecutively from 1 upward (the 598 “2024B Bonds”), issued for the purpose of providing funds to be applied for construction and acquisition of certain 599 improvements to the waterworks (the “Project”), to currently refund the 2012 Refunded Bonds and the 2019 Refunded 600 BAN (as defined in the Ordinance), to fund a debt service reserve account, and to pay incidental expenses and costs 601 of issuance of the 2024B Bonds. This bond is issued pursuant to an ordinance adopted by the Common Council of 602 said City on the ____ day of ________, 2024, entitled “An Ordinance of the Common Council of the City of Carmel, 603 Indiana, Authorizing the Refunding of Prior Waterworks Revenue Bonds of the City of Carmel, Indiana, Authorizing 604 the Issuance of the City Of Carmel, Indiana Taxable Waterworks Refunding Revenue Bonds, Series 2024A, And the 605 City of Carmel, Indiana Tax-Exempt Waterworks Revenue and Refunding Revenue Bonds, Series 2024B, to Provide 606 Funds for the Payment of Costs Thereof, and Addressing Other Matters Connected Therewith” (the “Ordinance”), and 607 in accordance with the provisions of Indiana law, including without limitation Indiana Code 8-1.5, and other applicable 608 laws, as amended (the “Act”), all as more particularly described in the Ordinance. The owner of this bond, by the 609 acceptance hereof, agrees to all the terms and provisions contained in the Ordinance and the Act. 610
Pursuant to the provisions of the Act and the Ordinance, the principal of and interest on this bond and all 611 other bonds of said issue and any prior or hereafter issued bonds ranking on a parity therewith are payable solely from 612 the Tax-Exempt Bonds Sinking Fund (the “Tax-Exempt Bonds Sinking Fund”) maintained under the Ordinance to be 613 provided from the Net Revenues (defined as the gross revenues of the works remaining after the payment of the 614 reasonable expenses of operation, repair and maintenance) of the works, including all additions and improvements 615 thereto and replacements thereof subsequently constructed or acquired. 616
The City irrevocably pledges the entire Net Revenues of the works to the prompt payment of the principal of 617 and interest on the 2024B Bonds on parity with the pledge thereof to the City’s outstanding Junior Waterworks 618 Refunding Revenue Bonds of 2017 (the “2017 Bonds”), the Junior Waterworks Revenue Bonds issued to redeem the 619 City’s Waterworks Revenue Bond Anticipation Notes, Series 2019 (the “2019 Bonds”), the Junior Waterworks 620 Revenue Bonds of 2021 (the “2021 Bonds”), and the Waterworks Refunding Revenue Bonds, Series 2024A (Federally 621 Taxable) (the “2024A Bonds”) and any hereafter issued bonds ranking on a parity therewith, and covenants that it will 622 establish proper rates and charges for services rendered by the utility as are sufficient in each year for the payment of 623 the proper and reasonable expenses of operation, repair and maintenance of the works and for the payment of the sums 624 required to be paid into the Tax-Exempt Bonds Sinking Fund under the provisions of the Act and the Ordinance. If 625 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 626 default in the payment of the interest on or principal of this bond, the owner of this bond shall have all of the rights 627 and remedies provided for in the Act. 628
The City covenants that for so long as the 2024B Bonds, the 2017 Bonds, the 2019 Bonds, the 2021 Bonds, 629 the 2024A Bonds and any hereafter issued bonds ranking on a parity therewith, remain outstanding it will set aside 630 and pay into the Tax-Exempt Bonds Sinking Fund a sufficient amount of the Net Revenues for the payment of (a) the 631 principal of and interest on all bonds which by their terms are payable from the Net Revenues, as such principal and 632 interest shall fall due, (b) the necessary fiscal agency charges for paying bonds and (c) an additional amount as a 633 margin of safety to accumulate and maintain the reserve required by the Ordinance. Reference is made to the 634 Ordinance for a more complete statement of the revenues from which and conditions under which this bond is payable, 635 a statement of the conditions on which obligations may hereafter be issued on parity with this bond, the manner in 636 which the Ordinance may be amended and the general covenants and provisions pursuant to which this bond has been 637 issued. 638
16 DMS 41746678.6
The bonds of this issue maturing on and after May 1, 20__ are redeemable at the option of the City on 639 __________, 20__ or any date thereafter, on thirty (30) days’ notice, in whole or in part, in any order of maturities 640 selected by the City and by lot within a maturity, at one hundred percent (100%) of face value, and without premium, 641 plus accrued interest to the date fixed for redemption. Each minimum authorized denomination in principal amount 642 shall be considered a separate bond for purposes of partial redemption. 643
644 [The 2024B Bonds maturing on May 1, 20____ are subject to mandatory sinking fund redemption prior to 645 maturity, at a redemption price equal to the principal amount thereof, plus accrued interest, on May 1 in the years and 646 in the amounts set forth below: 647
Year Amount
*
648
* Final Maturity] 649
Notice of such redemption shall be mailed by certified or registered mail not less than thirty (30) days prior 650 to the date fixed for redemption to the address of the registered owner of each bond to be redeemed as shown on the 651 registration record of the City except to the extent such redemption notice is waived by owners of the bond or bonds 652 redeemed, provided, however, that failure to give such notice by mailing, or any defect therein, with respect to any 653 bond shall not affect the validity of any proceedings for the redemption of any other bonds. The notice shall specify 654 the date and place of redemption, the redemption price and the CUSIP numbers of the bonds called for redemption. 655 The place of redemption may be determined by the City. Interest on the bonds so called for redemption shall cease on 656 the redemption date fixed in such notice if sufficient funds are available at the place of redemption to pay the 657 redemption price on the date so named, and thereafter, such bonds shall no longer be protected by the Ordinance and 658 shall not be deemed to be outstanding thereunder. 659
This bond is subject to defeasance prior to payment or redemption as provided in the Ordinance. 660
If this bond shall not be presented for payment or redemption on the date fixed therefor, the City may deposit 661 in trust with the Paying Agent or another paying agent, an amount sufficient to pay such bond or the redemption price, 662 as the case may be, and thereafter the Registered Owner shall look only to the funds so deposited in trust for payment 663 and the City shall have no further obligation or liability in respect thereto. 664
This bond is transferable or exchangeable only upon the registration record kept for that purpose at the office 665 of the Registrar by the Registered Owner in person, or by his attorney duly authorized in writing, upon surrender of 666 this bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the 667 Registered Owner or such attorney, and thereupon a new fully registered bond or bonds in the same aggregate principal 668 amount, and of the same maturity, shall be executed and delivered in the name of the transferee or transferees or the 669 Registered Owner, as the case may be, in exchange therefor. This bond may be transferred or exchanged without cost 670 to the Registered Owner except for any tax or governmental charge required to be paid with respect to the transfer or 671 exchange. The City, the Registrar, the Paying Agent and any other registrar or paying agent for this bond may treat 672 and consider the person in whose name this bond is registered as the absolute owner hereof for all purposes including 673 for the purpose of receiving payment of, or on account of, the principal hereof and interest and premium, if any, due 674 hereon. 675
The 2024B Bonds maturing on any maturity date are issuable only in the denomination of $5,000 or any 676 integral multiple thereof. 677
[A Continuing Disclosure Contract from the City to each registered owner or holder of any bond, dated as of 678 the date of initial issuance of the 2024B Bonds (the “Contract”), has been executed by the City, a copy of which is 679 available from the City and the terms of which are incorporated herein by this reference. The Contract contains certain 680 promises of the City to each registered owner or holder of any bond, including a promise to provide certain continuing 681
17 DMS 41746678.6
disclosure. By its payment for and acceptance of this bond, the registered owner or holder of this bond assents to the 682 Contract and to the exchange of such payment and acceptance for such promises.] 683
It is hereby certified and recited that all acts, conditions and things required to be done precedent to and in 684 the execution, issuance and delivery of this bond have been done and performed in regular and due form as provided 685 by law. 686
This bond shall not be valid or become obligatory for any purpose until the certificate of authentication 687 hereon shall have been executed by an authorized representative of the Registrar. 688
689 IN WITNESS WHEREOF, the City of Carmel, in Hamilton County, Indiana, has caused this bond to be 690 executed in its corporate name by the manual or facsimile signature of its Mayor, its corporate seal to be hereunto 691 affixed, imprinted or impressed by any means and attested manually or by facsimile by its Controller. 692
CITY OF CARMEL, INDIANA By: Mayor (SEAL) ATTEST: Controller 693 REGISTRAR’S CERTIFICATE OF AUTHENTICATION 694 695 It is hereby certified that this bond is one of the bonds described in the within-mentioned Ordinance duly 696 authenticated by the Registrar. 697
as Registrar By: Authorized Representative 698 699 The following abbreviations, when used in the inscription of the face of this bond, shall be construed as 700 through they were written out in full according to applicable laws or regulations: 701
TEN. COM. as tenants in common 702
TEN. ENT. as tenants by the entireties 703
JT. TEN. as joint tenants with right of survivorship and not as tenants in common 704
UNIF. TRAN. 705 MIN. ACT ________ Custodian __________ 706 (Cust.) (Minor) 707 708 under Uniform Transfer to Minors Act of 709 710 711
18 DMS 41746678.6
(State) 712 713 Additional abbreviations may also be used although not in the above list. 714 715 ASSIGNMENT 716 717 FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please Print or Typewrite 718 Name and Address and Social Security or Other Identifying Number) $___________ principal amount (must be a 719 multiple of $5,000) of the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints 720 ___________, attorney to transfer the within bond on the books kept for the registration thereof with full power of 721 substitution in the premises. 722
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.
