HomeMy WebLinkAboutD-2071-11 $11,200,000 Sewage Revenue Bond of 2012 for Capitol Improv ProjectsORDINANCE D- 2071 -11
SPONSOR: Councilor Snyder
AN ORDINANCE OF THE CITY OF CARMEL, INDIANA AUTHORIZING
THE ACQUISITION, CONSTRUCTION AND INSTALLATION OF
CERTAIN IMPROVEMENTS FOR THE SEWAGE WORKS SYSTEM OF
THE CITY OF CARMEL, INDIANA, THE ISSUANCE OF REVENUE
BONDS TO PROVIDE THE COST THEREOF, THE COLLECTION,
SEGREGATION AND DISTRIBUTION OF THE REVENUES OF SUCH
SYSTEM, THE SAFEGUARDING OF THE INTERESTS OF THE OWNERS
OF SUCH REVENUE BONDS AND OTHER MATTERS CONNECTED
THEREWITH, INCLUDING THE ISSUANCE OF NOTES IN
ANTICIPATION OF SUCH BONDS, AND REPEALING ORDINANCES
INCONSISTENT HEREWITH, AS AMENDED.
WHEREAS, the City of Carmel, Indiana (the "City has heretofore established, constructed
and financed a municipal sewage works system for the purpose of providing for the collection and
treatment of wastewater from the City residents and users (the "System pursuant to IC 36 -9 -23 et
seq., as in effect on the issue date of the bond anticipation notes or the bonds, as applicable, which
are authorized herein (the "Act and
WHEREAS, the City Council of the City (the "Council hereby finds: (i) that the
acquisition, construction, extension and installation of certain improvements for the System, as set
forth in Exhibit A (the "Project are necessary; (ii) that plans, specifications and cost estimates for
the Project (the "Engineering Reports have been prepared by an engineer (the "Engineer
employed for plans, specifications, detailed descriptions and estimates of the costs of the necessary
improvements and extensions to the System, and (iii) that the Engineering Reports have been
previously adopted and have been or will be submitted to all government authorities having
jurisdiction, particularly the Indiana Department of Environmental Management "IDEM if and to
the extent 1DEM approval is required under Indiana law, and has been approved by the aforesaid
government authorities; and
WHEREAS, the estimates prepared and delivered by the Engineer with respect to the costs of
acquisition, construction, extension and installation of certain improvements for the System, and
including all authorized expenses relating thereto, including the costs of issuance of bonds and bond
anticipation notes on account thereof, will be in the estimated amount not to exceed Eleven Million
Two Hundred Thousand Dollars ($11,200,000) to be financed by the issuance of revenue bonds and
bond anticipation notes in an amount not to exceed Eleven Million. Two Hundred Thousand Dollars
($11,200,000) and
WHEREAS, the City has advertised or will advertise for and receive bids for the construction
of the Project, and such bids will be subject to the determination to acquire, construct and install the
Project and obtaining funds for the Project; and
WHEREAS, the City Council finds that there are insufficient funds available to pay the cost
of the Project, and that cost of the Project is to be financed by certain available funds on hand, if
VERSION A 02/16/12 Finance, Administration and Rules Committee
necessary, and through the issuance of its tax exempt sewage works revenue bonds, in one or more
series (the "2012 Bonds and, if necessary, its bond anticipation notes (the "BANs and
WHEREAS, the City has issued its Sewage Works Revenue Bonds of 2005, which were
authorized by and issued pursuant to Ordinance No. D- 1754 -05 adopted by the Council on July 18,
2005 (the "2005 Ordinance which 2005 Bonds constitute a first charge on the Net Revenues (as
hereinafter defined) of the System; and
WHEREAS, the City has issued its Sewage Works Revenue Bonds of 2009, which were
authorized and issued pursuant to Ordinance No. D- 1950 -09 adopted by the Council on August 17,
2009 (the "2009 Ordinance which 2009 Bonds constitute a first charge on the Net Revenues (as
hereinafter defined) of the System; and
WHEREAS, the 2005 Ordinance and the 2009 Ordinance (collectively, the "Prior
Ordinances allow for the issuance of additional bonds payable from revenues of the System and
ranking on parity with the 2005 Bonds and the 2009 Bonds (collectively, the "Prior Bonds and
WHEREAS, the City Council now finds that all conditions precedent to the issuance of the
Bonds on a parity with the Prior Bonds have been or will be met; and.
WHEREAS, the City Council now finds that all conditions precedent to the adoption of an
ordinance authorizing the issuance of the BANs and the 2012 Bonds have been complied with in
accordance with the provisions of the Act; and
WHEREAS, the City may enter into a Financial Assistance Agreement with the Indiana
Finance Authority (the "Authority as part of its wastewater loan program established and existing
pursuant to IC 4 -4 -11 and IC 13 -18 -13 (the "SRF Program pertaining to the Project and the
financing of the Project (the "Financial Assistance Agreement if any bonds are sold to the
Authority as part of its SRF Program; and
WHEREAS, the City may accept other forms of financial assistance, as and if available, from
the SRF Program; and
WHEREAS, Section 1.150 -2 of the Treasury Regulations on Income Tax (the
"Reimbursement Regulations specifies conditions under which a reimbursement allocation may be
treated as an expenditure of bond proceeds, and the City intends by this ordinance to qualify amounts
advanced by the City to the Project for reimbursement from proceeds of the BANS or the Bonds in
accordance with the requirements of the Reimbursement Regulations.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY
OF CARMEL, INDIANA, THAT:
SECTION 1. Authorization of Project. The City shall proceed with the completion of
the Project in accordance with the Engineering Report, which is hereby adopted and approved, and
by reference made a part of this Ordinance as fully as if the same were attached hereto and
incorporated herein. The Project shall be constructed pursuant to and in accordance with the Act.
The Project shall not be affected by the refunding of any BANs which may be issued pursuant to this
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Ordinance and any other interim borrowing related to the Project, and the bonds herein authorized
shall be issued pursuant to and in accordance with the provisions of the Act. However, in the event
the City desires to utilize proceeds of the 2012 Bonds (as hereinafter defined) for projects other than
those contained in Exhibit A attached hereto, the Council shall first approve such projects and
modify this Ordinance by adding them to the list in Exhibit A. The term "System," "works
"utility "sewage works" and other like terms where used in this Ordinance shall be construed to
mean the existing Sewage Works system and all real estate and equipment used in connection
therewith and appurtenances thereto, and all extensions, additions and improvements thereto and
replacements thereof now or at any time hereafter constructed or acquired, and all other items as
defined in IC 36 -9 -23, as amended, whether from the proceeds of the BANs and bonds herein
authorized or otherwise, provided that if the 2012 Bonds or BANs are purchased pursuant to the
terms of the Financial Assistance Agreement, such term shall mean the Treatment Words (as defined
in the Financial Assistance Agreement). The Project shall be carried out in accordance with the
plans and specifications heretofore mentioned, which plans and specifications are hereby approved.
The Council hereby orders the Project, and the issuance of the Bonds under the Act, in the amount
necessary to pay the Costs of the Project, pursuant to and in accordance with the Act, Indiana Code
5 -1 -14 and other applicable laws relating to the issuance of revenue bonds. The City reasonably
expects to reimburse expenditures for the Project with proceeds of the Bonds and this constitutes a
declaration of official intent pursuant to Treasury Regulation 1.150 -2(e) and Indiana Code 5- 1-14
6(c).
SECTION 2. Issuance of BANs and Bonds.
(a) The City shall issue its "City of Carmel, Indiana Sewage Revenue Bonds of 2012"
(the "2012 Bonds in one or more series, in an original principal amount not to exceed Eleven
Million Two Hundred Thousand Dollars ($11,200,000) as negotiable, fully registered bonds, for the
purpose of procuring funds to be applied to the costs of the Project, including without limitation
reimbursement of preliminary expenses related to the Project and all incidental expenses incurred in
connection therewith (all of which are deemed to be a part of the Project), and the costs of selling
and issuing the 2012 Bonds.
(b) The 2012 Bonds shall be issued in denominations of Five Thousand Dollars ($5,000)
(except for any 2012 Bonds sold to the Authority as part of the SRF Program, such denomination
may be One Dollar ($1)) or any integral multiple thereof, numbered consecutively from 1 upward,
and dated as of the first day of the month in which they are sold or the date of delivery, as evidenced
by the execution thereof. The 2012 Bonds shall bear interest at a rate or rates not exceeding six
percent (6.00 per annum (the exact rate or rates to be determined by bidding or, if applicable,
negotiations), and interest shall be payable semiannually on May 1 and November 1 in each year,
beginning no later than May 1, 2013. Interest on the 2012 Bonds shall be calculated according to a
360 -day calendar year containing twelve 30 -day months. The 2012 Bonds shall mature annually on
May 1 of each year thereafter over a period ending not later than twenty (20) years after the date of
issuance and in such amounts which will achieve as level debt service as practicable (either based
solely on the 2012 Bonds or the combined debt service of the 2012 Bonds and the Prior Bonds or for
any 2012 Bond sold to the Authority as part of the SRF Program, in such amount as may meet the
requirements of the SRF Program as provided by the maturities set forth in the Financial Assistance
Agreement), and when considering authorized denominations and the initial principal maturity all as
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finally estimated, determined and fixed by the Mayor of the City (the "Executive and the Clerk
Treasurer of the City (the "Fiscal Officer with the advice of the City's financial adviser, as
evidenced by delivery of the executed initial issue of the 2012 Bonds to the Registrar for
authentication. The amount of 2012 Bonds issued shall be determined by the Executive and the
Fiscal Officer, with the advice of the City's financial advisor after fixing the amount of the funds of
the Utility if any now on hand to be applied to the cost of the Project.
(c) All or a portion of the 2012 Bonds may be aggregated into and issued as one or more
term bonds. The term bonds will be subject to mandatory sinking fund redemption with sinking fund
payments and final maturities corresponding to the serial maturities described above. Sinking fund
payments shall be applied to retire a portion of the term bonds as though it were a redemption of
serial bonds, and, if more than one term bond of any maturity is outstanding, redemption of such
maturity shall be made by lot. Sinking fund redemption payments shall be made in a principal
amount equal to such serial maturities, plus accrued interest to the redemption date, but without
premium or penalty. For all purposes of this Ordinance, such mandatory sinking fund redemption
payments shall be deemed to be required payments of principal which mature on the date of such
sinking fund payments. Appropriate changes shall be made in the definitive form of the 2012 Bonds,
relative to the form of the 2012 Bonds contained in this Ordinance, to reflect any mandatory sinking
fund redemption and optional redemption terms.
(d) The City has the authority to elect to issue its bond anticipation note or notes
"BANs if necessary, in lieu of initially issuing all or a portion of 2012 Bonds to provide interim
construction financing for the Project until permanent financing becomes available or to qualify for
financial assistance provided from the SRF Program. BANs may be issued to (i) the Indiana Bond
Bank (the `Bond Bank pursuant to a Purchase Agreement "Purchase Agreement or (ii) a
purchaser pursuant to Indiana Code 5 -1 -11 or as other permitted by law and approved by the
Executive and Fiscal Officer. If so determined by the Executive and Fiscal Officer, the City shall
issue its BANs for the purpose of procuring interim financing to apply to the cost of the Project.
(e) The BAN or BANs shall be issued in an aggregate amount not exceeding Eleven
Million Two Hundred Thousand Dollars ($11,200,000) and shall be designated "City of Carmel,
Indiana Sewage Works Bond Anticipation Note of 2012 Any such BAN or BANS shall have a
maturity not to exceeding one (1) year and shall be dated the first day of the month in which issued
or sold or the date of delivery as determined by the Executive and Fiscal Officer with the advice of
the City's financial adviser. Any such BAN or BANs shall pay interest semiannually on May 1 and
November 1 in each year, beginning no later than either the next May 1 and November 1 following
their issuance until maturity. Any such BAN or BANS may be refunding with a later series of BAN
or BANs provided that such refunding BAN or BANS shall have a maturity not to exceeding one (1)
year and shall be dated the first day of the month in which issued or sold or the date of delivery as
determined by the Executive and Fiscal Officer with the advice of the City's financial adviser. Any
such BAN or BANs shall pay interest semiannually on May 1 and November 1 in each year,
beginning no later than either the next May 1 or November 1 following their issuance until maturity.
