HomeMy WebLinkAbout08.05.24 CC Meeting Paperless Packet1
COMMON COUNCIL
MEETING AGENDA
MONDAY, AUGUST 5, 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
6. RECOGNITION OF PERSONS WHO WISH TO ADDRESS THE COUNCIL 7. COUNCIL AND MAYORAL COMMENTS/OBSERVATIONS
8. CONSENT AGENDA a. Approval of Minutes 1. July 15, 2024 Regular Meeting
b. Claims 1. Payroll - $3,715,897.86 2. General Claims - $4,665,236.84
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) 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)
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i. Parks Department (Quarterly – February, May, August, November) j. Climate Action Advisory Committee (Quarterly – March, June, September, December)
k. Jelgava Sister City Presentation to Council on Latvian Police Exchange Program
l. All reports designated by the Chair to qualify for placement under this category. 12. OLD BUSINESS
a. Fifteenth 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, Utilities and Rules Committee.
Synopsis:
Establishes a speed limit of 20 miles per hour within roundabouts. b. Third Reading of Ordinance D-2716-24; An Ordinance of the Common Council of the City of Carmel, Indiana, Amending Chapter 5, Article 1, Section 5-3(b)(2) of the Carmel
City Code; Sponsor(s): Councilor(s) Worrell, Snyder, Aasen, Ayers and Taylor. Returns from the Land Use and Special Studies Committee. Synopsis: Ordinance amending alcohol prohibition on certain sections of the Monon Greenway.
c. Third Reading of Ordinance D-2718-24; An Ordinance of the Common Council of the City of Carmel, Indiana, establishing a designated outdoor refreshment area; Sponsor(s): Councilor(s) Worrell, Snyder, Aasen, Ayers and Taylor. Returns from the Land Use and Special Studies Committee.
Synopsis: Ordinance establishes a designated outdoor refreshment area in the City’s central core pursuant to Indiana Code § 7.1-3-31.
d. Second Reading of Ordinance D-2719-24; An Ordinance of the Common Council of the
City of Carmel, Indiana, Authorizing the Issuance of Economic Development Tax Increment Revenue Bonds to Support the Proscenium III Project, and Authorizing and Approving Other Actions in Respect Thereto; Sponsor: Councilor Aasen. Remains in the Finance, Utilities and Rules Committee.
Synopsis: Ordinance authorizes the issuance of developer TIF bonds by the City of Carmel, Indiana, to finance improvements to support the development of the Proscenium III Project.
13. PUBLIC HEARINGS a. First Reading of Ordinance D-2722-24; An Ordinance of the Common Council of the City of Carmel, Indiana, Authorizing and Approving an Additional Appropriation of Funds from the Operating Balance of the General Fund to the 2024 Department of Community
Services Budget; Sponsor: Councilor Worrell. Synopsis:
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Appropriates funds received from the Hamilton County Recorder’s Office for lien payments that were deposited into the General Fund into the 2024 Department of
Community Services (“DOCS”) budget. 14. NEW BUSINESS a. First Reading of Ordinance D-2724-24; An Ordinance of the Common Council of the
City of Carmel, Indiana, Adding Chapter 9, Article 5 Section 9-193 to the Carmel City
Code; Sponsor: Councilor Joshi. Synopsis: Ordinance requiring that telecommunication cables be buried at a minimum depth of six
inches. b. First Reading of Ordinance D-2725-24; An Ordinance of the Common Council of the City of Carmel, Indiana, Consenting to Hamilton County, Indiana’s Use of Allocated Property Tax Proceeds from the 96th Street – U.S. 421 Allocation Area to the Payment of
Bonds or Lease Rentals used for Financing a Public Safety Training Facility; Sponsor:
Councilor Taylor. Synopsis: Ordinance consents to Hamilton County’s issuance of bonds or entering into a lease either
of which may be payable from allocated property tax proceeds arising from the 96th Street-
U.S. 421 Economic Development Area and the 96th Street-U.S. 421 Allocation Area, which bonds or lease will assist with financing the design, development, construction and equipping of a Public Safety Training Facility intended to provide municipal Police & Fire Departments within Hamilton County, Indiana a facility and structures for the purpose of
providing education and training resources to allow public safety officers to better protect
and serve residents within the territories and districts they serve. c. First Reading of Ordinance Z-692-24; An Ordinance of the Common Council of the City of Carmel, Indiana, to Modify or Terminate the Commitments recorded on 220 2nd Street
SW; Sponsor(s): Councilor(s) Snyder, Green, Aasen and Taylor.
Synopsis: This ordinance is to modify or terminate the commitments recorded on 220 2nd Street SW in Frank Hawkins Addition Lot 1.
15. AGENDA ADD-ON ITEMS 16. OTHER BUSINESS
17. ANNOUNCEMENTS 18. ADJOURNMENT
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COMMON COUNCIL 1
MEETING MINUTES 2
MONDAY, JULY 15, 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 Worrell, 8 Ryan Locke, Rich Taylor, Teresa Ayers, Matthew Snyder, Anita Joshi, Shannon Minnaar and Deputy 9 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 15 The agenda was approved unanimously. 16 17 INVOCATION 18 19 Cantor Melissa Cohen of Congregation Beth-El Zedeck, delivered the Invocation. 20 21 Mohawk Trails 5th grader Aria Williamson led the pledge of allegiance. 22 23 RECOGNITION OF CITY EMPLOYEES AND OUTSTANDING CITIZENS 24 25 There were none. 26 27 RECOGNITION OF PERSONS WHO WISH TO ADDRESS THE COUNCIL 28 29 Carmel High School students from Sewa International spoke to the Council about some of the ways 30 volunteers from their local chapter have contributed to recent Carmel events, such as the Farmer’s Market 31 and CarmelFest. Sewa International is a non-profit service organization which specializes in disaster 32
relief and rehabilitation. They will host their second annual 5K Run/Walk on August 3, 2024 at 8:00 a.m. 33 at Prather Park, formerly known as River Road Park. The proceeds of this 5K event will benefit local first 34 responders. Registration is $20 per participant, at www.sewausa.org/runforfirstresponders. 35 36 COUNCIL AND MAYORAL COMMENTS/OBSERVATIONS 37
38 Councilor Worrell thanked Mayor Finkam for standing up for our community by taking legal action 39 against an illegal short-term rental. Councilor Worrell is promoting a culture of civility, and encouraged 40 Carmel citizens to lead by example, choosing not to see those who disagree with us as enemies or 41 adversaries. 42
43 Council President Green asked for a moment of silence as a show of solidarity and unity for the firefighter 44 who lost his life this weekend, and for those critically injured. 45 46 47
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Aria Williamson gave the Mayor’s update to Council. The Mayor reports that the Fire Chief search is 48 currently underway. The Mayor has formed a committee with firefighters and community members who 49 have already narrowed down an initial 43 candidates to 22. As the candidate pool is further narrowed, in-50 person interviews will start at the end of July. The committee will then recommend finalists for the Mayor 51
to interview. The Mayor also thanked the City Council for looking at the new project proposal for 52
Rangeline Road, which would bring 63,000 square feet of much-needed office space to the central core. 53 The Mayor also asked the residents of Home Place to please help us determine the refi overlay zone. The 54 Housing Task Force will be meeting on Thursday, July 18, at 7:30 a.m. in Council Chambers. This 55 meeting is solely to gather community input. If you are unable to attend, the Mayor encourages emails 56
with your thoughts. 57
58 CONSENT AGENDA 59 60 Councilor Snyder moved to approve the consent agenda. Councilor Aasen seconded. There was no 61
discussion. Council President Green called for the vote. The consent agenda was approved 9-0. 62 63 a. Approval of Minutes 64 65 1. July 1, 2024 Regular Meeting 66
67 b. Claims 68 69 1. Payroll - $3,742,535.53 70 2. General Claims - $1,993,582.28 71
3. Retirement - $110,204.16 72
4. Wire Transfers - $39,099,019.84 73 74 ACTION ON MAYORAL VETOES 75 76
There were none. 77
78 COMMITTEE REPORTS 79 80 Councilor Worrell reported that the Finance, Utilities and Rules Committee had not met since the last 81
Council meeting. There may be an agenda item sent to the committee this evening, and if so, that will be 82
discussed at the August meeting. The Finance Committee currently has one item on its agenda, Ordinance 83 D-2696-23, the “roundabout speed limit” ordinance. The Engineering Department will have its speed 84 study results pertaining to this ordinance available to review at the September meeting. The Finance, 85 Utilities and Rules Committee will next meet on Tuesday, August 13th, at 6:00 p.m. in Council Chambers. 86
87
Councilor Snyder reported that the Land Use and Special Studies Committee met on June 26th at the 88 Carmel Clay Public Library. Discussion of the UDO continued, and there was also discussion of the 89 short-term non-dwelling rental ordinance, as well as a general discussion on the merits of a DORA. 90 Councilor Snyder noted that Ordinance Z-690-24, which had been sent back to the Land Use Committee 91
at the July 1st meeting, would be pulled out of committee by President Green to be voted on tonight. The 92 next meeting of the Land Use and Special Studies Committee will be this Wednesday, July 17th, at 5:30 93 p.m. at the Carmel Clay Public Library. 94 95 96
97 98
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OTHER REPORTS 99 100 The Carmel Redevelopment Commission’s monthly report was given by Director Henry Mestetsky. The 101 Wren and The Windsor buildings continue their progress. 1st on Main had its plaza opening ceremony on 102
June 5th. That office building is now fully leased by headquarters. At Hamilton Crossing, the Republic 103
Headquarters continue to be built. 111 S. Rangeline continues its construction progress and is already 104 fully leased by corporate headquarters. Icon on Main’s parking garage has sparked conversation about 105 what this project will look like when completed. It will have a public plaza and beautiful architecture. 106 Other projects in progress include the AT&T site redevelopment and the Historical Society. The 107
Interurban Trailhead into Central Park was built by the CRC for the Parks Department. The Carmel 108
Winter Farmer’s Market also had artwork painted on its façade to indicate where that market takes place. 109 Councilors Joshi and Snyder asked about the Palladiscope days and hours, and Mr. Mestetsky said that he 110 would check on that. Councilor Worrell offered that he heard that the shows are now only taking place 111 Thursday – Sunday, and ending by 10:30 p.m., but he has not yet confirmed this. Councilor Minnaar 112
asked about the current state of retail occupancy in the Muse. Mr. Mestetsky stated that there are currently 113
retail applicants that are being considered by the developer’s finance approval committee, and he suspects 114 we will be hearing who those tenants will be in the next few weeks. Councilor Aasen asked for more 115 details about the valet parking that will be offered at the LOR/1933 Lounge building. Mr. Mestetsky 116 stated that these details have not been finalized, but more information would be forthcoming. 117
118
Mark Dollase presented the Carmel Historic Preservation Commission’s quarterly report to Council. The 119 Spring Façade Grant Program has been successfully approved for six homeowners, which totaled 120 $26,127.00. During the July 11th CHPC meeting, a second round of façade grants was approved. 121 Applications for those grants will be due by September 1, 2024. The CHPC is required to conduct an 122
audit with the State every two years, which was just completed this Spring. The Commission was found to 123
be compliant in all areas except for not having enough educational trainings for the commissioners. The 124 CHPC has already stepped up those trainings in 2024. Commissioners are encouraged to attend the State 125 Preserving Historic Places Conference in Madison, IN in October. This will also be an educational 126 opportunity. A property known as the Applegate Johnson Farmstead, located in the 9600 block of 127
Haverstick Road, has been approved by the commission, and will go before the State review board at their 128
quarterly meeting on Wednesday, July 17th. We anticipate its approval. Indiana Landmarks has signed a 129 purchase agreement for the Wilkinson House, which is an 1850’s property located on the Northeast corner 130 of Keystone and Smoky Row. This house was targeted for demolition, but will now be saved. Councilor 131 Joshi asked how many Carmel properties are on the national registry of historic homes. Mr. Dollase 132
replied that there are 7 or 8 individually, but the Thornhurst neighborhood is also listed, which has about 133
35 properties. Councilor Taylor asked about the process of reaching out to endangered properties. Mr. 134 Dollase shared that individual letters have been mailed to potential applicants that have been identified by 135 the CHPC Survey, and that survey will be expanded in the future. 136 137
OLD BUSINESS 138 139 Council President Green announced the fourteenth reading of Ordinance D-2696-23; An Ordinance of 140 the Common Council of the City of Carmel, Indiana, Adding Chapter 8, Article 4, Section 8-44 to the 141 Carmel City Code; Sponsor(s): Councilor(s) Worrell and Aasen. This remains in the Finance, Utilities and 142