723 724 725 [End of form of Tax-Exempt Bonds] 726
727 728 SECTION 10. Authorization for Preparation and Sale of Bonds. 729
(a) The 2024 Bonds shall be sold in a competitive sale or by negotiation with a 730 purchaser(s) selected by the Executive and Fiscal Officer on the advice of the City’s municipal 731
advisor, or pursuant to Indiana Code 5-1.4 or Indiana Code 5-1.5 as determined by the Executive 732 or Fiscal Officer. If sold in a competitive sale, the Fiscal Officer shall cause to be published either 733 (i) a notice of sale once each week for two (2) consecutive weeks in accordance with Indiana Code 734 § 5-3-1-2, in which case the date fixed for the sale shall not be earlier than fifteen (15) days after 735 the first of such publications and not earlier than three (3) days after the second of such 736
publications, or (ii) a notice of intent to sell bonds once each week for two (2) weeks in accordance 737 with Indiana Code § 5-1-11-2 and Indiana Code § 5-3-1-4 and in a newspaper of general circulation 738 published in the State capital, in which case bids may not be received more than ninety (90) days 739 after the first of such publications. Said sale notice shall state the time and place of sale, the purpose 740 for which the 2024 Bonds are being issued, the total amount thereof, the amount and date of each 741
maturity, the maximum rate or rates of interest thereon, their denominations, the time and place of 742 payment, the terms and conditions upon which bids will be received and the sale made and such 743 other information as is required by law or as the Fiscal Officer shall deem necessary. 744
19 DMS 41746678.6
If sold by a competitive sale, bids for each of the series of the 2024 Bonds shall be sealed 745
and shall be presented to the Fiscal Officer in accord with the terms set forth in the sale notice. 746
Bidders for each of the series of the 2024 Bonds shall be required to name the rate or rates of 747 interest which each of the series of the 2024 Bonds are to bear, which shall be the same for each 748 of the series of the maturities of the respective Taxable Bonds and Tax-Exempt Bonds maturing 749 on the same date, not exceeding eight percent (8.00%) per annum with respect to the Taxable 750
Bonds and not exceeding six percent (6.00%) with respect to the Tax-Exempt Bonds, and such 751
interest rate or rates shall be in multiples of one hundredth of one percent. The Fiscal Officer shall 752 award each of the series of the 2024 Bonds to the bidder who offers the lowest interest cost, to be 753 determined by computing the total interest on each of the series of the 2024 Bonds to their 754 maturities and deducting therefrom the premium bid, if any, or adding thereto the amount of the 755
discount, if any. No bid for less than ninety-nine percent (99.00%) of the par value of each of the 756
series of the 2024 Bonds, plus accrued interest, shall be considered. The Fiscal Officer may require 757 that all bids be accompanied by certified or cashier’s checks payable to the order of the City, or a 758 surety bond, in an amount not to exceed one percent (1.00%) of the aggregate principal amount of 759 each of the series of the 2024 Bonds as a guaranty of the performance of said bid, should it be 760
accepted. In the event no satisfactory bids are received on the day named in the sale notice, the 761
sale may be continued from day to day thereafter for a period of thirty (30) days without 762 readvertisement; provided, however, that if said sale is continued, no bid shall be accepted which 763 offers an interest cost which is equal to or higher than the best bid received at the time fixed for 764 sale in the bond sale notice. The Fiscal Officer shall have full right to reject any and all bids. 765
If the 2024 Bonds are sold by negotiated sale, the Executive is authorized to negotiate and 766
execute a bond purchase agreement with one or more selected purchaser(s) on terms recommended 767 by the City’s municipal advisor, consistent with the parameters set forth in this Ordinance. 768
The Fiscal Officer is hereby authorized to appoint a financial institution to serve as escrow 769 trustee (the “Escrow Trustee”) for the Refunded Bonds in accordance with the terms of an Escrow 770
Agreement between the City and the Escrow Trustee (the “Escrow Agreement”). The Executive 771
and the Fiscal Officer are hereby authorized and directed to complete, execute and attest the same 772 on behalf of the City so long as its provisions are consistent with this Ordinance and the purchase 773 contract. 774
The execution, by either the Executive, Fiscal Officer, or the purchaser, of a subscription 775
for investments of proceeds of the 2024 Bonds to be held under the Escrow Agreement in a manner 776
consistent with this Ordinance is hereby approved. 777
After the 2024 Bonds have been properly sold and executed, the Fiscal Officer shall receive 778 from the purchasers payment for the 2024 Bonds and shall provide for delivery of the 2024 Bonds 779 to the purchasers. 780
(b) The 2024 Bonds, when fully paid for and delivered to the purchaser shall be the 781
binding special revenue obligations of the City, payable out of the Net Revenues. The proper 782 officers of the City are hereby directed to sell the 2024 Bonds to the purchaser, to draw all proper 783 and necessary warrants, and to do whatever acts and things which may be necessary to carry out 784 the provisions of this Ordinance. 785
20 DMS 41746678.6
(c) If necessary, the Executive and the Fiscal Officer each are hereby authorized to 786
deem final an official statement with respect to the 2024 Bonds, as of its date, in accordance with 787
the provisions of Rule 15c2-12 of the U.S. Securities and Exchange Commission, as amended (the 788 “SEC Rule”), subject to completion as permitted by the SEC Rule, and the City further authorizes 789 the distribution of the deemed final official statement, and the execution, delivery and distribution 790 of such document as further modified and amended with the approval of the Executive or the Fiscal 791
Officer in the form of a final official statement. 792
(d) In order to assist any underwriter of the 2024 Bonds in complying with paragraph 793 (b)(5) of the SEC Rule by undertaking to make available appropriate disclosure about the City and 794 the 2024 Bonds to participants in the municipal securities market, the City hereby covenants, 795 agrees and undertakes, in accordance with the SEC Rule, unless excluded from the applicability 796
of the SEC Rule or otherwise exempted from the provisions of paragraph (b)(5) of the SEC Rule, 797
that it will comply with and carry out all of the provisions of the continuing disclosure contract. 798 “Continuing disclosure contract” shall mean that certain continuing disclosure contract executed 799 by the City and dated the date of issuance of the 2024 Bonds, as originally executed and as it may 800 be amended from time to time in accordance with the terms thereof. The execution and delivery 801
by the City of the continuing disclosure contract, and the performance by the City of its obligations 802
thereunder by or through any employee or agent of the City, are hereby approved, and the City 803 shall comply with and carry out the terms thereof. 804
(e) The Fiscal Officer is hereby authorized and directed to obtain a legal opinion as to 805 the validity of the 2024 Bonds from Barnes & Thornburg LLP, and to furnish such opinion to the 806
purchasers of the 2024 Bonds or to cause a copy of said legal opinion to be printed on each 807
Refunding Bond. The cost of such opinion shall be paid out of the proceeds of the 2024 Bonds. 808
(f) In connection with the sale of the 2024 Bonds, the Executive and the Fiscal Officer 809 each are authorized to take such actions and to execute and deliver such agreements and 810 instruments as they deem advisable to obtain a rating and/or to obtain bond insurance for the 2024 811
Bonds, and the taking of such actions and the execution and delivery of such agreements and 812
instruments are hereby approved. 813
(g) In connection with the sale of the 2024 Bonds, the Executive and the Fiscal Officer 814 each are authorized to take such actions and to execute and deliver such agreements and 815 instruments as they deem advisable, including but not limited to a continuing disclosure agreement, 816
a bond purchase agreement and any offering document for the 2024 Bonds, and the taking of such 817
actions and the execution and delivery of such agreements and instruments are hereby approved. 818
(h) Notwithstanding anything in this Ordinance and in lieu of a public sale of the 2024 819 Bonds pursuant to this Section, the 2024 Bonds may, in the discretion of the Executive, based upon 820 the advice of the City’s municipal advisor, be sold to the Indiana Bond Bank or the City of Carmel 821
Local Public Improvement Bond Bank (the “Carmel Bond Bank”). In the event of such 822
determination, Bonds shall be sold in such denomination or denominations as the purchaser may 823 request, and pursuant to a qualified entity purchase agreement (the “Purchase Agreement”) 824 between the City and either the Indiana Bond Bank or the Carmel Bond Bank, hereby authorized 825 to be entered into and executed by the Executive on behalf of the City, subsequent to the date of 826
the adoption of this Ordinance. Such Purchase Agreement may set forth the definitive terms and 827
conditions for such sale, but all of such terms and conditions must be consistent with the terms and 828
21 DMS 41746678.6
conditions of this Ordinance, including without limitation, the interest rate or rates on the 2024 829
Bonds which shall not exceed the maximum rate of interest for the 2024 Bonds authorized pursuant 830
to this Ordinance. Bonds sold to the Indiana Bond Bank or the Carmel Bond Bank shall be 831 accompanied by all documentation required by the purchaser pursuant to the provisions of Indiana 832 Code 5-1.4 or Indiana Code 5-1.5, as applicable, and the Purchase Agreement, including, without 833 limitation, an approving opinion of nationally recognized bond counsel, certification and guarantee 834
of signatures and certification as to no litigation pending, as of the date of delivery of the 2024 835
Bonds, challenging the validity or issuance of the 2024 Bonds. In the event the Executive 836 determines to sell the 2024 Bonds to the Indiana Bond Bank or the Carmel Bond Bank, the entry 837 by the City into the Purchase Agreement, and the execution and delivery of the Purchase 838 Agreement on behalf of the City by the Executive in accordance with this Ordinance are hereby 839
authorized, approved and ratified. 840
SECTION 11. Use of Proceeds. 841
(a) Taxable Bonds. 842
(i) Any accrued interest received at the time of delivery of the Taxable Bonds (and, 843 if deemed by the Executive or the Fiscal Officer to be in excess of needs for the refunding, any 844
premium), shall be deposited in the Taxable Bonds Principal and Interest Account of the Taxable 845
Bonds Sinking Fund (as hereafter defined) and applied to payments on the Taxable Bonds on the 846 first interest payment date. 847