BAN interest may be paid as capitalized interest and, after provision for payment of the Prior Bonds
and any 2012 Bonds, from the Net Revenues of the utility on a subordinate basis. BAN interest shall
be calculated according to a 360 -day calendar year containing twelve 30 -day months, or based on an
actual days basis using a 365 -day year, as determined by the Executive and Fiscal Officer with the
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advice of the City's financial adviser. Any such BAN or BANs shall bear interest at a rate or rates not
exceeding six percent (6.00 per annum, or bear interest at a variable rate determined by reference
to any available published index as selected by the Executive or Fiscal Officer prior to their issuance,
and may be sold at a discount not to exceed one percent (1 The BANs herein authorized are
payable from the proceeds of the 2012 Bonds and other legally available funds of the utility. Any
such BAN or BANs shall be subject to early redemption on or after any date selected by the
Executive or Fiscal Officer prior to their issuance, upon thirty (30) days notice to the owner of such
BAN, without a premium. The BANs may be issued in one or more series of BANs, or the City may
receive payment on the BANs in installments, as determined by the Executive and Fiscal Officer
with the advice of the City's financial advisor prior to advertising or negotiating a sale of the BANs.
The BANs shall be in a customary form as approved by the Executive and. Fiscal Officer.
(f) It shall not be necessary for the City to repeat the procedures for the issuance of its
2012 Bonds; the procedures followed before the issuance of the BAN or BANs are for all purposes
sufficient to authorize the issuance of the 2012 Bonds and the use of the proceeds to repay the BAN
or BANs. The City shall issue the 2012 Bonds described and authorized in this Ordinance to
discharge its obligations under the BAN and BANs at or before the maturity date of the BAN or
BANs.
(g) As an alternative to public sale as hereinafter authorized or other private sale herein
provided, the Executive and the Fiscal Officer with the advice of the City's financial advisor may
negotiate the sale of the 2012 Bonds and BANs to the Authority at an interest rate not exceeding the
maximum rate(s) hereinbefore fixed. The Executive and the Fiscal Officer are hereby authorized to
(i) submit an application to the SRF Program both as deemed appropriate by any such officials, (ii)
negotiate the terms of and execute and deliver a Financial Assistance Agreement between the City
and the Authority pursuant to Indiana Code 13 -18 -13 (in a form approved by such officials as
conclusively evidenced by their signature thereof), or both as deemed appropriate by such officers or
officials, and (iii) sell, execute and deliver the 2012 Bonds and BANs, upon such terms as are
acceptable to such officers or officials and consistent with the terms of this Ordinance.
The City may receive payment for the 2012 Bonds and BANs in installments. With respect
to any 2012 Bonds sold to the Authority as part of the SRF Program, to the extent that (a) the total
principal amount of the 2012 Bonds is not paid by the purchaser or drawn down by the City or (b)
proceeds remain in the Project Fund and are not applied to the Project (or any modifications or
additions thereto approved by IDEM and the Authority) as of the date no additional amounts may be
drawn under the Financial Assistance Agreement, the remaining 2012 Bond maturities shall be
reduced in a manner that will effect as level debt service as practicable for such remaining maturities
an in a manner consistent with how the initial maturities were fixed, provided however such shall in
any case be consistent with the Financial Assistance Agreement.
Notwithstanding anything contained herein, the City may accept any other forms of financial
assistance, as and if available, from the SRF Program (including without limitation (1) any
forgivable loans, grants or other assistance whether available as an alternative to any 2012 Bond or
BAN related provision otherwise provided for herein or as a supplement or addition thereto and (2)
one or more series or combination of series of 2012 Bonds and/or BANs). If required by the SRF
Program to be eligible for such financial assistance, one or more of the series of 2012 Bonds or
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BANs issued hereunder may issued on a basis such that the payment of the principal of or interest on
(or both) such series of 2012 Bonds is junior and subordinate to the payment of the principal of and
interest on other series of 2012 Bonds issued hereunder (and/or any other revenue bonds secured by a
pledge of Net Revenue, whether now outstanding or hereafter issued), all as provided by the terms of
such series of 2012 Bonds as modified pursuant to this authorization. Such financial assistance, if
any, shall be as provided in the Financial Assistance Agreement and the 2012 Bonds of each series of
2012 Bonds and the BANs of each series of BANs issued hereunder (including any modification
made pursuant to the authorization in this paragraph to the form of Bond otherwise contained
herein).
SECTION 3. Pledge of Net Revenues; Payment of Principal and Interest. The 2012
Bonds, and any hereafter issued bonds ranking on a parity therewith, as to principal, premium, if any,
and interest, shall be payable solely from and are hereby secured by an irrevocable pledge of and
shall constitute a charge upon all the net revenues (defined as gross revenues of the works after
deduction only for the payment of the reasonable expenses of operation, repair and maintenance) of
the works (the "Net Revenues The City shall not be obligated to pay the 2012 Bonds, any BANs or
the interest thereon, except from the Net Revenues, and the 2012 Bonds and any BANs shall not
constitute an indebtedness of the City within the meaning of the provisions and limitations of the
constitution of the State of Indiana.
All payments of interest on the 2012 Bonds shall be paid by check mailed one business day
prior to the interest payment date to the registered owners thereof as of the fifteenth (15th) day of the
month preceding the interest payment date (the "Record Date at the addresses as they appear on the
registration and transfer books of the City kept for that purpose by the Registrar (the "Registration
Record or at such other address as is provided to the Paying Agent in writing by such registered
owner. Each registered owner of $1,000,000 or more in principal amount of the 2012 Bonds shall be
entitled to receive interest payments by wire transfer by providing written wire instructions to the
Paying Agent before the Record Date for any payment. All principal payments and premium
payments, if any, on the 2012 Bonds shall be made upon surrender thereof at the principal office of
the Paying Agent, in any U.S. coin or currency which on the date of such payment shall be legal
tender for the payment of public and private debts, or in the case of a registered owner of $1,000,000
or more in principal amount of the 2012 Bonds, by wire transfer on the due date upon written
direction of such owner provided at least fifteen (15) days prior to the maturity date or redemption
date. If the 2012 Bonds or BANs are purchased by the Authority as part of the SRF Program, the
principal of and interest on the 2012 Bonds or BANs shall be paid by wire transfer to such financial
institution if and as directed by the Authority as of the due date of such payment or if such due date
is a day when financial institutions are not open for business, on the business day immediately after
such due date. So long as the Authority is the owner of the 2012 Bonds or BANs, such 2012 Bonds
or BANs shall be presented for payment as directed by the Authority.
Interest on the 2012 Bonds or BANs sold to the Authority shall be paid from the dates of
payment for the 2012 Bonds or BANs. Interest on 2012 Bonds shall be payable from the interest
payment date to which interest has been paid next preceding the authentication date thereof unless
such 2012 Bonds are authenticated after the Record Date for an interest payment date and on or
before such interest payment date in which case they shall bear interest from such interest payment
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date, or unless authenticated on or before the Record Date for the first interest payment date, in
which case they shall bear interest from the original date, until the principal shall be fully paid.
SECTION 4. Transfer and Exchange of Bonds and BANs. Each 2012 Bond or BAN
shall be transferable or exchangeable only upon the Registration Record, by the registered owner
thereof in writing, or by the registered owner's attorney duly authorized in writing, upon surrender of
such 2012 Bond or BAN, together with a written instrument of transfer or exchange satisfactory to
the Registrar duly executed by the registered owner or such attorney, and thereupon a new fully
registered 2012 Bond or Bonds, or BAN or BANs, in the same aggregate principal amount, and of
the same maturity, shall be executed and delivered in the names of the transferee or transferees or the
registered owner, as the case may be, in exchange therefor. The costs of such transfer or exchange
shall be borne by the City except for any tax or governmental charge required to be paid with respect
to the transfer or exchange, which taxes or governmental charges are payable by the person
requesting such transfer or exchange. The City, the Registrar and the Paying Agent may treat and
consider the persons in whose names such 2012 Bonds or BANs are registered as the absolute
owners thereof for all purposes including for the purpose of receiving payment of or on account of,
the principal thereof and interest and premium, if any, due thereon.
In the event any 2012 Bond or BAN is mutilated, lost, stolen or destroyed, the City may
execute and the Registrar may authenticate a new bond of like date, maturity and denomination as
that mutilated, lost, stolen or destroyed, which new bond shall be marked in a manner to distinguish
it from the 2012 Bond or BAN for which it was issued, provided that, in the case of any mutilated
2012 Bond or BAN, such mutilated bond shall first be surrendered to the Registrar, and in the case of
any lost, stolen or destroyed bond there shall be first furnished to the Registrar evidence of such loss,
theft or destruction satisfactory to the Fiscal Officer and the Registrar, together with indemnity
satisfactory to them. In the event any such 2012 Bond or BAN shall have matured, instead of issuing
a duplicate bond, the City and the Registrar may, upon receiving indemnity satisfactory to them, pay
the same without surrender thereof. The City and the Registrar may charge the owner of such 2012
Bond or BAN with their reasonable fees and expenses in this connection. Any 2012 Bond or BAN
issued pursuant to this paragraph shall be deemed an original, substitute contractual obligation of the
City, whether or not the lost, stolen or destroyed 2012 Bond or BAN shall be found at any time, and
shall be entitled to all the benefits of this Ordinance, equally and proportionately with any and all
other 2012 Bond or BAN issued hereunder.
SECTION 5. Registrar and Paying Agent. The Fiscal Officer is hereby authorized to
serve as, or to appoint a qualified financial institution to serve as, Registrar and Paying Agent for the
2012 Bonds and any BANs (together with any successor, the "Registrar" or "Paying Agent The
Registrar is hereby charged with the responsibility of authenticating the 2012 Bonds and any BANs,
and shall keep and maintain the Registration Record at its office. The Fiscal Officer is hereby
authorized to enter into such agreements or understandings with any such institution as will enable
the institution to perform the services required of a Registrar and Paying Agent. The Fiscal Officer is
further authorized to pay such fees and the institution may charge for the services its provides as
Registrar and Paying Agent and such fees may be paid from the Sinking Fund established to pay the
principal of and interest on the 2012 Bonds and any BANs as fiscal agency charges.
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The Registrar and. Paying Agent may at any time resign as Registrar and Paying Agent by
giving thirty (30) days' written notice to the City and by first -class mail to each registered owner of
the 2012 Bonds and any BANs then outstanding, and such resignation will take effect at the end of
such thirty (30) days' or upon the earlier appointment of a successor Registrar and Paying Agent by
the City. Such notice to the City may be served personally or sent by first -class or registered mail.
The Registrar and Paying Agent may be removed at any time as Registrar and Paying Agent by the
City, in which event the City may appoint a successor Registrar and Paying Agent. The City shall
notify each registered owner of the 2012 Bonds and any BANs then outstanding of the removal of
the Registrar and Paying Agent. Notices to the registered owners of the 2012 Bonds and any BANs
shall be deemed to be given when mailed by first -class mail to the addresses of such registered
owners as they appear on the Registration Record. Any predecessor Registrar and Paying Agent shall
deliver all the 2012 Bonds and any BANs, cash and investments related thereto in its possession and
the Registration Record to the successor Registrar and Paying Agent.
SECTION 6. Terms of Redemption. The 2012 Bonds may be made redeemable at the
option of the City (a) on thirty (30) days' notice, in whole or in part, in any order of maturities
selected by the City, for any 2012 Bonds not purchased by the Authority as part of the SRF Program,
and (b) on sixty (60) days' notice in whole or in part, in inverse order of maturities for any 2012
Bonds purchased by the Authority as part of the SRF Program, and in each case, by lot within a
maturity, on dates and with premiums, if any, and other terms as finally determined by the Executive
and the Fiscal Officer with the advice of the City's Financial Advisor, as evidenced by delivery of
the executed initial issue of the 2012 Bonds to the Registrar for authentication. Such determination
shall be made and fixed separately for each series of 2012 Bonds issued.
