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HomeMy WebLinkAbout2002-OR-32ORDINANCE NO. AN ORDINANCE AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $2,580,000 AGGREGATE PRINCIPAL AMOUNT OF CITY OF JEFFERSONVILLE, INDIANA VARIABLE RATE DEMAND ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2002 (SOUTHERN INDIANA MENTAL HEALTH AND GUIDANCE CENTER, INC., D/B/A LIFESPRING PROJECT), THE PROCEEDS OF WHICH SHALL BE LOANED TO SOUTHERN INDIANA MENTAL HEALTH AND GUIDANCE CENTER, INC., D/B/A LIFESPRING, TO FINANCE THE ACQUISITION, CONSTRUCTION, INSTALLATION, REHABILITATION AND EQUIPPING OF AN ECONOMIC DEVELOPMENT FACILITY LOCATED WITHIN THE CITY OF JEFFERSONVILLE, INDIANA, PROVIDING FOR THE PLEDGE AND ASSIGNMENT OF REVENUES FOR TIlE PAYMENT OF SAID BONDS; AUTHORIZING A TRUST INDENTURE, LOAN AGREEMENT AND BOND PURCHASE AGREEMENT, AUTHORIZING THE USE AND DISTRIBUTION OF AN OFFICIAL STATEMENT WITH RESPECT TO THE BONDS; AUTHORIZING AGREEMENTS TO SECURE FURTHER THE PAYMENT OF SAID BONDS; AND AUTHORIZING OTHER ACTIONS IN CONNECTION WITH TIlE ISSUANCE OF SUCH BONDS WHEREAS, the City of Jeffersonville, Indiana (the "Issuer"), is a municipal corporation and political subdivision of the State of Indiana, and by virtue of the constitution and laws of the State, including Indiana Code, Title 36, Article 7, Chapters 11.9 and 12, et seq., as supplemented and amended (the "Act"), is authorized and empowered, among other things, to (a) provide funds for the acquisition, construction, installation and equipping of economic development facilities and for the refunding of outstanding economic revenue bonds; (b) issue its revenue bonds for the purpose set forth herein; (c) secure such revenue bonds by a pledge and assignment of revenues and other documents as provided for herein; and (d) enact this Ordinance (the"Bond Ordinance"), execute the Indenture, the Loan Agreement and the Bond Purchase Agreement (all hereinafter identified) and all other documents to be executed by it, upon the terms and conditions provided therein; and WHEREAS, Southern Indiana Mental Health and Guidance Center, Inc., dPo/a LifeSpring (the "Borrower") has advised the Jeffersonville Economic Development Commission (the "Commission") and the Issuer of its proposal that the Issuer issue and sell its economic development revenue bonds for the purpose of financing the costs associated with the rehabilitation of two mental health and guidance center facilities containing approximately 50,000 square feet, the refinancing of the costs associated with the acquisition of said facilities, together with the purchase of equipment and furnishings to be utilized therein, located at 400 and 460 Spring Street, Jeffersonville, Indiana. The facilities will include administrative offices and treatment centers for treatment of individuals with behavioral health issues (the "Project"); and WHEREAS, the Common Council of the Issuer (the "Common Council") has found and determined, and does hereby confirm, that the Project will increase business opporttmities within the JB/ORD/413285.1 City of Jeffersonville, Indiana, and will be to the benefit of the health and general welfare of the citizens of the City of Jeffersonville, Indiana, and that the Issuer, by assisting with the financing and refinancing of the Project through the issuance of revenue bonds in the aggregate principal amount not to exceed $2,580,000, will be acting in a manner consistent with and in furtherance of the provisions of the Act; and WHEREAS, pursuant to a Trust Indenture (the "Indenture"), dated as of September 1, 2002, between Bank One Trust Company, National Association, as trustee (the "Trustee") and the Issuer, the Issuer proposes to issue an amount not to exceed $2,580,000 of its Variable Rate Demand Economic Development Revenue Bonds, Series 2002 (Southern Indiana Mental Health and Guidance Center, Inc., d/b/a LifeSpring Project) to provide funds for the acquisition, construction, installation, rehabilitation and equipping of the Project, by lending such funds to the Borrower pursuant to a Loan Agreement (the "Loan Agreement"), dated as of September 1, 2002, between the Issuer and the Borrower, which prescribes the terms and conditions under which the Borrower shall repay such loan and pursuant to which the Bon'ower will execute and deliver to the Issuer its promissory note (the "Promissory Note ") in the principal amount equal to the aggregate principal amount of the Bonds; and WHEREAS, the Borrower will use the Project as an economic development facility within the meaning of the Act; and WHEREAS, the Bonds will be secured by a direct-pay letter of credit (the "Letter of Credit") issued by Bank One, NA (the "Bank") to the Trustee for the benefit of the holders of the Bonds and for the account of the Borrower, which Letter of Credit has been issued pursuant to a certain Reimbursement Agreement (the "Reimbursement Agreement"), dated as of September 1, 2002, between the Borrower and the Bank; and WHEREAS, it is determined by the Issuer that the amount necessary to finance and refinance the costs of or related to the acquisition, construction, installation, rehabilitation and equipping of the Project, will require the issuance, sale and delivery of not to exceed $2,580,000 aggregate principal amount of its Variable Rate Demand Economic Development Revenue Bonds, Series 2002 (Southern Indiana Mental Health and Guidance Center, Inc., d/b/a LifeSpring Project) (the "Bonds"). NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF JEFFERSONVILLE, INDIANA THAT: Section 1. Definitions. In addition to the words and terms defined in this Bond Ordinance, the words and terms used in this Bond Ordinance shall have the meanings set forth in the Loan Agreement, the Promissory Note, the Indenture, the Bond Purchase Agreement (as hereinafter defined) and in the form of the Bonds unless the context or use indicates another or different meaning or intent, which forms are before this meeting, are hereby incorporated by reference in this Bond Ordinance and the Clerk-Treasurer of the Issuer is hereby directed to insert them into the minutes of the Issuer and to keep them on file as specified in Section 13 hereof. JB/ORD/413285.1 2 Any reference herein to the Issuer, or to any officers thereof, shall include those which succeed to their functions, duties or responsibilities pursuant to or by operation of law or who are lawfully performing their functions. Unless the context shall otherwise indicate, words importing the singular number shall include the plural number, and vice versa, and the terms "hereof," "hereby," "hereto," "hereunder," and similar terms refer to this Bond Ordinance. 