(ii) Concurrently with the delivery of the Taxable Bonds, the Fiscal Officer may 848 acquire, with the proceeds of the Taxable Bonds and cash on hand, investments as permitted under 849
the 2008 Bond Ordinance (the “2008 Taxable Defeasance Obligations”) to be used, together with 850
certain cash from the proceeds of the Taxable Bonds and cash on hand, if any, as set forth in the 851 Escrow Agreement, to refund and legally defease the 2008 Refunded Current Interest Bonds and 852 the 2008 Refunded Capital Appreciation Bonds all as set forth in the Escrow Agreement. In order 853 to refund the 2008 Refunded Current Interest Bonds and the 2008 Refunded Capital Appreciation 854
Bonds, the Fiscal Officer shall deposit the 2008 Taxable Defeasance Obligations and certain cash, 855
if any, with the Escrow Trustee under the Escrow Agreement in an amount sufficient to provide 856 moneys for the payment of the principal of and interest and redemption premium, if any, on the 857 2008 Refunded Current Interest Bonds and the 2008 Refunded Capital Appreciation Bonds until 858 the earliest date upon which the 2008 Refunded Current Interest Bonds and the 2008 Refunded 859
Capital Appreciation Bonds may be called for redemption. 860
If required for the legal defeasance of the 2008 Refunded Current Interest Bonds and the 861 2008 Refunded Capital Appreciation Bonds, the Fiscal Officer shall obtain a verification of an 862 accountant as to the sufficiency of the funds deposited in the Trust Account applicable to the 2008 863 Taxable Defeasance Obligations under the Escrow Agreement to accomplish said refunding and 864
legal defeasance of the 2008 Refunded Current Interest Bonds and the 2008 Refunded Capital 865
Appreciation Bonds. 866
(iii) Costs of issuance of the Taxable Bonds, including the premium for any bond 867 insurance obtained for the Taxable Bonds, not otherwise paid shall be paid from the remaining 868 proceeds by the Fiscal Officer. When all the costs of issuance of the Taxable Bonds have been 869
22 DMS 41746678.6
paid, the Fiscal Officer shall then transfer any amount then remaining from the proceeds of the 870
Taxable Bonds to the Taxable Bonds Sinking Fund herein created. 871
(b) Tax-Exempt Bonds. 872
(i) Any accrued interest received at the time of delivery of the Tax-Exempt Bonds 873 (and, if deemed by the Executive or the Fiscal Officer to be in excess of needs for the refunding, 874 any premium), shall be deposited in the Tax-Exempt Bonds Principal and Interest Account of the 875
Tax-Exempt Bonds Sinking Fund (as hereafter defined) and applied to payments on the Tax-876
Exempt Bonds on the first interest payment date. 877
(ii) Concurrently with the delivery of the Tax-Exempt Bonds, the Fiscal Officer 878 may acquire, with the proceeds of the Tax-Exempt Bonds and cash on hand, investments as 879 permitted under the 2017 Ordinance, the 2019 Ordinance and the 2021 Ordinance (the 880
“Obligations”) to be used, together with certain cash from the proceeds of the Tax-Exempt Bonds 881
and cash on hand, if any, as set forth in the Escrow Agreement, to refund and legally defease the 882 2012 Refunded Bonds and the 2019 Refunded BAN all as set forth in the Escrow Agreement. In 883 order to refund 2012 Refunded Bonds and the 2019 Refunded BAN, the Fiscal Officer shall deposit 884 the Tax-Exempt Obligations and certain cash, if any, with the Escrow Trustee under the Escrow 885
Agreement in an amount sufficient to provide moneys for the payment of the principal of and 886
interest and redemption premium, if any, on the 2012 Refunded Bonds and the 2019 Refunded 887 BAN until the earliest date upon which the 2012 Refunded Bonds and the 2019 Refunded BAN 888 may be called for redemption. 889
If required for the legal defeasance of the 2012 Refunded Bonds and the 2019 Refunded 890
BAN, the Fiscal Officer shall obtain a verification of an accountant as to the sufficiency of the 891
funds deposited in the Trust Account with respect to the Obligations under the Escrow Agreement 892 to accomplish said refunding and legal defeasance of the 2012 Refunded Bonds and the 2019 893 Refunded BAN. 894
(iii) The remaining proceeds from the sale of the Tax-Exempt Bonds shall be 895
deposited in a fund of the utility hereby created and designated as the “City of Carmel, Indiana 896
2024 Tax-Exempt Waterworks Bond Project Fund” (the “Project Fund”) or applied to the payment 897 of costs of the Project. The proceeds deposited in the Project Fund, together with all investment 898 earnings thereon, shall be expended only for the purpose of paying the costs of the Project and the 899 costs of selling and issuing the Tax-Exempt Bonds, including the premium for any bond insurance 900
obtained for the Tax-Exempt Bonds. 901
The City hereby declares that it reasonably expects to reimburse the City’s advances to the 902 Project from proceeds of the Tax-Exempt Bonds, as anticipated by this Ordinance, and such 903 declaration shall be deemed one within the meaning of the Reimbursement Regulations. 904
Any balance remaining in the Project Fund after the completion of the Project which is not 905
required to meet unpaid obligations incurred in connection therewith and on account of the sale 906
and issuance of the Tax-Exempt Bonds shall be (A) paid into the Tax-Exempt Bonds Sinking Fund 907 (to be part of the hereinafter referenced Tax-Exempt Bonds Principal and Interest Account) or (B) 908 used for the same purpose or type of project for which the Tax-Exempt Bonds were originally 909 issued, all in accordance with Indiana Code 5-1-13, as amended, or as otherwise permitted by law. 910
23 DMS 41746678.6
(iv) Costs of issuance of the Tax-Exempt Bonds, including the premium for any 911
bond insurance obtained for the Tax-Exempt Bonds, not otherwise paid shall be paid from the 912
remaining proceeds by the Fiscal Officer. When all the costs of issuance of the Tax-Exempt Bonds 913 have been paid, the Fiscal Officer shall then transfer any amount then remaining from the proceeds 914 of the Tax-Exempt Bonds to the Tax-Exempt Bonds Sinking Fund herein created. 915
SECTION 12. Revenue Fund. There is hereby continued a fund of the utility 916
designated as the Revenue Fund (the “Revenue Fund”), into which there shall be deposited upon 917
receipt all revenues of the works for application as set forth below. 918
SECTION 13. Operation and Maintenance Fund. There is hereby continued an 919 operating fund of the utility designated as the Operation and Maintenance Fund (the “Operation 920 and Maintenance Fund”). There shall be transferred from the Revenue Fund and credited to the 921
Operation and Maintenance Fund, on the last day of each calendar month, a sufficient amount to 922
meet the expenses of operation, repair and maintenance for the then next succeeding two (2) 923 calendar months. The moneys credited to this Fund shall be used for the payment of the reasonable 924 and proper operation, repair and maintenance expenses of the works on a day-to-day basis, but 925 none of the moneys in the Operation and Maintenance Fund shall be used for depreciation, 926
replacements, improvements, extensions or additions. Any balance in Operation and Maintenance 927
Fund in excess of the expected expenses of operation, repair and maintenance for the next 928 succeeding month may be transferred to the Taxable Bonds Sinking Fund or the Tax-Exempt 929 Bonds Sinking Fund if necessary to prevent a default in the payment of principal of or interest on 930 the outstanding bonds of the works. 931
SECTION 14. Sinking Fund. (a) Taxable Bonds. There is hereby established and 932
created a fund designated as the Taxable Bonds Sinking Fund (the “Taxable Bonds Sinking 933 Fund”), to be used for the payment of the principal of and interest on the Taxable Bonds and any 934 hereafter issued bonds ranking on a parity therewith which by their terms are payable from the Net 935 Revenues and the payment of any fiscal agency charges in connection with such payment. The 936
Taxable Bonds Sinking Fund is further and additionally divided into two (2) additional accounts 937
designated as the Taxable Bonds Principal and Interest Account and the Taxable Bonds Debt 938 Service Reserve Account, which are pledged for the purposes set forth below. The Taxable Bonds 939 Sinking Fund is on parity with the Tax-Exempt Bonds Sinking Fund and all deposits in each of 940 the Taxable Bonds Sinking Fund and the Tax-Exempt Bonds Sinking Fund shall be pari-passu 941
with respect to the requirements of each. 942
(i) Taxable Bonds Principal and Interest Account. There shall be transferred, 943 on the last day of each calendar month, from the Revenue Fund and credited to the Taxable Bonds 944 Principal and Interest Account an amount equal to the sum of at least one-twelfth (1/12) of the 945 principal and at least one-sixth (1/6) of the interest on all then-outstanding Taxable Bonds and any 946
hereafter issued bonds ranking on a parity therewith payable from Net Revenues on the next 947
succeeding principal and interest payment dates (except in the instance of the first principal and 948 interest payment dates next succeeding the issuance of the Taxable Bonds, an appropriately greater 949 percentage as would result in such equal monthly transfers equaling the required payments), until 950 the amount available therein shall equal the principal payable during the next succeeding twelve 951
(12) calendar months and the interest payable during the next succeeding six (6) calendar months. 952
There shall similarly be credited to the account any amount necessary to pay when due the bank 953
24 DMS 41746678.6
fiscal agency charges for paying principal of and interest on the Taxable Bonds and any hereafter 954
issued bonds ranking on a parity therewith as the same become payable. The City shall, from the 955
sums deposited in the Taxable Bonds Sinking Fund and credited to the Taxable Bonds Principal 956 and Interest Account, remit promptly to the registered owner or to the bank fiscal agency sufficient 957 moneys to pay the principal and interest on the Taxable Bonds and any hereafter issued bonds 958 ranking on a parity therewith the due dates thereof together with the amount of bank fiscal agency 959
charges. 960
961 (ii) Taxable Bonds Debt Service Reserve Account. After meeting monthly 962 deposits to the Taxable Bonds Sinking Fund required by the 2008 Bond Ordinance, there shall be 963 transferred, on the last day of each calendar month following the issuance of the Taxable Bonds, 964
after making any required transfer to the Taxable Bonds Principal and Interest Account, from the 965
Revenue Fund and credited to the Taxable Bonds Debt Service Reserve Account an amount to 966 constitute an appropriate reserve to facilitate the marketing of the Taxable Bonds, which monthly 967 deposits shall be in an amount sufficient to build the balance in the Taxable Bonds Debt Service 968 Reserve Account (after consideration of any transfers made pursuant to the next following 969
sentence) to an amount equal to the Taxable Reserve Requirement as defined below within no 970