Rules Committee. 143 144 Council President Green announced the third reading of Ordinance Z-690-24; An Ordinance establishing 145 Non-Dwelling Short Term Rental Use-Specific Standards and Definitions in the Unified Development 146 Ordinance; Sponsor(s): Councilor(s) Worrell and Minnaar. President Green announced that he would be 147
pulling this ordinance out of committee, as it had been sent back to the Land Use and Special Studies 148
Committee previously, when a question was raised about this ordinance potentially prohibiting the use of 149
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large estates for fundraising events. As it was determined that this would not be an issue for charitable 150 organization that are not advertising on the internet, there was no reason to keep this ordinance in 151 committee. Councilor Joshi moved to approve the ordinance. Councilor Aasen seconded the motion. There 152 was no discussion. Council President Green called for the vote. Ordinance Z-690-24 approved 9-0. 153
154
Council President Green announced the second reading of Ordinance D-2716-24; An Ordinance of the 155 Common Council of the City of Carmel, Indiana, Amending Chapter 5, Article 1, Section 5-3(b)(2) of the 156 Carmel City Code; Sponsor(s): Worrell, Snyder and Aasen. This remains in the Land Use and Special 157 Studies Committee. 158
159
Council President Green announced the second reading of Ordinance D-2718-24; An Ordinance of the 160 Common Council of the City of Carmel, Indiana, establishing a designated outdoor refreshment area; 161 Sponsor(s): Worrell, Snyder and Aasen. This remains in the Land Use and Special Studies Committee. 162 163
NEW BUSINESS 164
165 Council President Green announced Resolution CC-07-15-24-01; A Resolution of the Common Council 166 of the City of Carmel, Indiana, Approving a Transfer of Funds in the 2024 Information and 167 Communication Systems Department Budget; Sponsor: Green. Being the sponsor of this resolution, 168
Council President Green passed the gavel to Council Vice President Aasen, and made a motion to 169
introduce the item into business. Councilor Aasen seconded. President Green presented the item to 170 Council. Councilor Aasen passed the gavel back to President Green. Timothy Renick, Director of 171 Information and Communication Systems, explained that this would be a transfer of funds already within 172 the department’s budget to pay for the second phase of the City’s 311 project, and not a request for 173
additional funds. Councilor Aasen moved to approve. Councilor Minnaar seconded. There was no 174
discussion. President Green called for the vote. Resolution CC-07-15-24-01 approved 9-0. 175 176 Council President Green announced the first reading of Ordinance D-2719-24; An Ordinance of the 177 Common Council of the City of Carmel, Indiana, Authorizing the Issuance of Economic Development 178
Tax Increment Revenue Bonds to Support the Proscenium III Project, and Authorizing and Approving 179
Other Actions in Respect Thereto; Sponsor: Aasen. Councilor Aasen moved to introduce the item into 180 business. Councilor Minnaar seconded. Councilor Aasen presented the item to Council. Henry Mestetsky 181 then spoke to Council regarding this ordinance. Mr. Mestetsky shared information regarding developer 182 bonds and how they work, stressing that there is no risk to taxpayers or impact on the tax rate. All the risk 183
is on the developer, these are not SBT bonds, they have no taxpayer backup, and the taxpayers will never 184
be responsible for them. Tony Birkla, of Birkla Investment Group, shared more information about the 185 Prosecenium III project. He introduced Phil and Judy Stewart, who own three homes that sit on land that 186 would be a part of this project. Proscenium III is a $123 million mixed-use development, primarily office 187 and luxury hotel, also including residential and parking. The garage would be 80% open to the public, 188
which is more than the standard 75%. Proscenium III would generate $112,000.00 annually to Carmel 189
Clay Schools, thanks to the school referendum. There would be 63,000 square feet of corporate 190 headquarters space, 15,000 square feet of retail, a 125-room upscale hotel, 152 multi-family units, public 191 art, and a 508-space parking garage with 460 of those spaces open to the public. There would be a 95/5 192 TIF split. 193
194 Councilor Joshi asked why the 95/5 TIF split was decided upon, as it seems this project does not need to 195 be incentivized that highly. Director Mestetsky responded that this is actually a better deal for us than 196 Proscenium I & II, which both received 100% of the TIF. Councilor Snyder also stated that he felt the 197 split was too high. Director Mestetsky stated that it needs to be high enough for the project to happen. 198
Councilor Aasen asked how the public art would be paid for. Director Mestetsky replied that it would be 199
paid for the by the developer. Councilor Taylor asked if the parking garage would be sufficient in 200
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consideration of the city hall parking spaces that would be lost, and the residents and office workers that 201 would all be using it. Director Mestetsky agreed that at peak times, the garage would be full and parking 202 would have to be found elsewhere, but that the garage would also provide extra parking for events like the 203 gazebo concert series. Councilor Worrell stated that when this item comes to the Finance committee, they 204
will discuss the differing TIF splits of recent projects. Councilor Aasen stated that the Council would like 205
to see how factors such as storm water drainage and parking fit together with all of the upcoming projects 206 in the urban core. Councilor Taylor pointed out that the TIF split for the Gramercy project had to be so 207 high because you cannot TIF for-purchase properties. Council President Green then sent this ordinance to 208 the Finance, Utilities and Rules Committee. 209
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Council President Green announced the first reading of Ordinance D-2720-24; An Ordinance of the 211 Common Council of the City of Carmel, Indiana, Adopting an Investment Policy Authorizing the 212 Investment of Public Funds Pursuant to IC 5-13-9-5.7; Sponsor: Taylor. Councilor Snyder moved to 213 introduce the item into business. Councilor Joshi seconded. Councilor Taylor presented the item to 214
Council. He explained that this investment policy is not new, it is just a renewal of our existing 215
investment policy that must happen every four years. Councilor Joshi moved to suspend the rules and act 216 on this tonight. Councilor Taylor seconded. There was no discussion. Council President Green called for 217 the vote. Motion to suspend the rules approved 9-0. Councilor Aasen moved to approve the ordinance. 218 Councilor Taylor seconded. There was no discussion. Council President Green called for the vote. 219
Ordinance D-2720-24 approved 9-0. 220
221 Council President Green announced the first reading of Ordinance D-2721-24; An Ordinance of the 222 Common Council of the City of Carmel, Indiana, Amending the 2024 Salary Ordinance; Sponsor: Aasen. 223 Councilor Aasen moved to introduce. Councilor Minnaar seconded. Councilor Aasen presented the item 224
to Council. Samantha Karn, Corporation Counsel, explained that a new employee had not been hired, this 225
salary ordinance pertained to an existing employee who is actually functioning in more of an Asset 226 Management Systems role. This ordinance would change that person’s title and pay. This ordinance 227 would also reallocate money within the Chief Infrastructure Officer’s base pay but would not change that 228 employee’s total compensation. Councilor Snyder made a motion to suspend the rules. Councilor Aasen 229
seconded. There was no discussion. Council President Green called for the vote. Motion to suspend the 230
rules approved 9-0. Councilor Aasen made a motion to approve the ordinance. Councilor Minnaar 231 seconded. There was no discussion. Council President Green called for the vote. Ordinance D-2721-24 232 approved 9-0. 233 234
AGENDA ADD-ONS 235 236 Councilor Aasen made a motion to add Interlocal Agreement Concerning Reimbursement of Potential 237 Costs for Portions of Clara Knotts Drain Located in the City of Carmel to the agenda. Councilor 238 Joshi seconded. There was no discussion. Council President Green called for the vote. Motion to add to 239
the agenda approved 9-0. Chief Infrastructure Officer Jeremy Kashman explained that the College 240
Avenue reconstruction project has required the movement of some utility lines through a regulated drain 241 easement for the Clara Knotts drain. In order to speed up the process, this interlocal agreement allows the 242 Hamilton County drainage board to seek any needed reimbursement from the city of Carmel, but still 243 allows Carmel to seek reimbursement from the utilities. Councilor Joshi asked if we have estimated what 244
amount that reimbursement might be. Mr. Kashman replied that we don’t know the amount, but the risk is 245 fairly minimal. Councilor Taylor asked if Corporation Counsel was comfortable with our ability to seek 246 reimbursement based on this agreement, and Ms. Karn replied that they are. Councilor Taylor moved to 247 approve this agreement. Councilor Aasen seconded. There was no discussion. Council President Green 248 called for the vote. Interlocal Agreement approved 9-0. 249
250 251
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OTHER BUSINESS 252 253 There was none. 254 255
ANNOUNCEMENTS 256 257 Councilor Snyder asked Chief Infrastructure Officer Jeremy Kashman to introduce the new City Engineer. 258 Bradley Pease was introduced as the new City Engineer. Brad had been a Staff Engineer with the city 259 previously. 260
261 ADJOURNMENT 262 263 Council President Green adjourned the meeting at 7:22 p.m. 264 265
Respectfully Submitted, 266
267 _______________________________ 268 Jacob Quinn, Clerk 269 270
271
Approved, 272 273 274 _______________________________ 275
ATTEST: Anthony Green, Council President 276
277 278 _______________________________ 279 Jacob Quinn, Clerk 280
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 1
CITY COUNCIL AUGUST 2024 REPORT REPORTING ON JUNE 2024 FINANCES JULY 2024 ACTIVITIES
STRATEGIC HIGHLIGHTS
• Construction progressing on the following projects: o The Signature
o First on Main
o Magnolia o The Muse (The Corner) o The Wren
o The Windsor
o Republic Airways (Hamilton Crossing) o Proscenium II
o North End
o The LOR/1933 Lounge Project
o Lexington & Main Roundabout Art o AT&T Site
FINANCIAL SNAPSHOT
June Beginning Balance $ 7,265,681
June Revenues $ 19,278,079
June Transfers $ (1,269,994)
June Expenditures $ 16,706,126
June ending Balance Without Reserve Funds $ 8,567,639
Supplemental Reserve Fund $ 4,951,733
City Center Bond Reserve $ 444,551
Midtown Bond Reserve $ 878,059
Midtown West Bond Reserve $ 704,886
Urban Parks Fund $ 1,791,775
June Balance With Reserve Funds $ 17,338,643
FINANCIAL STATEMENT
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 2
Financial Statement
JUNE MONTH-END FINANCIAL BALANCE
Ending Balance without Restricted Funds $ 8,567,639
Ending Balance with Restricted Funds $ 17,338,643
SUMMARY OF CASH For the Month Ending June 2024
DESCRIPTION ACTUAL
MONTHLY
PROJECTION VARIANCE
Cash Balance 6/1/24
1101 Cash $ 5,545,514.46 $ 5,545,514.46 -
1110 TIF $ 1,720,166.10 $ 1,720,166.10 -
Total Cash $ 7,265,680.56 $ 7,265,680.56 -
Receipts
1101 Cash $ 615,027.29 $ 630,189.40 $ (15,162.11)
1110 TIF $ 21,860,805.47 $ 21,860,805.47 $ -
Developer Payments $ (3,197,754.01) $ (3,197,754.01) $ -
Transfers to Reserves (TIF) $ (461,985.30) $ (461,985.30) $ -
Transfers to Reserves (non-TIF) $ (134,121.84) $ (137,021.26) $ 2,899.42
Transfer to SRF $ (673,886.78) $ (673,886.78) $ -
Total Receipts $ 18,008,084.83 $ 18,020,347.52 $ (12,262.69)
Disbursements
1101 Cash $ 433,165.08 $ 443,496.77 $ 10,331.69
1110 TIF $ 16,272,960.91 $ 16,272,960.91 $ -
Total Disbursements $ 16,706,125.99 $ 16,716,457.68 $ 10,331.69
1101 Cash $ 5,593,254.83 $ 5,595,185.83 $ (1,931.00)
1110 TIF $ 2,974,384.57 $ 2,974,384.57 $ -
Cash Balance 6/30/24 $ 8,567,639.40 $ 8,569,570.40 $ (1,931.00)
Total Usable Funds $ 8,567,639.40 $ 8,569,570.40 $ (1,931.00)
($2,000,000.00)$0.00$2,000,000.00$4,000,000.00$6,000,000.00$8,000,000.00
JUNE
MONTH END BALANCE
Actual Budget Variance
FINANCIAL STATEMENT
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 3
FUND BALANCES AND OUTSTANDING RECEIVABLES As of month-end June 2024
RESTRICTED FUNDS
Supplemental Reserve Fund $ 4,951,733
City Center Bond Reserve $ 444,551
Midtown Bond Reserve $ 878,059
Midtown West Bond Reserve $ 704,886
Urban Parks Fund $ 1,791,775
Sub-total: $ 8,771,004 UNRESTRICTED FUNDS
TIF $ 2,974,385 Non TIF $ 5,593,255
Sub-total: $ 8,567,639
Total Funds $ 17,338,643
OUTSTANDING RECEIVABLES
N/A $ -
TOTAL OUTSTANDING RECEIVABLES $ -
STATEMENT OF CHANGES IN EQUITY
MONTH END: JUNE 2024
DESCRIPTION REVENUE EXPENSES
Total Receipts (TIF) $ 17,527,179
Total Receipts (Non-TIF) $ 480,905
Expenditures (TIF) $ 16,272,961
Expenditures (Non-TIF) $ 433,165
FINANCIAL UPDATE
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 4
Financial Update
TIF REVENUE AND DEBT Estimated 2024 TIF revenue and PIATT payments available for CRC use is $33,636,213.