Notice of redemption shall be mailed by first -class mail to the address of each registered
owner of a 2012 Bond to be redeemed as shown on the Registration Record not more than (a) sixty
(60) days and not less than thirty (30) days prior to the date fixed for redemption for any 2012 Bonds
not purchased by the Authority as part of the SRF Program, and (b) not more than ninety (90) days
and not less than sixty (60) days prior to the date fixed for redemption for any 2012 Bonds purchased
by the Authority as part of the SRF Program, and in each case except to the extent such redemption
notice is waived by owners of the 2012 Bonds redeemed, provided, however, that failure to give such
notice by mailing, or any defect therein, with respect to any 2012 Bond shall not affect the validity of
any proceedings for the redemption of any other 2012 Bonds. The notice shall specify the date and
place of redemption, the redemption price and the CUSIP numbers of the 2012 Bonds called for
redemption. The place of redemption may be determined by the City. Interest on the 2012 Bonds so
called for redemption shall cease on the redemption date fixed in such notice if sufficient funds are
available at the place of redemption to pay the redemption price on the date so named, and thereafter,
such 2012 Bonds shall no longer be protected by this Ordinance and shall not be deemed to be
outstanding hereunder, and the holders thereof shall have the right only to receive the redemption
price.
All 2012 Bonds which have been redeemed shall be canceled and shall not be reissued;
provided, however, that one or more new registered bonds shall be issued for the unredeemed portion
of any 2012 Bond without charge to the holder thereof.
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SECTION 7. Execution and Negotiability. The 2012 Bonds and any BANs shall be
signed in the name of the City by the manual or facsimile signature of the Executive, and attested by
the manual or facsimile signature of the Fiscal Officer, who also shall affix the seal of the City
manually or shall have the seal imprinted or impressed thereon by facsimile or other means. In case
any officer whose signature or facsimile signature appears thereon shall cease to be such officer
before the delivery of the 2012 Bonds and any BANs, such signature shall nevertheless be valid and
sufficient for all purposes as if such officer had remained in office until such delivery.
The 2012 Bonds and any BANs shall also be authenticated by the manual signature of the
Registrar, and no 2012 Bond or BAN shall be valid or become obligatory for any purpose until the
certificate of authentication thereon has been so executed.
The 2012 Bonds and any BANs shall have all of the qualities and incidents of negotiable
instruments under the laws of the State of Indiana, subject to the provisions for registration herein.
SECTION S. Authorization for Book -Entry System. The 2012 Bonds and any BANs
may, in compliance with all applicable laws, initially be issued and held in book -entry form on the
books of the central depository system, The Depository Trust Company, its successors, or any
successor central depository system appointed by the City from time to time (the "Clearing
Agency without physical distribution of bonds to the purchasers. The following provisions of this
Section apply in such event.
One definitive 2012 Bond or BAN of each maturity shall be delivered to the Clearing Agency
(or its agent) and held in its custody. The City and Registrar may, in connection herewith, do or
perform or cause to be done or performed any acts or things not adverse to the rights of the holders
of the 2012 Bonds and any BANs as are necessary or appropriate to accomplish or recognize such
book -entry form 2012 Bonds and any BANs.
During any time that the 2012 Bonds and any BANs are held in book -entry form on the books
of a Clearing Agency, (1) any such 2012 Bond or BAN may be registered upon Registration Record
in the name of such Clearing Agency, or any nominee thereof, including Cede Co.; (2) the
Clearing Agency in whose name such 2012 Bond or BAN is so registered shall be, and the City and
the Registrar and Paying Agent may deem and treat such Clearing Agency as, the absolute owner and
holder of such 2012 Bond or BAN for all purposes of this Ordinance, including, without limitation,
the receiving of payment of the principal of and interest and premium, if any, on such 2012 Bond or
BAN, the receiving of notice and the giving of consent; (3) neither the City nor the Registrar or
Paying Agent shall have any responsibility or obligation hereunder to any direct or indirect
participant, within the meaning of Section 17A of the Securities Exchange Act of 1934, as amended,
of such Clearing Agency, or any person on behalf of which, or otherwise in respect of which, any
such participant holds any interest in any 2012 Bond or BAN, including, without limitation, any
responsibility or obligation hereunder to maintain accurate records of any interest in any 2012 Bond
or BAN or any responsibility or obligation hereunder with respect to the receiving of payment of
principal of or interest or premium, if any, on any 2012 Bond or BAN, the receiving of notice or the
giving of consent; and (4) the Clearing Agency is not required to present any 2012 Bond or BAN
called for partial redemption, if any, prior to receiving payment so long as the Registrar and Paying
Agent and the Clearing Agency have agreed to the method for noting such partial redemption.
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If either the City receives notice from the Clearing Agency which is currently the registered
owner of the 2012 Bonds and any BANs to the effect that such Clearing Agency is unable or
unwilling to discharge its responsibility as a Clearing Agency for the 2012 Bonds and any BANs, or
the City elects to discontinue its use of such Clearing Agency as a Clearing Agency for the 2012
Bonds and any BANs, then the City and the Registrar and Paying Agent each shall do or perform or
cause to be done or performed all acts or things, not adverse to the rights of the holders of the 2012
Bonds and any BANs, as are necessary or appropriate to discontinue use of such Clearing Agency as
a Clearing Agency for the 2012 Bonds and any BANs and to transfer the ownership of each of the
2012 Bonds and any BANs to such person or persons, including any other Clearing Agency, as the
holder of the 2012 Bonds and any BANs may direct in accordance with this Ordinance. Any
expenses of such discontinuance and transfer, including expenses of printing new certificates to
evidence the 2012 Bonds and any BANs, shall be paid by the City.
During any time that the 2012 Bonds and any BANs are held in book -entry form on the books
of a Clearing Agency, the Registrar shall be entitled to request and rely upon a certificate or other
written representation from the Clearing Agency or any participant or indirect participant with
respect to the identity of any beneficial owner of the 2012 Bonds and any BANs as of a record date
selected by the Registrar. For purposes of determining whether the consent, advice, direction or
demand of a registered owner of a 2012 Bond or BAN has been obtained, the Registrar shall be
entitled to treat the beneficial owners of the 2012 Bonds and any BANs as the bondholders and any
consent, request, direction, approval, objection or other instrument of such beneficial owner may be
obtained in the fashion described in this Ordinance.
During any time that the 2012 Bonds and any BANs are held in book -entry form on the books
of a Clearing Agency, the Executive, the Fiscal Officer and/or the Registrar are authorized to execute
and deliver a Letter of Representations agreement with the Clearing Agency, or a Blanket Issuer
Letter of Representations, and the provisions of any such Letter of Representations or any successor
agreement shall control on the matters set forth therein. The Registrar, by accepting the duties of
Registrar under this Ordinance, agrees that it will (i) undertake the duties of agent required thereby
and that those duties to be undertaken by either the agent or the City shall be the responsibility of the
Registrar, and (ii) comply with all requirements of the Clearing Agency, including without limitation
same day funds settlement payment procedures. Further, during any time that the 2012 Bonds and
any BANs are held in book -entry form, the provisions of Section 8 of this Ordinance shall control
over conflicting provisions in any other section of this Ordinance.
SECTION 9. Form of the 2012 Bonds. The form and tenor of the 2012 Bonds shall be
substantially as follows (with such additions, deletions and modification as the Executive and Fiscal
Officer may authorize, as conclusively evidenced by their signatures thereon), with all blanks to be
filled in properly prior to delivery thereof:
R-
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF HAMILTON
CITY OF CARMEL, INDIANA
SEWAGE WORKS REVENUE BOND OF 2012
10
[As follows if sold pursuant to a Financial Assistance Agreement
Interest Maturity Original Authentication
Rate Date Date Date
REGISTERED OWNER: Indiana Finance Authority
PRINCIPAL SUM:
The City of Carmel, in Hamilton, County, State of Indiana (the "City"), for value received, hereby promises to
pay to the Registered Owner set forth above or registered assigns, solely out of the special revenue fund hereinafter
referred to, the Principal Sum set forth above on the Maturity Date set forth above or so much thereof as may be
advanced from time to time and be outstanding as evidenced by the records of the registered owner making payment for
this Bond or its assigns on May 1 in the years and in the amounts set forth on Exhibit A attached hereto (unless this bond
be subject to and be called for redemption prior to maturity as hereafter provided), and to pay interest hereon until the
Principal Sum shall be fully paid at the Interest Rate per annum set forth above from the interest payment date to which
interest has been paid next preceding the Authentication Date of this bond unless this bond is authenticated after the
fifteenth day of the month preceding the interest payment date (the "Record Date and on or before such interest
payment date in which case it shall bear interest from such interest payment date, or unless this bond is authenticated on
or before 15, 20_, in which case it shall bear interest from the Original Date, which interest is payable
semiannually on May 1 and November 1 of each year, beginning on 1, 20_. Interest shall be calculated on the
basis of a 360 -day year comprised of twelve 30 -day months.
The principal of and premium, if any, on this bond are payable at the principal office of
(the "Registrar" or "Paying Agent in Carmel, Indiana. All payments of interest on this
bond shall be paid by check mailed one business day prior to the interest payment date to the Registered Owner as of the
Record Date at the address as it appears on the registration books kept by the Registrar or at such other address as is
provided to the Paying Agent in writing by the Registered Owner. Notwithstanding the foregoing to the contrary, if
payment of this Bond is made to the Indiana Finance Authority under the terms of the Financial Assistance Agreement,
all payments of principal and interest hereon shall be made by wire transfer for deposit to a financial institution as
directed by the Indiana Finance Authority as of the due date or if such due date is a day when financial institutions are not
open for business on the business day immediately after such due date to the registered owner hereof at the address as it
appears on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in
writing by the registered owner.]
[As follows if not sold pursuant to a Financial Assistance Agreement
Interest Maturity Original Authentication
Rate Date Date Date
REGISTERED OWNER:
PRINCIPAL SUM:
CUS1P
The City of Carmel, in Hamilton, County, State of Indiana (the "City"), for value received, hereby promises to
pay to the Registered Owner set forth above or registered assigns, solely out of the special revenue fund hereinafter
referred to, the Principal Sum set forth above on the Maturity Date set forth above (unless this bond be subject to and be
called for redemption prior to maturity as hereafter provided), and to pay interest hereon until the Principal Sum shall be
fully paid at the Interest Rate per annum set forth above from the interest payment date to which interest has been paid
11
next preceding the Authentication Date of this bond unless this bond is authenticated after the fifteenth day of the month
preceding the interest payment date (the "Record Date and on or before such interest payment date in which case it
shall bear interest from such interest payment date, or unless this bond is authenticated on or before 15, 20
in which case it shall bear interest from the Original Date, which interest is payable semiannually on May 1 and
November 1 of each year, beginning on 1, 20. Interest shall be calculated on the basis of a 360 -day year
comprised of twelve 30 -day months.
The principal of and premium, if any, on this bond are payable at the principal office of the Clerk- Treasurer of
the City of Carmel [or the principal office of the financial institution so appointed] (the "Registrar" or "Paying Agent
in Carmel, Indiana. All payments of interest on this bond shall be paid by check mailed one business day prior to the
interest payment date to the Registered Owner as of the Record Date at the address as it appears on the registration books
kept by the Registrar or at such other address as is provided to the Paying Agent in writing by the Registered Owner.
Each Registered Owner of $1,000,000 or more in principal amount of bonds shall be entitled to receive interest payments
by wire transfer by providing written wire instructions to the Paying Agent before the Record Date for any payment. All
payments of principal of, and premium, if any, on this bond shall be made upon surrender thereof at the principal office
of the Paying Agent, in any U.S. coin or currency which on the date of such payment shall be legal tender for the payment
of public and private debts, or in the case of a Registered Owner of $1,000,000 or more in principal amount of the 2012
Bonds, by wire transfer on the due date upon written direction of such owner provided at least fifteen (15) days prior to
the maturity date or redemption date.]