more than five (5) years on a level monthly basis (after accounting for earnings thereon). The 971 Fiscal Officer, with the advice of the City’s municipal advisor, may transfer an amount of the funds 972 of the utility now on hand, or apply proceeds of the Taxable Bonds, in full or partial satisfaction 973 of the Taxable Reserve Requirement at or after the issuance of the Taxable Bonds. After the 974
issuance of the Taxable Bonds, the City shall maintain the balance in the Taxable Bonds Debt 975
Service Reserve Account in an amount equal to the Taxable Reserve Requirement, subject to the 976 provisions of this Ordinance or any ordinance authorizing and any hereafter issued bonds ranking 977 on a parity therewith, which allows the Taxable Reserve Requirement to be accumulated over time. 978 For these purposes, “Taxable Reserve Requirement” means the maximum annual debt service on 979
the Taxable Bonds. 980
All money in the Taxable Bonds Debt Service Reserve Account shall be used and 981 withdrawn solely for the purpose of making deposits into the Taxable Bonds Principal and Interest 982 Account, in the event of and to the extent of any deficiency in the Taxable Bonds Principal and 983 Interest Account with respect to the payments then due on the Taxable Bonds and any hereafter 984
issued bonds ranking on a parity therewith, or to make the final payments on such bonds when the 985
Taxable Bonds Debt Service Reserve Account, together with other funds available for such 986 purpose, is sufficient to make all remaining payments thereon to final maturity. Any amount in the 987 Taxable Bonds Debt Service Reserve Account in excess of the Taxable Reserve Requirement shall 988 be withdrawn from time to time, and at least as frequently as annually, and deposited in the Taxable 989
Bonds Principal and Interest Account. Any deficiency in the balance required to be held in the 990
Taxable Bonds Debt Service Reserve Account shall be promptly made up from the next available 991 Net Revenues after credits to the Taxable Bonds Principal and Interest Account. 992
Notwithstanding the foregoing, the Fiscal Officer, with the advice of the City’s municipal 993 advisor and bond counsel, may enable the City to satisfy all or any part of its obligation to maintain 994
an amount in the Taxable Bonds Debt Service Reserve Account equal to the Taxable Reserve 995
Requirement by depositing a Reserve Fund Credit Facility in the Taxable Bonds Debt Service 996 Reserve Account at or after the issuance of the Taxable Bonds, provided that such deposit does 997 not adversely affect any then existing rating on the Taxable Bonds and any hereafter issued bonds 998
25 DMS 41746678.6
ranking on a parity therewith; provided, A “Reserve Fund Credit Facility” is hereby defined as a 999
letter of credit, liquidity facility, insurance policy or comparable instrument furnished by a bank, 1000
insurance company, financial institution or other entity pursuant to a reimbursement agreement or 1001 similar instrument between such entity and the City, for the purpose of satisfying in whole or in 1002 part the City’s obligation to maintain the Taxable Reserve Requirement. 1003 1004
(b) Tax-Exempt Bonds. There is hereby continued a fund of the utility designated as 1005
the Tax-Exempt Bonds Sinking Fund (the “Tax-Exempt Bonds Sinking Fund”), to be used for the 1006 payment of the principal of and interest on the Tax-Exempt Bonds, the 2017 Bonds, the 2021 1007 Bonds, and any hereafter issued bonds ranking on a parity therewith which by their terms are 1008 payable from the Net Revenues, and the payment of any fiscal agency charges in connection with 1009
such payment. The Tax-Exempt Bonds Sinking Fund is further and additionally divided into two 1010
(2) additional accounts designated as the Tax-Exempt Bonds Principal and Interest Account and 1011 the Tax-Exempt Bonds Debt Service Reserve Account, which are pledged for the purposes set 1012 forth below. The Tax-Exempt Bonds Sinking Fund is on parity with the Taxable Bonds Sinking 1013 Fund and all deposits in each of the Tax-Exempt Bonds Sinking Fund and the Taxable Bonds 1014
Sinking Fund shall be pari-passu with respect to the requirements of each. 1015
(i) Tax-Exempt Bonds Principal and Interest Account. There shall be 1016 transferred, on the last day of each calendar month, from the Revenue Fund and credited to the 1017 Tax-Exempt Bonds Principal and Interest Account an amount equal to the sum of at least one-1018 twelfth (1/12) of the principal and at least one-sixth (1/6) of the interest on all then-outstanding 1019
Tax-Exempt Bonds, the 2017 Bonds, the 2021 Bonds and any hereafter issued bonds ranking on a 1020
parity therewith payable from Net Revenues on the next succeeding principal and interest payment 1021 dates (except in the instance of the first principal and interest payment dates next succeeding the 1022 issuance of the Tax-Exempt Bonds, an appropriately greater percentage as would result in such 1023 equal monthly transfers equaling the required payments), until the amount available therein shall 1024
equal the principal payable during the next succeeding twelve (12) calendar months and the interest 1025
payable during the next succeeding six (6) calendar months. There shall similarly be credited to 1026 the account any amount necessary to pay when due the bank fiscal agency charges for paying 1027 principal of and interest on the Tax-Exempt Bonds, the 2017 Bonds, the 2021 Bonds and any 1028 hereafter issued bonds ranking on a parity therewith as the same become payable. The City shall, 1029
from the sums deposited in the Tax-Exempt Bonds Sinking Fund and credited to the Tax-Exempt 1030
Bonds Principal and Interest Account, remit promptly to the registered owner or to the bank fiscal 1031 agency sufficient moneys to pay the principal and interest on Tax-Exempt Bonds, the 2017 Bonds, 1032 the 2021 Bonds and any hereafter issued bonds ranking on a parity therewith the due dates thereof 1033 together with the amount of bank fiscal agency charges. 1034
(ii) Tax-Exempt Bonds Debt Service Reserve Account. After meeting monthly 1035
deposits to the Tax-Exempt Bonds Sinking Fund required by the 2017 Ordinance, the 2019 1036 Ordinance, and the 2021 Ordinance, there shall be transferred, on the last day of each calendar 1037 month following the issuance of the Tax-Exempt Bonds, after making any required transfer to the 1038 Tax-Exempt Bonds Principal and Interest Account, from the Revenue Fund and credited to the 1039
Tax-Exempt Bonds Debt Service Reserve Account an amount to constitute an appropriate reserve 1040
to facilitate the marketing of the Tax-Exempt Bonds, which monthly deposits shall be in an amount 1041 sufficient to build the balance in the Tax-Exempt Bonds Debt Service Reserve Account (after 1042 consideration of any transfers made pursuant to the next following sentence) to an amount equal 1043
26 DMS 41746678.6
to the Tax-Exempt Reserve Requirement as defined below within no more than five (5) years on 1044
a level monthly basis (after accounting for earnings thereon). The Fiscal Officer, with the advice 1045
of the City’s municipal advisor, may transfer an amount of the funds of the utility now on hand, 1046 or apply proceeds of the Tax-Exempt Bonds, in full or partial satisfaction of the Tax-Exempt 1047 Reserve Requirement at or after the issuance of the Tax-Exempt Bonds. After the issuance of the 1048 Tax-Exempt Bonds, the City shall maintain the balance in the Tax-Exempt Bonds Debt Service 1049
Reserve Account in an amount equal to the Tax-Exempt Reserve Requirement, subject to the 1050
provisions of this Ordinance, the 2017 Ordinance, the 2019 Ordinance, the 2021 Ordinance or any 1051 ordinance authorizing and any hereafter issued bonds ranking on a parity therewith, which allows 1052 the Tax-Exempt Reserve Requirement to be accumulated over time. For these purposes, “Tax-1053 Exempt Reserve Requirement” means the least of (i) ten percent (10%) of the proceeds of the Tax-1054
Exempt Bonds, the 2017 Bonds, the 2021 Bonds and any hereafter issued bonds ranking on a parity 1055
therewith, (ii) the maximum annual debt service on the Tax-Exempt Bonds, the 2017 Bonds, the 1056 2021 Bonds and any hereafter issued bonds ranking on a parity therewith, or (iii) one hundred 1057 twenty-five percent (125%) of the average annual debt service on the Tax-Exempt Bonds, the 2017 1058 Bonds, the 2021 Bonds and any hereafter issued bonds ranking on a parity therewith; provided, 1059
however, if any of the outstanding bonds payable from Net Revenues on a parity with the Tax-1060
Exempt Bonds are held by the Indiana Finance Authority pursuant to its SRF Program, then the 1061 reserve amount shall equal the maximum annual debt service on the Tax-Exempt Bonds, the 2017 1062 Bonds, the 2021 Bonds and any hereafter issued bonds ranking on a parity therewith if so required 1063 by the Indiana Finance Authority. 1064
All money in the Tax-Exempt Bonds Debt Service Reserve Account shall be used and 1065
withdrawn solely for the purpose of making deposits into the Tax-Exempt Bonds Principal and 1066 Interest Account, in the event of and to the extent of any deficiency in the Tax-Exempt Bonds 1067 Principal and Interest Account with respect to the payments then due on the 2024 Bonds, the 2017 1068 Bonds, 2021 Bonds and any hereafter issued bonds ranking on a parity therewith, or to make the 1069
final payments on such bonds when the Tax-Exempt Bonds Debt Service Reserve Account, 1070
together with other funds available for such purpose, is sufficient to make all remaining payments 1071 thereon to final maturity. Any amount in the Tax-Exempt Bonds Debt Service Reserve Account in 1072 excess of the Tax-Exempt Reserve Requirement shall be withdrawn from time to time, and at least 1073 as frequently as annually, and deposited in the Tax-Exempt Bonds Principal and Interest Account. 1074
Any deficiency in the balance required to be held in the Tax-Exempt Bonds Debt Service Reserve 1075
Account shall be promptly made up from the next available Net Revenues after credits to the Tax-1076 Exempt Bonds Principal and Interest Account. 1077
Notwithstanding the foregoing, the Fiscal Officer, with the advice of the City’s municipal 1078 advisor and bond counsel, may enable the City to satisfy all or any part of its obligation to maintain 1079
an amount in the Tax-Exempt Bonds Debt Service Reserve Account equal to the Tax-Exempt 1080
Reserve Requirement by depositing a Reserve Fund Credit Facility in the Tax-Exempt Bonds Debt 1081 Service Reserve Account at or after the issuance of the Tax-Exempt Bonds, provided that such 1082 deposit does not adversely affect any then existing rating on the Tax-Exempt Bonds and any 1083 hereafter issued bonds ranking on a parity therewith; provided. A “Reserve Fund Credit Facility” 1084
is hereby defined as a letter of credit, liquidity facility, insurance policy or comparable instrument 1085
furnished by a bank, insurance company, financial institution or other entity pursuant to a 1086 reimbursement agreement or similar instrument between such entity and the City, for the purpose 1087
27 DMS 41746678.6
of satisfying in whole or in part the City’s obligation to maintain the Tax-Exempt Reserve 1088