$- $10,000,000 $20,000,000 $30,000,000 $40,000,000
20
1
8
20
1
9
20
2
0
20
2
1
20
2
2
20
2
3
TIF RevenueDebt Service
DEBT PAYMENTS
Month Payment
June 2024 $16,550,975
December 2024 $16,549,798
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 5
Project Updates
CITY CENTER Developer Partner: Pedcor Companies Allocation Area: City Center Use: Mixed-Use Project Summary: Mixed Use development, multiple buildings
Figure 1 City Center Master Plan, provided by Pedcor City Center Development Company
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 6
1) Project Status – (changes noted below.) CRC Contract Amounts: City Center Bond: $ 16,214,875.00 2016 TIF Bond: $ 2,598,314.00 (5th Floor of Park East garage) Site Construction Contract Amounts: $1,442,962 – Smock Fansler, contractor - Complete Veterans Way Extension Project Amounts: $3,403,000 – Hagerman, contractor – Complete Parcel 73 Site work: $149,600 – Smock Fansler, contractor
PROJECT USE PROJECT
DATES
DESIGN RENDERINGS PROVIDED BY PEDCOR
Veterans
Way Garage
A five-story parking structure with 735 parking spaces
Open to the public on 9/22/17
Completed in May 2017 Contract Amt. $13,954,683
Baldwin/ Chambers A four-story building, of approximately 64,000 square feet, which will include luxury apartments and commercial retail/ office space. Approx. 26 Apartments Hagerman is the contractor.
Completed in June 2018
Pedcor Office 5 A two-story building, of approximately 20,000 square feet, which will include office space.
Start: Fall 2015 Completed Q4 2017
Tenants have moved into the new building
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 7
Kent A three-story building, of approximately 111,000 square feet of luxury apartments. Site drawings were approved by the CRC Architectural Committee.
Start: Summer 2018 Complete: June 2021
Site Construction – Start: Spring 2018 Site Work Awarded – Spring 2018 Building Construction – Start: Summer 2018 Building Complete June 2021 - Pool and Site work is still under construction
Hamilton (Park East
commercial/residential buildings
Hamilton East: 5 ground floor residential two-story townhomes; 7,954 SF of ground floor commercial space Hamilton West: 13,992 SF of ground floor commercial space
Start: Summer 2018
Hamilton East - Construction commenced: Summer 2018, completed Summer 2019 Hamilton West – Construction commenced: Summer 2020, currently under construction
Playfair and
Holland
A five-story building, of approximately 178,000 square feet, which will include 112 luxury apartments and commercial retail/office space.
Start: September 2019 Complete: Spring 2022 Approx. 112 Apartments
Windsor A four-story building, of approximately 64,000 square feet. Start: Summer 2022 Complete: May/June 2024
July 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 8
Wren A six-story building of approximately 157,000 square feet, which will include luxury apartments and commercial office/retail space.
Start: Summer 2020 Complete: June 2024 Currently under construction
Note: All completion dates indicated above are per the Completion Guaranties executed between the CRC and Pedcor. Should Pedcor miss these dates they are obligated to cover the debt obligations. 2) Council and/or CRC Action Items
ACTION ITEM CITY COUNCIL CRC
3) CRC Commitments An overview of commitments has been uploaded to the CRC website. Most significantly, the CRC committed to publicly bid a four-story parking garage with not less than 620 parking spaces which has been completed and is available for public use. The CRC also commits to coordinate any significant site plan changes requested by Pedcor with City Council.
June 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 9
PROSCENIUM 1) Developer Partner(s): Novo Development Group 2) Economic Development Area: 126th Street 3) Project Summary: Mixed-use development, multiple buildings. 1) 197 Apartments; 22 for-sale condos 2) Approx. 140,000 SF of office and retail space 3) Approx. 450 parking spaces (public and private) Total project budget: $60,000,000 4) Anticipated Project Schedule Design Start 2016 Construction Start 2018 Construction Complete 2022 Tavern Construction Start Estimated Fall 2023 Tavern Construction Complete Estimated 5) Construction Milestones: Construction is complete. Construction of the Tavern estimated to begin fall 2023. 6) Council and/or CRC Action Items
ACTION ITEM CITY COUNCIL CRC
7) CRC Commitments No commitments by the CRC have been made. The City will be relocating and burying Duke Energy’s transmission line and completing road improvements adjacent to the development.
September 2022
September 2022
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 10
MELANGE 1)Developer Partner(s): Onyx + East 2)Economic Development Area: Firehouse 3)Project Summary: 45 for-sale townhomes and approximately 12 for-sale flats 4)Total project budget: $30,000,000 5)Anticipated Project Schedule Construction Start May 2021 Complete Estimated December 2023 6)Construction Milestones: Construction is underway. 7)CRC Commitments CRC contributed land to the development of this project, relocated the CFD generator, and is funding infrastructure, road work, and utility relocations with TIF. 8)Council and/or CRC Action Items
ACTION ITEM CITY COUNCIL CRC
Rendering September 2023
Rendering
June 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 11
CIVIC SQUARE GARAGE 1) CRC Design-Build Project 2)Economic Development Area: Carmel City Center/Carmel City Center Amendment 3)Project Summary: - 303-space parking garage - 255 spaces will be open to the public - 48 spaces are reserved for owner-occupied condos that will line the west and north sides of the garage (to be developed as part of a future CRC project) 4)Total project budget: $9,700,000 5)Anticipated Project Schedule Construction Start January 2022 Construction End Opened Summer 2022 6)Construction Milestones: Garage is now open for public use. 7)CRC Commitments The CRC will be involved with development and construction of the parking garage 8)Council and/or CRC Action Items
ACTION ITEM CITY COUNCIL CRC
September 2022 Rendering
March 2023
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 12
FIRST ON MAIN 1)Developer Partner(s): Lauth Group, Inc. 2)Economic Development Area: Lot One 3)Project Summary: - 310-space public parking garage - Four-story, 73,000 SF Class-A office building with first floor restaurant space and a private rooftop terrace - 8 condominiums - 35 apartments - Community gathering plaza featuring the City’s Rotary Clock 4)Total project budget: $35,000,000 5)Anticipated Project Schedule Construction Start Fall 2021 Construction End Estimated November 2023 6)Construction Milestones: Construction is underway. 7)CRC Commitments CRC contributed the land for this development. Future commercial taxes from the project (TIF) are being used to fund infrastructure improvements that may include the garage, utility relocations, and roadway improvements. 8)Council and/or CRC Action Items
ACTION ITEM CITY COUNCIL CRC
January 2024
Rendering June 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 13
THE SIGNATURE 1)Developer Partner(s): Tegethoff Development and Great Lakes Capital 2)Economic Development Area: Main and Old Meridian 3)Project Summary: - 8 owner-occupied flats/condos - 295 luxury apartments - 15k sf of office/retail - 374 structured parking spaces - Dedication of land for future street 4)Total project budget: $78,000,000 5)Anticipated Project Schedule Construction Start November 2021 Construction End Estimated December 2023 w/ retail buildouts ongoing through Spring 2024 6)Construction Milestones: Construction is underway. 7)CRC Commitments: Future commercial taxes from the project (TIF) are being used to fund infrastructure improvements that may include the garage, utility relocations, and roadway improvements. 8)Council and/or CRC Action Items
ACTION ITEM CITY COUNCIL CRC
Rendering June 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 14
MAGNOLIA 1)Developer Partner(s): Old Town Companies 2)Economic Development Area: Magnolia 3)Project Summary: Multi-phase development that will include six condominium buildings with five units per building, for a total of 30 for-sale condos, and future multi-family residential on the corner of City Center Drive and Rangeline Road. 4)Total project budget: 5)Anticipated Project Schedule Construction Start April 2022 (Building 1) Construction End Estimated 2025 (Buildings 4-6) 6)Construction Milestones: Construction is underway. 7)CRC Commitments: CRC contributed the land for the development of this project. 8)Council and/or CRC Action Items
ACTION ITEM CITY COUNCIL CRC
Rendering September 2023 June 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 15
THE MUSE 1)Developer Partner(s): Kite Reality Group 2)Economic Development Area: The Corner 3)Project Summary: mixed-use project consisting of 278 apartments, 25,000 square feet of office/retail space, and a free 364-space public parking garage 4)Total project budget: $69,000,000 5)Anticipated Project Schedule Construction Start Late 2021 Construction End Bldg A/Garage: Estimated December 2023 Bldg B: Estimated April 2024 6)Construction Milestones: Construction is underway. 7)CRC Commitments Future commercial taxes from the project (TIF) are being used to construct the public parking garage, utility relocations, and streetscape improvements. 8)Council and/or CRC Action Items
Rendering June 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 16
HAMILTON CROSSING
1)Developer Partner(s): Kite Reality Group and Pure Development, Inc. 2)Economic Development Area: Amended 126th Street 3)Project Summary: New home of Republic Airways. 105,000 square-foot training facility with 20 classrooms, 94 workstations, two cabin trainers, and eight flight simulators. The hotel adjacent to the training center will be expanded to 274 rooms. 1,900 jobs brought/created with Republic alone. 4)Total project budget: $200,000,000 investment for Phase 1 and II 5)Anticipated Project Schedule Construction Start HQ/Corporate Housing: Winter 2021 (Complete) Garage: Winter 2022 Construction End HQ/Corporate Housing: Completed Garage: Estimated April 2024 6)Construction Milestones: Construction is underway. Training Center is open. 7)CRC Commitments Future commercial taxes from the project (TIF) are being used to fund infrastructure improvements that may include the garage, utility relocations, and roadway improvements. 8)Council and/or CRC Action Items
Rendering
Rendering
July 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 17
PROSCENIUM II 1) Developer Partner(s): Novo Development Group 2) Economic Development Area: Amended 126th Street 3) Project Summary: Mixed-use development i. 120 parking spaces ii. 48 Apartments; 7 for-sale condos iii. Approx. 15,000 SF of office and retail space iv. Approx. Total project budget: $18,000,000 4) Anticipated Project Schedule Design Start 2021 Construction Start 2022 Construction Complete Estimated August 2024 5) Construction Milestones: Construction is underway. 6) Council and/or CRC Action Items
ACTION ITEM CITY COUNCIL CRC
7) CRC Commitments No commitments by the CRC have been made.
