HomeMy WebLinkAbout2009-OR-44BEFORE THE COMMON COUNCIL
OF THE CITY OF JEFFERSONVILLE
IN THE STATE OF INDIANA
ORDINANCE NO. 2009-OR-44
An Ordinance of the City of Jeffersonville authorizing the refunding by the City
of Jeffersonville of its Sewage Works Revenue Bonds, Series 1998, if
economically advantageous, and authorizing the issuance of sewage works
revenue bonds for the purpose of providing funds to pay the cost of certain
additions, extensions and improvements to the municipal sewage works of said
City, providing for the safeguarding of the interests of the owners of said bonds,
other matters connected therewith, including the issuance of notes in anticipation
of bonds, and repealing ordinances inconsistent herewith
WHEREAS, the City of Jeffersonville, Indiana ("City") has heretofore established,
constructed and financed a municipal sewage works and now owns and operates the sewage
works pursuant to IC 36-9-23, and other applicable laws; and
WHEREAS, the Common Council of the City ("Council") now finds that certain
improvements, additions and extensions to said works are necessary; and that preliminary plans,
specifications and estimates have been prepared and filed by the engineers employed by the City
for the construction of said improvements and extensions, as more fully described on Exhibit A
attached hereto ("Project"), which preliminary plans and specifications have been or will be
approved by the Council and by all governmental authorities having jurisdiction, including,
particularly, the Indiana Department of Environmental Management ("Department"); and
WHEREAS, the City has obtained engineer's estimates of the costs of the construction of
the Project and has advertised for and received bids for a portion of the Project or will advertise
for and receive bids therefore, which bids are and will be subject to the City's determination to
construct the Project and subject to the City obtaining funds to pay for the Project; that on the
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basis of said estimates and bids, the cost of the Project, including estimated incidental expenses,
is in the amount of $52,250,000; and
WHEREAS, the Council finds that certain hereinafter defined 1998 Bonds of the sewage
works may, if economically advantageous, be refunded to obtain a reduction in interest payments
and effect a savings to the City; that the refunding of those outstanding bonds, together with
redemption premium, if any, and accrued interest thereon and including all costs related to the
refunding will require funds not to exceed $4,415,000; that the total cost of the refunding cannot
be provided for entirely out of funds of the sewage works now on hand and the refunding should
be accomplished by the use of certain funds on hand and the issuance of refunding revenue
bonds of the sewage works in a principal amount not to exceed $4,075,000; and
WHEREAS, the Council finds that it has no funds on hand to apply on the cost of the
Project and that it is necessary to authorize the financing of the Project by the issuance of sewage
works revenue bonds, in one or more series, in an aggregate principal amount not to exceed
$52,250,000, and, if necessary, bond anticipation notes ("BANs"); and
WHEREAS, the Council finds that there are now outstanding bonds originally issued to
refund outstanding bonds of the sewage works or to finance the construction of improvements
and additions to the sewage works and payable out of the revenues therefrom designated as:
(i) "Sewage Works Revenue Bonds, Series 1998," dated December 1, 1998 ("1998 Bonds"), now
outstanding in the amount of $3,975,000, and maturing annually over a period ending January 1,
2019; (ii) "Sewage Works Revenue Bonds, Series 1999," dated December 30, 1999 ("1999
Bonds"), now outstanding in the amount of $2,228,778, and maturing annually over a period
ending January 1, 2020; (iii) "Sewage Works Revenue Bonds, Series 2003," dated December 17,
2003 ("2003 Bonds"), now outstanding in the amount of $2,630,000, and maturing annually over
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a period ending January 1, 2024; (iv) "Sewage Works Refunding Revenue Bonds of 2004," dated
June 15, 2004 ("2004 Bonds"), now outstanding in the amount of $1,415,000, and maturing
annually over a period ending January 1, 2011; (v) "Sewage Works Revenue Bonds of 2005,
Series A," dated July 21, 2005 ("2005 Bonds"), now outstanding in the amount of $6,500,000,
and maturing annually over a period ending January 1, 2026; (vi) "Sewage Works Revenue
Bonds of 2008," dated March 28, 2008 ("2008 Bonds"), now outstanding in the amount of
$9,800,000, and maturing annually over a period ending January 1, 2029; and (vii) "Sewage
Works Revenue Bonds of 2009," dated August 10, 2009 ("2009 Bonds"), now outstanding in the
amount of $1,400,000, and maturing annually over a period ending January 1, 2030; which 1998
Bonds, 1999 Bonds, 2003 Bonds, 2004 Bonds, 2005 Bonds, 2008 Bonds and 2009 Bonds
constitute a first charge upon the Net Revenues (as hereinafter defined) of the sewage works; and
WHEREAS, the Council finds that the 1998 Bonds may, if economically advantageous,
be refunded pursuant to the provisions of IC 5-1-5 to enable the City to obtain a reduction in
interest payments to effect a savings to the City; and
WHEREAS, the 1998 Bonds, the 1999 Bonds, 2003 Bonds, 2004 Bonds, 2005 Bonds,
2008 Bonds and 2009 Bonds are hereinafter collectively referred to as the "Outstanding Bonds;"
and
WHEREAS, the ordinances authorizing the Outstanding Bonds permit the issuance of
additional bonds ranking on a parity with the Outstanding Bonds provided certain conditions can
be met, and the City finds that the finances of the sewage works will enable the City to meet the
conditions for the issuance of additional parity bonds and that, accordingly, the revenue bonds
authorized herein shall rank on a parity with the now Outstanding Bonds; and
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WHEREAS, the bonds to be issued pursuant to this ordinance are to be issued subject to
the provisions of the laws of the State of Indiana, including, without limitation, IC 5-1-5 (if the
1998 Bonds are refunded) and IC 36-9-23, as in effect on the issue date of the bonds issued
hereunder (collectively, "Act"), and the terms and restrictions of this ordinance; and
WHEREAS, the City desires to authorize the issuance of BANS hereunder, if necessary,
in one or more series, payable solely from the proceeds of the sewage works revenue bonds to
finance the aforementioned costs of the Project, to authorize the refunding of the BANs, if
issued, and to finance the refunding if the 1998 Bonds, if economically advantageous; and
WHEREAS, the City may enter into a Financial Assistance Agreement with the Indiana
Finance Authority ("Authority") as part of its wastewater loan program established and existing
pursuant to IC 4-4-11 and IC 13-18-13 ("SRF Program"), pertaining to all or a portion of the
Project and the financing thereof ("Financial Assistance Agreement"); and
WHEREAS, the City may accept other forms of financial assistance, as and if available,
from the SRF Program; and
WHEREAS, the Council now finds that all conditions precedent to the adoption of an
ordinance authorizing the issuance of revenue bonds, refunding revenue bonds, if economically
advantageous, and BANS have been complied with in accordance with the provisions of the Act;
and
WHEREAS, the Council has been advised that it may be cost efficient to purchase
municipal bond insurance and a debt service reserve surety for all or a portion of the bonds
authorized herein; and
NOW THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE
CITY OF JEFFERSONVILLE, INDIANA, THAT:
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Section 1. Project and Refundin¢ Authorization. The City proceed with the
construction of the Project in accordance with the cost estimates and the plans and specifications,
including any preliminary plans and specifications, heretofore prepared and filed by the
consulting engineers employed by the City, which cost estimates and all plans and specifications
are by reference made a part of this ordinance as fully as if the same were attached hereto and
incorporated herein and two copies of which are now on file or shall be placed on file in the
office of the Clerk-Treasurer of the City and are open for public inspection pursuant to IC 36-1-
5-4; that the City proceed with the refunding of the 1998 Bonds if economically advantageous.
The cost of construction of the Project shall not exceed the sum of $52,250,000, plus investment
earnings on the bond and BAN proceeds, without further authorization from this Council. The
1998 Bonds may be refunded if, based upon a report of the City's financial advisor, the
refunding will allow the City to obtain a reduction in interest payments to effect a savings to the
City. The terms "sewage works," "sewage works system," "system," "works," and other like
terms where used in this ordinance shall be construed to mean the Treatment Works, as defined
in the Financial Assistance Agreement entered into between the City and the Authority, and
includes all structures and property of the City's sewer utility, including items defined at IC 36-9-
1-8. The Council has determined that all sewer tap fees collected in accordance with IC 36-9-23-
29 are to be treated and used as Net Revenues of the sewage works. The Project shall be
constructed in accordance with the plans and specifications heretofore mentioned, which plans
and specifications are hereby approved. The Project shall be constructed, the refunding shall be
accomplished if economically advantageous, and the bonds herein authorized shall be issued
pursuant to and in accordance with the Act.
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Section 2. Issuance of Bonds and BANS. (a) The City shall issue, if necessary, its
BANs for the purpose of procuring interim financing to apply to the cost of the Project. The City
shall issue its BANs, in one or more series, in an amount not to exceed Fifty Two Million Two
Hundred and Fifty Thousand Dollars ($52,250,000) to be designated "[Taxable] Sewage Works
Bond Anticipation Notes, Series (to be completed with the appropriate series
designation)." The BANs shall be sold at a price not less than 99% of their par value, shall be
numbered consecutively from 1 upward, shall be in denominations of One Thousand Dollaxs
($1,000) or if sold to the Authority as part of the SRF Program, One Dollar ($1), as designated in
the purchase agreement for the BANS, shall be dated as of the date of delivery thereof, and shall
bear interest at a rate not to exceed 6% per annum (the exact rate or rates to be determined
through negotiation). Each series of BANs will mature no later than five (5) years after their
date of delivery. The BANs are subject to renewal or extension at an interest rate or rates not to
exceed 6% per annum (the exact rate or rates to be determined through negotiation). The term of
the BANs and all renewal BANs may not exceed five years from the date of delivery of the
initial BANS. The BANS shall be registered in the name of the purchasers thereof.
Notwithstanding anything in this ordinance to the contrary, any series of BANs issued
hereunder may bear interest that is taxable and included in the gross income of the owners
thereof. If any such BANs are issued on a taxable basis, the designated name shall include the
term "taxable" as the first word in the designated name.