Requirement. 1089
SECTION 15. Improvement Fund. After meeting the requirements of the Operation 1090 and Maintenance Fund and the Taxable Bonds Sinking Fund and the Tax-Exempt Bonds Sinking 1091 Fund, any excess revenues may be transferred from the Revenue Fund and credited to the special 1092 utility fund, to be expended in making good depreciation in the works and new construction, 1093
hereby continued and designated as the “Improvement Fund” (the “Improvement Fund”). Said 1094
Improvement Fund shall be used for replacements, improvements, extensions and additions to the 1095 works. Moneys in the Improvement Fund shall be transferred to the Taxable Bonds Sinking Fund 1096 or the Tax-Exempt Bonds Sinking Fund if necessary to prevent a default in the payment of 1097 principal of and interest on the then outstanding bonds of the works, or may be transferred to the 1098
Operation and Maintenance Fund to meet unforeseen contingencies in the operation, repair and 1099
maintenance of the works. 1100
SECTION 16. Investment of Funds. The funds and accounts described herein shall be 1101 accounted for separate and apart from each other and from all other funds and accounts of the City. 1102 All moneys deposited in the funds and accounts shall be deposited, held and secured as public 1103
funds in accordance with the public depository laws of the State of Indiana; provided that moneys 1104
therein may be invested in obligations in accordance with the applicable laws, including 1105 particularly Indiana Code 5-13 and 5-1.2, each as amended or supplemented, and in the event of 1106 such investment the income therefrom shall become a part of the funds invested and shall be used 1107 only as provided in this Ordinance. 1108
The Fiscal Officer is hereby authorized pursuant to Indiana Code § 5-1-14-3 to invest 1109
moneys pursuant to the provisions of this Ordinance (subject to applicable requirements of federal 1110 law to ensure such yield is then current market rate) to the extent necessary or advisable to preserve 1111 the exclusion from gross income of interest on the 2024 Bonds under federal law. 1112
The Fiscal Officer shall keep full and accurate records of investment earnings and income 1113
from moneys held in the funds and accounts created or referenced herein. In order to comply with 1114
the provisions of this Ordinance, the Fiscal Officer is hereby authorized and directed to employ 1115 consultants or attorneys from time to time to advise the City as to requirements of federal law to 1116 preserve the tax exclusion. The Fiscal Officer may pay any fees as operation expenses of the utility. 1117
SECTION 17. Financial Records and Accounts. The City shall keep proper records 1118
and books of account, separate from all of its other records and accounts, in which complete and 1119
correct entries shall be made showing all revenues received on account of the operation of the 1120 utility and all disbursements made therefrom and all transactions relating to the utility. The City 1121 shall maintain on file the audited financial statements of the utility prepared by the State Board of 1122 Accounts. There shall be furnished, upon written request, to any owner of the 2024 Bonds, the 1123
most recent copy of the audited financial statements of the utility prepared by the State Board of 1124
Accounts. Copies of all such statements and reports shall be kept on file in the office of the Fiscal 1125 Officer. 1126
SECTION 18. Rate Covenant. The City covenants and agrees that, by ordinance of the 1127 Council, it will establish and maintain just and equitable rates and charges for the use of and the 1128
service rendered by the works, to be paid by the owner of each and every lot, parcel of real estate 1129
28 DMS 41746678.6
or building that is connected with and uses said works by or through any part of the utility, or that 1130
in any way uses or is served by such works; that such rates and charges shall produce revenues at 1131
least sufficient (when determined including user and other charges, fees, income or revenues 1132 available to the City), in each year to (a) pay all the legal and other necessary expenses of operation, 1133 repair, replacements and maintenance of the works if sold to any other purchaser; (b) provide a 1134 sinking fund for the liquidation of bonds or other obligations, including leases; (c) provide a debt 1135
service reserve on bonds or other obligations, including leases, as required by the terms of such 1136
obligations; (d) provide adequate money for working capital; (e) provide adequate money for 1137 making extensions and replacements; (f) provide money for the payment of any taxes that may be 1138 assessed against the works; and (g) to comply with and satisfy all covenants contained in this 1139 Ordinance. Such rates or charges shall, if necessary, be changed and readjusted from time to time 1140
so that the revenues therefrom shall always be sufficient to meet the expenses of operation, repair 1141
and maintenance of the works and the requirements of the Taxable Bonds Sinking Fund and the 1142 Tax-Exempt Bonds Sinking Fund. The rates or charges so established shall apply to any and all 1143 use of such works by and service rendered to the City and all departments thereof, and shall be 1144 paid by the City or the various departments thereof as the charges accrue. 1145
SECTION 19. Defeasance. If, when the 2024 Bonds or a portion thereof shall have 1146
become due and payable in accordance with their terms or shall have been duly called for 1147 redemption or irrevocable instructions to call the 2024 Bonds or a portion thereof for redemption 1148 shall have been given, and the whole amount of the principal, premium, if any, and the interest so 1149 due and payable upon such 2024 Bonds or any portion thereof then outstanding shall be paid, or 1150
(a) sufficient moneys or (b) direct obligations of, or obligations the principal of and interest on 1151
which are unconditionally guaranteed by the United States of America, the principal of and the 1152 interest on which when due will provide sufficient moneys for such purpose, shall be held in trust 1153 for such purpose, and provision shall also be made for paying all fees and expenses for the 1154 redemption, then and in that case the 2024 Bonds issued hereunder or any designated portion 1155
thereof shall no longer be deemed outstanding or entitled to the pledge of the Net Revenues of the 1156
works. 1157
SECTION 20. Additional Obligations. The City reserves the right to authorize and 1158 issue additional bonds payable out of the Net Revenues ranking on a parity with the 2024 Bonds, 1159 the 2017 Bonds and the 2021 Bonds for the purpose of financing the cost of future additions, 1160
extensions and improvements to the works, or to provide for a complete or partial refunding of 1161
obligations, subject to the following conditions precedent: 1162
(a) The interest on and principal of all bonds payable from the Net 1163 Revenues shall have been paid to date in accordance with the terms thereof, 1164 provided, this condition shall be satisfied if any required amount is to be provided 1165
from the proceeds of such additional bonds or other funds. 1166
(b) The balance in the Debt Service Reserve Account shall be equal to 1167 the amount required herein, provided, this condition shall be satisfied if any 1168 required amount is to be provided from the proceeds of such additional bonds or 1169 other funds. 1170
(c) The Net Revenues in the fiscal year immediately preceding the 1171
issuance of any such bonds ranking on a parity with the 2024 Bonds, the 2017 1172
29 DMS 41746678.6
Bonds and the 2021 Bonds shall be not less than one hundred twenty five percent 1173
(125%) of the average annual principal and interest requirements of the then 1174
outstanding 2024 Bonds, 2017 Bonds, 2021 Bonds and any hereafter issued bonds 1175 ranking on a parity with the 2024 Bonds, the 2017 Bonds and the 2021 Bonds, 1176 including the proposed additional bonds to be issued (“Proposed Parity Bonds”) for 1177 each respective year during the period commencing as of the issuance of the 1178
Proposed Parity Bonds and ending as the final maturity of the then outstanding 1179
revenue bonds, provided that upon the final maturity of the 2017 Bonds and the 1180 2021 Bonds the portion of the sentence above stating “for each respective year 1181 during the period commencing as of the issuance of the Proposed Parity Bonds and 1182 ending as the final maturity of the then outstanding revenue bonds” shall be deleted; 1183
or, prior to the issuance of the additional Proposed Parity Bonds, the rates and 1184
charges shall be increased sufficiently so that said increased rates and charges 1185 applied to the previous fiscal year’s operations would have produced Net Revenues 1186 for said year equal to not less than one hundred twenty five percent (125%) of the 1187 average annual principal and interest requirements for each respective year during 1188
the period commencing as of the issuance of the Proposed Parity Bonds and ending 1189
as the final maturity of the then outstanding revenue bonds; provided that upon the 1190 final maturity of the 2017 Bonds and the 2021 Bonds the portion of the sentence 1191 above stating “for each respective year during the period commencing as of the 1192 issuance of the Proposed Parity Bonds and ending as the final maturity of the then 1193
outstanding revenue bonds” shall be deleted and the following shall be inserted “of 1194
the outstanding revenue bonds and the Proposed Parity Bonds.” For purposes of 1195 this subsection, the records of the works shall be analyzed and all showings shall 1196 be prepared by a certified public accountant employed by the City for that purpose. 1197
(d) The principal of the Proposed Parity Bonds shall be payable on May 1198
1 and the interest shall be payable on May 1 and November 1 during the periods 1199
such principal and interest are payable. 1200
SECTION 21. Further Covenants of the City. For the purpose of further 1201 safeguarding the interests of the owners of the 2024 Bonds, it is hereby specifically provided as 1202 follows: 1203
(a) The City shall at all times maintain the works in good condition, and 1204
operate the same in an efficient manner and at a reasonable cost. 1205
(b) So long as any of the 2024 Bonds are outstanding, the City shall 1206 maintain insurance on the insurable parts of the works, of a kind and in an amount 1207 such as would normally be carried by private entities engaged in a similar type of 1208
business. All insurance shall be placed with responsible insurance companies 1209
qualified to do business under the laws of the State of Indiana. Insurance proceeds 1210 shall be used in replacing or repairing the property destroyed or damaged, or if not 1211 used for that purpose, shall be treated and applied as Revenues of the Taxable 1212 Bonds Sinking Fund and the Tax-Exempt Bonds Sinking Fund. 1213
(c) So long as any of the 2024 Bonds are outstanding, the City shall not 1214
mortgage, pledge or otherwise encumber the works, or any part thereof, and shall 1215