Rendering July 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 18
AT&T SITE 1) Developer Partner(s): Buckingham Companies, Third Street Ventures, Pure Development, and Merchants Banks 2) Economic Development Area: 3rd Ave ATT 3) Project Summary: Mixed-use development i. 443 parking spaces ii. 244-unit multi-family building; 2 single family homes iii. Approx. 80,000 SF of corporate headquarters; 37,000 SF boutique headquarters iv. Approx. Total project budget: $133,000,000 4) Anticipated Project Schedule Design Start 2022 Construction Start 2024 Construction Complete December 2025 5) Construction Milestones: Construction is underway. 6) Council and/or CRC Action Items
ACTION ITEM CITY COUNCIL CRC
7) CRC Commitments No commitments by the CRC have been made.
Respectfully submitted, Henry Mestetsky Executive Director
Rendering June 2024
PROJECT UPDATES
July 26, 2024 CRC Report for August 5, 2024, City Council Meeting Page | 19
Carmel Redevelopment Commission/Department July 26, 2024
Prepared for City Council and the Redevelopment Commission -End Report-
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
2
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
5
Synopsis: Establishes a speed limit of 20 miles per hour within roundabouts. 6
7
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
10
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
13
NOW, THEREFORE, BE IT ORDAINED, by the Common Council of the City of Carmel, 14
Indiana, as follows: 15
16
Section 1. The foregoing Recitals are fully incorporated herein by this reference. 17
18
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
21
Ҥ 8-44 Twenty m.p.h. Speed Limit Within Roundabouts. 22
23
No person shall drive a motor vehicle in excess of twenty (20) miles per hour within a 24
roundabout.” 25
26
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
29
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
36
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
40
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
43
44
45
Ordinance D-2696-23 46
Page One of Two 47
48
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
51
COMMON COUNCIL FOR THE CITY OF CARMEL 52
53
54
55
56
57
58
59
60
61
62
63
64
Adam Aasen
____________________________________ Teresa Ayers
____________________________________
Ryan Locke
___________________________________ Rich Taylor65
66
67
68
69
70
71
72
___________________________________ Anthony Green
___________________________________ Jeff Worrell
___________________________________
Shannon Minnaar
___________________________________ Matthew Taylor
___________________________________ Anita Joshi
ATTEST:
__________________________________ Jacob Quinn, Clerk73
74
75 Presented by me to the Mayor of the City of Carmel, Indiana this ____ day of
_________________________ 2024, at _______ __.M.76
77
78 ____________________________________ Jacob Quinn, Clerk79
80
81 Approved by me, Mayor of the City of Carmel, Indiana, this _____ day
of ________________________ 2024, at _______ __.M.82
83
84 ____________________________________ Sue Finkam, Mayor85
86
87
88
89
90
91
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.
92
93
SPONSOR(S): Worrell, Snyder, Aasen, Ayers, Taylor
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 6/18/2024. It may have been subsequently revised.
ORDINANCE NO. D-2716-24 1 2 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, 3 AMENDING CHAPTER 5, ARTICLE 1, SECTION 5-3(b)(2) OF THE CARMEL CITY CODE. 4
5
Synopsis: Ordinance amending alcohol prohibition on certain sections of the Monon Greenway. 6
7 WHEREAS, the City has previously prohibited containers of alcohol or beverages containing alcohol 8 on or along the Monon Greenway; and 9 10 WHEREAS, on ________, 2024 the Common Council passed an ordinance (the “DORA Ordinance”) 11
establishing a Central Designated Outdoor Refreshment Area (the “Central DORA”) that encompasses a 12 section of the Monon Greenway as depicted in the attached Central DORA Map; and 13 14 WHEREAS, individuals of twenty-one (21) years of age and older may consume alcoholic beverages 15 within the Central DORA pursuant and subject to the DORA Ordinance’s regulations; and 16
17 WHEREAS, pursuant to Indiana Code § 7.1-3-31, the Common Council may establish up to seven 18 (7) Designated Outdoor Refreshment Areas; and19 20 WHEREAS, the Common Council of the City of Carmel, Indiana, now finds that it is in the interests 21
of the public to amend alcohol prohibition on sections of the Monon Greenway that pass through any 22 Designated Outdoor Refreshment Areas. 23 24 NOW, THEREFORE, BE IT ORDAINED, by the Common Council of the City of Carmel, Indiana, 25 as follows: 26
27 Section 1. The foregoing Recitals are fully incorporated herein by this reference. 28 29 Section 2. The following subsection of Carmel City Code Section 5-3(b) is hereby amended and shall 30 read as follows: 31
32 “(2) Use of alcohol. Containers of alcohol or beverages containing alcohol are strictly 33 prohibited in, on or along the Monon Greenway for any reason, except for the Monon 34 Greenway sections that pass through any Designated Outdoor Refreshment Areas, and 35 any alcohol consumption in such sections is subject to the appliable Designated Outdoor 36
Refreshment Area ordinance.” 37 38 Section 3. The remaining provisions of Carmel City Code Sections 5-3 are not affected by this 39 Ordinance and shall remain in full force and effect. 40 41
42 43 44 45 46
Ordinance D-2716-24 47 Page One of Three 48 49 50
SPONSOR(S): Worrell, Snyder, Aasen, Ayers, Taylor
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 6/18/2024. It may have been subsequently revised.
Section 4. All prior ordinances or parts thereof inconsistent with any provision of this Ordinance are 51
hereby repealed, to the extent of such inconsistency only, as of the effective date of this Ordinance, such repeal 52 to have prospective effect only. However, the repeal or amendment by this Ordinance of any other ordinance 53 does not affect any rights or liabilities accrued, penalties incurred or proceedings begun prior to the effective 54 date of this Ordinance. Those rights, liabilities and proceedings are continued and penalties shall be imposed 55
and enforced under such repealed or amended ordinance as if this Ordinance had not been adopted. 56
57 Section 5. If any portion of this Ordinance is for any reason declared to be invalid by a court of 58 competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance 59 so long as enforcement of same can be given the same effect. 60 61 Section 6. This Ordinance shall be in full force and effect from and after the date of its passage and 62 signing by the Mayor and such publication as required by law. 63 64 65 66 67 68
69 70 71 [remainder of page intentionally left blank] 72 73
74 75 76 77 78
79 80 81 82 83
84
85 86 87 88
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90 91 92 93
94
95 96 Ordinance D-2716-24 97 Page Two of Three 98
99
100
SPONSOR(S): Worrell, Snyder, Aasen, Ayers, Taylor
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 6/18/2024. It may have been subsequently revised.
PASSED by the Common Council of the City of Carmel, Indiana, this ____ day of ____________, 101
2024, by a vote of _____ ayes and _____ nays. 102 103 104 COMMON COUNCIL FOR THE CITY OF CARMEL 105
106
___________________________________ 107 Anthony Green, President Adam Aasen, Vice-President 108 109 ___________________________________ ______________________________ 110
Jeff Worrell Teresa Ayers 111
112 ___________________________________ ______________________________ 113 Anita Joshi Shannon Minnaar 114 115
___________________________________ ______________________________ 116
Ryan Locke Matt Snyder 117 118 ___________________________________ 119 Rich Taylor 120
121
122 ATTEST: 123 124 ________________________________ 125
Jacob Quinn, Clerk 126
127 Presented by me to the Mayor of the City of Carmel, Indiana this day of ________________ 128 2024, at _______ __.M. 129 130
____________________________________ 131
Jacob Quinn, Clerk 132 133 Approved by me, Mayor of the City of Carmel, Indiana, this _____ day of ________________________ 134 2024, at _______ __.M. 135 136137 ____________________________________ 138 Sue Finkam, Mayor 139 140 ATTEST: 141 142143 ______________________________ 144 Jacob Quinn, Clerk 145 146 147
148
Ordinance No. D-2716-24 149 Page Three of Three 150
SPONSOR(S): Worell, Snyder, Aasen, Ayers, Taylor
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 6/18/2024. It may have been subsequently revised.
ORDINANCE NO. D-2718-24 1 2 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, 3 ESTABLISHING A DESIGNATED OUTDOOR REFRESHMENT AREA 4
5 Synopsis: Ordinance establishes a designated outdoor refreshment area in the City’s central core 6 pursuant to Indiana Code § 7.1-3-31. 7 8 WHEREAS, the City of Carmel (the “City”), pursuant to Indiana Code § 7.1-3-31 et seq., may 9
establish a designated outdoor refreshment area (“DORA”); and 10
11 WHEREAS, the City has a vibrant central core with many entertainment venues, restaurants, public 12 walkways, squares, and green spaces; and 13 14
WHEREAS, the City’s central core hosts over one hundred public events and festivals each year that 15 attract millions of visitors from around the country, and has long become an engine for economic growth for 16 the entire City; and 17 18 WHEREAS, the City wishes to continue its support for central core’s vitality and encourage its growth 19
and prosperity, while ensuring the DORA is administered in an orderly, safe, and inviting fashion in accordance 20 with state and City laws, rules, and regulations; and 21 22 WHEREAS, the City analysed the location of the proposed DORA and determined it to be consistent 23 with the economic development pattern for the area, Carmel’s Comprehensive Plan, and Unified Development 24
Ordinance (the “UDO”); and 25 26 WHEREAS, the City believes it is in the best interests of its residents to establish a DORA in the 27 City’s central core, which area is shown on the Central DORA Map, included in this Ordinance. 28 29
NOW, THEREFORE, BE IT ORDAINED, by the Common Council of the City of Carmel, Indiana, 30 as follows: 31 32 Section 1. The foregoing Recitals are fully incorporated herein by this reference. 33 34
Section 2. Definitions. All definitions in Ind. Code 7.1-3-31 et seq., as amended, and any applicable 35
definitions of the UDO shall apply to this Ordinance. 36 37 Section 3. Establishment of DORA. The Common Council established a DORA to be known as the 38 “Central DORA” pursuant to Ind. Code 7.1-3-31 et seq., and consistent with all applicable state and local laws, 39
rules, and regulations. 40
41 Section 4. Map and Boundaries. The Central DORA shall comprise the area identified and depicted in 42 the Central DORA map, which is attached hereto as Exhibit A, with boundaries described in the attached 43 Exhibit B. Exhibits are fully incorporated herein by this reference and may be amended from time to time. 44
45 46 Ordinance D-2718-24 47 Page One of Five 48 49
SPONSOR(S): Worell, Snyder, Aasen, Ayers, Taylor
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 6/18/2024. It may have been subsequently revised.