The BANs shall be issued pursuant to IC 5-1.5-8-6.1 if sold to the Indiana Bond Bank,
pursuant to IC 4-4-11 and IC 13-18-13 if sold to the Authority, or pursuant to IC 5-1-14-5 if sold
to a financial institution or any other purchaser. The principal of and interest on the BANs shall
be payable solely from the issuance of revenue bonds pursuant to and in the manner prescribed
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by the Act. The revenue bonds will be payable solely out of and constitute a first charge against
the Net Revenues (defined as the gross revenues of the sewage works of the City remaining after
the payment of the reasonable expenses of operation, repair and maintenance) of the sewage
works of the City, on a parity with the Outstanding Bonds (including the 1998 Bonds if they are
not refunded) and the Refunding Bonds (as hereinafter defined), if issued.
(b) The City shall issue (i) its sewage works revenue bonds, in one or more series, to
be designated as "Sewage Works Revenue Bonds of " (to be completed with the year
in which the bonds are issued and the appropriate series designation, if any) ("Project Bonds"), in
an aggregate principal amount not to exceed $52,250,000 for the purpose of procuring funds to
be applied on the cost of the Project, the payment of costs of issuance, refunding the BANS, if
issued, and all other costs related to the Project, including premiums for municipal bond
insurance and a debt service reserve surety; and (ii) its "Sewage Works Refunding Revenue
Bonds of " (to be completed with the year in which the bonds are issued and the
appropriate series designation, if any) ("Refunding Bonds"), in an aggregate principal amount
not to exceed $4,075,000 for the purpose of currently refunding the 1998 Bonds, if economically
advantageous, the payment of costs of issuance and all other costs related to the refunding,
including premiums for municipal bond insurance and a debt service reserve surety. The Project
Bonds and the Refunding Bonds are collectively referred to as the "Bonds." If it is economically
advantageous for the City to refund the 1998 Bonds and the Refunding Bonds are issued, the
City shall apply moneys currently held for the payment of debt service on the 1998 Bonds to the
refunding as provided herein.
The Bonds shall be sold at a price not less than par value if sold to the Authority as part
of its SRF Program or not less than 98% of the par value thereof is sold to any other purchaser,
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shall be issued in the denomination of $1 or integral multiples thereof if sold to the Authority as
part of its SRF Program, or in denominations of Five Thousand Dollars ($5,000) each or integral
multiples thereof if sold to any other purchaser, numbered consecutively from 1 upward, dated as
of the first day of the month in which they are issued or sold or as of the date of delivery, as
determined by the Clerk-Treasurer with the advice of the City's financial advisor, provided that if
sold to the Authority as part of its SRF Program, the Bonds shall be dated the date of delivery.
The Bonds shall bear interest at a rate or rates not exceeding 8% per annum (the exact rate or
rates to be determined by bidding or through negotiation) payable semiannually on January 1 and
July 1 in each year, commencing on the first January 1 or the first July 1 following delivery of
the Bonds and as designated by the Clerk-Treasurer, with the advice of the City's financial
advisor. The Project Bonds sold to the Authority as part of its SRF Program shall mature
annually on January 1 of each year over a period ending no later than twenty (20) years after
substantial completion of the Project (as determined under the Financial Assistance Agreement
for any Bonds sold to the Authority as part of its SRF Program), and in such amounts that will
allow the City to meet the coverage and/or amortization requirements of the SRF Program. Such
debt service schedule for any Project Bonds sold to the Authority as part of its SRF Program
shall be finalized and set forth in the Financial Assistance Agreement. For any Project Bonds
not sold to the Authority as part of its SRF Program, such Project Bonds shall mature on January
1 over a period ending no later than January 1, 2034 and in amounts that produce as level debt
service as practicable with $5,000 denominations and may take into account the annual debt
service on the Outstanding Bonds and any other series of Bonds issued under this ordinance. For
the Refunding Bonds, such Refunding Bonds shall mature in amounts that maximize the savings
to the City.
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All or a portion of the Bonds may be issued as one or more term bonds, upon election of
the purchaser. Such term bonds shall have a stated maturity or maturities in the years as
determined by the purchaser, but in no event later than the final serial maturity date of the Bonds
as determined in the above paragraph. The term bonds shall be subject to mandatory sinking
fund redemption and final payment(s) at maturity at 100% of the principal amount thereof, plus
accrued interest to the redemption date, on principal payment dates which are hereinafter
determined in accordance with the above paragraph.
Each series of Bonds issued hereunder shall rank as a parity for all purposes, including
the pledge of Net Revenues under this ordinance. Interest on the Bonds and the BANs shall be
calculated according to a 360-day calendar year containing twelve 30-day months.
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 any
forgivable loans, grants or other assistance whether available as an alternative to any Bond or
BAN related provision otherwise provided for herein or as a supplement or addition thereto). If
required by the SRF Program to be eligible for such financial assistance, one or more of the
series of the Bonds issued hereunder may be issued on a basis such that the payment of the
principal of or interest on such series of Bonds is junior and subordinate to the payment of the
principal of and interest on other series of Bonds issued hereunder (and/or any other revenue
bonds secured by a pledge of Net Revenues, whether now outstanding or hereafter issued), all as
provided by the terms of such series of Bonds as modified pursuant to this authorization. Such
financial assistance, if any, shall be as provided in the Financial Assistance Agreement and the
Bonds of each series of Bonds issued hereunder (including any modification made pursuant to
the authorization in this paragraph to the form of Bond otherwise contained herein).
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Section 3. Registrar and Paving A~ent• Book-Entry Provisions. The Clerk-Treasurer
is hereby authorized to contract with a qualified financial institution to serve as Registrar and
Paying Agent for the Bonds ("Registrar" or "Paying Agent"). The Registrar is hereby charged
with the responsibility of authenticating the Bonds. The Clerk-Treasurer is hereby authorized to
enter into such agreements or understandings with the Registrar as will enable the institution to
perform the services required of a registrar and paying agent. The Clerk-Treasurer is further
authorized to pay such fees as the Registrar may charge for the services it provides as Registrar
and Paying Agent and such fees may be paid from the Sewage Works Sinking Fund established
to pay the principal of and interest on the Bonds as fiscal agency charges.
As to the BANS and as to the Bonds, if sold to the Authority as part of its SRF Program
or any other purchaser that does not object to such designation, the Clerk-Treasurer may serve as
Registrar and Paying Agent and is hereby charged with the duties of a Registrar and Paying
Agent.
If any Bonds or BANS are sold to the Authority as part of its SRF Program, the principal
of and interest thereon shall be paid by wire transfer to such financial institution if and as
directed by the Authority on 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 Bonds or BANS, such Bonds and BANs shall
be presented for payment as directed by the Authority.
For any Bonds not sold to the Authority as part of its SRF Program, the principal of the
Bonds shall be payable at the principal corporate trust office of the Paying Agent. All payments
of interest on the Bonds shall be paid by check, mailed one business day prior to the interest
payment date to the registered owners thereof as the names appear as of the fifteenth day of the
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month preceding the interest payment date ("Record Date") and at the addresses as they appear
on the registration books kept by the Registrar or at such other address as is provided to the
Paying Agent in writing by such registered owner. If payment of principal or interest is made to
a depository, payment shall be made by wire transfer on the payment date in same-day funds. If
the payment date occurs on a date when financial institutions are not open for business, the wire
transfer shall be made on the next succeeding business day. The Paying Agent shall be
instructed to wire transfer payments by 1:00 p.m. (New York City time) so such payments are
received at the depository by 2:30 p.m. (New York City time). All payments on the Bonds shall
be made in any coin or currency of the United States of America, which on the date of such
payment, shall be legal tender for the payment of public and private debts.
Each Bond shall be transferable or exchangeable only upon the books of the City kept for
that purpose at the principal corporate trust office of the Registrar by the registered owner in
person, or by its attorney duly authorized in writing, upon surrender of such Bond together with a
written instrument of transfer or exchange satisfactory to the Registrar duly executed by the
registered owner, or its attorney duly authorized in writing, and thereupon a new fully registered
Bond or Bonds in an authorized 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. 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, Registrar and Paying Agent for the Bonds may treat and
consider the person in whose name such Bonds are registered as the absolute owner thereof for
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all purposes including for the purpose of receiving payment of, or on account of, the principal
thereof and interest due thereon.
The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent
upon giving 30 days' notice in writing to the City and by first class mail to each registered owner
of the Bonds then outstanding, and such resignation will take effect at the end of such 30 day
period or upon the earlier appointment of a successor registrar and paying agent by the City.
Any such notice to the City may be served personally or sent by 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 Bonds then outstanding by first class mail of the removal of the
Registrar and Paying Agent. Notices to the registered owners of the Bonds 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 books kept by the Registrar.
Upon the appointment of any successor registrar and paying agent by the City, the Clerk-
Treasurer is authorized and directed to enter into such agreements and understandings with such
successor registrar and paying agent as will enable the institution to perform the services
required of a registrar and paying agent for the Bonds. The Clerk-Treasurer is further authorized
to pay such fees as the successor registrar and paying agent may charge for the services it
provides as registrar and paying agent and such fees may be paid from the Sewage Works
Sinking Fund continued in Section 14 hereof. Any predecessor registrar and paying agent shall
deliver all of the Bonds and any cash or investments in its possession with respect thereto,
together with the registration books, to the successor registrar and paying agent.
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Interest on any Bonds sold to the Authority as part of its SRF Program shall be payable
from the date or dates of payments made by the Authority as part of its purchase of the Bonds as
set forth in the Financial Assistance Agreement. Interest on all other Bonds shall be payable
from the interest payment date to which interest has been paid next preceding the authentication
date of the Bonds unless the Bonds are authenticated after the Record Date and on or before such
interest payment date in which case they shall bear interest from such interest payment date, or
unless the Bonds are authenticated on or before the Record Date preceding the first interest
payment date, in which case they shall bear interest from the original date until the principal
shall be fully paid.
The City has determined that it may be beneficial to the City to have the Bonds held by a
central depository system pursuant to an agreement between the City and The Depository Trust
Company, New York, New York ("Depository Trust Company") and have transfers of the Bonds
effected by book-entry on the books of the central depository system ("Book Entry System").
The Bonds may be initially issued in the form of a separate single authenticated fully registered
Bond for the aggregate principal amount of each separate maturity of the Bonds. In such case,
upon initial issuance, the ownership of such Bonds shall be registered in the register kept by the
Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company.