30 DMS 41746678.6
not sell, lease or otherwise dispose of any part of the same. The City shall not sell, 1216
lease or otherwise dispose of any part of the works, excepting only such machinery, 1217
equipment or other property as may be replaced, or shall no longer be necessary for 1218 use in connection with said utility. 1219
(d) Except as otherwise specifically provided in Section 19 of this 1220 Ordinance, so long as any of the 2024 Bonds are outstanding, no additional bonds 1221
or other obligations pledging any portion of the revenues of the works shall be 1222
issued by the City, except such as shall be made junior and subordinate in all 1223 respects to the 2024 Bonds, unless all of the 2024 Bonds are defeased, redeemed or 1224 retired coincidentally with the delivery of such additional bonds or other 1225 obligations. 1226
(e) The provisions of this Ordinance shall constitute a contract by and 1227
between the City and the owners of the 2024 Bonds, all the terms of which shall be 1228 enforceable by any such owner by any and all appropriate proceedings in law or in 1229 equity. After the issuance of the 2024 Bonds and so long as any of the principal 1230 thereof or interest or premium, if any, thereon remains unpaid, except as expressly 1231
provided herein, this Ordinance shall not be repealed or amended in any respect 1232
which will adversely affect the rights of such owners, nor shall the Council or any 1233 other body of the City adopt any law, ordinance or resolution which in any way 1234 adversely affects the rights of such owners. Except in the case of changes described 1235 in Section 22(a) through (f) hereof, this Ordinance may be amended, however, 1236
without the consent of bond owners, if the Council determines, in its sole discretion, 1237
that such amendment would not adversely affect the owners of the 2024 Bonds. 1238
(f) The provisions of this Ordinance shall be construed to create a trust 1239 in the proceeds of the sale of the 2024 Bonds for the uses and purposes herein set 1240 forth, and the owners of the 2024 Bonds shall retain a lien on such proceeds until 1241
the same are applied in accordance with the provisions of this Ordinance and the 1242
Act. The provisions of this Ordinance shall also be construed to create a trust in the 1243 Net Revenues herein directed to be set apart and paid into the Taxable Bonds 1244 Sinking Fund and/or the Tax-Exempt Bonds Sinking Fund for the uses and 1245 purposes of that Fund as set forth in this Ordinance. The owners of the 2024 Bonds 1246
shall have all the rights, remedies and privileges set forth in the Act, including the 1247
right to have a receiver appointed to administer the utility in the event the City shall 1248 fail or refuse to fix and collect sufficient rates and charges for those purposes, or 1249 shall fail or refuse to operate and maintain said utility and to apply properly the 1250 revenues derived from the operation thereof, or if there be a default in the payment 1251
of the interest on or principal of the 2024 Bonds or any BANs. 1252
(g) None of the provisions of this Ordinance shall be construed as 1253 requiring the expenditure of any funds of the City derived from any sources other 1254 than the proceeds of the 2024 Bonds and the operation of the utility. 1255
(h) For purpose of this Section 21, the term “lease” shall include any 1256
lease, contract, or other instrument conferring a right upon the City to use property 1257
in exchange for a periodic payments made from the revenues of the works, whether 1258
31 DMS 41746678.6
the City desires to cause such to be, or by its terms (or its intended effects) is to be, 1259
(i) payable as rent, (ii) booked as an expense or an expenditure, or (iii) classified 1260
for accounting or other purposes as a capital lease, financing lease, operating lease, 1261 non-appropriation leases, installment purchase agreement or lease, or otherwise 1262 (including any combination thereof). 1263
SECTION 22. Amendments With Consent of Bondholders. Subject to the terms and 1264
provisions contained in this Section and Sections 21 and 23, the owners of not less than sixty-six 1265
and two-thirds percent (66 2/3%) in aggregate principal amount of the 2024 Bonds and then 1266 outstanding shall have the right, from time to time, to consent to and approve the adoption by the 1267 Council of such ordinance or ordinances supplemental hereto, as shall be deemed necessary or 1268 desirable by the City for the purpose of amending in any particular any of the terms or provisions 1269
contained in this Ordinance, or in any supplemental ordinance; provided, however, that nothing 1270
herein contained shall permit or be construed as permitting: 1271
(a) An extension of the maturity of the principal of or interest or 1272 premium, if any, on, or any mandatory sinking fund redemption date for, or an 1273 advancement of the earliest redemption date on, any Refunding Bond, without the 1274
consent of the holder of each Refunding Bond so affected; or 1275
(b) A reduction in the principal amount of any Refunding Bond or the 1276 redemption premium or the rate of interest thereon, or a change in the monetary 1277 medium in which such amounts are payable, without the consent of the holder of 1278 each Refunding Bond so affected; or 1279
(c) The creation of a lien upon or a pledge of the Net Revenues ranking 1280
prior to the pledge thereof created by this Ordinance, without the consent of the 1281 holders of all 2024 Bonds then outstanding; or 1282
(d) A preference or priority of any Refunding Bond over any other 1283 Refunding Bond, without the consent of the holders of all 2024 Bonds then 1284
outstanding; or 1285
(e) A reduction in the aggregate principal amount of the 2024 Bonds 1286 required for consent to such supplemental ordinance, without the consent of the 1287 holders of all 2024 Bonds then outstanding; or 1288
(f) A reduction in the Reserve Requirement. 1289
If the City shall desire to obtain any such consent, it shall cause the Registrar to mail a 1290
notice, postage prepaid, to the addresses appearing on the Registration Record. Such notice shall 1291 briefly set forth the nature of the proposed supplemental ordinance and shall state that a copy 1292 thereof is on file at the office of the Registrar for inspection by all owners of the 2024 Bonds. The 1293 Registrar shall not, however, be subject to any liability to any owners of the 2024 Bonds by reason 1294
of its failure to mail such notice, and any such failure shall not affect the validity of such 1295
supplemental ordinance when consented to and approved as herein provided. 1296
32 DMS 41746678.6
Whenever at any time within one (1) year after the date of the mailing of such notice, the 1297
City shall receive any instrument or instruments purporting to be executed by the owners of each 1298
or either series of the 2024 Bonds of not less than sixty-six and two-thirds per cent (66-2/3%) in 1299 aggregate principal amount of each or either series of the 2024 Bonds then outstanding, which 1300 instrument or instruments shall refer to the proposed supplemental ordinance described in such 1301 notice, and shall specifically consent to and approve the adoption thereof in substantially the form 1302
of the copy thereof referred to in such notice as on file with the Registrar, thereupon, but not 1303
otherwise, the City may adopt such supplemental ordinance in substantially such form, without 1304 liability or responsibility to any owners of the 2024 Bonds, whether or not such owners shall have 1305 consented thereto. 1306
No owner of any Refunding Bond shall have any right to object to the adoption of such 1307
supplemental ordinance or to object to any of the terms and provisions contained therein or the 1308
operation thereof, or in any manner to question the propriety of the adoption thereof, or to enjoin 1309 or restrain the Council from adopting the same, or from taking any action pursuant to the provisions 1310 thereof. Upon the adoption of any supplemental ordinance pursuant to the provisions of this 1311 section, this Ordinance shall be, and shall be deemed, modified and amended in accordance 1312
therewith, and the respective rights, duties and obligations under this Ordinance of the City and all 1313
owners of the 2024 Bonds then outstanding shall thereafter be determined, exercised and enforced 1314 in accordance with this Ordinance, subject in all respects to such modifications and amendments. 1315
Notwithstanding anything contained in the foregoing provisions of this Ordinance, the 1316 rights and obligations of the City and of the owners of the 2024 Bonds, and the terms and 1317
provisions of the 2024 Bonds and this Ordinance, or any supplemental ordinance, may be modified 1318
or amended in any respect with the consent of the City and the consent of the owners of all the 1319 2024 Bonds then outstanding. 1320
SECTION 23. Amendments Without Consent of Bondholders. The Council may, 1321 from time to time and at any time, and without notice to or consent of the owners of the 2024 1322
Bonds, adopt such ordinances supplemental hereto as shall not be inconsistent with the terms and 1323
provisions hereof (which supplemental ordinances shall thereafter form a part hereof): 1324
(a) To cure any ambiguity or formal defect or omission in this 1325 Ordinance or in any supplemental ordinance; 1326
(b) To grant to or confer upon the owners of the 2024 Bonds any 1327
additional rights, remedies, powers, authority or security that may lawfully be 1328
granted to or conferred upon the owners of the 2024 Bonds; 1329
(c) To procure a rating on the 2024 Bonds from a nationally recognized 1330 securities rating agency designated in such supplemental ordinance, if such 1331 supplemental ordinance will not adversely affect the owners of the 2024 Bonds; 1332
(d) To obtain or maintain bond insurance with respect to the 2024 1333
Bonds; 1334
(e) To provide for the refunding or advance refunding of the 2024 1335 Bonds; 1336
33 DMS 41746678.6
(f) To provide for the issuance of additional bonds or bond anticipation 1337
notes as provided in Section 19 hereof; or 1338
(g) To make any other change which, in the determination of the 1339 Council in its sole discretion, does not in any way adversely affect the rights of such 1340 owners of the 2024 Bonds. 1341
SECTION 1. Tax Matters. In order to preserve the exclusion of interest on the Tax-1342
Exempt Bonds from gross income for federal income tax purposes and as an inducement to 1343
purchasers of the Tax-Exempt Bonds, the City represents, covenants and agrees that: 1344
(a) No person or entity, other than the City or another state or local 1345 governmental unit, will use proceeds of the Tax-Exempt Bonds or property 1346 financed by the Tax-Exempt Bond proceeds other than as a member of the general 1347
public. No person or entity other than the City or another state or local 1348
governmental unit will own property financed by Tax-Exempt Bond proceeds or 1349 will have actual or beneficial use of such property pursuant to a lease, a 1350 management or incentive payment contract, an arrangement such as take-or-pay or 1351 output contract, or any other type of arrangement that differentiates that person's or 1352