Section 5. Signage. The Common Council hereby adopts the following signage requirements for the 50 Central DORA: 51 (1)The Common Council hereby delegates the duty to design the form and logo of the Central DORA52
signage, and distribute said signs to the Designated Permittees and Vendors to the Department of53
Marketing and Community Relations. The Common Council shall have final approval of signage54 design. OR The Common Council hereby adopts signage designating the Central DORA as depicted55 in the attached Exhibit C, which is fully incorporated herein by this reference.56 (2) Signs shall be posted in the City’s right-of-way, at all pedestrian entrances and exists to the Central57
DORA to inform the public of the Central DORA’s boundaries. All signs shall be posted in conspicuous58
locations, able to be seen by the pedestrians entering or exiting the Central DORA. Signs designating59 the Central DORA may be placed as new signs, attached to existing City signs or directional devices,60 or be placed as street decals. In addition to signs designating the Central DORA’s boundary,61 informational signs shall be installed at the busiest pedestrian entrances at the discretion of the Carmel62
Street Department. At a minimum, such informational signs shall contain information or a QR code63
directing to information regarding the Central DORA’s hours of operation, the Central DORA’s map,64 the list of participating Designated Permittees, and a statement that no outside alcoholic beverages are65 allowed within the Central DORA. The Central DORA Committee shall approve modifications to the66 original signage design or information contained therein.67
(3) All outdoor signs shall be made of all-weather resistant, durable material.68 (4)All Designated Permittees and Vendors shall place signs on their premises indicating that they69 participate in the Central DORA and whether a person may enter the premises with an open70 container of alcohol. Said signs shall be placed in a conspicuous location at each entrance and exit71 (double-side printed signs are acceptable) to the premises, and must contain the following72
information:73 a.Any open alcoholic beverages and any containers purchased within the Central DORA must74 remain within the Central DORA.75 b.Possessing an open container of alcoholic beverage in a motor vehicle may constitute a76 Class C infraction under IC 9-30-15.77
c.The Central DORA shall be in effect during all authorized times pursuant to IC 7.1-3-1-14,78 as may be amended from time to time, and as may be further modified by the Mayor or79 her/his designee in accordance with Indiana Code.80 81 Section 6. Times of Operation. The Central DORA shall be in effect as follows: 82
Monday through Thursday: 5 PM to 10 PM; 83
Friday to Saturday: 11 AM to 11 PM; 84 Sunday: 11 AM to 9 PM. 85 The Common Council may modify the above times of operation during certain holidays or City 86 festivals by adopting a resolution to that extent. 87
88
Section 7. Central DORA Containers. For the to-go orders of alcoholic beverages, Designated 89 Permittees and Vendors shall only use containers with the Central DORA label sticker. No glass containers 90 may be used for to-go orders of alcoholic beverages. The Common Council hereby delegates the duty to 91 design the form and logo of the Central DORA container label sticker to the Department of Marketing and 92
Community Relations. The Common Council shall have final approval of the container label sticker design. 93
Upon final approval, the Department of Marketing and Community Relations shall either provide ordering 94 information or distribute container label stickers to the Designated Permittees and Vendors. 95 96 Ordinance D-2718-24 97
Page Two of Five 98
SPONSOR(S): Worell, Snyder, Aasen, Ayers, Taylor
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 6/18/2024. It may have been subsequently revised.
99 Section 8. Designated Permittees and Vendors may allow a person to exit their premises into the Central 100 DORA with not more than two (2) open alcoholic beverages. Designated Permittees and Vendors remain 101
responsible for enforcement of the volumes served and to ensure compliance with state law and this Ordinance. 102
The maximum fill limits for an alcoholic beverage being sold for consumption within the Central DORA are 103 as follows: 104 (1)Beer or flavored malt beverages: up to sixteen (16) ounces.105 (2)Wine, cider, or a premixed cocktail: up to twelve (12) ounces.106
(3)Liquor or a liquor-based cocktail: up to ten (10) ounces, including up to two (2) ounces of liquor.107
108 Section 9. A person may not consume an alcoholic beverage in public areas of the Central DORA that 109 was purchased outside of the Central DORA. 110 111
Section 10. The carryout privileges that a Designated Permittee may have in their scope of permit 112
approved by the Alcohol and Tobacco Commission is not impacted this Ordinance. 113 114 Section 11. Designated Permittees. Businesses located at the following locations have submitted 115 completed applications to the City to participate as Designated Permittees within the Central DORA, subject 116
to approval by the Alcohol and Tobacco Commission: 117 (1)Fork and Ale House, 350 Veterans Wy #150118 (2)101 Beer Kitchen, 1200 S. Rangeline Sute 101119 (3)Anthony’s Chophouse and 3UP, 201 W. Main St.120 (4) Bazbeaux, 111 W. Main St., Suite 155121
(5)Monterey Coastal Cuisine, 110 W Main Street # 135122 (6)Lazarra 254 LLC dba Wine and Rind, 254 Veterans Way, Suite G123 (7)CCC Boutique Hotel, LL dba Hotel Carmichael, 1 Carmichael Square124 (8)Penn & Beech Candle Co. 145 Elm Street, Suite 150125 (9)Savor Restaurant, 211 W. Main Street, STE # 102126
(10)Hanami Sushi and Sake Bar, 703 Veterans Way127 (11) Muldoon’s, 111 W. Main Steet, Ste 100128 (12)129 (13)130 131
Section 12. Any additional business located within the Central DORA that wishes to become a 132
Designated Permittee shall submit an application attached hereto to the Board of Public Works and Safety for 133 approval. Once approved, the applicant may proceed to apply for the Designated Permittee status with the 134 Alcohol and Tobacco Commission. 135 136
Section 13. An entity may apply to the relevant Indiana State Excise Police (Excise) district office for 137
a temporary beer and wine permit for operation as a Vendor within the Central DORA to the same extent that 138 they would otherwise be eligible. Additionally, an entity with catering privileges may serve within the Central 139 DORA under its catering permit by following normal procedures and submitting a catering authority request 140 form for approval. Prior to submitting the temporary beer and wine permit application or seeking catering 141
approval, such entity must complete the designation Vendor Form attached hereto seeking such vendor status 142
and obtain approval in writing from the Chief of Staff Office. 143 144 145 Ordinance D-2718-24 146
Page Three of Five 147
SPONSOR(S): Worell, Snyder, Aasen, Ayers, Taylor
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 6/18/2024. It may have been subsequently revised.
148 Section 13. The Central DORA Committee. 149 150
(1)The Common Council hereby established the “Central DORA Committee.” The Central DORA151
Committee’s mission shall be to: 152 a.Receive and consider public safety and sanitation reports associated with the Central DORA’s153 operation;154 b. Receive and consider public input associated with the Central DORA’s operation. Members155
of the public shall be allowed to address the Committee at the public meeting;156
c. Compile and present to the Common Council a bi-annual report containing a summary of157 reported incidents, concerns, recommendations, and any other feedback associated with the158 Central DORA’s operation;159 d. Review and approve modified signage and container label sticker design.160
161
(2)The Central DORA Committee shall consist of a volunteer body of up to nine (9) members. Two162 (2) members shall be appointed by the Mayor of Carmel with one such member being a representative of a163 Designated Permittee; three (3) members shall be appointed by the Common Council with one such member 164 being a representative of a Designated Permittee; one (1) shall be appointed by Carmel Parks and Recreation, 165
one (1) member shall be appointed by the Street Superintendent and shall be an employee of the Carmel Street 166 department; one (1) shall be appointed by the Carmel Police Chief and shall be a sworn police officer of the 167 Carmel Police Department; and one (1) shall be appointed by the Hamilton County Chamber of Commerce. 168 All appointees shall be Carmel residents. 169 (3)The Central DORA Committee shall meet at least twice per year and on an as -needed basis.170
(4) Initial Committee members shall be appointed for two (2) year terms, to hold over until a successor171 is duly appointed, and may be re-appointed. All subsequent Committee members shall be appointed172 or reappointed for two (2) year terms. There shall be no limit on the number of terms a member may173 serve on the Committee.174 175
Section 14. A violation of this Ordinance shall carry a fine of up to Two Hundred Fifty Dollars 176 ($250.00). 177 178 Section 15. If any portion of this Ordinance is for any reason declared to be invalid by a court of 179 competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance 180
so long as enforcement of same can be given the same effect. 181 182 Section 16. This Ordinance shall be in full force and effect from and after the date of its passage and 183 signing by the Mayor and such publication as required by law. 184 185 186 187 [the remainder of this page is left intentionally blank] 188
189
190 191 192 193
Ordinance No. D-2718-24 194
Page Four of Five 195 196
SPONSOR(S): Worell, Snyder, Aasen, Ayers, Taylor
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 6/18/2024. It may have been subsequently revised.
197 PASSED by the Common Council of the City of Carmel, Indiana, this ____ day of ____________, 198 2024, by a vote of _____ ayes and _____ nays. 199
200 COMMON COUNCIL FOR THE CITY OF CARMEL 201 202 203 Anthony Green, President Adam Aasen, Vice-President 204
205
206 Rich Taylor Matt Snyder 207 208 ______________________________ 209
Jeff Worrell Teresa Ayers 210
211 212 Shannon Minnaar Ryan Locke 213 214
______________________________ 215 Anita Joshi 216 217 ATTEST: 218 219
______________________________ 220 Jacob Quinn, Clerk 221 222 Presented by me to the Mayor of the City of Carmel, Indiana this day of ________________ 223 2024, at _______ __.M. 224 225226227228 Jacob Quinn, Clerk 229 230 Approved by me, Mayor of the City of Carmel, Indiana, this day of _____________________ 231
2024, at _______ __.M. 232 233234235236237 Sue Finkam, Mayor 238 239 ATTEST: 240 241 242 243 Jacob Quinn, Clerk 244 245
246
Ordinance No. D-2718-24 247 Page Five of Five 248
1
Exhibit B
Boundary Description of Central Designated Outdoor Refreshment Area
Unless otherwise indicated, all City right of ways are included in the following description.
Beginning at the northwestern corner of parcel number 16-09-25-02-08-083, thence east to
the western edge of 3rd Ave. NW., thence north to the northern edge of 1st St. NW., thence east
along the northern edge of 1st St. NW., thence continuing east along the northern edge of 1st St.