With respect to the Bonds registered in the register kept by the Registrar in the name of
CEDE & CO., as nominee of the Depository Trust Company, the City and the Paying Agent
shall have no responsibility or obligation to any other holders or owners (including any
beneficial owner ("Beneficial Owner")) of the Bonds with respect to (i) the accuracy of the
records of the Depository Trust Company, CEDE & CO., or any Beneficial Owner with respect
to ownership questions, (ii) the delivery to any bondholder (including any Beneficial Owner) or
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any other person, other than the Depository Trust Company, of any notice with respect to the
Bonds including any notice of redemption, or (iii) the payment to any bondholder (including any
Beneficial Owner) or any other person, other than the Depository Trust Company, of any amount
with respect to the principal of, or premium, if any, or interest on the Bonds except as otherwise
provided herein.
No person other than the Depository Trust Company shall receive an authenticated Bond
evidencing an obligation of the City to make payments of the principal of and premium, if any,
and interest on the Bonds pursuant to this ordinance. The City and the Registrar and Paying
Agent may treat as and deem the Depository Trust Company or CEDE & CO. to be the absolute
bondholder of each of the Bonds for the purpose of (i) payment of the principal of and premium,
if any, and interest on such Bonds; (ii) giving notices of redemption and other notices permitted
to be given to bondholders with respect to such Bonds; (iii) registering transfers with respect to
such Bonds; (iv) obtaining any consent or other action required or permitted to be taken of or by
bondholders; (v) voting; and (vi) for all other purposes whatsoever. The Paying Agent shall pay
all principal of and premium, if any, and interest on the Bonds only to or upon the order of the
Depository Trust Company, and all such payments shall be valid and effective fully to satisfy
and discharge the City's and the Paying Agent's obligations with respect to principal of and
premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. Upon
delivery by the Depository Trust Company to the City of written notice to the effect that the
Depository Trust Company has determined to substitute a new nominee in place of CEDE &
CO., and subject to the provisions herein with respect to consents, the words "CEDE & CO." in
this ordinance shall refer to such new nominee of the Depository Trust Company.
Notwithstanding any other provision hereof to the contrary, so long as any Bond is registered in
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the name of CEDE & CO., as nominee of the Depository Trust Company, all payments with
respect to the principal of and premium, if any, and interest on such Bonds and all notices with
respect to such Bonds shall be made and given, respectively, to the Depository Trust Company
as provided in a representation letter from the City to the Depository Trust Company.
Upon receipt by the City of written notice from the Depository Trust Company to the
effect that the Depository Trust Company is unable or unwilling to discharge its responsibilities
and no substitute depository willing to undertake the functions of the Depository Trust Company
hereunder can be found which is willing and able to undertake such functions upon reasonable
and customary terms, then the Bonds shall no longer be restricted to being registered in the
register of the City kept by the Registrar in the name of CEDE & CO., as nominee of the
Depository Trust Company, but may be registered in whatever name or names the bondholders
transferring or exchanging the Bonds shall designate, in accordance with the provisions of this
ordinance.
If the City determines that it is in the best interest of the bondholders that they be able to
obtain certificates for the fully registered Bonds, the City may notify the Depository Trust
Company and the Registrar, whereupon the Depository Trust Company will notify the Beneficial
Owners of the availability through the Depository Trust Company of certificates for the Bonds.
In such event, the Registrar shall prepare, authenticate, transfer and exchange certificates for the
Bonds as requested by the Depository Trust Company and any Beneficial Owners in appropriate
amounts, and whenever the Depository Trust Company requests the City and the Registrar to do
so, the Registrar and the City will cooperate with the Depository Trust Company by taking
appropriate action after reasonable notice (i) to make available one or more separate certificates
evidencing the fully registered Bonds of any Beneficial Owner's Depository Trust Company
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account or (ii) to arrange for another securities depository to maintain custody of certificates for
and evidencing the Bonds.
If the Bonds shall no longer be restricted to being registered in the name of a Depository
Trust Company, the Registrar shall cause the Bonds to be printed in blank in such number as the
Registrar shall determine to be necessary or customary; provided, however, that the Registrar
shall not be required to have such Bonds printed until it shall have received from the City
indemnification for all costs and expenses associated with such printing.
In connection with any notice or other communication to be provided to bondholders by
the City or the Registrar with respect to any consent or other action to be taken by bondholders,
the City or the Registrar, as the case may be, shall establish a record date for such consent or
other action and give the Depository Trust Company notice of such record date not less than
fifteen (15) calendar days in advance of such record date to the extent possible.
So long as the Bonds are registered in the name of the Depository Trust Company or
CEDE & CO. or any substitute nominee, the City and the Registrar and Paying Agent shall be
entitled to request and to rely upon a certificate or other written representation from the
Beneficial Owners of the Bonds or from the Depository Trust Company on behalf of such
Beneficial Owners stating the amount of their respective beneficial ownership interests in the
Bonds and setting forth the consent, advice, direction, demand or vote of the Beneficial Owners
as of a record date selected by the Registrar and the Depository Trust Company, to the same
extent as if such consent, advice, direction, demand or vote were made by the bondholders for
purposes of this ordinance and the City and the Registrar and Paying Agent shall for such
purposes treat the Beneficial Owners as the bondholders. Along with any such certificate or
representation, the Registrar may request the Depository Trust Company to deliver, or cause to
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be delivered, to the Registrar a list of all Beneficial Owners of the Bonds, together with the
dollar amount of each Beneficial Owner's interest in the Bonds and the current addresses of such
Beneficial Owners.
Section 4. Redemption of BANS and Bonds. (a) The BANs are prepayable by the
City, in whole or in part, at any time after the initial ninety (90) days, upon 7 days' notice to the
owner of the BANS without any premium.
(b) For any Bonds not sold to the Authority as part of its SRF Program, such Bonds are
redeemable at the option of the City, but no sooner than seven (7) years after their date of
delivery, or thereafter on any date, on thirty (30) days' notice, in whole or in part, in the order of
maturity as determined by the City and by lot within a maturity, at face value, together with a
premium no greater than 2%, plus in each case accrued interest to the date fixed for redemption.
The exact redemption features shall be determined by the Clerk-Treasurer with the advice of the
City's financial advisor prior to the sale of the Bonds.
For any series of Bonds sold to the Authority as part of its SRF Program, such Bonds are
redeemable at the option of the City, but no sooner than ten (10) years after their date of delivery,
or thereafter on any date, on sixty (60) days' notice, in whole or in part, in inverse order of
maturity, and by lot within a maturity, at face value together with a premium no greater than 2%,
plus accrued interest to the date fixed for redemption. The exact redemption dates and premiums
shall be established by the Clerk-Treasurer, with the advice of the City's financial advisor, prior
to the sale of the Bonds.
(c) If any Bond is issued as a term bond, the Paying Agent shall credit against the
mandatory sinking fund requirement for the Bonds maturing as term bonds, and corresponding
mandatory redemption obligation, in the order determined by the City, any Bonds maturing as
I/2385899.2 - 1 ~ -
term bonds which have previously been redeemed (otherwise than as a result of a previous
mandatory redemption requirement) or delivered to the Registrar for cancellation or purchased
for cancellation by the Paying Agent and not theretofore applied as a credit against any
redemption obligation. Each Bond maturing as a term bond so delivered or canceled shall be
credited by the Paying Agent at 100% of the principal amount thereof against the mandatory
sinking fund obligation on such mandatory sinking fund date, and any excess of such amount
shall be credited on future redemption obligations, and the principal amount of the Bonds to be
redeemed by operation of the mandatory sinking fund requirement shall be accordingly reduced;
provided, however, the Paying Agent shall credit only such Bonds maturing as term bonds to the
extent received on or before forty-five (45) days preceding the applicable mandatory redemption
date as stated above.
(d) Each authorized denomination shall be considered a separate bond for purposes of
optional and mandatory redemption. If less than an entire maturity is called for redemption, the
Bonds to be called shall be selected by lot by the Registrar. If some Bonds are to be redeemed
by optional redemption and mandatory sinking fund redemption on the same date, the Registrar
shall select by lot the Bonds for optional redemption before selecting the Bonds by lot for the
mandatory sinking fund redemption.
In either case, notice of redemption shall be given not less than sixty (60) days, if the
Bonds are sold to the Authority as part of its SRF Program, and thirty (30) days, if the Bonds are
sold to another purchaser, prior to the date fixed for redemption unless such redemption notice is
waived by the owner of the Bond or Bonds redeemed. Such notice shall be mailed to the address
of the registered owner as shown on the registration record of the City as of the date which is
sixty-five (65) days if the Bonds are sold to the Authority as part of its SRF Program, and forty-
I/2385899.2 - 18 -
five (45) days if the Bonds are sold to another purchaser, prior to such redemption date. The
notice shall specify the date and place of redemption and sufficient identification of the Bonds
called for redemption. The place of redemption may be determined by the City. Interest on the
Bonds so called for redemption shall cease on the redemption date fixed in such notice if
sufficient funds are available at the place of redemption to pay the redemption price on the date
so named. Coincidentally with the payment of the redemption price, the Bonds so called for
redemption shall be surrendered for cancellation.
Section 5. Execution and Negotiability. Each of the BANs and Bonds shall be
executed in the name of the City by the manual or facsimile signature of the Mayor and attested
by the manual or facsimile signature of its Clerk-Treasurer, and the seal of the City shall be
affixed, imprinted or impressed to or on each of the BANs and Bonds manually, by facsimile or
any other means; and these officials, by the execution of a Signature and No Litigation
Certificate, shall adopt as and for their own proper signatures the facsimile signatures appearing
on the Bonds or BANS. In case any officer whose signature or facsimile signature appears on the
Bonds or BANs shall cease to be such officer before the delivery of the Bonds or BANs, the
signature of such officer shall nevertheless be valid and sufficient for all purposes the same as if
such officer had remained in office until such delivery.
The BANs and Bonds 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.
The Bonds shall also be authenticated by the manual signature of the Registrar, and no
Bond shall be valid or become obligatory for any purpose until the certificate of authentication
thereon has been so executed.
I/2385899.2 - 19 -
Section 6. Form of Bonds. The form and tenor of the Bonds shall be substantially as
follows, all blanks to be filled in properly prior to delivery:
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to
the City of Jeffersonville, Indiana, or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
NO.