THE CITY SHALL NOT BE OBLIGATED TO PAY THIS BOND OR THE INTEREST HEREON EXCEPT
FROM THE HEREINAFTER DESCRIBED SPECIAL FUND, AND NEITHER THIS BOND NOR THE ISSUE OF
WHICH IT IS A PART SHALL IN ANY RESPECT CONSTITUTE A CORPORATE INDEBTEDNESS OF THE
CITY WITHIN THE PROVISIONS AND LIMITATIONS OF THE CONSTITUTION OF THE STATE OF INDIANA.
This bond is one of an authorized issue of bonds of the City of Carmel, of Hamilton County, Indiana, of like
date, tenor and effect except as to denomination, numbering, rates of interest, redemption terms and dates of maturity,
aggregating Dollars numbered consecutively from 1 upward (the
"Bonds issued for the purpose of providing funds to be applied for construction and acquisition of certain
improvements to the sewage works (the "Project and to pay incidental expenses and costs of issuance of the Bonds.
This bond is issued pursuant to an ordinance adopted by the Common Council of said City on the day of
2012, entitled "An Ordinance of the Common Council of the City of Carmel, Indiana Concerning the Construction of
Additions and Improvements to the Sewage Works of the City of Carmel, Indiana; Authorizing the Issuance of Revenue
Bonds for Such Purpose; Addressing Other Matters Connected Therewith, and Repealing Ordinances Inconsistent
Herewith" (the "Ordinance and in accordance with the provisions of Indiana law, including without limitation Indiana
36 -9 -23, and other applicable laws, as amended (the "Act all as more particularly described in the Ordinance. The
owner of this bond, by the acceptance hereof, agrees to all the terms and provisions contained in the Ordinance and the
Act.
Pursuant to the provisions of the Act and the Ordinance, the principal of and interest on this bond and all other
bonds of said issue and any hereafter issued bonds ranking on a parity therewith are payable solely from the Sinking Fund
(the "Sinking Fund maintained under the Ordinance to be provided from the Net Revenues (defined as the gross
revenues of the works remaining after the payment of the reasonable expenses of operation, repair and maintenance) of
the works, including all additions and improvements thereto and replacements thereof subsequently constructed or
acquired on a basis that is on a parity with the Prior Bonds (as hereinafter defined).
[Reference is hereby made to the Financial Assistance Agreement, as amended from time to time, between the
City and the Indiana Finance Authority as to certain terms and covenants pertaining to the Project and this Bond (the
"Financial Assistance Agreement
The City irrevocably pledges the entire Net Revenues of the works to the prompt payment of the principal of and
interest on the Bonds on a parity with the payment of the principal of and interest on the City of Carmel Indiana Sewage
Works Revenue Bonds of 2005 (the "2005 Bonds and the City of Carmel, Indiana Sewage Works Revenue bonds of
2009 (the "2009 Bonds (the 2005 Bonds and the 2009 Bonds, collectively, the "Prior Bonds as authorized by the
12
Prior Ordinances (as defined in the Ordinance) and any hereafter issued bonds ranking on a parity therewith to the
extent necessary for such purposes, and covenants that it will establish proper rates and charges for services rendered by
the utility as are sufficient in each year for the payment of the proper [Operation and Maintenance (as defined in the
Financial Assistance Agreement) of the Utility] [and reasonable expenses of operation, repair and maintenance of the
works ]and for the payment of the sums required to be paid into the Sinking Fund under the provisions of the Act and the
Ordinance. If the City or the proper officers thereof shall fail or refuse to so fix and collect such rates or charges, or if
there be a default in the payment of the interest on or principal of this bond, the owner of this bond shall have all of the
rights and remedies provided for in the Act.
The City covenants that for so long as the Bonds and any hereafter issued bonds ranking on a parity therewith
outstanding it will set aside and pay into the Sinking Fund a sufficient amount of the Net Revenues for the payment of (a)
the principal of and interest on all bonds which by their terms are payable from the Net Revenues, as such principal and
interest shall fall due, (b) the necessary fiscal agency charges for paying bonds and (c) an additional amount as a margin
of safety to accumulate and maintain the reserve required by the Ordinance. Such required payments of the Bonds and
any hereafter issued bonds ranking on a parity therewith, shall constitute a first charge upon all the Net Revenues.
Reference is made to the Ordinance for a more complete statement of the revenues from which and conditions under
which this bond is payable, a statement of the conditions on which obligations may hereafter be issued on parity with this
bond, the manner in which the Ordinance may be amended and the general covenants and provisions pursuant to which
this bond has been issued.
The bonds of this issue maturing on and after May I, 20_ are redeemable at the option of the City on
20 or any date thereafter, on [sixty (60)] [thirty (30)] days' notice, in whole or in part, [in inverse order of
maturities] [in any order of maturities selected by the City] and by lot within a maturity, at 100% of face value, together
with the following premiums:
plus accrued interest to the date fixed for redemption. Each minimum authorized denomination in principal amount
shall be considered a separate bond for purposes of partial redemption.
[The bonds maturing on May 1, 20 are subject to mandatory sinking fund redemption prior to maturity, at a
redemption price equal to the principal amount thereof, plus accrued interest, on May 1 in the years and in the amounts
set forth below:
Final Maturity]
if redeemed on May 1, 20 or thereafter
on or before April 30, 20
if redeemed on May 1, 20 or thereafter
on or before April 30, 20
if redeemed on May 1, 20 or thereafter
prior to maturity;
Year Amount
Notice of such redemption shall be mailed by first -class mail not more than [ninety (90)] [sixty (60) days] and
not less than [sixty (60)] [thirty (30)] days prior to the date fixed for redemption to the address of the registered owner of
each bond to be redeemed as shown on the registration record of the City except to the extent such redemption notice is
waived by owners of the bond or bonds redeemed, provided, however, that failure to give such notice by mailing, or any
defect therein, with respect to any bond shall not affect the validity of any proceedings for the redemption of any other
bonds. The notice shall specify the date and place of redemption, the redemption price and the CUSIP numbers of the
bonds called for redemption. The place of redemption may be determined by the City. Interest on the bonds so called for
redemption shall cease on the redemption date fixed in such notice if sufficient funds are available at the place of
13
redemption to pay the redemption price on the date so named, and thereafter, such bonds shall no longer be protected by
the Ordinance and shall not be deemed to be outstanding thereunder.
If this bond shall not be presented for payment or redemption on the date fixed therefor, the City may deposit in
trust with the Paying Agent or another paying agent, an amount sufficient to pay such bond or the redemption price, as the
case may be, and thereafter the Registered Owner shall look only to the funds so deposited in trust for payment and the
City shall have no further obligation or liability in respect thereto.
This bond is transferable or exchangeable only upon the registration record kept for that purpose at the office of
the Registrar by the Registered Owner in person, or by his attorney duly authorized in writing, upon surrender of this
bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the
Registered Owner or such attorney, and thereupon a new fully registered bond or bonds in the same aggregate principal
amount, and of the same maturity, shall be executed and delivered in the name of the transferee or transferees or the
Registered Owner, as the case may be, in exchange therefor. This bond may be transferred or exchanged without cost to
the Registered Owner except for any tax or governmental charge required to be paid with respect to the transfer or
exchange. The City, the Registrar, the Paying Agent and any other registrar or paying agent for this bond may treat and
consider the person in whose name this bond is registered as the absolute owner hereof for all purposes including for the
purpose of receiving payment of, or on account of, the principal hereof and interest and premium, if any, due hereon.
The bonds maturing on any maturity date are issuable only in the denomination of [$5,000] [$1.00] or any
integral multiple thereof.
[A Continuing Disclosure Contract from the City to each registered owner or holder of any bond, dated as of the
date of initial issuance of the Bonds (the "Contract has been executed by the City, a copy of which is available from
the City and the terms of which are incorporated herein by this reference. The Contract contains certain promises of the
City to each registered owner or holder of any bond, including a promise to provide certain continuing disclosure. By its
payment for and acceptance of this bond, the registered owner or holder of this bond assents to the Contract and to the
exchange of such payment and acceptance for such promises.]
It is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the
execution, issuance and delivery of this bond have been done and performed in regular and due form as provided by law.
This bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon
shall have been executed by an authorized representative of the Registrar.
IN WITNESS WHEREOF, the City of Carmel, in Hamilton County, Indiana, has caused this bond to be
executed in its corporate name by the manual or facsimile signature of its Mayor, its corporate seal to be hereunto affixed,
imprinted or impressed by any means and attested manually or by facsimile by its Clerk- Treasurer.
(SEAL)
This bond is subject to defeasance prior to payment or redemption as provided in the Ordinance.
Clerk- Treasurer
14
CITY OF ARMEL, INDIANA
By:
yor
TEN. COM.
TEN. ENT.
JT. TEN.
UNIF. TRAN.
MIN. ACT
REGISTRAR'S CERTIFICATE OF AUTHENTICATION
It is hereby certified that this bond is one of the bonds described in the within mentioned Ordinance duly
authenticated by the Registrar.
Custodian
(Cust.) (Minor)
as Registrar
The following abbreviations, when used in the inscription of the face of this bond, shall be construed as through
they were written out in full according to applicable laws or regulations:
as tenants in common
as tenants by the entireties
as joint tenants with right of survivorship and not as tenants in common
under Uniform Transfer to Minors Act of
(State)
Additional abbreviations may also be used although not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please Print or Typewrite
Name and Address and Social Security or Other Identifying Number) principal amount (must be a
multiple of 55,000) of the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within bond on the books kept for the registration thereof with full power of
substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by an eligible
guarantor institution participating in a Securities Transfer
Association recognized signature guarantee program.
15
By:
Authorized Representative
NOTICE: The Signature to this assignment must
correspond with the name as it appears on the face of the
within bond in every particular, without alteration or
enlargement or any change whatsoever,
[As follows if sold pursuant to a Financial Assistance Agreement
EXHIBIT A
Date* Amount Date* Amount
Pursuant to the Financial Assistance Agreement, the final maturity of this Bond may occur prior to those set forth above
in order that the final maturity of this Bond not exceed 20 years from Substantial Completion of Construction (as
defined in the Financial Assistance Agreement).]
SECTION 10. Sale of Bonds.
[End of form of bonds]
(a) The 2012 Bonds shall be sold in a competitive sale or pursuant to I.C. 5 -1.5 as
determined by the Executive and Fiscal Officer. Unless sold pursuant to 1.C. 5 -1.5, the Fiscal Officer
shall cause to be published either (i) a notice of sale once each week for two consecutive weeks in
accordance with I.C. §5- 3 -1 -2, in which case the date fixed for the sale shall not be earlier than
fifteen (15) days after the first of such publications and not earlier than three (3) days after the second
of such publications, or (ii) a notice of intent to sell bonds once each week for two weeks in
accordance with I.C. §5- 1 -11 -2 and I.C. §5 -3 -1 -4 and in a newspaper of general circulation published
in the State capital, in which case bids may not be received more than ninety (90) days after the first
of such publications. Said sale notice shall state the time and place of sale, the purpose for which the
2012 Bonds are being issued, the total amount thereof, the amount and date of each maturity, the
maximum rate or rates of interest thereon, their denominations, the time and place of payment, the
terms and conditions upon which bids will be received and the sale made and such other information
as is required by law or as the Fiscal Officer shall deem necessary.