NE. to the southwestern corner of parcel number 16-10-30-09-02-020, thence continuing east to
the center line of the intersection of 1st St. NE and 2nd Ave. NE, thence south approximately 355
feet to the southern edge of E. Main St., thence approximately 53 feet west to the northeastern
corner of parcel number 16-10-30-03-03-001, thence south along the eastern property line of parcel
number 16-10-30-03-03-001 to the southeastern corner of parcel number 16-10-30-03-03-001,
thence west along the southern property line of parcel number 16-10-30-03-03-001 to the
southwestern corner of parcel number 16-10-30-03-03-001, thence approximately 190 feet north
along the western property line of parcel number 16-10-30-03-03-001 to the southern edge of 1st
St. SE, thence approximately 251 feet west along the southern edge of 1st St. SE to the northwest
corner of parcel number 16-10-30-03-01-032, thence south approximately 278 feet to the northern
edge of Supply St, thence approximately 80 feet west to the eastern edge of Alley 1st Ave SE,
thence approximately 1,480 feet south along the eastern edge of Alley 1st Ave SE continuing south
to the northern edge of E. Walnut St., thence approximately 213 feet west along the northern edge
of E. Walnut St. continuing to the center line at the intersection of E. Walnut St. and S. Rangeline
Rd., thence south along the center line of S. Rangeline Rd. approximately 1,025 feet, thence east
to the eastern edge of S. Rangeline Rd., thence continuing east along the northern property line of
parcel number 16-10-31-01-14-001 approximately 234 feet, thence south approximately 65 feet,
thence east approximately 235 feet to the center line of Pawnee Rd., thence south to the center line
at the intersection of Pawnee Rd. and Winona Dr., thence southwest along the center line of Winona
Dr. approximately 271 feet to the northeastern corner of parcel number 16-10-31-01-08-001,
thence south to the southeastern corner of parcel number 16-10-31-01-06-003, thence east along
the northern property line of parcel numbers: 16-10-31-00-02-001, 16-10-31-00-03-001, 16-10-
31-00-03-002, and 16-10-31-00-03-003 to the northeastern corner of parcel number 16-10-31-00-
03-003, thence south along the eastern border of parcel number 16-10-31-00-03-003 to the
southern edge of Executive Dr., thence continuing south along the western edge of Executive Dr.
to the northern edge of E. Carmel Dr. where it meets the southeastern corner of parcel number 16-
10-31-00-01-001.002, thence west along the northern edge of E. Carmel Dr. to the southwestern
corner of parcel number 16-10-31-00-00-047 where it meets the eastern edge of S. Rangeline Rd.,
thence west crossing the northern edge of the roundabout at the intersection of S. Rangeline Rd.
and W. Carmel Dr. and continuing west along the northern edge of W. Carmel Dr. to the
southwestern corner of parcel number 16-09-36-00-00-070 (Monon Trail), thence going north and
continuing along the western border of parcel number 16-09-36-00-00-070 (Monon Trail) to the
northwestern corner of parcel number 16-09-36-00-00-070 (Monon Trail) where it meets Gradle
Dr., thence west along the southern edge of Gradle Dr. to the intersection of Gradle Dr. and 3rd
Ave. SW., thence north along the eastern edge of 3rd Ave. SW. to the northwestern corner of 16-
2
09-36-00-00-005.218, thence going west to the western edge of 3rd Ave. SW., thence north along
the western edge of 3rd Ave. SW. approximately 230 ft, thence east to the eastern edge of 3rd Ave.
SW., thence north along the eastern edge of 3rd Ave. SW. continuing across the roundabout at the
intersection of 3rd Ave. SW. and City Center Drive, thence continuing north along the eastern edge
of 3rd Ave. SW. to the centerline of the roundabout at the intersection of 4th Ave. SW. and W. Main
St., thence west along the centerline of W. Main St. approximately 203 feet, then north
approximately 72 feet across parcel numbers 16-09-25-02-08-018 and 16-09-25-02-08-085 to the
southwestern corner of parcel number 16-09-25-02-08-083, thence continuing north and ending at
the northwestern corner of parcel number 16-09-25-02-08-083, said meeting point also being the
point of beginning.
End of description
Sponsor: Councilor Aasen 1
ORDINANCE D-2719-24 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 PROSCENIUM III 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 Proscenium III 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, Novo Development Group, 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 located in the Integrated 126th Street Corridor Economic Development Area 18
(collectively, 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__ (Proscenium III 22
Project), in one or more series (with such different or additional series designation determined to 23
be necessary or appropriate) in an aggregate amount not to exceed Nineteen Million Dollars 24 ($19,000,000) (the “Bonds”), under the Act and provide the proceeds of such Bonds to the 25 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 a trustee to be selected by the 36 Controller of the City (the “Trustee”) and the City (the “Indenture”); (3) the Bonds; and (4) this 37
2
Bond Ordinance (the Financing Agreement, the Indenture, the Bonds, and this Bond Ordinance, 38 collectively, the “Financing Agreements”); 39
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 Nineteen Million Dollars ($19,000,000), shall (i) be executed at or 62 prior to the closing date by the manual or facsimile signatures of the Mayor and the Clerk 63 of the City; (ii) be dated as of the date of their delivery; (iii) for each series of the Bonds, 64
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 nine percent (9.00%) 67 per annum, with such interest payable as provided in the Financing Agreements, and 68 which interest may be taxable or tax-exempt, as determined by the Mayor and the 69
Controller of the City, with the advice of the City’s bond counsel, prior to the issuance of 70
the Bonds; (v) be issuable in such denominations as set forth in the Financing 71 Agreements; (vi) be issuable only in fully registered form; (vii) be subject to registration 72 on the bond register as provided in the Indenture; (viii) be payable in lawful money of the 73 United States of America; (ix) be payable at an office of the Trustee as provided in the 74
Indenture; (x) be subject to optional redemption prior to maturity and subject to 75
redemption as otherwise provided in the Financing Agreements; (xi) be issued in one or 76 more series; and (xii) contain such other terms and provisions as may be provided in the 77 Financing Agreements. 78
3
(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 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 $19,000,000, 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
4
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
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 OF THE CITY OF CARMEL, INDIANA 129
130
___________________________________ 131 Anthony Green, President Adam Aasen, Vice-President 132 133 ___________________________________ ____________________________________ 134
Teresa Ayers Anita Joshi 135
136 ___________________________________ ____________________________________ 137 Ryan Locke Shannon Minnaar 138 139
___________________________________ ___________________________________ 140
Matt Snyder Rich Taylor 141 142 ___________________________________ 143 Jeff Worrell 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
Sue Finkam, Mayor 161
5
162 ATTEST: 163
164
___________________________________ 165 Jacob Quinn, Clerk 166 167 168
Prepared by: Bradley J. Bingham 169 Barnes & Thornburg LLP 170 11 South Meridian Street 171 Indianapolis, IN 46204 172 173
6
EXHIBIT A 174
DESCRIPTION OF THE PROJECTS 175
All or any portion of the design and construction of infrastructure improvements, 176
including but not limited to storm water improvements, utilities relocation, road improvements 177 and structured parking costs to support a mixed use project development in the Integrated 126th 178 Street Corridor Development Area consisting of office, hotel, multifamily and retail components, 179 together with a podium parking structure open to the public. 180
DMS 43579281.2 181
FINANCING AGREEMENT
BETWEEN [NOVO DEVELOPMENT GROUP, LLC]
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
ii
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 [NOVO DEVELOPMENT GROUP, LLC], 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 Integrated 126th Street Corridor Economic Development Area
and, within such area, the Proscenium III 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__ (Proscenium III 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 Proscenium III 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__ (Proscenium III Project) and any additional series of bonds issued pursuant to the Ordinance.
“Company” means [Novo Development Group, LLC], 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 D-2719-24 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 $_______________.
3
“Plans and Specifications” means the plans and specifications for the Projects as provided to the Issuer.
“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 infrastructure improvements, including but not limited to storm water improvements, utilities relocation, road improvements and structured parking costs to support a mixed use project development in the
Integrated 126th Street Corridor Development Area consisting of office, hotel, multifamily and
retail components, together with a podium parking structure open to the public, all of which will be physically located in, or directly serving or benefiting, the Allocation Area.
“Qualified Investments” mean those investments in: (i) Governmental Obligations; (ii) other investments permitted by Indiana Code 5-13, as amended from time to time; (iii) money
market funds (including any money market fund for which the Trustee or any affiliate of the
Trustee provides services for a fee) the assets of which are obligations or, or guaranteed by, the United States of America and which funds are rated at the time of purchase “Aaa” or “Am-G” (or their equivalent) or higher by S&P; (iv) deposits constituting an obligation of a bank, as defined by the Indiana Banking Act, Indiana Code 28-2, as amended (including deposits offered
by the Trustee and its affiliates), whose outstanding unsecured long-term issuer is rated at the
time of deposit in any of the three highest rating categories by any rating agency; and (v) U.S. Dollar denominated deposit accounts, federal funds and banker’s acceptances with domestic banks whose short term certificates of deposit are rated on the date of the purchase in any of the three highest rating categories by any rating agency.
“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-five percent (95%) 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.
4
(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.
(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 [an _______ limited liability company] 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 [limited liability company], 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)
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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.
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(End of Article IV)
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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)
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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)
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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: [Novo Development Group, LLC] 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
15
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 43580962.1
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.
[NOVO DEVELOPMENT GROUP, LLC, a ______________]
By: _______________________________ Printed:
Title:
“THE ISSUER”
CITY OF CARMEL, INDIANA
Mayor Attest:
Clerk
[SIGNATURE PAGE OF THE FINANCING AGREEMENT BETWEEN [NOVO DEVELOPMENT GROUP, LLC] 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____ (PROSCENIUM III 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
ii
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; Termination of TIF Revenue Pledge ...................................... 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 ......................................................................... 34 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
iii
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_____ (Proscenium III 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
2
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__ (PROSCENIUM III 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], and the final advance may not occur
3
after February 1, 20__. 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.
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 corporate
trust operations 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 only needs to be presented for payment of
principal and premium upon redemption in full or final maturity.]
This Series 20__ Bond is the only one of the Issuer’s Economic Development Tax Increment Revenue Bonds, Series 20_____ (Proscenium III 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 Integrated 126th Street Corridor Economic Development Area in the City of Carmel, Indiana, to be constructed by [Novo Development Group, LLC] (“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
4
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.
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
5
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
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 corporate trust operations 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.
6
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
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
7
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.
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)
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This Series 20__ Bond is one of the Series 20__ Bonds described in the within mentioned Trust Indenture.
[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
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(State)
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 TAX INCREMENT REVENUE BOND, SERIES 20__ (PROSCENIUM III 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
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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
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, subject to Section
7.2(b) hereof (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 Proscenium III Allocation Area as such allocation area may be
expanded from time to time.
“Authorized Representative” means any officer of the Company as evidenced by written certificate furnished to the Trustee containing the specimen signature of such person and signed on behalf of the Company by its President.
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“Bonds” means any Bonds issued pursuant to this Indenture, including the Series 20__ Bonds and any Additional Bonds.
“Business Day” means a day on which the office of the Trustee is open for business.
“Company” means [Novo Development Group, LLC], 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 and first year annual administration 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.
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“Financing Agreement” means the Financing Agreement, dated as of ____________ 1, 20___, between the Company and the Issuer and all amendments and supplements thereto.
“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 D-2719-24 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.
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“Pledge Resolution” means Resolution No. __________ adopted by the Redevelopment Commission on ______________, 20__, pledging the TIF Revenues to the Issuer.
“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_____ (Proscenium III 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-five
percent (95%) 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.
14
(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 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_____ (Proscenium III 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], and the final advance of principal shall occur no later than February 1, 20__. 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 and provided to the Trustee.
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
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been paid in full on the Series 20__ Bonds or, if no interest has been paid on the Series 20__ 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 operations 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).
17
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.