STATE OF INDIANA
UNITED STATES OF AMERICA
COUNTY OF CLARK
CITY OF JEFFERSONVILLE
SEWAGE WORKS [REFUNDING] REVENUE BOND OF , [SERIES ~
Interest Rate [Maturity Date] Original Date Authentication Date [CUSIP]
REGISTERED OWNER:
PRINCIPAL SUM:
The City of Jeffersonville, in Clark County, State of Indiana ("City"), for value received,
hereby promises to pay to the Registered Owner named above or registered assigns, solely out of
the special revenue fund hereinafter referred to, the Principal Sum 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 [the Maturity Date set
forth above] OR [January 1 in the years and in the amounts as set forth on Exhibit A attached
hereto] (unless this bond be subject to and shall have been duly called for redemption and
payment as provided for herein), and to pay interest hereon until the Principal Sum shall be fully
paid at the rate per annum specified above from [the dates of payment made on this bond] OR
[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 an
interest payment date and on or before such interest payment in which case it shall bear interest
from such interest payment date, or unless this bond is authenticated on or before 15,
in which case it shall bear interest from the Original Date,] until the principal is paid,
which interest is payable semiannually on the first days of January and July in each year,
I/2385899.2 - 2~ -
beginning on , 20_. Interest shall be calculated according to a 360-day calendar
year containing twelve 30-day months.
[The principal of this bond is payable at the principal office of
("Registrar" or "Paying Agent"), in the of ,Indiana.] All
payments of [principal of and] interest on this bond shall be paid by [check mailed one business
day prior to the interest payment date] OR (wire transfer for deposit to a financial institution as
directed by the Indiana Finance Authority ("Authority") on 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, as of the fifteenth day of the month preceding such
payment, at the address as it appears on the registration books kept by [
("Registrar" or "Paying Agent") in the of ,
Indiana] OR [the Registrar] or at such other address as is provided to the Paying Agent in
writing by the registered owner. [If payment of principal or interest is made to a depository,
payment shall be made by wire transfer on the payment date in same-day funds. If the payment
date occurs on a date when financial institutions are not open for business, the wire transfer shall
be made on the next succeeding business day. The Paying Agent shall wire transfer payments by
1:00 p.m. (New York City time) so such payments are received at the depository by 2:30 p.m.
(New York City time).] All payments on the bond shall be made in any coin or currency of the
United States of America, which on the dates of such payment, shall be legal tender for the
payment of public and private debts.
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 [the only] one of an authorized issue of bonds of the City[, to be issued in
series], of like date, tenor and effect, [except as to rates of interest, [series designation] and dates
of maturity]; aggregating Dollars ($ ) [for
this series]; numbered consecutively from 1 up; issued for the purpose of providing funds to be
applied on the cost of additions, extensions and improvements to the City's sewage works
("Project") [refunding the 1998 Bonds (as defined in the hereinafter defined Ordinance][, to
refund interim notes issued in anticipation of the bonds] and to pay issuance expenses[, including
premiums for municipal bond insurance and a debt service reserve surety]. This bond is issued
pursuant to an Ordinance adopted by the Common Council of the City on the _ day of
2009, entitled "An Ordinance of the City of Jeffersonville authorizing the refunding
by the City of Jeffersonville of its Sewage Works Revenue Bonds, Series 1998, if economically
advantageous, and authorizing the issuance of sewage works revenue bonds for the purpose of
providing funds to pay the cost of certain additions, extensions and improvements to the
municipal sewage works of said City, providing for the safeguarding of the interests of the
owners of said bonds, other matters connected therewith, including the issuance of notes in
anticipation of bonds, and repealing ordinances inconsistent herewith" ("Ordinance"), and in
accordance with the provisions of Indiana law, including without limitation [Indiana Code 5-1-5
I/2385899.2 - 21 -
and] Indiana Code 36-9-23 as in effect on the date of delivery of the bonds of this issue
([collectively,]"Act"), the proceeds of which bonds are to be applied to the costs of the Project,
[the refunding and legal defeasance of the 1998 Bonds] (the payment of notes issued in
anticipation of the bonds,] and expenses incurred in connection therewith[, including a premium
for municipal bond insurance] [and a debt service reserve surety].
[Reference is hereby made to the Financial Assistance Agreement ("Financial Assistance
Agreement") between the City and the Authority concerning certain terms and covenants
pertaining to the Project and the purchase of this bond as part of the wastewater loan program
established and existing pursuant to IC 4-4-11 and IC 13-18-13.]
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[, including the Sewage Works [Refunding] Revenue
Bonds of 20 , [Series ] (" Bonds")] and any bonds hereafter issued on a
parity therewith are payable solely from the Sewage Works Sinking Fund continued by the
Ordinance ("Sinking Fund") to be provided from the Net Revenues (defined as the gross
revenues of the sewage works of the City remaining after the payment of the reasonable
expenses of operation, repair and maintenance) of the sewage works of the City. The bonds of
this issue rank on a parity with the Outstanding Bonds, as defined in the Ordinance [and the
Bonds].
[Pursuant to the Ordinance and the Escrow Agreement defined therein, the City has set
aside obligations of the United States of America (purchased from proceeds of the bonds of this
issue and funds on hand of the sewage works), and certain cash in a Trust Account to provide
payment of principal of and interest on the 1998 Bonds.]
The City irrevocably pledges the entire Net Revenues of the sewage works to the prompt
payment of the principal of and interest on the bonds authorized by the Ordinance, of which this
is one, and any bonds ranking on a parity therewith, including the Outstanding Bonds [and the
Bonds], to the extent necessary for that purpose, and covenants that it will cause to be
fixed, maintained and collected such rates and charges for services rendered by the utility as are
sufficient in each year for the payment of the proper and reasonable expenses of Operation and
Maintenance (as defined in the Financial Assistance Agreement) of the sewage 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,
maintain 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, including the right to have a receiver appointed to administer the works
and to charge and collect rates sufficient to provide for the payment of this bond and the interest
hereon.
The City further covenants that it will set aside and pay into its Sinking Fund monthly, as
available, or more often if necessary, a sufficient amount of the Net Revenues of the works for
payment of (a) the interest on all bonds which by their terms are payable from the revenues of
the sewage works, as such interest shall fall due, (b) the necessary fiscal agency charges for
paying bonds and interest, (c) the principal of all bonds which by their terms are payable from
I/2385899.2 - 22 -
the revenues of the sewage works, as such principal shall fall due, and (d) an additional amount
as a margin of safety to [create and] maintain the debt service reserve required by the Ordinance.
Such required payments shall constitute a first charge upon all the Net Revenues of the sewage
works, on a parity with the Outstanding Bonds [and the Bonds].
The bonds of this issue maturing on and after January 1, are redeemable at the
option of the City on 1, 20_, or any date thereafter, on [sixty (60)]
[thirty (30)] days' notice, in whole or in part, [in inverse order of maturity] OR [in the order of
maturity as determined by the City] and by lot within a maturity, at face value, together with the
following premiums:
_% if redeemed on _
on or before
_% if redeemed on _
on or before
0% if redeemed on
pr
1, 200_ or thereafter
20_;
1, 200_ or thereafter
20 ;
1, 20_ or thereafter
.or to maturity;
plus accrued interest to the date fixed for redemption.
[The bonds maturing on January 1, ,are subject to mandatory sinking fund
redemption prior to maturity, at a redemption price equal to the principal amount thereof plus
accrued interest on January 1, in the years and in the amounts set forth below:
Term Bond
yew Amount
* Final Maturity]
Each [Five Thousand Dollars ($5,000)] [One Dollar ($1)] principal amount shall be
considered a separate bond for purposes of optional [and mandatory] redemption. If less than an
entire maturity is called for redemption, the bonds to be redeemed shall be selected by lot by the
Registrar. [If some bonds are to be redeemed by optional redemption and mandatory sinking
fund redemption on the same date, the Registrar shall select by lot the bonds for optional
redemption before selecting the bonds by lot for the mandatory sinking fund redemption.]
Notice of such redemption shall be mailed to the address of the registered owner as
shown on the registration records of the City, as of the date which is [sixty-five (65)] [forty-five
(45)] days prior to such redemption date, not less than (sixty (60)] [thirty (30)] days prior to the
date fixed for redemption unless the notice is waived by the registered owner of this bond. The
notice shall specify the date and place of redemption and sufficient identification 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
I/2385899.2 - 23 -
sufficient funds are available at the place of redemption to pay the redemption price on the date
so named.
If this bond shall not be presented for payment or redemption on the date fixed therefor,
the City may deposit in trust with its depository bank 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 with said bank for payment and the City shall have no further
obligation or liability in respect thereto.
This bond is transferable or exchangeable only upon the books of the City kept for that
purpose at the [principal corporate trust] office of the Registrar by the registered owner hereof 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 his attorney duly authorized in writing, and thereupon a new fully registered
bond or bonds in an authorized aggregate principal amount and of the same maturity, shall be
executed and delivered in the name of the transferee or transferees or to the registered owner, as
the case may be, in exchange therefor. This bond may be transferred without cost to the
registered owner except for any tax or governmental charge required to be paid with respect to
the transfer. 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 due hereon.
[The bonds shall be initially issued in a Book Entry System (as defined in the Ordinance).
The provisions of this bond and of the Ordinance are subject in all respects to the provisions of
the Letter of Representations between the City and The Depository Trust Company, or any
substitute agreement, effecting such Book Entry System.]
[The City has designated this bond as a "qualified tax-exempt obligation" to qualify this
bond for the $30,000,000 exception from the provisions of Section 265(b) of the Internal
Revenue Code of 1986 relating to the disallowance of 100% of interest expense allocable to
qualified tax-exempt obligations acquired by financial institutions.]
This bond is subject to defeasance prior to redemption or payment as provided in the
Ordinance referred to herein. THE OWNER OF THIS BOND, BY THE ACCEPTANCE
HEREOF, HEREBY AGREES TO ALL THE TERMS AND PROVISIONS CONTAINED IN
THE ORDINANCE. The Ordinance may be amended without the consent of the owners of the
bonds as provided in the Ordinance.
The bonds maturing in any one year are issuable only in fully registered form in the
denomination of [$5,000] [$1 ] or any integral multiple thereof.
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.
I/2385899.2 - 24 -
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 Jeffersonville, in Clark 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.
CITY OF JEFFERSONVILLE, INDIANA
By
Mayor
[SEAL]
Attest:
Clerk-Treasurer
I/2385899.2 - 25 -
REGISTRAR'S CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds described in the within-mentioned Ordinance.
as Registrar
By
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
this bond and all rights thereunder, and hereby irrevocably
constitutes and appoints ,attorney, to transfer the within bond in the
books kept for the registration thereof with full power of substitution in the premises.