All bids for the 2012 Bonds shall be sealed and shall be presented to the Fiscal Officer in
accord with the terms set forth in the sale notice. Bidders for the 2012 Bonds shall be required to
name the rate or rates of interest which the 2012 Bonds are to bear, which shall be the same for all
2012 Bonds maturing on the same date and the interest rate bid on any maturity of the 2012 Bonds
must be no less than the interest rate bid on any and all prior maturities, not exceeding six percent
(6.00 per annum, and such interest rate or rates shall be in multiples of one hundredth of one
percent. The Fiscal Officer shall award the 2012 Bonds to the bidder who offers the lowest interest
cost, to be determined by computing the total interest on all the 2012 Bonds to their maturities and
deducting therefrom the premium bid, if any, or adding thereto the amount of the discount, if any. No
bid for less than ninety -eight and one -half percent (98.5 of the par value of the 2012 Bonds, plus
accrued interest, shall be considered. The Fiscal Officer may require that all bids be accompanied by
certified or cashier's checks payable to the order of the City, or a surety bond, in an amount not to
exceed one percent of the aggregate principal amount of the 2012 Bonds as a guaranty of the
performance of said bid, should it be accepted. In the event no satisfactory bids are received on the
day named in the sale notice, the sale may be continued from day to day thereafter for a period of
thirty (30) days without readvertisement; provided, however, that if said sale is continued, no bid
shall be accepted which offers an interest cost which is equal to or higher than the best bid received
16
at the time fixed for sale in the bond sale notice. The Fiscal Officer shall have full right to reject any
and all bids.
After the 2012 Bonds have been properly sold and executed, the Fiscal Officer shall receive
from the purchasers payment for the 2012 Bonds and shall provide for delivery of the 2012 Bonds to
the purchasers.
(b) The 2012 Bonds, when fully paid for and delivered to the purchaser shall be the
binding special revenue obligations of the City, payable out of the Net Revenues. The proper officers
of the City are hereby directed to sell the 2012 Bonds to the purchaser, to draw all proper and
necessary warrants, and to do whatever acts and things which may be necessary to carry out the
provisions of this Ordinance.
(c) The Executive and the Fiscal Officer each are hereby authorized to deem final an
official statement with respect to the 2012 Bonds, as of its date, in accordance with the provisions of
Rule 15c2 -12 of the U.S. Securities and Exchange Commission, as amended (the "SEC Rule
subject to completion as permitted by the SEC Rule, and the City further authorizes the distribution
of the deemed final official statement, and the execution, delivery and distribution of such document
as further modified and amended with the approval of the Executive or the Fiscal Officer in the form
of a final official statement.
In order to assist any underwriter of the 2012 Bonds in complying with paragraph (b)(5) of
the SEC Rule by undertaking to make available appropriate disclosure about the City and the 2012
Bonds to participants in the municipal securities market, the City hereby covenants, agrees and
undertakes, in accordance with the SEC Rule, unless excluded from the applicability of the SEC
Rule or otherwise exempted from the provisions of paragraph (b)(5) of the SEC Rule, that it will
comply with and carry out all of the provisions of the continuing disclosure contract. "Continuing
disclosure contract" shall mean that certain continuing disclosure contract executed by the City and
dated the date of issuance of the 2012 Bonds, as originally executed and as it may be amended from
time to time in accordance with the terms thereof. The execution and delivery by the City of the
continuing disclosure contract, and the performance by the City of its obligations thereunder by or
through any employee or agent of the City, are hereby approved, and the City shall comply with and
carry out the terms thereof.
(d) The Fiscal Officer is hereby authorized and directed to obtain a legal opinion as to the
validity of the 2012 Bonds from Barnes Thornburg LLP, and to furnish such opinion to the
purchasers of the 2012 Bonds or to cause a copy of said legal opinion to be printed on each 2012
Bond. The cost of such opinion shall be paid out of the proceeds of the 2012 Bonds.
(e) In connection with the sale of the 2012 Bonds, the Executive and the Fiscal Officer
each are authorized to take such actions and to execute and deliver such agreements and instruments
as they deem advisable to obtain a rating and /or to obtain bond insurance for the 2012 Bonds, and the
taking of such actions and the execution and delivery of such agreements and instruments are hereby
approved.
17
(f) In connection with the sale of the BANs, the Executive and the Fiscal Officer each are
authorized to take all or a part of the same authorized actions, and to execute and deliver the
agreements and instruments, as they deem advisable with respect to the BANs to the same extent as
if the foregoing provisions of this Section applicable to the 2012 Bonds were applied to the sale of
the BANs, provided they shall not be required to take each and every such act as would relate to the
2012 Bonds unless by law it is required with respect to the BANs.
(g) Notwithstanding anything in this Ordinance and in lieu of a public sale of the 2012
Bonds pursuant to this Section, the 2012 Bonds may, in the discretion of the Fiscal Officer, based
upon the advice of the City's financial advisor, be sold to the Bond Bank or to the Authority as part
of the SRF Program. In the event of such determination of sale to the Bond Bank, the 2012 Bonds
shall be sold to the Bond Bank in such denomination or denominations as the Bond Bank may
request, and pursuant to a qualified entity purchase agreement (the "Purchase Agreement between
the City and the Bond Bank, hereby authorized to be entered into and executed by the Executive on
behalf of the City, and attested by the Fiscal Officer, subsequent to the date of the adoption of this
Ordinance. Such Purchase Agreement may set forth the definitive terms and conditions for such sale,
but all of such terms and conditions must be consistent with the terms and conditions of this
Ordinance, including without limitation, the interest rate or rates on the 2012 Bonds which shall not
exceed the maximum rate of interest for the 2012 Bonds authorized pursuant to this Ordinance.
Bonds sold to the Bond Bank shall be accompanied by all documentation required by the Bond Bank
pursuant to the provisions of Indiana Code 5 -1.5 and the Purchase Agreement, including, without
limitation, an approving opinion of nationally recognized bond counsel, certification and guarantee
of signatures and certification as to no litigation pending, as of the date of delivery of the 2012 Bonds
to the Bond Bank, challenging the validity or issuance of the 2012 Bonds. In the event the Fiscal
Officer determines to sell the 2012 Bonds to the Bond Bank, the submission of an application to the
Bond Bank, the entry by the City into the Purchase Agreement, and the execution and delivery of the
Purchase Agreement on behalf of the City by the Executive in accordance with this Ordinance are
hereby authorized, approved and ratified.
In the event of such determination of sale to the Authority as part of the SRF Program, The
Executive and Fiscal Officer are hereby authorized to (i) submit an application to the SRF Program,
(ii) execute the Financial Assistance Agreement (including any amendment thereof) with the
Authority and (iii) sell one or more series of the 2012 Bonds upon such terms as are acceptable to the
Executive and the Fiscal. Officer consistent with the terms of this Ordinance. The Financial
Assistance Agreement (including any amendment thereof) for one or more series of the 2012 Bonds
and the Project shall be executed by the Executive and Fiscal Officer and the Authority. The
Executive and the Fiscal Officer are hereby authorized to execute and deliver an amended and
restated Financial Assistance Agreement or a subsequent Financial Assistance Agreement if an
earlier series of 2012 Bonds has been purchased by the Authority and may approve any changes in
form or substance to Financial Assistance Agreement as they determined to be necessary or desirable
in connection therewith, and such approval shall be conclusively evidenced by its execution.
SECTION 11. Use of Proceeds. Any accrued interest received at the time of delivery of
the 2012 Bonds or BANs (and, if deemed by the Executive or the Fiscal Officer to be in excess of
Project and Refunding needs, any premium), shall be deposited in the Sinking Fund (as hereafter
defined) and applied to payments on the 2012 Bonds and any BANs on the first interest payment
18
date. The remaining proceeds from the sale of the 2012 Bonds and any BANs shall be deposited in a
fund of the utility hereby created and designated as "City of Carmel, Indiana Sewage Works Bond
Project Fund" (the "Project Fund or applied to the payment of costs of the Project as contemplated
by the Financial Assistance Agreement. The proceeds deposited in the Project Fund, together with
all investment earnings thereon, shall be expended only for the purpose of paying the costs of the
Project, refunding the BANs if issued and the costs of selling and issuing the 2012 Bonds and any
BANs, including the premium for any bond insurance obtained for the 2012 Bonds.
The City hereby declares that it reasonably expects to reimburse the City's advances to the
Project from proceeds of any BANs or the 2012 Bonds, as anticipated by this Ordinance, and such
declaration shall be deemed one within the meaning of the Reimbursement Regulations.
Any balance remaining in the Project Fund after the completion of the Project which is not
required to meet unpaid obligations incurred in connection therewith and on account of the sale and
issuance of the 2012 Bonds shall be paid (a) paid into the Sinking Fund (to be part of the hereinafter
referenced Principal and Interest Amount) or (b) used for the same purpose or type of project for
which the 2012 Bonds were originally issued, all in accordance with I.C. 5 -1 -13, as amended or as
otherwise permitted by law.
SECTION 12. Revenue Fund. There is hereby continued a fund of the utility designated
as the Revenue Fund (the "Revenue Fund into which there shall be deposited upon receipt all
revenues of the works for application as set forth below. Nothing in this Ordinance shall require the
City to keep such revenues in such a fund so long as the City is able to account for all such revenue
and have it available for the funds of the Funds and Accounts of the works as set forth below on a
regular, consistently applied monthly cycle. The orderly allocation of revenues of the works may be
processed on a combined billing basis with other utilities of the City, provided that the cycle is
complete by the end of the month next following the receipt of any payment made in respect of the
works.
SECTION 13. Operation and Maintenance Fund. There is hereby continued an
operating fund of the utility designated as the Operation and Maintenance Fund (the "Operation and
Maintenance Fund There shall be transferred from the Revenue Fund and credited to the Operation
and Maintenance Fund, on the last day of each calendar month, a sufficient amount to meet the
expenses of operation, repair and maintenance for the then next succeeding two calendar months;
provided however, that the amount credited to the Operation and Maintenance Fund may only exceed
the estimated expenses of the operation, repair and maintenance for the then next succeeding two
calendar months after meeting the requirements of the Sinking Fund. The moneys credited to this
Fund shall be used for the payment of the reasonable and proper operation, repair and maintenance
expenses of the works on a day -to -day basis, but none of the moneys in the Operation and.
Maintenance Fund shall be used for depreciation, replacements, improvements, extensions or
additions. Any balance in Operation and Maintenance Fund in excess of the expected expenses of
operation, repair and maintenance for the next succeeding month may be transferred to the Sinking
Fund if necessary to prevent a default in the payment of principal of or interest on the outstanding
bonds of the works.
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SECTION 14. Sinking Fund. There is hereby continued a fund of the utility designated as
the Sinking Fund (the "Sinking Fund to be used for the payment of the principal of and interest on
2012 Bonds and any hereafter issued bonds ranking on a parity therewith which by their terms are
payable from the Net Revenues, and the payment of any fiscal agency charges in connection with
such payment. All deposits into the Sinking Fund shall be tracked, allocated and applied either as
part of a Principal and Interest Amount or Debt Service reserve Amount, each of which are pledged
and to be applied for the purposes set forth below. The Principal and Interest Amount and the Debt
Service Reserve Amount need not be separated into different accounts, but may be held as separate
accounts if such is from time to time determined by the utility to be convenient to track, allocate and
apply monies held in the Sinking Fund as part of the Principal and Interest Amount and Debt Service
Reserve Amount as set forth below.
(a) Principal and Interest Amount. There shall be transferred on the last day of each
calendar month, from the Revenue Fund and credited to the Sinking Fund, which shall be part of the
Principal and Interest Amount, an amount equal to the sum of at least (i) one- twelfth (1/12) of the
principal and at least one- sixth (1/6) of the interest on all the then outstanding Bonds payable from
the Net Revenues on the next succeeding principal and interest payment dates (except in the instance
of the first principal and interest payment dates next succeeding the issuance of the 2012 Bonds, an
appropriately greater percentage as would result in such equal monthly transfers equaling the
required payments), until the amount available therein shall equal the principal payable during the
next succeeding twelve (12) calendar months and the interest payable during the next six (6) calendar
months. There shall similarly be credited to the account any amount necessary to pay when due the
bank fiscal agency charges for paying principal of and interest on the bonds as the same become
payable. The City shall, from the sums deposited in the Sinking Fund and held as part of the
Principal and Interest Amount, remit promptly to the registered owner or to the bank fiscal agency
sufficient moneys to pay the principal and interest on the due dates thereof together with the amount
of bank fiscal agency charges.