18
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 coming due in the following six months; (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, plus any Annual Fees coming due in the following six months, 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, plus any Annual Fees coming due in the following six months, as provided in Section 4.2. At the written 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 (other than those identified in Exhibit B hereto, for which the execution of this Indenture provides authorization to the Trustee to pay) 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 Trustee, for deposit into 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, however, if the
Issuer is unable to pay to the Trustee any or sufficient TIF Revenues with which to make
payment to the Bondholders, it shall not constitute an Event of Default; or; 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; Termination of TIF Revenue Pledge.
(a) 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.
(b) 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 notwithstanding Section 7.4 hereof, the pledge of the TIF Revenues to the payment of the Bonds shall immediately terminate and be of no further force and effect, the TIF Revenues shall no longer be deemed part of the Trust Estate under this Indenture, the Issuer shall have no further
obligation to make any transfers of TIF Revenues to the Trustee under Section 4.2 or Section 4.4
hereof, and the Bonds will be deemed defeased and paid in full, without any action of the Trustee or Bondholders.
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
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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.
(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.
(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, except as provided in Section 7.2(b) hereof, 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:
33
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
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 been declared 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.
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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.
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
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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 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, to which the Trustee has knowledge, 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.
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(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 any 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.
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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,
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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 is no successor, to the Trustee.
(End of Article VIII)
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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 any additional 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)
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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)
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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 infrastructure improvements,
including but not limited to storm water improvements, utilities relocation, road improvements and structured parking costs to support a mixed use project development in the Integrated 126th Street Corridor Development Area consisting of office, hotel, multifamily and retail components, together with a podium parking structure open to the public, all of which will be physically
located in, or directly serving or benefiting, the Proscenium III Allocation Area.
B-1
DMS 43580438.1
EXHIBIT B
COSTS OF ISSUANCE
SPONSOR(S): Worrell
This Ordinance was prepared by Samantha Karn, Corporation Counsel, on July 2, 2024 at 3:10 p.m. No subsequent revision to this Ordinance has been reviewed by Ms. Karn for legal sufficiency or otherwise.
ORDINANCE NO. D-2722-24 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 OPERATING BALANCE OF THE GENERAL FUND TO THE 2024 5 DEPARTMENT OF COMMUNITY SERVICES BUDGET 6 7
Synopsis: Appropriates funds received from the Hamilton County Recorder’s Office for lien 8 payments that were deposited into the General Fund into the 2024 Department of Community 9 Services (“DOCS”) budget. 10 11 WHEREAS, throughout the last several months DOCS has received payments from the 12
Hamilton County Recorder’s Office for lien payments totaling Six Thousand Eight Hundred Forty Six 13
Dollars and Seventy Three Cents ($6,846.73) that were deposited into the City’s General Fund; and 14 15 WHEREAS, the funds received from the lien payments are needed by DOCS to pay expenses 16 associated with recording new liens, as well as expenses the City has incurred in abating conditions on 17
properties that do not comply with Carmel’s property maintenance code; and 18
19 WHEREAS, the operating balance of the General Fund currently has excess funds in the 20 amount of Six Thousand Eight Hundred Forty Six Dollars and Seventy Three Cents ($6,846.73). 21 22
NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of Carmel, Indiana, 23
that the following additional sum of money is hereby appropriated out of the General Fund Operating 24 Balance and for the purposes specified, subject to applicable laws, as follows: 25 26 $6,846.73 from the GENERAL FUND OPERATING Balances 27
28 To 29 30 Department of Community Services (#1192): Line item 4340600 – Recording Fees $510.00 31 Department of Community Services (#1192) Line item 4350900 – Other Cont. Services $6,336.73 32
33
34 35 This Ordinance shall be in full force and effect from and after the date of its passage, execution 36 by the Mayor. 37
38
39 40 41 42
43
Ordinance D-2722-24 44 Page One of Two 45 46 47
48
SPONSOR(S): Worrell
This Ordinance was prepared by Samantha Karn, Corporation Counsel, on July 2, 2024 at 3:10 p.m. No subsequent revision to this Ordinance has been reviewed by Ms. Karn for legal sufficiency or otherwise.
PASSED by the Common Council of the City of Carmel, Indiana, this day of 49 ________, 2024, by a vote of _____ ayes and _____ nays. 50
51 COMMON COUNCIL FOR THE CITY OF CARMEL 52 53 54 Anthony Green, President Adam Aasen, Vice-President 55
56 57 Rich Taylor Matt Snyder 58 59 ______________________________ 60
Jeff Worrell Teresa Ayers 61 62 ______ 63 Shannon Minnaar Ryan Locke 64 65
______________________________ 66 Anita Joshi 67 68 ATTEST: 69
70
______________________________ 71 Jacob Quinn, Clerk 72 73 Presented by me to the Mayor of the City of Carmel, Indiana this day of 74
_________________________ 2024, at _______ __.M. 75 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
Ordinance D-2722-24 94 Page Two of Two Pages 95 96
SPONSOR(S): Councilor Joshi
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 7/30/24. It may have been subsequently revised.
ORDINANCE NO. D-2724-24 1 2 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, 3 ADDING CHAPTER 9, ARTICLE 5 SECTION 9-193 TO THE CARMEL CITY CODE. 4 5
Synopsis: Ordinance requiring that telecommunication cables be 6 buried at a minimum depth of six inches. 7
8 WHEREAS, pursuant to Indiana Code Section 36-8-2-4 and its general police powers, the City of 9 Carmel, Indiana (“City”) has the power and authority to address and restrict conduct and the use of property 10 in a manner that may endanger the public health, safety, or welfare; and 11 12
WHEREAS, pursuant to Indiana Code Section 36-8-2-5, the City has the power and authority to 13
address and restrict persons that might cause other persons to be injured or contract diseases; and 14 15 WHEREAS, The City of Carmel, Indiana (the “City”) has been notified of numerous instances where 16
telecommunications cables have not been buried at a proper depth or not buried at all creating a tripping and 17 general safety hazard, and occasionally leading to said cables being accidentally cut or damaged by animals, 18 grass mowing or landscaping equipment creating an obstruction and interfering with the comfortable 19 enjoyment of property; and 20 21 WHEREAS, it is in the best interest of the citizens of Carmel to ensure that telecommunication cables 22 are buried at a proper depth to reduce safety and welfare hazards as well as instances of accidental cable 23 damage or cutting; and 24 25 NOW, THEREFORE, BE IT ORDAINED, by the Common Council of the City of Carmel, Indiana, 26 as follows: 27 28 Section 1. The foregoing Recitals are fully incorporated herein by this reference. 29
30 Section 2. Chapter 9, Article 5, Section 9-193 should be and the same is hereby added to the Carmel 31 City Code, and shall read as follows: 32 33
Ҥ 9-193 Telecommunication Cable Minimum Burial Depth. 34 35 (a) Definitions. 36
37 (1) “Telecommunication cable” means an underground telephone, coaxial, ethernet, or fiber optics 38 cable providing any video delivery service, cable television service, or internet service to consumers. This 39 definition does not include above ground transmission or distribution cables, cables laid along or within public 40 rights-of-way or private streets, or cables laid within utility easements or property owned by any utility. 41 42 (2) “Telecommunication Service” means any video delivery service, cable television service, or 43 internet service provided by a utility to consumers. 44 45
(3) “Utility” means (1) a public, municipally-owned, or cooperatively-owned utility; or (2) a joint 46 agency created under Indiana Code Section 8-1-2.2. 47 48 Ordinance D-2724-24 49
Page One of Three Pages 50
SPONSOR(S): Councilor Joshi
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 7/30/24. It may have been subsequently revised.
51 (a) Within the City of Carmel, contractors, subcontractors, or any other installers of 52
telecommunication cables (collectively “installers”) shall bury said cables at a minimum depth 53
of six inches. If an industry or utility-established standard requires a greater burial depth, the 54 telecommunication cables shall be buried according to such standard instead. 55 56 (b) City of Carmel Engineering Department may require installers of telecommunication cables to 57
provide the Engineering Department a certification form that the telecommunication cable was 58
buried at minimum depth according to this section. 59 60 (c) If, due to topography, soil composition, or any other condition present at the premises, it is 61 impossible or impractical to bury telecommunication cables according to this section, an 62
installer must submit a written explanation to the consumer or their representative with stated 63 reasons for failure to comply with this section and identify area(s) where telecommunication 64 cables are buried at depths less when six (6) inches. 65 66 (d) This section does not apply to telecommunication cables laid along, under or above public 67
rights-of-way or private streets, within utility easements, or property owned by any utility. 68 69 (e) This section does not apply to installation of cables, conduits or wires that are regulated by 70 Federal Telecommunication Commission, Indiana Utility Regulatory Commission or any other 71 federal or state entity having jurisdiction over such installation. This section is considered 72
supplementary and in addition to the federal laws or laws of the State of Indiana and is to be 73 fully enforced where not inconsistent with those laws. Any violation that is a violation of the 74 state law shall be enforced under the state statute. 75 76 (f) Except as otherwise stated in this section, an installer violating this section may be fined up 77
to $250.00 per occurrence. 78 79 Section 3. The remaining provisions of Carmel City Code Article 5 are not affected by this 80 Ordinance and shall remain in full force and effect. 81 82
Section 4. All prior ordinances or parts thereof inconsistent with any provision of this Ordinance 83 are hereby repealed, to the extent of such inconsistency only, as of the effective date of this Ordinance, such 84 repeal to have prospective effect only. 85 86
Section 5. If any portion of this Ordinance is for any reason declared to be invalid by a court of 87
competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance 88 so long as enforcement of same can be given the same effect. 89 90 Section 6. This Ordinance shall be in full force and effect from and after the date of its passage 91
and signing by the Mayor and such publication as required by law. 92
93 94 95 96
Ordinance D-2724-24 97
Page Two of Three Pages 98 99
SPONSOR(S): Councilor Joshi
This Ordinance was prepared by Sergey Grechukhin, Transactions Chief, on 7/30/24. It may have been subsequently revised.