entity's use of such property from the use by the public at large. 1353
(b) No portion of the principal of or interest on the Tax-Exempt Bonds 1354 is (under the terms of the Tax-Exempt Bonds, this Ordinance or any underlying 1355 arrangement), directly or indirectly, secured by an interest in property used or to be 1356 used for any private business use or payments in respect of any private business use 1357
or payments in respect of such property or to be derived from payments (whether 1358
or not to the City) in respect of such property or borrowed money used or to be used 1359 for a private business use. 1360
(c) No Tax-Exempt Bond proceeds will be loaned to any entity or 1361 person other than a state or local governmental unit. No Tax-Exempt Bond proceeds 1362
will be transferred, directly or indirectly, or deemed transferred to a non-1363
governmental person in any manner that would in substance constitute a loan of the 1364 Tax-Exempt Bond proceeds. 1365
(d) The City will not take any action or fail to take any action with 1366 respect to the Tax-Exempt Bonds that would result in the loss of the exclusion from 1367
gross income for federal income tax purposes of interest on the Tax-Exempt Bonds 1368
pursuant to Section 103 of the Internal Revenue Code of 1986, as amended (the 1369 “Code”), and the regulations thereunder as applicable to the Tax-Exempt Bonds, 1370 including, without limitation, the taking of such action as is necessary to rebate or 1371 cause to be rebated arbitrage profits on Tax-Exempt Bond proceeds or other monies 1372
treated as 2024 Bond proceeds to the federal government as provided in Section 1373
148 of the Code, and will set aside such monies, which may be paid from 1374 investment income on funds and accounts notwithstanding anything else to the 1375 contrary herein, in trust for such purposes. 1376
34 DMS 41746678.6
(e) The City will file an information report on Form 8038-G with the 1377
Internal Revenue Service as required by Section 149 of the Code. 1378
(f) The City will not make any investment or do any other act or thing 1379 during the period that any Tax-Exempt Bond is outstanding hereunder which would 1380 cause any Tax-Exempt Bond to be an “arbitrage bond” within the meaning of 1381 Section 148 of the Code and the regulations thereunder as applicable to the Tax-1382
Exempt Bonds. 1383
(g) It shall not be an event of default under this Ordinance if the interest 1384 on any Tax-Exempt Bonds is not excludable from gross income for federal tax 1385 purposes or otherwise pursuant to any provision of the Code which is not currently 1386 in effect and in existence on the date of issuance of the Tax-Exempt Bonds. These 1387
covenants are based solely on current law in effect and in existence on the date of 1388
delivery of the Tax-Exempt Bonds. 1389
SECTION 2. Notwithstanding any other provisions of this Ordinance, the foregoing 1390 covenants and authorizations (the “Tax Sections”) which are designed to preserve the exclusion of 1391 interest on the Tax-Exempt Bonds from gross income under federal law (the “Tax Exemption”) 1392
need not be complied with to the extent the City receives an opinion of nationally recognized bond 1393
counsel that compliance with such Tax Section is unnecessary to preserve the Tax Exemption. 1394
SECTION 3. Additional Authority. (a) The Executive or Fiscal Officer, and either of 1395 them, is hereby authorized and directed to do and perform all acts and execute in the name of the 1396 City all such instruments, documents, papers or certificates which are necessary, desirable or 1397
appropriate to carry out the transactions contemplated by this Ordinance in such forms as the 1398
Executive or Fiscal Officer executing the same shall deem proper, to be conclusively evidenced 1399 by the execution thereof. Any provision of this Ordinance authorizing the Executive or Fiscal 1400 Officer to act shall mean either of them, individually rather than collectively, is so authorized and 1401 any action taken and agreement or undertaking executed in the name of the City by them in further 1402
of the same shall be deemed a proper use of such authority and will be conclusively evidenced by 1403
their execution of any agreement or undertaking, or by their taking of any such authorized action. 1404
(b) In the event the Executive or Fiscal Officer with the advice of the municipal advisor 1405 to the City certifies to the City that it would be economically advantageous for the City to obtain 1406 a municipal bond insurance policy for any of the 2024 Bonds issued hereunder, the City hereby 1407
authorizes the purchase of such an insurance policy. The acquisition of a municipal bond insurance 1408
policy is hereby deemed economically advantageous in the event the difference between the 1409 present value cost of (a) the total debt service on the 2024 Bonds if issued without municipal bond 1410 insurance and (b) the total debt service on the 2024 Bonds if issued with municipal bond insurance, 1411 is greater than the cost of the premium on the municipal bond insurance policy. The City also 1412
authorizes the purchase of a debt service reserve surety bond based upon the advice of the City’s 1413
municipal advisor for the 2024 Bonds. If such an insurance policy or surety bond is purchased, the 1414 Executive or Fiscal Officer are hereby authorized to execute and deliver all agreements with the 1415 provider of the policy or surety bond, as the case may be, to the extent necessary to comply with 1416 the terms of such insurance policy, surety bond and the commitments to issue such policy or surety 1417
bond, as the case may be. 1418
35 DMS 41746678.6
SECTION 4. Non-Business Days. If the date of making any payment or the last date 1419
for performance of any act or the exercising of any right, as provided in this Ordinance, shall be a 1420
legal holiday or a day on which banking institutions in the City or the jurisdiction in which the 1421 Registrar or Paying Agent is located are typically closed, such payment may be made or act 1422 performed or right exercised on the next succeeding day not a legal holiday or a day on which such 1423 banking institutions are typically closed, with the same force and effect as if done on the nominal 1424
date provided in this Ordinance, and no interest shall accrue for the period after such nominal date. 1425
SECTION 5. No Conflict. The Council hereby finds and determines that the adoption 1426 of this Ordinance and the issuance of the 2024 Bonds is in compliance with the 2017 Ordinance, 1427 the 2019 Ordinance and the 2021 Ordinance and such ordinances shall remain in full force and 1428 effect. None of the provisions of this Ordinance shall be construed to adversely affect the rights of 1429
the owners of the 2017 Bonds or the 2021 Bonds. 1430
SECTION 6. Severabilitv. If any section, paragraph or provision of this Ordinance 1431 shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of 1432 such section, paragraph or provision shall not affect any of the remaining provisions of this 1433 Ordinance. 1434
SECTION 7. Headings. The headings or titles of the several sections shall be solely 1435
for convenience of reference and shall not affect the meaning, construction or effect of this 1436 Ordinance. 1437
SECTION 8. Interpretation. Unless the context or laws clearly require otherwise, 1438 references herein to statutes or other laws include the same as modified, supplemented or 1439
superseded from time to time. The headings or titles of the several sections shall be solely for 1440
convenience of reference and shall not affect the meaning, construction or effect of this Ordinance. 1441
SECTION 9. Estimates of Rates and Charges. The rates and charges of the utility 1442 are set forth in Ordinance D-2692-23 (the “Rate Ordinance”) adopted by the Council on December 1443 18, 2023, which Rate Ordinance is incorporated herein by reference. 1444
SECTION 10. Effectiveness. This Ordinance shall be in full force and effect from and 1445
after its passage and signing by the Executive. 1446
1447
36 DMS 41746678.6
PASSED by the Common Council of the City of Carmel, Indiana this ___ day of 1448
______________, 2024, by a vote of ______ ayes and ______ nays. 1449
COMMON COUNCIL FOR THE CITY OF CARMEL, INDIANA 1450 1451 1452 ___________________________________ 1453
Tony Green, President Adam Aasen, Vice-President 1454
1455 ___________________________________ ____________________________________ 1456 Rich Taylor Matt Snyder 1457 1458
___________________________________ ____________________________________ 1459
Jeff Worrell Teresa Ayers 1460 1461 ___________________________________ ___________________________________ 1462 Shannon Minnaar Ryan Locke 1463
1464
___________________________________ 1465 Anita Joshi 1466 1467 ATTEST: 1468
1469
__________________________________ 1470 Jacob Quinn, Clerk 1471 1472 Presented by me to the Mayor of the City of Carmel, Indiana this ____ day of 1473
_________________________ 2024, at _______ __.M. 1474
1475 ____________________________________ 1476 Jacob Quinn, Clerk 1477 1478
Approved by me, Mayor of the City of Carmel, Indiana, this _____ day of 1479
________________________ 2024, at _______ __.M. 1480 1481 ____________________________________ 1482 Sue Finkam, Mayor 1483
1484
ATTEST: 1485 ___________________________________ 1486 Jacob Quinn, Clerk 1487 1488
Prepared by: Richard C. Starkey 1489
Barnes & Thornburg LLP 1490 11 South Meridian Street 1491
Indianapolis, IN 46204 1492 Ordinance D-2709-24 1493
37
DMS 41746678.6
EXHIBIT A 1494 1495
Project Cost
West Side Storage Tank
131st and Shelborne - 2 mgd tank with Booster Pumps $7,500,000
Southern Well
Hazell Dell Road between 96th and 106th
Includes 2.5 mgd well and raw water piping $2,500,000
Legacy Well
2.5 mgd well and raw water piping $3,000,000
West Side Water Mains
16" Michigan Road
16" Town Road 116th to 126th
16" 106th Street West of Springmill
12" 146th - gap fill in
12" Ditch road
Total West Side Mains $2,500,000
East Side Water Mains
12" River Road South of 146th
12" 126th and River Road
12" Carmel Drive and 3rd
Total East Side Mains $2,500,000
Plant 1 Generator Installation $1,000,000
Contingency $1,000,000
Total Estimated Project Cost $20,000,000 1496
38 DMS 41746678.6
It being understood that the above Projects constitute the maximum amount to be spent, but such 1497
amount may decrease in the event it is determined to forgo some Projects due to non-availability 1498
of sufficient bond proceeds, or timing and relationships to other on-going projects of the City. In 1499 addition, some of the above-described Projects may be substituted for other projects that involve 1500 water infrastructure expansion and/or improvements. 1501
Sponsors: Councilors: Worrell, Minnaar, Green and Joshi
This Resolution was prepared by Benjamin Legge, Interim Corporation Counsel, on March 6, 2024 at 5:00 p.m. No subsequent revision to this Resolution has been reviewed by Mr. Legge for legal sufficiency or otherwise.