(b) Debt Service Reserve Amount. There shall be transferred, on the last day of each
calendar month following the issuance of the 2012 Bonds, after making any required transfer to the
Sinking Fund held as part of the Principal and Interest Amount, from the Revenue Fund and credited
to the Sinking Fund, which shall be part of the Debt Service Reserve Amount, an amount to
constitute an appropriate reserve to facilitate the marketing of the 2012 Bonds, which monthly
deposits shall be in an amount sufficient to build the balance in the Sinking Fund constituting part of
the Debt Service Reserve Amount (after consideration of any transfers made pursuant to the next
following sentence) to an amount equal to such required reserve within no more than five (5) years
on a level monthly basis (after accounting for earnings thereon), which reserve amount shall not
exceed the hereinafter Reserve Requirement. The Fiscal Officer, with the advice of the City's
financial advisor, may transfer an amount of the funds of the utility now on hand, or apply proceeds
of the 2012 Bonds, in full or partial satisfaction of the Reserve Requirement. After the issuance of
the 2012 Bonds, the City shall maintain the balance in the Sinking Fund constituting part of the Debt
Service Reserve Amount in an amount equal to the Reserve Requirement, subject to the provisions
of this Ordinance or any ordinance authorizing and any hereafter issued bonds ranking on a parity
therewith, which allows the Reserve Requirement to be accumulated over time. For these purposes,
"Reserve Requirement" means the least of ten percent (10 of the proceeds of the 2012 Bonds and
any hereafter issued bonds ranking on a parity therewith (including the outstanding Prior Bonds), the
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maximum annual debt service on the 2012 Bonds and any such parity bonds (including the
outstanding Prior Bonds), or 125% of the average annual debt service on the 2012 Bonds and any
hereafter issued parity bonds (including the outstanding Prior Bonds).
All money designated as part of the Debt Service Reserve Amount shall be used and
reallocated to the Principal and Interest Amount, in the event of and to the extent of any deficiency in
the Sinking Fund constituting part of the Principal and Interest Amount with respect to the payments
then due on the 2012 Bonds and any hereafter issued bonds ranking on a parity therewith, or to make
the final payments on such bonds when the Sinking Fund constituting part of the Debt Service
Reserve Amount, together with other funds available for such purpose, is sufficient to make all
remaining payments thereon to final maturity. Any amount designated as the Debt Service Reserve
Amount in excess of the Reserve Requirement shall be withdrawn from time to time, and at least as
frequently as annually, to the Principal and Interest Amount. Any deficiency in the balance required
to be held in the Sinking Fund constituting part of the Debt Service Reserve Amount shall be
promptly made up from the next available Net Revenues after credits to the Sinking Fund
constituting part of the Principal and Interest Amount.
Notwithstanding the foregoing, the Fiscal Officer, with the advice of the City's Financial
Advisor and bond counsel, may enable the City to satisfy all or any part of its obligation to maintain
the Sinking Fund constituting part of the Debt Service Reserve Amount equal to the Reserve
Requirement by depositing a Reserve Fund Credit Facility in the Sinking Fund and allocating it as
part of the Debt Service Reserve Amount. A "Reserve Fund Credit Facility" is hereby defined as a
letter of credit, liquidity facility, insurance policy or comparable instrument furnished by a bank,
insurance company, financial institution or other entity pursuant to a reimbursement agreement or
similar instrument between such entity and the City, for the purpose of satisfying in whole or in part
the City's obligation to maintain the Reserve Requirement, provided that the Reserve Fund Credit
Facility must be issued by a provider (a) that is rated in one of the two highest rating categories by
Standard Poor's Corporation and Moody's Investors Service at the time of the issuance of such
Reserve Fund Credit Facility, and (b) if the 2012 Bonds or BANs are purchased by the Authority as
part of the SRF Program, such provider shall be acceptable to the Authority.
In the event the Debt Service Reserve Amount applicable to any series of 2012 Bonds or any
bonds ranking on a parity therewith (including the outstanding Prior Bonds) is met by a Reserve
Fund Credit Facility and such facility is not available to pay the principal of and interest on all such
outstanding bonds payable from Net Revenues, then (i) the bonds so secured by such a Reserve Fund
Credit Facility shall only be secured by (and payable from) such allocable portion of the Debt Service
Reserve Amount attributable to such bonds as if such Reserve Fund Credit Facility were held in a
separate serve account from the portion of the Debt Service Reserve Amount applicable to the
remainder of the bonds, (ii) any required deposits (including as a result of any deficiency in the
balance required to be held) in the Sinking Fund constituting part of the Debt Service Reserve
Amount shall be allocated to such separate reserves on a pro rata, party basis to meet such allocable
portion of the Debt Service Reserve Amount attributable to such bonds, and (iii) any cash allocated
to a separate reserve shall be applied to pay the principal of and interest on the outstanding bonds
secured by it before a draw is made to make such a payment from a Reserve Fund Credit Facility that
is also held in the same reserve.
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If the 2012 Bonds or BANs are purchased by the Authority as part of the SRF Program and to
the extent required by the SRF Program, the Sinking Fund and the Project Fund may be held by a
financial institution acceptable to the SRF Program pursuant to terms acceptable to the SRF
Program. If the Sinking Fund and the accounts therein are so held in trust, the City shall transfer the
monthly required amounts of Net Revenues to the Sinking Fund in accordance with this Section 14
and the financial institution holding such funds in trust shall be instructed to pay the required
payments in accordance with the payment schedules for the City's outstanding 2012 Bonds. The
Council hereby authorizes the Executive and the Fiscal Officer to execute and deliver an agreement
with a financial institution to reflect this trust arrangement for the Sinking Fund and Project Fund.
The financial institution selected to serve in this role may also serve as Registrar and Paying Agent
for the 2012 Bonds or the Prior Bonds of the City.
SE CTION 15. Improvement Fund. After meeting the requirements of the Operation and
Maintenance Fund and the Sinking Fund, any excess revenues may be transferred from the Revenue
Fund and credited to the special utility fund, to be expended in making good depreciation in the
works and new construction, hereby continued and designated as the "Improvement Fund" (the
"Improvement Fund Said Fund shall be used for (a) replacements, improvements, extensions and
additions to the works and (b) any other lawful purpose (including without limitation and subject to
applicable law, payments in lieu of property taxes to the City) provided that if any of the 2012 Bonds
are owned by the Authority as part of the SRF Program, unless otherwise approved by the prior
written consent of the Authority, such uses and transfers pursuant to clause (b) (including payments
in lieu of taxes and any transfers to the General Fund of the City) shall be made only (i) no more
frequently than semiannually on May 2 and November 2, and (ii) if all monthly deposits required by
this Ordinance are current and held as of such dates in the Operation and Maintenance Fund and the
Sinking Fund. Moneys in the Improvement Fund shall be transferred to the Sinking Fund if necessary
to prevent a default in the payment of principal of and interest on the then outstanding bonds of the
works, or may be transferred to the Operation and Maintenance Fund to meet unforeseen
contingencies in the operation, repair and maintenance of the works.
SECTION 16. Investment of Funds. The funds and accounts described herein shall be
accounted for separate and apart from each other and from all other funds and accounts of the City.
All moneys deposited in the funds and accounts shall be deposited, held and secured as public funds
in accordance with the public depository laws of the State of Indiana; provided that moneys therein
may be invested in obligations in accordance with the applicable laws, including particularly Indiana
Code, Title 5, Article 13, as amended or supplemented, and in the event of such investment the
income therefrom shall become a part of the funds invested and shall be used only as provided in this
Ordinance.
The Fiscal Officer is hereby authorized pursuant to Indiana Code 5- 1 -14 -3 to invest moneys
pursuant to the provisions of this Ordinance (subject to applicable requirements of federal law to
ensure such yield is then current market rate) to the extent necessary or advisable to preserve the
exclusion from gross income of interest on the 2012 Bonds under federal law.
The Fiscal Officer shall keep full and accurate records of investment earnings and income
from moneys held in the funds and accounts created or referenced herein. In order to comply with the
provisions of this Ordinance, the Fiscal Officer is hereby authorized and directed to employ
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consultants or attorneys from time to time to advise the City as to requirements of federal law to
preserve the tax exclusion. The Fiscal Officer may pay any fees as operation expenses of the utility.
SECTION 17. Financial Records and Accounts. The City shall keep proper records and
books of account, separate from all of its other records and accounts, in which complete and correct
entries shall be made showing all revenues received on account of the operation of the utility and all
disbursements made therefrom and all transactions relating to the utility. The City shall maintain on
file the audited financial statements of the utility prepared by the State Board of Accounts. There
shall be furnished, upon written request, to any owner of the 2012 Bonds and any BANs, the most
recent copy of the audited financial statements of the utility prepared by the State Board of Accounts.
Copies of all such statements and reports shall be kept on file in the office of the Fiscal Officer.
If the 2012 Bonds are sold to the Authority as part of the SRF Program, the City shall
establish and maintain the books and other financial records of the Project (including the
establishment of a separate account or subaccount for the Project) and the Utility in accordance with
(i) generally accepted governmental accounting standards for utilities on an accrual basis as
promulgated by the Governmental Accounting Standards Board, and (ii) the rules, regulations and
guidance of the State Board of Accounts.
SECTION 18. Rate Covenant. (a) The City covenants and agrees that, by ordinance of
the Council, it will establish and maintain just and equitable rates and charges for the use of and the
service rendered by the works, to be paid by the owner of each and every lot, parcel of real estate or
building that is connected with and uses said works by or through any part of the utility, or that in
any way uses or is served by such works; that such rates or charges shall be sufficient in each year for
the payment of the proper and reasonable expenses of operation, repair and maintenance of the
works, and for the payment of the sums required to be paid into the Sinking Fund by the Act and this
Ordinance. Such rates or charges shall, if necessary, be changed and readjusted from time to time so
that the revenues therefrom shall always be sufficient to meet the expenses of operation, repair and
maintenance of the works and the requirements of the Sinking Fund. The rates or charges so
established shall apply to any and all use of such works by and service rendered to the City and all
departments thereof, and shall be paid by the City or the various departments thereof as the charges
accrue.
(b) This subsection (b) shall apply in lieu of the provision of subsection (a) above with
respect to the 2012 Bonds owned by the Authority as part of the SRF Program. The City covenants
and agrees that by ordinance of the Council, it will establish and maintain just and equitable rates and
charges for the use of and the service rendered by the works to be paid by the owner of each and
every lot, parcel of real estate or building that is connected with and uses said works by or through
any part of the utility or that in any way uses or is served by such works, that such rates or charges
shall be sufficient in each year to provide for the proper Operation and Maintenance (as defined in.
the Financial Assistance Agreement) of the Utility and for the payment of the sums required to be
paid into the Sinking Fund by the Act and this Ordinance. Such rates or charges shall, if necessary,
by changed and readjusted from time to time so that the revenues therefrom shall always be sufficient
to meet the expenses of operation, repair and maintenance of the works and the requirements of the
Sinking Fund. The rates or charges so established shall apply to any and all use of such works by
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and service rendered to the City and all departments thereof and shall be paid by the City or the
various departments thereof as the charges accrue.
SECTION 19. Defeasance. If, when the 2012 Bonds and any BANs or a portion thereof
shall have become due and payable in accordance with their terms or shall have been duly called for
redemption or irrevocable instructions to call the 2012 Bonds and any BANs or a portion thereof for
redemption shall have been given, and the whole amount of the principal, premium, if any, and the
interest so due and payable upon such 2012 Bonds and any BANs or any portion thereof then
outstanding shall be paid, or (i) sufficient moneys or (ii) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by the United States of America,
the principal of and the interest on which when due will provide sufficient moneys for such purpose,
shall be held in trust for such purpose, and provision shall also be made for paying all fees and
expenses for the redemption, then and in that case the 2012 Bonds and any BANs issued hereunder
or any designated portion thereof shall no longer be deemed outstanding or entitled to the pledge of
the Net Revenues of the works.