100 PASSED by the Common Council of the City of Carmel, Indiana, this ____ day of ________, 2024, 101
by a vote of _____ ayes and _____ nays. 102
103 COMMON COUNCIL FOR THE CITY OF CARMEL 104 105 ___________________________________ 106
Anthony Green, President Adam Aasen, Vice-President 107
108 ___________________________________ ______________________________ 109 Jeff Worrell Teresa Ayers 110 111
___________________________________ ______________________________ 112
Anita Joshi Shannon Minnaar 113 114 ___________________________________ ______________________________ 115 Ryan Locke Matt Snyder 116
117 ___________________________________ 118 Rich Taylor 119 120 ATTEST: 121
122 __________________________________ 123 Jacob Quinn, Clerk 124 125 Presented by me to the Mayor of the City of Carmel, Indiana this ____ day of ____________ 2024, 126
at _______ __.M. 127 128 ____________________________________ 129 Jacob Quinn, Clerk 130 131
Approved by me, Mayor of the City of Carmel, Indiana, this _____ day of ______________ 2024, 132 at _______ __.M. 133 134 ____________________________________ 135
Sue Finkam, Mayor 136
137 ATTEST: 138 139 140
_________________________________ 141
Jacob Quinn, Clerk 142 143 144 145
Ordinance D-2724-24 146
Page Three of Three Pages 147
SPONSOR: COUNCILOR TAYLOR
Ordinance D-2725-24
1 ORDINANCE NO. D-2725-24 2
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF 3 CARMEL, INDIANA, CONSENTING TO HAMILTON COUNTY, 4 INDIANA’S USE OF ALLOCATED PROPERTY TAX PROCEEDS 5 FROM THE 96TH STREET-U.S. 421 ALLOCATION AREA TO THE 6 PAYMENT OF BONDS OR LEASE RENTALS USED FOR FINANCING 7
A PUBLIC SAFETY TRAINING FACILITY 8 9 Synopsis: Ordinance consents to Hamilton County’s issuance of bonds or 10 entering into a lease either of which may be payable from allocated property 11 tax proceeds arising from the 96th Street-U.S. 421 Economic Development Area 12
and the 96th Street-U.S. 421 Allocation Area, which bonds or lease will assist 13
with financing the design, development, construction and equipping of a Public 14
Safety Training Facility intended to provide municipal Police & Fire 15 Departments within Hamilton County, Indiana a facility and structures for the 16 purpose of providing education and training resources to allow public safety 17
officers to better protect and serve residents within the territories and districts 18
they serve. 19
WHEREAS, the City of Carmel, Indiana (the “City”) is a municipal corporation and 20 political subdivision of the State of Indiana and the Common Council (the “Council”) serves as 21 the legislative body of the City; 22
23
WHEREAS, the Hamilton County Redevelopment Commission (the “Commission”), the 24 governing body of the Hamilton County Redevelopment District (the “District”) of Hamilton 25 County, Indiana (the “County”), exists and operates under the provisions of Indiana Code 36-7-26 14, as amended from time to time (the “Act”); and 27
28
WHEREAS, the Commission, pursuant to declaratory resolutions adopted February 25, 29 2000 and confirmed by the Commission on October 5, 2000, created and established the 96th 30 Street-U.S. 421 Economic Development Area and the 96th Street-U.S. 421 Allocation Area 31 therein (the “Allocation Area”) for purposes of the allocation and distribution of property taxes 32
under Indiana Code 36-7-14-39; and 33
34 WHEREAS, effective June 27, 2010, the City annexed an area of land within an 35 unincorporated area of the County into the incorporated boundaries of the City which land 36 included all of the Allocation Area previously established by the Commission (the “City 37
Annexation”); 38
39 WHEREAS, the County, by and through the Hamilton County, Indiana Public Building 40 Corporation (“Building Corporation”), the Commission, or the Hamilton County Redevelopment 41 Authority (“Authority”), desires to authorize the issuance of Lease Rental Revenue Bonds, Series 42
2024B (Public Safety Training Facility Project), for the purpose of, among other things, financing 43
all or a portion of the design, development, construction and equipping of a Public Safety Training 44
SPONSOR: COUNCILOR TAYLOR
Ordinance D-2725-24
Facility to be located within the County (the “Public Safety Training Facility Project”); and 45 46
WHEREAS, the County and Commission desire to utilize tax increment revenues from 47
the Allocation Area (the “Pledged 96th-421 TIF Revenues”) to the payment of debt service on 48 bonds (the “Bonds”) or to lease rental payments arising under a lease agreement (the “Lease”), 49 utilized for financing the Public Safety Training Facility Project; and 50 51
WHEREAS, as a result of the City Annexation, Indiana Code 36-7-14-3.5 prohibits the 52
Commission from issuing bonds or entering into leases that are payable from allocated property 53 tax proceeds from the part of an allocation area annexed or included in such annexation unless the 54 legislative body of the applicable municipality adopts an ordinance approving the issuance of the 55 bonds or the entering of a lease and the use of allocated property tax proceeds from such allocation 56
area. 57
58 NOW THEREFORE BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY 59 OF CARMEL, INDIANA, THAT: 60 61
Section 1. Approval of Lease or Bonds; Consent to Use of 96th-421 TIF Revenues. 62
The Common Council hereby approves the Bonds or Lease required by the County, the Building 63 Corporation, the Authority or Commission for financing the Public Safety Training Facility 64 Project, and (ii) the Commission’s use of the Pledged 96th-421 TIF Revenues arising from the 65 Allocation Area to the payment of debt service on the Bonds or to lease rentals payable under the 66
Lease. 67
68 Section 2. Severability. If any section, paragraph or provision of this ordinance shall 69 be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such 70 section; paragraph or provision shall not affect any of the remaining provisions of this 71
ordinance. 72
73 Section 3. Repeal of Conflicting Provisions. All ordinances, or parts thereof, in 74 conflict with the provisions of this ordinance, are, to the extent of such conflict, hereby repealed 75 or amended. 76
77
Section 4. Effective Date. This ordinance shall be in full force and effect immediately 78 upon its adoption in accordance with the procedures required by applicable law. 79 80 81
* * * * * * 82
83
SPONSOR: COUNCILOR TAYLOR
Ordinance D-2725-24
Passed by the Common Council of the City of Carmel, Indiana, on this ___ day of August, 84 2024, by a vote of ______ ayes and ______ nays. 85
86 COMMON COUNCIL FOR THE CITY OF CARMEL, INDIANA 87 88 89
_________________________________ ___________________________________ 90
Anthony Green, President Adam Aasen, Vice-President 91
92 93 _________________________________ ___________________________________ 94 Jeff Worrell Teresa Ayers 95
96
97 _________________________________ ___________________________________ 98 Anita Joshi Shannon Minnaar 99 100
101
_________________________________ ___________________________________ 102 Ryan Locke Matt Snyder 103 104 105
_________________________________ 106
Rich Taylor 107 108
ATTEST: 109
110
________________________________ 111
Jacob Quinn, Clerk 112
113
Presented by me to the Mayor of the City of Carmel, Indiana this day of _______, 2024, 114
at o'clock .m. 115
____________________________________ 116
Jacob Quinn, Clerk 117 118 Approved by me, Mayor of the City of Carmel, Indiana, this day of _______, 2024, at 119
o'clock .m. 120
____________________________________ 121
Sue Finkam, Mayor 122 123
SPONSOR(S): Snyder, Green, Aasen, Taylor
ORDINANCE NO. Z-692-24 1
2 FRANK HAWKINS ADDITION LOT 1 3
4 Synopsis - This Ordinance is to Modify or Terminate the Commitments recorded on 220 2nd 5
Street SW in Frank Hawkins Addition Lot 1. 6
7 WHEREAS, Pursuant to Indiana Code 36-7-4, the Common Council has lawfully adopted 8 a Unified Development Ordinance, the terms of which are applicable to the geographic area 9 consisting of the incorporated area of the City of Carmel, Indiana, which Unified Development 10
Ordinance (“UDO”) has been codified in Chapter 10 of the Carmel City Code; and 11
12 WHEREAS, Pursuant to Indiana Code 36-7-4-602, the Common Council is authorized to 13 amend the Map that is part of the Unified Development Ordinance; and 14
15 WHEREAS, The Carmel Advisory Plan Commission gave a favorable recommendation 16 Tuesday, December 21, 2021, to Docket Number PZ-2021-00134 (the “Application”) regarding 17 the re-zoning of the lot described, the legal description of which is contained in the attached Exhibit 18 A which is incorporated herein by this reference (the “Real Property”); and 19
20 WHEREAS, on or about March 7, 2022, the Common Council passed Ordinance No. Z-21 673-22 which granted the Application and changed the Real Property zoning from R-2 Residential22 to B-2 Business, subject to certain commitments made by Tomahawk Holding, LLC’s 23 (“Tomahawk”) pursuant to Re-Zone Application Commitments (the “Commitments”), attached 24 hereto as Exhibit B; and 25
26 WHEREAS, pursuant to Indiana Code 36-7-4-1015(b)(5)(B), commitments made as part 27 of an application for a re-zone may be modified or terminated by the Common Council; and 28
29 WHEREAS, the Common Council now wishes to modify and terminate certain 30
commitments made by Tomahawk under the Re-Zone Application Commitments. 31
32 NOW, THEREFORE BE IT ORDAINED by the Common Council City of Carmel, 33 Indiana that: 34
35
1.Paragraphs 2, 3, 4, 5, and 6 of the Re-Zone Application Commitments are hereby36 terminated immediately. 37
38 2.All prior Ordinances thereof inconsistent with any provision of this Ordinance are39 hereby repealed. 40
41 3.A copy of this Ordinance shall be recorded in the Office of the Recorder of42 Hamilton County, Indiana by the Director of the Carmel Department of Community Services upon 43 passage. 44
45
4.This Ordinance shall be in full force and effect from and after its passage and46 signing by the Mayor. 47
48
49
50
SPONSOR(S): Snyder, Green, Aasen, Taylor
PASSED by the Common Council of the City of Carmel, Indiana this ___ day of August, 51 2024 by vote of ___ ayes and ___ nays. 52
53 COMMON COUNCIL FOR THE CITY OF CARMEL 54
55
_______________________________ ______________________________ 56
Anthony Green, President Adam Aasen, Vice-President 57
58
______________________________ ______________________________ 59 Jeff Worrell Teresa Ayers 60
61 ______________________________ ______________________________ 62 Shannon Minnaar Ryan Locke 63
64 ______________________________ ______________________________ 65
Matthew Snyder Rich Taylor 66
67
______________________________ 68 Dr. Anita Joshi 69
70
71 ATTEST: 72
73 ______________________________ 74 Jacob Quinn, Clerk 75
76
77
78
Presented by me to the Mayor of the City of Carmel, Indiana this ___ day of 79 _________________, 2024, at ______ __.M. 80
81
_________________________________ 82
Jacob Quinn, Clerk 83
84
85 Approved by me, Mayor of the City of Carmel, Indiana this ___ day of 86 _________________, 2024, at ______ __.M. 87
88 _________________________________ 89 Sue Finkam, Mayor 90
91 ATTEST: 92 _________________________________ 93
Jacob Quinn, Clerk 94
95
96 Prepared by: Ted W. Nolting 97 Kroger, Gardis & Regas, LLP 98
111 Monument Circle Ste. 900 99 Indianapolis, IN 46204 100
SPONSOR(S): Snyder, Green, Aasen, Taylor
101
102
103 EXHIBIT “A” 104
105 The East Half of the following described real estate: Part of the East Half of the Southeast Quarter of 106 Section 25, Township 18 North, Range 3 East, beginning 560.44 feet South and 468 feet East of the 107 Northwest corner of said East Half; thence South 132 feet; West 132 feet; North 132 feet; and East 132 108
feet to the place of beginning, being Lots l and 2 in Frank M. Hawkins Addition to the City of Carmel. 109
ALSO a vacated alley 25 feet East of and adjacent to said property as set out in Vacation of Public 110 Way recorded April 22, 1994 as Instrument Number 9419040, EXCEPT that portion of the land 111 conveyed to City of Carmel, Indiana in Warranty Deed recorded January 18, 2018 as Document No. 112 2018002345. 113
114 115
116
117
118
119
120
121
122
123 124
125
126
127 128
129
130
131
132 133
134
135
136 137
138
139
140
141 142
143
144
145 146
147
148
149
150 151
152
EXHIBIT "B"153
DocuSign Envelope ID: 5A7A7392-AB3O-4E8C-86OC-9C40697902C4
,.. ' ' EXHIBIT A The East Half of the following described real estate: Part of the East Half of the Southeast Quarter of Section 25, Township 18 North, Range 3 East, beginning 560.44 feet South and 468 feet East of the Northwest comer of said East Half; thence South 132 feet; West 132 feet; North 132 feet; and East 132 feet to the place of beginning, being Lots l and 2in Frank M. Hawkins Addition to the City of Cannel. ALSO a vacated alley 25 feet East of and adjacent to said property as set out in Vacation of Public Way recorded April 22, 1994 as Instrument Number 9419040, EXCEPT that portion of the land conveyed to City of Carmel, Indiana in Warranty Deed recorded January 18, 2018 as Document No. 2018002345.