Dated:
NOTICE: Signature(s) must be guaranteed by
an eligible guarantor institution participating in
a Securities Transfer Association recognized
signature guarantee program.
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.
EXHIBIT A
[To be completed on a separate page]
Section 7. Authorization for Preparation and Sale of the BANS and the Bonds;
Escrow Agreement• Municipal Bond Insurance. (a) The Clerk-Treasurer is hereby authorized
and directed to have the BANs and the Bonds prepared, and the Mayor and Clerk-Treasurer are
hereby authorized and directed to execute and attest the BANs and the Bonds in the form and
manner provided herein. The Clerk-Treasurer is hereby authorized and directed to deliver the
BANS and the Bonds to the respective purchasers thereof. At the time of delivery of the BANs
and the Bonds, the Clerk-Treasurer shall collect the full amount which the respective purchasers
have agreed to pay therefor, which amount shall not be not less than 99% of the face value of the
I/2385899.2 - 26 -
BANS, not less than the par value of the Bonds if sold to the Authority as a part of its SRF
Program, and not less than 98% of the par value of the Bonds if sold to any other purchaser, as
the case may be, plus accrued interest to the date of delivery, if any. Payment for the BANS and
any Bonds sold to the Authority as a part of its SRF Program may be made in installments. The
Bonds, as and to the extent paid for and delivered to the purchaser, shall be the binding special
revenue obligations of the City payable out of the Net Revenues of the sewage works, on a parity
with the Outstanding Bonds. The proper officers of the City are hereby directed to sell the
Bonds, 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.
The Mayor and the Clerk-Treasurer are hereby authorized to negotiate the sale of the
Refunding Bonds in accordance with a Purchase Contract ("Purchase Contract") between the
City and the purchaser of the Refunding Bonds ("Underwriter"). The Mayor and the Clerk-
Treasurer are authorized to execute the Purchase Contract and deliver the Refunding Bonds to
the Underwriter so long as their terms are consistent with this ordinance. Such Purchase
Contract shall establish a final principal amount, interest rate, maturity schedule, optional
redemption features and term bond mandatory redemptions, if any.
In the alternative, the City may, with the advice of the City's financial advisor, sell the
Refunding Bonds at a competitive sale in accordance with the provisions of Section 8 hereof.
The Clerk-Treasurer is hereby authorized to appoint a financial institution to serve as
escrow trustee ("Escrow Trustee") for the Refunding Bonds, if issued, in accordance with the
terms of the an escrow agreement to be entered into between the City and the Escrow Trustee
("Escrow Agreement"). The Mayor and the Clerk-Treasurer are hereby authorized and directed
I/2385899.2 - 27 -
to complete, execute and attest such Escrow Agreement on behalf of the City so long as its
provisions are consistent with this ordinance.
The execution, by either the Underwriter, the Mayor, the Clerk-Treasurer, or the City's
financial advisor, of a subscription for United States Treasury Obligations -- State and Local
Government Series for investments of proceeds of the Refunding Bonds, if issued, and to be held
under the Escrow Agreement in a manner consistent with this ordinance is hereby approved.
Distribution of an Official Statement (preliminary and final) prepared by H.J. Umbaugh
& Associates, Certified Public Accountants, LLP, on behalf of the City, is hereby approved and
the Mayor or the Clerk-Treasurer are authorized and directed to execute the Official Statement
on behalf of the City in a form consistent with this ordinance. The Mayor or the Clerk-Treasurer
are hereby authorized to designate the preliminary Official Statement as "nearly final" for
purposes of Rule 15c2-12 promulgated by the Securities and Exchange Commission ("Rule").
In the event the financial advisor to the City certifies to the City that it would be
economically advantageous for the City to acquire a municipal bond insurance policy for any of
the Bonds, the City hereby authorizes and directs the Mayor and Clerk-Treasurer to obtain 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 Bonds if issued without municipal bond insurance and (b) the total debt
service on the Bonds if issued with municipal bond insurance, is greater than the cost of the
premium on the municipal bond insurance policy. If such an insurance policy is purchased, the
Mayor and Clerk-Treasurer are hereby authorized to execute and deliver all agreements with the
provider of the policy, to the extent necessary to comply with the terms of such insurance policy
and the commitment to issue such policy. Such agreement is hereby incorporated herein by
I/2385899.2 - 28 -
reference and shall be deemed as a part of this ordinance for all purposes, including the rights of
the bond insurer providing the policy.
Section 8. Bond Sale; Refunding Provisions. If any series of the Bonds will be sold
at a competitive sale, prior to the sale of any series of Bonds, the Clerk-Treasurer shall cause to
be published either (i) a notice of bond sale in The Evening News, the only newspaper published
in the City, two times, at least one week apart, the first publication made at least fifteen (15) days
before the date of the sale and the second publication being made at least three (3) days before
the date of the sale, or (ii) a notice of intent to sell in The Evening News and the Court &
Commercial Record all in accordance with IC 5-1-11 and IC 5-3-1. A notice of sale may also be
published one time in the Court & Commercial Record, and a summary notice may also be
published in The Bond Buyer in New York, New York. The notice shall state the character and
amount of the Bonds, the maximum rate of interest thereon, the terms and conditions upon which
bids will be received and the sale made, and such other information as the Clerk-Treasurer and
the attorneys employed by the City shall deem advisable and any summary notice may contain
any information deemed so advisable. The notice may provide, among other things, that the
successful bidder shall provide a certified or cashier's check or a financial surety bond in an
amount equal to 1 % of the principal amount of the Bonds described in the notice to guarantee
performance on the part of the bidder. If a financial surety bond is used, it must be from an
insurance company licensed to issue such bond in the State of Indiana, and such bond must be
submitted to the City prior to the opening of the bids. The financial surety bond must identify
each bidder whose good faith deposit is guaranteed by such financial surety bond. If the Bonds
are awarded to a bidder utilizing a financial surety bond, then that purchaser is required to submit
to the City a certified or cashier's check (or wire transfer such amount as instructed by the City)
I/2385899.2 - 29 -
not later than 3:30 p.m. (Jeffersonville time) on the next business day following the award. In
the event the successful bidder shall fail or refuse to accept delivery of the Bonds and pay for the
same as soon as the Bonds are ready for delivery, or at the time fixed in the notice of sale, then
said check and the proceeds thereof shall be the property of the City and shall be considered as
its liquidated damages on account of such default. Bidders for the Bonds will be required to
name the rate or rates of interest which the Bonds are to bear, not exceeding the maximum rate
hereinbefore fixed, and such interest rate or rates shall be in multiples of one-eighth (1/8) or one-
twentieth (1/20) of one percent (1%). The rate bid on a maturity shall be equal to or greater than
the rate bid on the immediately preceding maturity. No conditional bid or bid for less than 98%
of the face amount of the Bonds will be considered. The opinion of Ice Miller LLP, bond
counsel of Indianapolis, Indiana, approving the legality of the Bonds, will be furnished to the
purchaser at the expense of the City.
The Bonds shall be awarded by the Clerk-Treasurer to the best bidder who has submitted
his bid in accordance with the terms of this ordinance, IC 5-1-11 and the notice of sale. The best
bidder will be the one who offers the lowest net interest cost to the City, to be determined by
computing the total interest on all of the Bonds to their maturities and adding thereto the discount
bid, if any, and deducting the premium bid, if any. The right to reject any and all bids shall be
reserved. If an acceptable bid is not received on the date of sale, the sale may be continued from
day to day thereafter without further advertisement for a period of thirty (30) days, during which
time no bid which provides a higher net interest cost to the City than the best bid received at the
time of the advertised sale will be considered.
As an alternative to public sale, the Clerk-Treasurer may negotiate the sale of any series
of the Bonds to the Authority as a part of its SRF Program. The Mayor and the Clerk-Treasurer
I/2385899.2 - 30 -
are hereby authorized to: (i) submit an application to the Authority as a part of its SRF Program,
(ii) execute a Financial Assistance Agreement with the Authority with terms conforming to this
ordinance and (iii) sell such Bonds upon such terms as are acceptable to the Mayor and the
Clerk-Treasurer consistent with the terms of this ordinance. The substantially final form of
Financial Assistance Agreement attached hereto and incorporated herein by reference is hereby
approved by the Common Council, and the Mayor and Clerk-Treasurer are hereby authorized to
execute and deliver the same, and to approve any changes in form or substance to the Financial
Assistance Agreement, which are consistent with the terms of this ordinance, such changes to be
conclusively evidenced by its execution.
Concurrently with the delivery of the Refunding Bonds, if issued, the Clerk-Treasurer
shall acquire, with the proceeds of the Refunding Bonds and cash on hand, direct obligations of
or obligations the principal and interest on which are unconditionally guaranteed by, the United
States of America ("Government Obligations") to be used, together with certain cash from the
proceeds of the Refunding Bonds and cash on hand as set forth in the Escrow Agreement, to
refund and legally defease the 1998 Bonds all as set forth in the Escrow Agreement. In order to
refund the 1998 Bonds, the Clerk-Treasurer shall deposit Government Obligations and certain
cash with the Escrow Trustee under the Escrow Agreement in an amount sufficient to provide
moneys for the payment of the principal of and interest on the 1998 Bonds from the date of
delivery of the Refunding Bonds to the date on which the 1998 Bonds may be called for
redemption.
The City shall obtain a verification of an accountant as to the sufficiency of the funds
deposited in the Trust Account under the Escrow Agreement to accomplish said refunding and
legal defeasance of the 1998 Bonds.
I/2385899.2 - 31 -
Costs of issuance for the refunding not otherwise paid, shall be paid from the remaining
proceeds by the Clerk-Treasurer. When all the costs of issuance for the refunding have been
paid, the Clerk-Treasurer shall then transfer any amount then remaining from the proceeds of the
Refunding Bonds to the Sinking Fund as set forth herein.
Section 9. Use of Proceeds and Costs of Issuance. Any accrued interest and any
premium received at the time of the delivery of the Bonds shall be deposited in the Sewage
Works Sinking Fund hereinafter defined. The remaining proceeds from the sale of the Project
Bonds, to the extent not used to refund BANS, and BAN proceeds shall be deposited in a bank or
banks which are legally designated depositories for the funds of the City, in a special account or
accounts to be designated as "City of Jeffersonville, Sewage Works Construction Account"
("Construction Account"). All funds deposited to the credit of the Sewage Works Sinking Fund
or the Construction Account shall be deposited, held, secured or invested in accordance with the
laws of the State of Indiana relating to the depositing, holding, securing or investing of public
funds, including particularly IC 5-13, IC 4-4-11 and IC 13-18-13, as amended and supplemented.