SECTION 20. Additional Obligations. The City reserves the right to authorize and issue
additional BANs at any time ranking on a parity with the BANs. The City reserves the right to
authorize and issue additional bonds payable out of the Net Revenues ranking on a parity with the
2012 Bonds for the purpose of financing the cost of future additions, extensions and improvements
to the works, or to provide for a complete or partial refunding of obligations, subject to the following
conditions precedent:
(a) The interest on and principal of all bonds payable from the Net
Revenues shall have been paid to date in accordance with the terms thereof, provided,
this condition shall be satisfied if any required amount is to be provided from the
proceeds of such additional bonds or other funds.
(b) The balance in Sinking Fund constituting part of the Debt Service
Reserve Amount shall be equal to the amount required herein, provided, this
condition shall be satisfied if any required amount is to be provided from the
proceeds of such additional bonds or other funds either (i) at the time of their
issuance or (ii) by monthly deposits in an amount sufficient to build the balance in
the Sinking Fund constituting part of the Debt Service Reserve Amount to an amount
equal to the Reserve Requirement with no more than five (5) years after the
additional bonds are issued, on a level monthly basis (after accounting for earnings
thereon).
(c) The Net Revenues in the fiscal year immediately preceding the
issuance of any such bonds ranking on a parity with the 2012 Bonds (provided,
within the 90 day period following the end of such preceding fiscal year, if such
year's account records are not final as of the sale date of the additional bonds, the
fiscal year preceding such year may be used in lieu of the immediately preceding
year) shall be not less than one hundred twenty five percent (125 of the annual
principal and interest requirements of the then outstanding parity bonds (including
the 2012 Bonds) and the additional parity bonds proposed to be issued for each
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respective year during the term of such outstanding parity bonds and the proposed
additional bonds; or, prior to the issuance of the additional bonds, the rates and
charges shall be increased sufficiently so that said increased rates and charges applied
to the previous fiscal year's operations (provided, within the 90 day period following
the end of such preceding fiscal year, if such year's account records are not final as of
the sale date of the additional bonds, the fiscal year preceding such year may be used
in lieu of the immediately preceding year) would have produced Net Revenues for
said year equal to not less than one hundred twenty five percent (125 of the annual
principal and interest requirements of the then outstanding parity bonds for each
respective year during the term of such outstanding parity bonds and the proposed
additional bonds. For purposes of this subsection, the records of the works shall be
analyzed and all showings shall be prepared by a certified public accountant
employed by the City for that purpose.
(d) The principal of said additional parity bonds shall be payable on May
1 and the interest shall be payable on May 1 and November 1 during the periods such
principal and interest are payable.
(e) If the Bonds are sold to the Authority: (i) the City obtains the consent of the
Authority; (ii) the City has faithfully performed and is in compliance with each of its
obligations, agreements and covenants contained in the Financial Assistance Agreement and
this Ordinance; and (iii) the City is in compliance with its System permits, except for
noncompliance, the elimination of which is a purpose for which the 2012 Bonds or the
additional bonds are issued, including any refunding bonds, are issued, so long as such
issuance constitutes part of an overall plan to eliminate such noncompliance.
SECTION 21. Further Covenants of the City. For the purpose of further safeguarding
the interests of the owners of the 2012 Bonds and any BANs, it is hereby specifically provided as
follows:
(a) The City shall at all times maintain the works in good condition, and
operate the same in an efficient manner and at a reasonable cost.
(b) If the 2012 Bonds are sold to the Authority as part of the SRF
Program, the City shall acquire and maintain insurance coverage as required by the
Authority including fidelity bonds to protect the Utility and its operations, provided
that if the City is not so directed by the Authority, so long as any of the 2012 Bonds
or BANs are outstanding, the City shall maintain insurance on the insurable parts of
the works, of a kind and in an amount such as would normally be carried by private
entities engaged in a similar type of business. All insurance shall be placed with
responsible insurance companies qualified to do business under the laws of the State
of Indiana. Insurance proceeds shall be used in replacing or repairing the property
destroyed or damaged, or if not used for that purpose, shall be treated and applied as
Revenues of the Sinking Fund, provided that if the 2012 Bonds are sold to the
Authority as part of the SRF Program, the Authority must consent to a different use
of such proceeds or awards.
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(c) So long as any of the 2012 Bonds and any BANs are outstanding, the
City shall not mortgage, pledge or otherwise encumber the works, or any part thereof,
and shall not sell, lease or otherwise dispose of any part of the same, excepting only
such machinery, equipment or other property as may be replaced, or shall no longer
be necessary for use in connection with said utility, provided that if such outstanding
BANs or 2012 Bonds are sold to the Authority as part of the SRF Program, such
exception shall only apply if the Authority consents.
(d) If the BANs or 201 Bonds are sold to the Authority as part of the SRF
Program, the City shall not borrow any money, enter into any contract or agreement
or incur any other liabilities in connection with the Utility other than for normal
operating expenditures, without the prior written consent of the Authority if such
undertaking would involve, commit or use the revenues of the Utility.
(e) Except as otherwise specifically provided in Section 20 of this
Ordinance, so long as any of the 2012 Bonds and any BANs are outstanding, no
additional bonds or other obligations pledging any portion of the revenues of the
works shall be issued by the City, except such as shall be made junior and
subordinate in all respects to the 2012 Bonds, unless all of the 2012 Bonds are
defeased, redeemed or retired coincidentally with the delivery of such additional
bonds or other obligations.
(f) The City shall take all action or proceedings necessary and proper to
require connection of all property where liquid and solid waste, sewage, night soil, or
industrial waste is produced with available sanitary sewer. The City shall, insofar as
possible, cause all such sanitary sewers to be connected with the utility or otherwise
cause an equivalent availability charged to be enforced against such property.
Notwithstanding the foregoing to the contrary, the City shall not be required to
enforce this subsection (e) so long as sufficient payments into the Sinking Fund shall
have been made to meet the monthly transfer requirements of Section 14, and the
interest on and principal of all bonds payable from the revenues of the works shall
have been paid to date in accordance with the terms thereof.
(g) The provisions of this Ordinance shall constitute a contract by and
between the City and the owners of the 2012 Bonds and any BANs, all the terms of
which shall be enforceable by any such owner by any and all appropriate proceedings
in law or in equity. After the issuance of the 2012 Bonds and any BANs and so long
as any of the principal thereof or interest or premium, if any, thereon remains unpaid,
except as expressly provided herein, this Ordinance shall not be repealed or amended
in any respect which will adversely affect the rights of such owners, nor shall the
Council or any other body of the City adopt any law, ordinance or resolution which in
any way adversely affects the rights of such owners. Except in the case of changes
described in Section 22(a) through (f) hereof, this Ordinance may be amended,
however, without the consent of bond owners, if the Council determines, in its sole
discretion, that such amendment would not adversely affect the owners of the 2012
Bonds, provided, however, that if the 2012 Bonds or BANs are sold to the Authority
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as part of the SRF Program, the City shall also obtain the prior written consent of the
Authority.
(h) The provisions of this Ordinance shall be construed to create a trust in
the proceeds of the sale of the 2012 Bonds and any BANs for the uses and purposes
herein set forth, and the owners of the 2012 Bonds and any BANs shall retain a lien
on such proceeds until the same are applied in accordance with the provisions of this
Ordinance and the Act. The provisions of this Ordinance shall also be construed to
create a trust in the Net Revenues herein directed to be set apart and paid into the
Sinking Fund for the uses and purposes of that Fund as set forth in this Ordinance.
The owners of the 2012 Bonds and any BANs shall have all the rights, remedies and
privileges set forth in the Act, including the right to have a receiver appointed to
administer the utility in the event the City shall fail or refuse to fix and collect
sufficient rates and charges for those purposes, or shall fail or refuse to operate and
maintain said utility and to apply properly the revenues derived from the operation
thereof, or if there be a default in the payment of the interest on or principal of the
2012 Bonds or any BANs.
(h) None of the provisions of this Ordinance shall be construed as
requiring the expenditure of any funds of the City derived from any sources other
than the proceeds of the 2012 Bonds and any BANs and the operation of the utility.
SECTION 22. Amendments With Consent of Bondholders. Subject to the terms and
provisions contained in this section and Sections 21 and 23, the owners of not less than sixty -six and
two thirds percent (66 2/3 in aggregate principal amount of the 2012 Bonds and any BANs and
then outstanding shall have the right, from time to time, to consent to and approve the adoption by
the Council of such ordinance or ordinances supplemental hereto, as shall be deemed necessary or
desirable by the City for the purpose of amending in any particular any of the terms or provisions
contained in this Ordinance, or in any supplemental Ordinance provided however that if the 2012
Bonds or BANs are sold to the Authority as part of the SRF Program, the City shall obtain the prior
written consent of the Authority, and provided further, that nothing herein contained shall permit or
be construed as permitting:
(a) An extension of the maturity of the principal of or interest or
premium, if any, on, or any mandatory sinking fund redemption date for, or an
advancement of the earliest redemption date on, any 2012 Bond or BAN, without the
consent of the holder of each 2012 Bond or BAN so affected; or
(b) A reduction in the principal amount of any 2012 Bond or BAN or the
redemption premium or the rate of interest thereon, or a change in the monetary
medium in which such amounts are payable, without the consent of the holder of
each 2012 Bond or BAN so affected; or
(c) The creation of a lien upon or a pledge of the Net Revenues ranking
prior to the pledge thereof created by this Ordinance, without the consent of the
holders of all 2012 Bonds then outstanding; or
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(d) A preference or priority of any 2012 Bond or BAN over any other
2012 Bond or BAN, without the consent of the holders of all 2012 Bonds and any
BANs then outstanding; or
(e) A reduction in the aggregate principal amount of the 2012 Bonds and
any BANs required for consent to such supplemental ordinance, without the consent
of the holders of all 2012 Bonds and any BANs then outstanding; or
(f) A reduction in the Reserve Requirement.
If the City shall desire to obtain any such consent, it shall cause the Registrar to mail a notice,
postage prepaid, to the addresses appearing on the Registration Record. Such notice shall briefly set
forth the nature of the proposed supplemental ordinance and shall state that a copy thereof is on file
at the office of the Registrar for inspection by all owners of the 2012 Bonds and any BANs. The
Registrar shall not, however, be subject to any liability to any owners of the 2012 Bonds and any
BANs by reason of its failure to mail such notice, and any such failure shall not affect the validity of
such supplemental ordinance when consented to and approved as herein provided.
Whenever at any time within one year after the date of the mailing of such notice, the City
shall receive any instrument or instruments purporting to be executed by the owners of the 2012
Bonds and any BANs of not less than sixty -six and two- thirds per cent (66 -2/3 in aggregate
principal amount of the 2012 Bonds and any BANs then outstanding, which instrument or
instruments shall refer to the proposed supplemental ordinance described in such notice, and shall
specifically consent to and approve the adoption thereof in substantially the form of the copy thereof
referred to in such notice as on file with the Registrar, thereupon, but not otherwise, the City may
adopt such supplemental ordinance in substantially such form, without liability or responsibility to
any owners of the 2012 Bonds and any BANs, whether or not such owners shall have consented
thereto.
No owner of any 2012 Bond or BAN shall have any right to object to the adoption of such
supplemental ordinance or to object to any of the terms and provisions contained therein or the
operation thereof, or in any manner to question the propriety of the adoption thereof, or to enjoin or
restrain the Council from adopting the same, or from taking any action pursuant to the provisions
thereof. Upon the adoption of any supplemental ordinance pursuant to the provisions of this section,
this Ordinance shall be, and shall be deemed, modified and amended in accordance therewith, and
the respective rights, duties and obligations under this Ordinance of the City and all owners of the
2012 Bonds and any BANs then outstanding shall thereafter be determined, exercised and enforced
in accordance with this Ordinance, subject in all respects to such modifications and amendments.
Notwithstanding anything contained in the foregoing provisions of this Ordinance, the rights
and obligations of the City and of the owners of the 2012 Bonds and any BANs, and the terms and
provisions of the 2012 Bonds and any BANs and this Ordinance, or any supplemental ordinance,
may be modified or amended in any respect with the consent of the City and the consent of the
owners of all the 2012 Bonds and any BANs then outstanding.