RESOLUTION CC 3-18-24-01 1 2
A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF CARMEL, 3 INDIANA, APPROVING A TRANSFER OF FUNDS BETWEEN THE GRANT FUND 4 (CPD)(#900) AND THE GENERAL FUND (#101) 5 6 Synopsis: Transfers $36,616.60 from the Grant Fund (CPD)(#900) to the General Fund 7
(#101) so that federal grant funds received for the Carmel Police Department’s 8 participation in the DUI Task Force, Quick Response Team and the Click It to Live It 9 program can be used to pay overtime earned by officers who worked on the programs. 10 11 WHEREAS, the Carmel Police Department (“CPD”) has received federal grant funds in 12
the amount of Thirty Six Thousand Six Hundred Sixteen Dollars and Sixty Cents ($36,616.60) 13
for its participation in the DUI Task Force, Quick Response Team and the Click It to Live It 14 program (collectively, the “Programs”), which were deposited into the Grant Fund (FUND 15 #900); and 16 17
WHEREAS, it is necessary to transfer the sum of Thirty Six Thousand Six Hundred 18
Sixteen Dollars and Sixty Cents ($36,616.60) from the Grant Fund (FUND #900) into the 19 General Fund (#101) so that CPD officers can be compensated for the overtime they earned by 20 participating in the Programs. 21 22
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of 23
Carmel, Indiana, that the Controller is authorized to transfer funds from the Grant Fund into the 24 General Fund as follows: 25 26 27
$36,616.60 from GRANT FUND (FUND #900) 28
29 To 30 31 GENERAL FUND (#101): $36,616.60 32
33
34 35 36 37
38
39 40 41 42
CC 3-18-24-01 43
Page One of Two Pages 44 45
Sponsors: Councilors: Worrell, Minnaar, Green and Joshi
This Resolution was prepared by Benjamin Legge, Interim Corporation Counsel, on March 6, 2024 at 5:00 p.m. No subsequent revision to this Resolution has been reviewed by Mr. Legge for legal sufficiency or otherwise.
SO RESOLVED, by the Common Council of the City of Carmel, Indiana, this 46 day of ________, 2024, by a vote of _____ ayes and _____ nays. 47
48 COMMON COUNCIL FOR THE CITY OF CARMEL 49 50 51 Anthony Green, President Adam Aasen, Vice-President 52
53
54 Rich Taylor Matthew Snyder 55 56 ______________________________ 57
Jeff Worrell Teresa Ayers 58
59 60 Shannon Minnaar Ryan Locke 61 62
______________________________ 63
Anita Joshi 64 65 ATTEST: 66 67
______________________________ 68
Jacob Quinn, Clerk 69 70 Presented by me to the Mayor of the City of Carmel, Indiana this day of 71 _________________________ 2024, at _______ __.M. 72
73
74 Jacob Quinn, Clerk 75 76 Approved by me, Mayor of the City of Carmel, Indiana, this day of 77
________________________ 2024, at _______ __.M. 78
79 80 81 Sue Finkam, Mayor 82
83
ATTEST: 84 85 86 87
Jacob Quinn, Clerk 88
89 Resolution CC 3-18-24-01 90 Page Two of Two Pages 91
SPONSOR(S): Councilor(s) Aasen, Worrell, Minnaar, and Joshi
This Resolution was prepared by Benjamin Legge, Interim Corporation Counsel, on March 6, 2024, at 5:00 p.m. No subsequent revision to this Resolution has been reviewed by Mr. Legge for legal sufficiency or otherwise.
RESOLUTION CC 03-18-24-02 1
2 RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA 3 RECOGNIZING MARCH 2024 AS NATIONAL DISABILITY AWARENESS MONTH 4 5 Synopsis: This Resolution recognizes March 2024 as National Disability Awareness Month. 6
7 WHEREAS, on February 26, 1987, President Ronald Reagan, through Proclamation 5613, 8 proclaimed March as National Disability Awareness Month, calling for all to provide “our fellow 9 citizens with such disabilities both encouragement and the opportunities they need to lead 10 productive lives and to achieve their full potential.” 11
12 WHEREAS, in 1990, the federal government enacted the Americans with Disabilities Act 13 (ADA), which prohibits discrimination against disabled Americans, requires employers to provide 14 reasonable accommodations to employees with disabilities, and imposes accessibility 15 requirements on public accommodations; and 16
17 WHEREAS, family members, friends, and members of the community can play a central 18 role in enhancing the lives of people with disabilities, especially when the family and community 19 are provided with necessary support services; and 20 21
WHEREAS, disability is a natural part of the human experience and in no way diminishes 22
the right of individuals with disabilities to live independently, enjoy self-determination, make 23 choices, contribute to society, and experience fully in the economic, political, social, cultural, and 24 educational mainstream of American society; and 25 26
WHEREAS, the goals of the Common Council of the City of Carmel properly include 27
providing individuals with disabilities the opportunities and support to make informed choices and 28 decisions, live in homes and communities where such individuals can exercise their full rights and 29 responsibilities as citizens, pursue meaningful and productive lives, contribute to their family, 30 community, state and nation, and achieve full inclusion in society. 31 32 NOW THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE 33 CITY OF CARMEL, INDIANA AS FOLLOWS: 34 35 Section 1. The foregoing Recitals are incorporated herein by this reference. 36 37
Section 2. The Common Council recognizes March 2024 as National Disability 38
Awareness Month. 39 40 Section 3. This Resolution shall take effect immediately upon its passage by the 41 Council and approval of the Mayor. 42
43
44 45 46 Resolution CC 03-18-24-02 47
Page One of Two 48
SPONSOR(S): Councilor(s) Aasen, Worrell, Minnaar, and Joshi
This Resolution was prepared by Benjamin Legge, Interim Corporation Counsel, on March 6, 2024, at 5:00 p.m. No subsequent revision to this Resolution has been reviewed by Mr. Legge for legal sufficiency or otherwise.
49
SO RESOLVED, by the Common Council of the City of Carmel, Indiana, this day of 50
____________, 2024, by a vote of _____ ayes and _____ nays. 51 52 COMMON COUNCIL FOR THE CITY OF CARMEL 53 54
55
Anthony Green, President Adam Aasen, Vice-President 56 57 58 Rich Taylor Matt Snyder 59
60
______________________________ 61 Jeff Worrell Teresa Ayers 62 63 64
Shannon Minnaar Ryan Locke 65
66 ______________________________ 67 Anita Joshi 68 69
ATTEST: 70
71 ______________________________ 72 Jacob Quinn, Clerk 73 74
Presented by me to the Mayor of the City of Carmel, Indiana this day of 75
_________________________ 2024, at _______ __.M. 76 77 78 79
Jacob Quinn, Clerk 80
81 Approved by me, Mayor of the City of Carmel, Indiana, this day of 82 ________________________ 2024, at _______ __.M. 83 84
85
86 Sue Finkam, Mayor 87 ATTEST: 88 89
90
91 Jacob Quinn, Clerk 92 93 94
Resolution CC 03-18-24-02 95
Page Two of Two 96
SPONSOR(S): Councilors Aasen and Worrell
This Resolution was prepared by Benjamin Legge, Interim Corporation Counsel, on February 26, 2024, at 4:00 p.m. No subsequent revision to the Resolution has been reviewed by Mr. Legge for legal sufficiency or otherwise.
RESOLUTION CC 03-18-24-03 1 2 3 4
5
6 7
A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, APPROVING THE SUSPENSION OF THE SHORT TERM RESIDENTIAL
RENTAL ORDINANCE DURING CERTAIN PERIODS OF THE YEAR
Synopsis: Approves dates submitted by the Mayor for the suspension of Unified Development Ordinance Section 5.73, Short Term Residential Rentals in 2024. 8 9
WHEREAS, Ordinance Z-629-17 of the Common Council of the City of Carmel, Indiana 10
adds review and approval procedures, definitions and fees for the establishment of Short Term 11 Residential Rentals in the Unified Development Ordinance (“UDO”); and 12 13 WHEREAS, pursuant to Section 5.73(E), the Mayor may, subject to approval by 14
resolution of the Common Council, suspend operation of UDO Section 5.73 for not more than 15
thirty (30) days per calendar year, during periods of time when major sporting activities or other 16 special events, including, but not limited to the NCAA Tournament, Eclipse, Indianapolis 500, 17 U.S Olympic Team Swimming Trials, Songbook Academy, Brickyard 400, Taylor Swift Eras18 Tour, and Big Ten Football Championship are scheduled in the Central Indiana community; and 19
20 WHEREAS, during these periods, as well as certain holiday weekends, a Permanent 21 Resident may use his or her Dwelling as a Short Term Residential Rental Unit without obtaining 22 a Special Exception permit as required by Section 5.73; and 23 24
WHEREAS, the Mayor submits the following dates for which Section 5.73 will be 25
suspended in 2024: March 22-24, April 5-8, May 24-26, June 14-23, July 17-21, November 1-3, 26 December 6-7, and the Common Council approves. 27 28 NOW, THEREFORE, BE IT HEREBY RESOLVED AND AGREED BY THE 29
COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, AS FOLLOWS: 30
31 Section 1. The foregoing Recitals are fully incorporated herein by this reference. 32 33 Section 2. The Mayor may suspend the requirements of Unified Development Ordinance 34
Section 5.73 during the following periods in 2024: 35
36 a.March 22-24;37 b.April 5-8;38 c.May 24-26;39
d. June 14-23;40
e.July 17-21;41 f.November 1-3; and42 g.December 6-7.43 44
Section 3. This Resolution shall take effect immediately upon its passage by the Council 45
and approval of the Mayor. 46 47 Resolution CC 03-18-24-03 48 Page One of Two Pages 49
SPONSOR(S): Councilors Aasen and Worrell
This Resolution was prepared by Benjamin Legge, Interim Corporation Counsel, on February 26, 2024, at 4:00 p.m. No subsequent revision to the Resolution has been reviewed by Mr. Legge for legal sufficiency or otherwise.
PASSED, by the Common Council of the City of Carmel, Indiana, this day of 50 ________, 2024, by a vote of _____ ayes and _____ nays. 51 52 COMMON COUNCIL FOR THE CITY OF CARMEL 53
54
55 Anthony Green, President Adam Aasen, Vice-President 56 57 58
Rich Taylor Matthew Snyder 59
60 ______________________________ 61 Jeff Worrell Teresa Ayers 62 63
64
Shannon Minnaar Ryan Locke 65 66 ______________________________ 67 Anita Joshi 68
69
ATTEST: 70 71 ______________________________ 72 Jacob Quinn, Clerk 73
74
Presented by me to the Mayor of the City of Carmel, Indiana this day of 75 _________________________ 2024, at _______ __.M. 76 77 78
Jacob Quinn, Clerk 79
80 Approved by me, Mayor of the City of Carmel, Indiana, this day of 81 ________________________ 2024, at _______ __.M. 82 83
84
85 Sue Finkam, Mayor 86 87 ATTEST: 88
89
90 91 Jacob Quinn, Clerk 92 93
Resolution CC 03-18-24-03 94
Page Two of Two Pages 95