The funds in the Construction Account shall be expended only for the purpose of paying the cost
of the Project, refunding the BANs, if issued, or as otherwise required by the Act or for the
expenses of issuance of the Project Bonds. The cost of obtaining the services of Ice Miller LLP,
H.J. Umbaugh & Associates, Certified Public Accountants, LLP and counsel for the City, shall
be considered as a part of the cost of the Project on account of which the BANs and Project
Bonds are issued. Any balance or balances remaining unexpended in such special account or
accounts after completion of the Project, which are not required to meet unpaid obligations
incurred in connection with such Project, shall either (1) be paid into the Sinking Fund and used
solely for the purposes of said Sinking Fund or (2) be used for the same purpose or type of
I/2385899.2 - 32 -
project for which the Project Bonds were originally issued, all in accordance with IC 5-1-13, as
amended and supplemented.
With respect to any Bonds sold to the Authority as part of its SRF Program, to the extent
that (a) the total principal amount of the Bonds is not paid by the purchaser or drawn down by
the City or (b) proceeds remain in the Construction Account and are not applied to the Project (or
any modifications or additions thereto approved by the Department and the Authority), the City
shall reduce the principal amount of the Bond maturities to effect such reduction in a manner that
will still achieve the annual debt service as described in Section 2 subject to and upon the terms
set forth in the Financial Assistance Agreement.
Section 10. Financial Records and Accounts; Continuing Disclosure. 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 sewage works and all disbursements made therefrom and all transactions
relating to the utility. Copies of all such statements and reports shall be kept on file in the office
of the Clerk-Treasurer.
If the Bonds or BANS are sold to the Authority as part of its 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 sewage works in
accordance with (i) generally accepted governmental accounting standards for utilities, on an
accrual basis, as promulgated by the Government Accounting Standards Board and (ii) the rules,
regulations and guidance of the State Board of Accounts.
If any series of Bonds are subject to the Rule, a Continuing Disclosure Undertaking
Agreement ("Agreement") for the Bonds is hereby authorized and approved by the Common
v2ssss99.2 - 33 -
Council, and the Mayor and Clerk-Treasurer are hereby authorized and directed to complete,
execute and attest the same on behalf of the City. Notwithstanding any other provisions of this
ordinance, failure of the City to comply with the Agreement shall not be considered an event of
default under the Bonds or this ordinance.
Section 11. Pledge of Net Revenues. The interest on and the principal of the Bonds
issued pursuant to the provisions of this ordinance, and any bonds hereafter issued on a parity
therewith, shall constitute a first charge on all the Net Revenues, on a parity with the Outstanding
Bonds, and such Net Revenues are hereby irrevocably pledged to the payment of the interest on
and principal of such Bonds, to the extent necessary for that purpose.
Section 12. Revenue Fund. All revenues derived from the operation of the sewage
works and from the collection of sewer and storm water rates and charges shall be deposited in
the Revenue Fund ("Revenue Fund") hereby continued. Of the revenues in the Revenue Fund,
the proper and reasonable expenses of operation, repair and maintenance of the works shall be
paid, the principal and interest of all bonds and fiscal agency charges of registrars or paying
agents shall be paid, the reserve shall be funded, and the costs of replacements, extensions,
additions and improvements shall be paid. No moneys derived from the revenues of the sewage
works shall be transferred to any other fund of the City or be used for any purposes not
connected with the sewage works.
Section 13. Operation and Maintenance Fund. The Operation and Maintenance Fund
("O&M Fund") is hereby continued. On the last day of each calendar month, revenues of the
sewage works shall be transferred from the Revenue Fund to the O&M Fund. The balance
maintained in this Fund shall be sufficient to pay the expenses of operation, repair and
maintenance for the then next succeeding two (2) calendar months. The moneys credited to this
I/2385899.2 - 34 -
Fund shall be used for the payment of the reasonable and proper operation, repair and
maintenance expenses of the sewage works on a day-to-day basis, but none of the moneys in the
Fund shall be used for depreciation, replacements, improvements, extensions or additions. Any
monies in this Fund may be transferred to the Sewage Works Sinking Fund if necessary to
prevent a default in the payment of principal of or interest on the outstanding bonds of the
sewage works.
Section 14. Sewagi Works Sinking Fund. (a) The Sewage Works Sinking Fund
("Sinking Fund") is hereby continued for the payment of the principal of and interest on revenue
bonds which by their terms are payable from the Net Revenues of the sewage works and the
payment of any fiscal agency charges in connection with the payment of bonds. There shall be
set aside and deposited in the Sinking Fund, as available, and as hereinafter provided, a sufficient
amount of the Net Revenues of said sewage works to meet the requirements of the Bond and
Interest Account and the Debt Service Reserve Account hereby continued in the Sinking Fund.
Such payments shall continue until the balances in the Bond and Interest Account and the Debt
Service Reserve Account equal the principal of and interest on all of the then outstanding bonds
of the sewage works to their final maturity.
(b) Bond and Interest Account. The Bond and Interest Account is hereby continued.
There shall be credited on the last day of each calendar month from the Revenue Fund to the
Bond and Interest Account of the Sinking Fund an amount of the Net Revenues equal to (i) at
least one-sixth (1/6) of the interest of all then outstanding bonds payable on the next succeeding
interest payment date and (ii) at least one-twelfth (1/12) of the principal on all then outstanding
bonds payable on the then next succeeding principal payment date, until the amount of interest
and principal payable on the then next succeeding respective interest and principal payment dates
I/2385899.2 - 35 -
shall have been so credited. There shall similarly be credited to the account any amounts
necessary to pay the bank fiscal agency charges for paying principal and interest on the bonds as
the same become payable. The City shall, from the sums deposited in the Sinking Fund and
credited to the Bond and Interest Account, remit promptly to the registered owner or to the bank
fiscal agency sufficient moneys to pay the interest and principal on the due dates thereof together
with the amount of bank fiscal agency charges. If the Refunding Bonds are issued, any moneys
heretofore accumulated to pay principal and interest for the 1998 Bonds shall be credited to and
become a part of the Trust Account under the Escrow Agreement and shall be applied on the first
payments made from the Trust Account.
(c) Reserve Account. There is hereby continued, within the Sinking Fund, the Debt
Service Reserve Account ("Reserve Account"). If the Refunding Bonds are issued, any moneys
accumulated as a reserve for the 1998 Bonds may either be credited to and made a part of the
Trust Account under the Escrow Agreement and used for the refunding of the 1998 Bonds or
held in the Reserve Account as a reserve for any Bonds issued under this ordinance. On the date
of delivery of the Bonds, funds on hand of the sewage works, Bond proceeds or a combination
thereof may be deposited into the Reserve Account. The balance to be maintained in the Reserve
Account shall equal but not exceed the least of: (i) maximum annual debt service on the Bonds,
the Outstanding Bonds and any bonds issued in the future by the City which are payable from
Net Revenues of the sewage works and which rank on a parity with the Bonds ("Parity Bonds"),
(ii) 125% of average annual debt service on the Bonds, the Outstanding Bonds or any Parity
Bonds, or (iii) 10% of the proceeds of the Bonds, the Outstanding Bonds or any Parity Bonds
("Reserve Requirement"); provided that if any Bonds are sold to the Authority as part of its SRF
Program, the Reserve Requirement shall equal the maximum annual debt service on the Bonds,
I/2385899.2 - 36 -
the Outstanding Bonds and any Parity Bonds. If the initial deposit into the Reserve Account
does not cause the balance therein to equal the Reserve Requirement or if no deposit is made, an
amount of Net Revenues shall be credited to the Reserve Account on the last day of each
calendar month until the balance therein equals the Reserve Requirement. The monthly deposits
shall be equal in amount and sufficient to accumulate the Reserve Requirement within five years
of the date of delivery of the Bonds.
Once the 1998 Bonds and 1999 Bonds have been paid, the City may fund all or part of
the Reserve Account with a debt service reserve surety bond. The surety bond must be issued by
an insurance company rated in the highest rating category by Standard & Poor's Corporation and
Moody's Investors Service. If any Bonds are sold to the Authority as part of its SRF Program,
the City shall receive the written consent of the Authority before funding the Reserve Account
with such a surety bond. The Reserve Account shall constitute the margin for safety and
protection against default in the payment of principal of and interest on the Bonds, the
Outstanding Bonds and any Parity Bonds, and the moneys in the Reserve Account shall be used
to pay current principal and interest on the Bonds, the Outstanding Bonds and any Parity Bonds
to the extent that moneys in the Bond and Interest Account are insufficient for that purpose. Any
deficiency in the balance maintained in the Reserve Account shall be promptly made up from the
next available Net Revenues remaining after credits into the Bond and Interest Account. Any
moneys in the Reserve Account in excess of the Reserve Requirement shall either be transferred
to the Sewage Works Improvement Fund or be used for the purchase of outstanding bonds or
installments of principal of fully registered bonds.
(d) The Sinking Fund, containing the Bond and Interest Account and the Reserve
Account, and the Construction Account, may be held by a financial institution acceptable to the
I/2385899.2 - 37 -
Authority as part of its SRF Program, pursuant to terms acceptable to the Authority. If the
Sinking Fund and the accounts therein are held in trust, the City shall transfer the monthly
required amounts of Net Revenues to the Bond and Interest Account and the Reserve Account in
accordance with 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 bonds. The financial institution selected to serve in this role may also serve as the
Registrar and the Paying Agent for any series of the Bonds and for all or any of the Outstanding
Bonds. If the Construction Account is so held in trust, the City shall deposit the proceeds of the
Bonds therein until such proceeds are applied consistent with this ordinance and the Financial
Assistance Agreement. The Mayor and the Clerk-Treasurer are hereby authorized to execute and
deliver an agreement with a financial institution to reflect this trust arrangement for all or a part
of the Sinking Fund and the Construction Account in the form of trust agreement as approved by
the Mayor and the Clerk-Treasurer, consistent with the terms and provisions of this ordinance.