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SECTION 23. Amendments Without Consent of Bondholders. The Council may, from
time to time and at any time, and without notice to or consent of the owners of the 2012 Bonds and
any BANs, adopt such ordinances supplemental hereto as shall not be inconsistent with the terms and
provisions hereof (which supplemental ordinances shall thereafter form a part hereof):
(a) To cure any ambiguity or formal defect or omission in this Ordinance
or in any supplemental ordinance;
(b) To grant to or confer upon the owners of the 2012 Bonds and any
BANs any additional rights, remedies, powers, authority or security that may lawfully
be granted to or conferred upon the owners of the 2012 Bonds and any BANs;
(c) To procure a rating on the 2012 Bonds and any BANs from a nationally
recognized securities rating agency designated in such supplemental ordinance, if
such supplemental ordinance will not adversely affect the owners of the 2012 Bonds
and any BANs;
(d) To obtain or maintain bond insurance with respect to the 2012 Bonds;
(e)
To provide for the refunding or advance refunding of the 2012 Bonds;
(f) To provide for the issuance of additional bonds or BANs as provided
in Section 20 hereof; or
(g) To make any other change which, in the determination of the Council
in its sole discretion, does not in any way adversely affect the rights of such owners
of the 2012 Bonds and any BANs.
Provided, however, that if the 2012 Bonds or BANs are sold to the Authority as part of the
SRF Program, the City shall obtain the prior written consent of the Authority to the foregoing.
SECTION 24. Tax Matters. In order to preserve the exclusion of interest on the 2012
Bonds and any BANs from gross income for federal income tax purposes and as an inducement to
purchasers of the 2012 Bonds and any BANs, the City represents, covenants and agrees that:
(a) No person or entity, other than the City or another state or local
governmental unit, will use proceeds of the 2012 Bonds and any BANs or property
financed by the 2012 Bond or "BAN proceeds other than as a member of the general
public. No person or entity other than the City or another state or local governmental
unit will own property financed by 2012 Bond or BAN proceeds or will have actual
or beneficial use of such property pursuant to a lease, a management or incentive
payment contract, an arrangement such as take -or -pay or output contract, or any other
type of arrangement that differentiates that person's or entity's use of such property
from the use by the public at large.
(b) No portion of the principal of or interest on the 2012 Bonds and any
BANs is (under the terms of the 2012 Bonds and any BANs, this Ordinance or any
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underlying arrangement), directly or indirectly, secured by an interest in property
used or to be used for any private business use or payments in respect of any private
business use or payments in respect of such property or to be derived from payments
(whether or not to the City) in respect of such property or borrowed money used or to
be used for a private business use.
(c) No 2012 Bond or BAN proceeds will be loaned to any entity or person
other than a state or local governmental unit. No 2012 Bond or BAN proceeds will be
transferred, directly or indirectly, or deemed transferred to a nongovernmental person
in any manner that would in substance constitute a loan of the 2012 Bond or BAN
proceeds.
(d) The City will not take any action or fail to take any action with respect
to the 2012 Bonds and any BANs that would result in the loss of the exclusion from
gross income for federal income tax purposes of interest on the 2012 Bonds and any
BANs pursuant to Section 103 of the Internal Revenue Code of 1986, as amended
(the "Code and the regulations thereunder as applicable to the 2012 Bonds and any
BANs, including, without limitation, the taking of such action as is necessary to
rebate or cause to be rebated arbitrage profits on 2012 Bond or BAN proceeds or
other monies treated as 2012 Bond or BAN proceeds to the federal government as
provided in Section 148 of the Code, and will set aside such monies, which may be
paid from investment income on funds and accounts notwithstanding anything else to
the contrary herein, in trust for such purposes.
(e) The City will file an information report on Form 8038 -G with the
Internal Revenue Service as required by Section 149 of the Code.
(f) The City will not make any investment or do any other act or thing
during the period that any 2012 Bond or BAN is outstanding hereunder which Auld
cause any 2012 Bond or BAN to be an "arbitrage bond" within the meaning of
Section 148 of the Code and the regulations thereunder as applicable to the 2012
Bonds and any BANs.
(g) It shall not be an event of default under this Ordinance if the interest
on any 2012 Bonds or BANs is not excludable from gross income for federal tax
purposes or otherwise pursuant to any provision of the Code which is not currently in
effect and in existence on the date of issuance of the 2012 Bonds and any BANs,
respectively. These covenants are based solely on current law in effect and in
existence on the date of delivery of the 2012 Bonds and any BANs, respectively.
Notwithstanding any other provisions of this Ordinance, the foregoing covenants and
authorizations (the "Tax Sections which are designed to preserve the exclusion of interest on the
2012 Bonds and any BANs from gross income under federal law (the "Tax Exemption need not be
complied with to the extent the City receives an opinion of nationally recognized bond counsel that
compliance with such Tax Section is unnecessary to preserve the Tax Exemption.
30
SECTION 25. Additional Authority. (a) The Executive and Fiscal Officer, and either of
them, is hereby authorized and directed to do and perform all acts and execute in the name of the
City all such instruments, documents, papers or certificates which are necessary, desirable or
appropriate to carry out the transactions contemplated by this Ordinance in such forms as the
Executive or Fiscal Officer executing the same shall deem proper, to be conclusively evidenced by
the execution thereof. Any provision of this Ordinance authorizing the Executive or Fiscal Officer to
act shall mean either of them, individually rather than collectively, is so authorized and any action
taken and agreement or undertaking executed in the name of the City by them in further of the same
shall be deemed a proper use of such authority and will be conclusively evidenced by their execution
of any agreement or undertaking, or by their taking of any such authorized action.
(b) In the event the Executive and Fiscal Officer with the advice of the financial advisor
to the City certifies to the City that it would be economically advantageous for the City to obtain a
municipal bond insurance policy for any of the 2012 Bonds issued hereunder, the City hereby
authorizes the purchase of such an insurance policy. The acquisition of a municipal bond insurance
policy is hereby deemed economically advantageous in the event the difference between the present
value cost of (a) the total debt service on the 2012 Bonds if issued without municipal bond insurance
and (b) the total debt service on the 2012 Bonds if issued with municipal bond insurance, is greater
than the cost of the premium on the municipal bond insurance policy. The City also authorizes the
purchase of a debt service reserve surety bond based upon the advice of the City's financial advisor
for the 2012 Bonds. If such an insurance policy or surety bond is purchased, the Executive or Fiscal
Officer are hereby authorized to execute and deliver all agreements with the provider of the policy or
surety bond, as the case may be, to the extent necessary to comply with the terms of such insurance
policy, surety bond and the commitments to issue such policy or surety bond, as the case may be.
SECTION 26. Non- Business Days. If the date of making any payment or the last date for
performance of any act or the exercising of any right, as provided in this Ordinance, shall be a legal
holiday or a day on which banking institutions in the City or the jurisdiction in which the Registrar or
Paying Agent is located are typically closed, such payment may be made or act performed or right
exercised on the next succeeding day not a legal holiday or a day on which such banking institutions
are typically closed, with the same force and effect as if done on the nominal date provided in this
Ordinance, and no interest shall accrue for the period after such nominal date.
SECTION 27. No Conflict. The Council hereby finds and determines that the adoption of
this Ordinance and the issuance of the 2012 Bonds and any BANs is in compliance with the Prior
Bond Ordinances. The Prior Bond Ordinances shall remain in full force and effect, except as
modified herein. The Council determines that to the extent this Ordinance modifies or amends the
Prior Bond Ordinances, there is no adverse effect to the holders of the Prior Bonds. All ordinances
and resolutions and parts thereof in conflict, are to the extent of such conflict hereby repealed. None
of the provisions of this Ordinance shall be construed to adversely affect the rights of the owners of
the Prior Bonds.
SECTION 28. Severability. If any section, paragraph or provision of this Ordinance shall
be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such
section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance.
31
SECTION 29. Headings. The headings or titles of the several sections shall be solely for
convenience of reference and shall not affect the meaning, construction or effect of this Ordinance.
SECTION 30. Interpretation. Unless the context or laws clearly require otherwise,
references herein to statutes or other laws include the same as modified, supplemented or superseded
from time to time. The headings or titles of the several sections shall be solely for convenience of
reference and shall not affect the meaning, construction or effect of this Ordinance.
SECTION 31. Estimates of Rates and Charges. The estimates of the rates and charges
of the utility are set forth in Ordinance D- 1951 -09, as amended by Ordinance D- 2069 -11 (the "Rate
Ordinance introduced before the Council on the same date as this Ordinance and anticipated to be
adopted on or after the date of this Ordinance, which Rate Ordinance is incorporated herein by
reference.
SECTION 32. Effectiveness. This Ordinance shall be in full force and effect from and
after its passage and signing by the Executive.
32
PASSED by the Common Council of the City of Carmel, Indiana this a0 day of
...Q a,,, 2012, by a vote of 7 ayes and p nays.
COMMON COUNCIL FOR THE CITY OF CARMEL, INDIANA
Presiding Officer
Richard
arp, P sident Pro Tempore
I nald E. Carter
ATTEST:
Diana L. Cordray, IAMC, CIe Treasurer
33
K6vin Rider
6V/IULU
Carol Schleif 0
W. Eric Seid'nsticker
Presented by me to the Mayor of the City of Carmel this of
4M.
ATTEST:
Diana L. Cordray, IAMC, Clerk Treasurer of
the City of Carmel, Indiana
Prepared by: Richard C. Starkey
Barnes Thornburg LLP
11 South Meridian Street
Indianapolis, IN 46204
34
mes Brainard, Mayor
2012, at t6S.3o
Diana L. Cordray, IAMC, Clerk- T sirer
Approved by me, Mayor of the City of Carmel, Indiana, this .2 7 day of R
2012, at 74 tM.
1 EXHIBIT A
2
3 Capital Improvement Projects
4 Wastewater Utility
5 Carmel, Indiana
6
7
8 The following is a list of capital improvement projects needed for the wastewater utility along with a
9 brief description of each capital improvement project and budgetary costs.
10
11 1. New final tank and aeration tanks with return sludge pumps at the wastewater treatment plant.
12 This improvement is needed to meet the near term projected demands at the wastewater treatment
13 plant. Design is predominantly complete on this project and permits have been obtained. This
14 work includes one new 80 -ft. diameter final clarifier and two new aeration tanks, tank covers,
15 along with two new return sludge pumps and a new return sludge flow splitting chamber. This
16 improvement would increase the design capacity of the wastewater treatment plant from 12
17 MGD to 14 MGD.
18
19 Estimated Project Costs $5,300,000
20
21 2. 106` Street Pump Street Modifications; This project includes additional pumping capacity,
22 additional wet well volume, bar screens, additional power generation and electrical
23 improvements.
24 Estimated Project Costs $1,500,000
25
26 3. Parallel North South Interceptor The existing 36 -in. diameter North -South Interceptor south of
27 Cool Creek surcharges during heavy wet weather flows. Additional conveyance capacity is
28 needed for this portion of the interceptor for both current wet weather flows and future flows
29 anticipated. This project proposes to install a parallel 60 -in. diameter interceptor sewer from
30 Cool Creek to the 106` St. Lift Station for conveyance of wet weather flows and will also provide
31 additional wet well volume.
32 Estimated Project Costs $1,500,000
33
34 4. The sanitary sewers in the central portion of Carmel are some of the first sewers installed in
35 Carmel. Some of these sewers are approaching 80 years of age. This area entails subbasins N3
36 through N10 as presented on the old sewer maps. The sewers in this area are in need of
37 investigation, evaluation and rehabilitation. This area is estimated to have over 20 miles of
38 sewers ranging in size from 18 -in. diameter to 6 -in. diameter including approximately 426
39 manholes. A sewer rehabilitation program will entail a methodical televising, cleaning, relining
40 and in some cases replacement of the infrastructure.
41
42 Estimated Project Costs $1,700,000
43
44 Total Project Cost $10,000,000
45 INDS01 AWILLIAMS 1303047v4