Section 15. Sewage Works Improvement Fund. The Sewage Works Improvement
Fund ("Improvement Fund") is hereby continued. Any excess revenues over and above the
requirements of the O&M Fund and Sinking Fund may be transferred or credited from the
Revenue Fund to the Improvement Fund, and said Fund shall be used for improvements,
replacements, additions and extensions of the sewage works. Moneys in the Improvement Fund
shall be transferred to the Sinking Fund if necessary to prevent a default in the payment of
principal and interest on the then outstanding bonds or, if necessary, to eliminate any deficiencies
in credits to or minimum balance in the Reserve Account of the Sinking Fund or may be
transferred to the Operation and Maintenance Fund to meet unforeseen contingencies in the
operation, repair and maintenance of the sewage works.
I/2385899.2 - 3 g -
Section 16. Maintenance of Funds. The Sinking Fund shall be deposited in and
maintained as a separate account or accounts from all other accounts of the City. The O&M
Fund and the Improvement Fund may be maintained in a single account, or accounts, but such
account, or accounts, shall likewise be maintained separate and apart from all other accounts of
the City and apart from the Sinking Fund account or accounts. All moneys deposited in the
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 IC 5-13, IC 4-4-11 and
IC 13-18-13, 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.
Section 17. Defeasance of the Bonds. If, when any of the Bonds issued hereunder
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 Bonds or any portion thereof for redemption
shall have been given, and the whole amount of the principal and the interest and the premium, if
any, so due and payable upon all of the Bonds or any portion thereof shall be paid; or
(i) sufficient moneys, or (ii) direct obligations of (including obligations issued or held in book
entry form on the books of) the Department of the Treasury of the United States of America, the
principal of and the interest on which when due will provide sufficient moneys, 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 Bonds issued hereunder or any designated portion thereof
shall no longer be deemed outstanding or entitled to the pledge of the Net Revenues of the City's
sewage works.
v23sss99.2 - 39 -
Section 18. Rate Covenant. The City covenants and agrees that, by ordinance of the
Council, it will establish just and equitable rates or charges for the use of and the service
rendered by said 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 sewage works by or through any part of the sewage
system of the City, 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 payment of the proper and reasonable expenses
of Operation and Repair, as defined in the Financial Assistance Agreement, and for the payment
of the sums required to be paid into the Sinking Fund by the Act and this ordinance and to
comply with and satisfy all covenants contained in this ordinance and the Financial Assistance
Agreement. Such rates and 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
and Maintenance of the sewage works, and the requirements of the Sinking Fund. The rates and
charges so established shall apply to any and all use of such works by and service rendered to
the City and all departments thereof, and shall be paid by the City or the various departments
thereof as the charges accrue.
Section 19. Additional Bond Provisions. 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 Parity Bonds payable out of the Net Revenues of its
sewage works ranking on a parity with the Bonds for the purpose of financing the cost of future
additions, extensions and improvements to the sewage works, or to refund obligations, subject to
the following conditions:
(a) All required payments into the Sinking Fund shall have been made in accordance
with the provisions of this ordinance, and the interest on and principal of all bonds payable from
I/2385899.2 - 40 -
the Net Revenues of the sewage works shall have been paid to date in accordance with their
terms. The Reserve Requirement shall be satisfied for the additional Parity Bonds either at the
time of delivery of the additional Parity Bonds or over a five year or shorter period, in a manner
which is commensurate with the requirements established in Section 14 of this ordinance.
(b) The Net Revenues of the sewage works in the fiscal year immediately preceding
the issuance of any such Parity Bonds shall be not less than one hundred twenty-five percent
(125%) of the maximum annual interest and principal requirements of the then outstanding
bonds and the additional Parity Bonds proposed to be issued; or, prior to the issuance of the
Parity Bonds, the sewage rates and charges shall be increased sufficiently so that said increased
rates and charges applied to the previous fiscal year's operations would have produced Net
Revenues for said year equal to not less than one hundred twenty-five percent (125%) of the
maximum annual interest and principal requirements of all bonds payable from the revenues of
the sewage works, including the additional Parity Bonds proposed to be issued.
For purposes of this subsection, the records of the sewage works shall be analyzed and all
showings prepared and certified by a certified public accountant employed by the City for that
purpose, who shall certify that he has no pecuniary interest in said additions, extensions, and
improvements or the financing thereof in any way whatsoever other than to analyze the records
of said sewage works and to prepare said showings.
(c) The interest on the additional Parity Bonds shall be payable semiannually on the
first days of January and July and the principal of, or mandatory sinking fund redemption dates
for, the additional Parity Bonds shall be payable annually on January 1.
(d) A debt service reserve for the additional Parity Bonds commensurate with and
proportional to the reserve established for the Bonds shall be created and maintained. Such
I/2385899.2 - 41 -
reserve may be funded from bond proceeds on the issue date of the Parity Bonds or by Net
Revenues over a period not to exceed 60 months from the date of issuance of the Parity Bonds.
(e) So long as any bonds are outstanding and owned by the Authority as part of the
SRF Program, (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 National Pollutant Discharge Elimination System permits, except for non-compliance for
which purpose the Parity Bonds are issued, including refunding bonds issued prior to, but part of
the overall plan to eliminate such non-compliance.
Section 20. Further Covenants of the City' Maintenance Insurance, Pledge Not To
Encumber Subordinate Indebtedness, and Contract with Bondholders. For the purpose of
further safeguarding the interests of the owners of the Bonds and BANs, it is hereby specifically
provided as follows:
(a) All contracts let by the City in connection with the construction of the Project
shall be let after due advertisement as required by the laws of the State of Indiana, and all
contractors shall be required to furnish surety bonds in an amount equal to one hundred percent
(100%) of the amount of such contracts, to insure the completion of said contracts in accordance
with their terms, and such contractors shall also be required to carry such employer's liability and
public liability insurance as are required under the laws of the State of Indiana in the case of
public contracts, and shall be governed in all respects by the laws of the State of Indiana relating
to public contracts.
I/2385899.2 - 42 -
(b) The Project shall be constructed under the supervision and subject to the approval
of such competent engineer as shall be designated by the City. All estimates for work done or
material furnished shall first be checked by the engineer and approved by the City.
(c) So long as any of the Bonds or BANs are outstanding, the City shall at all times
maintain the sewage works system in good condition, and operate the same in an efficient
manner and at a reasonable cost.
(d) So long as any of the Bonds or BANS are outstanding, the City shall maintain
insurance on the insurable parts of said works, of a kind and in an amount, including fidelity
bonds, such as would normally be carried by private corporations engaged in a similar type of
business and, if any Bonds or BANs are sold to the Authority as part of its SRF Program,
acceptable to the Authority. All insurance shall be placed with responsible insurance companies
qualified to do business under the laws of the State of Indiana. All insurance proceeds shall be
used either in replacing or restoring the property destroyed or damaged, unless if such BANs or
Bonds are sold to the Authority as part of its SRF Program, the Authority consents to a different
use.
(e) So long as any of the Bonds or BANS are outstanding, the City shall not
mortgage, pledge or otherwise encumber the property and plant of its sewage works system, or
any part thereof, nor shall it 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, however, the City shall obtain the
prior written consent of the Authority if such BANS or Bonds are sold to the Authority as part of
its SRF Program.
I/2385899.2 - 43 -
(f) For so long as the Bonds are outstanding and owned by 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 sewage works, 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 sewage works.
(g) Except as otherwise specifically provided in Section 19 of this ordinance, so long
as any of the Bonds are outstanding, no additional bonds or other obligations pledging any
portion of the revenues of said sewage works shall be authorized, issued or executed by the City
except such as shall be made junior and subordinate in all respects to the Bonds, unless all of the
Bonds are redeemed or defeased coincidentally with the delivery of such additional bonds or
other obligations.
(h) The City shall take all action or proceedings necessary and proper, to the extent
permitted by law, to require connection of all property where liquid and solid waste, sewage,
night soil or industrial waste is produced with available sanitary sewers. The City shall, insofar
as possible, and to the extent permitted by law, cause all such sanitary sewers to be connected
with said sewage works.
(i) The provisions of this ordinance shall constitute a contract by and between the
City and the owners of the Bonds and BANs herein authorized, and after the issuance of the
Bonds or BANS, this ordinance shall not be repealed or amended in any respect which will
adversely affect the rights or interests of the owners of the Bonds or BANS, nor shall the Council
adopt any law, ordinance or resolution which in any way adversely affects the rights of the
holders of the Bonds or BANS so long as any of the Bonds, BANS or the interest thereon, remain
unpaid. Except in the case of changes described in Section 21(a)-(f), this ordinance may be
v23sss99.2 - 44 -
amended, however, without the consent of Bond or BAN owners, if the Council determines, in
its sole discretion, that such amendment would not adversely affect the owners of the Bonds or
BANs; provided, however, that if the Bonds or BANs are sold to the Authority as part of its SRF
Program, the City shall obtain the prior written consent of the Authority.
(j) The provisions of this ordinance shall be construed to create a trust in the
proceeds of the sale of the Bonds and BANs herein authorized for the uses and purposes herein
set forth, and the owners of the Bonds and BANS shall retain a lien on such proceeds until the
same are applied in accordance with the provisions of this ordinance and of said governing 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 in this ordinance set forth. The owners of the Bonds shall have all the rights, remedies
and privileges set forth in the provisions of the governing Act hereinbefore referred to, including
the right to have a receiver appointed to administer said sewage works, 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 system and to apply the revenues derived from the operation
thereof, or if there be a default in the payment of the principal of or interest on any of the Bonds
or in the event of default in respect to any of the provisions of this ordinance or the governing
Act.
Section 21. Amendments with Consent of Bondholders. Subject to the terms and
provisions contained in this section and Section 20(i), and not otherwise, the owners of not less
than sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Bonds
issued pursuant to this ordinance and then outstanding shall have the right from time to time, to
consent to and approve the adoption by the Council of the City of such ordinance or ordinances
I/2385899.2 - 4$ -
supplemental hereto or amendatory hereof, as shall be deemed necessary or desirable by the City
for the purpose of modifying, altering, amending, adding to or rescinding in any particular any of
the terms or provisions contained in this ordinance, or in any supplemental ordinance; provided,
however, that if the Bonds or BANs are sold to the Authority as part of its SRF Program, the
City shall obtain the prior written consent of the State of Indiana 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 on, or any mandatory
sinking fund redemption date for, any Bond issued pursuant to this ordinance; or
(b) A reduction in the principal amount of any Bond or the redemption premium or
the rate of interest thereon; or
(c) The creation of a lien upon or a pledge of the revenues or Net Revenues of the
sewage works ranking prior to the pledge thereof created by this ordinance; or
(d) A preference or priority of any Bond or Bonds issued pursuant to this ordinance
over any other Bond or Bonds issued pursuant to the provisions of this ordinance; or
(e) A reduction in the aggregate principal amount of the Bonds required for consent
to such supplemental ordinance; or
(f) A reduction in the Reserve Requirement.
If the owners of not less than sixty-six and two-thirds percent (66 2/3%) in aggregate
principal amount of the Bonds outstanding at the time of adoption of such supplemental
ordinance shall have consented to and approved the adoption thereof by written instrument to be
maintained on file in the office of the Clerk-Treasurer of the City, no owner of any Bond issued
pursuant to this ordinance 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
1/2385899.2 - 46 -
thereof, or in any manner to question the propriety of the adoption thereof, or to enjoin or
restrain the Council of the City 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 Bonds 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 Bonds authorized by this
ordinance, and the terms and provisions of the Bonds and this ordinance, or any supplemental or
amendatory ordinance, may be modified or altered in any respect with the consent of the City
and the consent of the owners of all the Bonds then outstanding.
Section 22. Investment of Funds. (a) The Clerk-Treasurer is hereby authorized to
invest moneys pursuant to the provisions of this ordinance and IC 5-1-14-3 (subject to applicable
requirements of federal law to insure such yield is then current market rate) to the extent
necessary or advisable to preserve the exclusion from gross income of interest on the Bonds and
BANS under federal law.
(b) The Clerk-Treasurer shall keep full and accurate records of investment earnings
and income from moneys held in the funds and accounts continued or referenced herein. In
order to comply with the provisions of the ordinance, the Clerk-Treasurer is hereby authorized
and directed to employ consultants or attorneys from time to time to advise the City as to
requirements of federal law to preserve the tax exclusion. The Clerk-Treasurer may pay any fees
as operation expenses of the sewage works.
I/2385899.2 - 47 -
Section 23. Tax Covenants. In order to preserve the exclusion of interest on the Bonds
and the BANS from gross income for federal tax purposes under Section 103 of the Internal
Revenue Code of 1986 as existing on the date of issuance of the Bonds or the BANS, as the case
may be ("Code") and as an inducement to purchasers of the Bonds and the BANs, the City
represents, covenants and agrees that:
(a) The sewage works will be available for use by members of the general public.
Use by a member of the general public means use by natural persons not engaged in a trade or
business. No person or entity other than the City or another state or local governmental unit will
use more than 10% of the proceeds of the Bonds or the BANS or property financed by the 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 Bond or BAN
proceeds or will have any actual or beneficial use of such property pursuant to a lease,
management, service or incentive payment contract, an arrangement including take-or-pay or
other type of output contracts or any other type of arrangement that conveys other special legal
entitlements and differentiates that person's or entity's use of such property from use by the
general public, unless such uses in the aggregate relate to no more than 10% of the proceeds of
the Bonds or the BANS, as the case may be. If the City enters into a management contract for all
or a portion of the sewage works, the terms of the contract will comply with the Regulations and
IRS Revenue Procedure 97-13, as amended, supplemented or superseded from time to time, so
that the contract will not give rise to private business use under the Code and the Regulations
unless such use in the aggregate will not relate to more than 10% of the proceeds of the Bonds or
the BANs, as the case may be.
I/2385899.2 - 48 -
(b) No more than 10% of the principal of or interest on the Bonds or BANs is (under
the terms of the Bonds or the BANS, this ordinance or any underlying arrangement), directly or
indirectly, secured by an interest in property used or to be used for 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 more than 5% of the Bond or BAN proceeds will be loaned to any person or
entity other than another state or local governmental unit. No more than 5% of the 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 Bond or BAN proceeds.
(d) The City reasonably expects, as of the date hereof, that the Bonds and BANs will
not meet either the private business use test described in paragraphs (a) and (b) above or the
private loan test described in paragraph (c) above during the entire term of the Bonds or BANS,
as the case may be.
(e) No more than 5% of the proceeds of the Bonds or BANS will be attributable to
private business use as described in (a) and private security or payments described in
(b) attributable to unrelated or disproportionate private business use. For this purpose, the
private business use test is applied by taking into account only use that is not related to any
government use of proceeds of the issue (Unrelated Use) and use that is related but
disproportionate to any governmental use of those proceeds (Disproportionate Use).
(f) The City will not take any action nor fail to take any action with respect to the
Bonds or BANs that would result in the loss of the exclusion from gross income for federal tax
purposes of interest on the Bonds or BANs pursuant to Section 103 of the Code, nor will the City
I/2385899.2 - 49 -
act in any other manner which would adversely affect such exclusion, and it will not make any
investment or do any other act or thing during the period that the Bonds or BANS are outstanding
which would cause the Bonds or BANs to be private activity bonds under the meaning of Section
141 of the Code.
(g) It shall be not an event of default under this ordinance if the interest on any Bond
or BAN 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 Bonds or BANs, as the case may be.
(h) The City represents that it will rebate any arbitrage profits to the United States in
accordance with the Code.
(i) The Mayor and Clerk-Treasurer are authorized to designate any series of Bonds
and BANS as qualified tax-exempt obligations under Section 265(b)(3) of the Code if the
requirements of such Section of the Code are met for any series of Bonds or BANS.
(j) These covenants are based solely on current law in effect and in existence on the
date of delivery of such Bonds or BANs, as the case may be.
Section 24. Issuance of BANs. (a) The City, having satisfied all the statutory
requirements for the issuance of its Bonds, may elect to issue its BAN or BANS pursuant to a
Bond Anticipation Note Purchase Agreement ("Bond Anticipation Note Agreement") to be
entered into between the City and the purchaser of the BAN or BANs. If the BANs are sold to
the Authority as part of its SRF Program, the Financial Assistance Agreement shall serve as the
Bond Anticipation Note Agreement. The Council hereby authorizes the issuance and execution
of the BAN or BANs in lieu of initially issuing Bonds to provide interim financing for the
Project until permanent financing becomes available. It shall not be necessary for the City to
I/2385899.2 - 50 -
repeat the procedures for the issuance of its Bonds, as the procedures followed before the
issuance of the BAN or BANS are for all purposes sufficient to authorize the issuance of the
Bonds and the use of the proceeds to repay the BAN or BANs.
The Mayor and the Clerk-Treasurer are hereby authorized and directed to execute a Bond
Anticipation Note Agreement or Financial Assistance Agreement (and any amendments made
from time to time) in such form or substance as they shall approve acting upon the advice of
counsel. The Mayor and the Clerk-Treasurer may also take such other actions or deliver such
other certificates as are necessary or desirable in connection with the issuance of the BANs or the
Bonds and the other documents needed for the financing as they deem necessary or desirable in
connection therewith.
Section 25. Noncompliance with Tax Covenants. Notwithstanding any other
provisions of this ordinance, the covenants and authorizations contained in this ordinance ("Tax
Sections") which are designed to preserve the exclusion of interest on the Bonds and BANS from
gross income under federal law ("Tax Exemption") need not be complied with if the City
receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to
preserve the Tax Exemption.
Section 26. Rates and Charges. The estimate of the rates and charges of the sewage
works are set forth in Ordinance No. 2009-OR-43 to be adopted on December 21, 2009. Said
ordinance is hereby incorporated herein by reference.
Section 27. Conflicting Ordinances. All ordinances and parts of ordinances in conflict
herewith are hereby repealed; provided, however, that this ordinance shall not be deemed as
(i) amending or repealing the ordinances authorizing the Outstanding Bonds or (ii) adversely
affecting the rights of the owners of the Outstanding Bonds.
I/2385899.2 - 51 -
Section 28. 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 29. Effective Date. This ordinance shall be in full force and effect from and
after its passage and execution by the Mayor.
I/2385899.2 - 52 -
EXHIBIT A
Description of Project
The overall project consists of a number of individual sanitary sewer improvement
projects that will accomplish the following:
Upgrade components of the existing collection system.
2. Provide sanitary sewer service to recently annexed areas of the City.
3. Construction of a North Wastewater Treatment Facility that will treat sewage
from strictly sanitary/storm sewer separated areas (no combined sewers). The
resulting diversion of flow from the Downtown Wastewater Treatment Plant will
create additional treatment capacity to treat combined sewage and wet weather
flow emissions.
4. Final Expansions of the Downtown Wastewater Treatment Plant that will allow
for maximum capacity of wet weather flow treatment.
Specifically, the intended projects are:
• Replacement of the Mill Creek Pumping Station, increasing maximum capacity
from 6 to 8 mgd.
• Separation of combined sewers on 10th Street.
• Construction of a new Lentzier Creek Pumping Station to divert flow to the North
Plant.
• Diversion of the existing Utica Pump Station flow to the new Lentzier Creek
Pump Station by installing a new force main.
• Site acquisition for combined sewage long term control plan structures.
• Diversion of existing Pleasant Run and Liter's Pump Stations to the North Plant
by means of new force mains.
• Lateral extensions of the existing sanitary sewer collection system to serve
recently annexed areas.
• Rehabilitation of the Hamburg Pike Interceptor, a major sewer line that serves the
Jeffersonville Industrial Park and other areas of the City.
• Construction of the new North Wastewater Treatment Facility, including land
acquisition.
• Final expansion of the Downtown Wastewater Treatment Facility, including
installation of a new outfall pipe to Mill Creek.
• Expansion of the Tenth Street Pumping Station, the system's biggest facility
which also serves the combined sewer area of the City.
All of these projects will improve the City's Sanitary Sewer Collection and Treatment
System, and extend its useful life.
I/2385899.2
Passed and adopted by the Common Council of the City of Jeffersonville this ~ ~ day
of December, 2009.
COMMON
Presiding
Attest:
~.~~v
Clerk- i' asurer
~~
Presented by me to the Mayor of the City of Jeffersonville this 9 ~ day of December,
2009 at ~:~ I~.m.
Jerk-Treasurer
Signed and approved by me, the Mayor of the City of Jeffersonville, this °1~' day of
December, 2009 at ~ 3~ ~.m.
I/2385899.2 - $3 -