2. Determination of Issuer. At a meeting open to the public held on August 13, 2002, by the Commission, the Commission adopted certain Resolutions which incorporate a Report and Findings of Fact, finding, among other things, that the proposed financing (a) will be of benefit to the health and general welfare of the citizens of the City of Jeffersonville, Indiana, and (b) complies with the provisions of the Act. The Common Council hereby acknowledges the Commission's Report and Findings of Fact. At a public hearing held on September 13, 2002, by the Commission pursuant to the provisions of Indiana Code 36-7-12-24(a) and Section 147(1) of the Intemal Revenue Code of 1986, as amended (the "Code"), notice of which was published in the Evening News, being a newspaper of general circulation in the City of Jeffersonville, Indiana, members of the public were g/ven an oppommity to express their views for or against the Project. No persons appeared nor were any written statements received either for or against the Project. The Common Council hereby acknowledges the public heating. The Issuer has received fi.om the Commission its Resolution dated September 13, 2002, wherein the Commission has found that the proposed financing will be of benefit to the health and general welfare of the citizens of the City of Jeffersonville, Indiana and that the proposed financing complies with the provisions of the Act, and further recommending this form of Bond Ordinance for approval by this Common Council. Based upon the Resolutions of the Commission, the Issuer hereby finds and determines that the financing approved by the Commission in its Resolution dated September 13, 2002 will be of benefit to the health and general welfare of the citizens of the City of Jeffersonville, Indiana and complies with the provisions of the Act. Section 3. Authorization of the Bonds. It is hereby detea'mined to be necessary to, and the Issuer shall, issue, sell and deliver, as provided and authorized herein and pursuant to the authority of the Act, Bonds in the maximum aggregate principal amount of not to exceed $2,580,000, designated as "City of Jeffersonville, Indiana Variable Rate Demand Economic Development Revenue Bonds, Series 2002 (Southern Indiana Mental Health and Guidance Center, Inc., d/b/a LifeSpring Project)," the proceeds of which will be held by the Trustee under the Indenture and used to make a loan to the Borrower to pay the cost of the acquisition, construction, installation, rehabilitation and equipping of the Project, which Project will be utilized as economic development facilities within the meaning of the Act. JB/ORD/413285.1 3 Section 4. Terms and Execution of the Bonds. The Bonds shall be issued as fully registered Bonds, without coupons, in the denominations set forth in the Indenture, numbered consecutively as set forth in the Indenture, and shall be payable at the office of the Trustee and mature as provided in the Indenture. The Bonds shall have such terms, bear such interest rates (but in no event in excess of 10% per annum), and be subject to mandatory and optional redemption or tender as provided in the Indenture and Bond Purchase Agreement heretofore presented to the Issuer. The Bonds shall be executed on behalf of the Issuer by the manual or facsimile signatures of the Mayor of the Issuer and the Clerk-Treasurer of the Issuer, and the seal of the Issuer shall be impressed thereon or a facsimile of such seal placed thereon. In case any officer whose signature or a facsimile thereof shall appear on the Bonds shall cease to be such officer before the issuance or delivery of the Bonds, such signature or facsimile thereof shall nevertheless be valid and sufficient for all purposes, the same as if such officer had remained in office until after that time. The form of the Bonds submitted to this meeting, subject to appropriate insertions and revisions in order to comply with the provisions of the Indenture, is hereby approved and, when the same shall be executed on behalf of the Issuer by the appropriate officers thereof in the manner contemplated by the Indenture in an aggregate principal amount not to exceed $2,580,000, shall represent the approved form of Bonds of the Issuer. The Bonds are special, limited obligations of the Issuer payable solely from payments of principal of, premium, if any, and interest on the Bonds made by the Bank under the Letter of Credit or by the Borrower under the Promissory Note and the Loan Agreement except to the extent that the principal of, premium, if any, and interest on the Bonds may be paid out of money attributable to Bond proceeds or from temporary investments thereof. Section 5. Sale of the Bonds. The Bonds will be purchased by Banc One Capital Markets, Inc. (the "Underwriter"), at the purchase price set forth, and on the terms and conditions described in the Bond Purchase Agreement (the "Bond Purchase Agreement"), dated as of the date of issuance of the Bonds, among the Issuer, the Borrower and the Underwriter. Section 6. Arbitrage Provisions. Subject to the obligations of the Borrower set forth in the Loan Agreement and the Tax Compliance Certificate, the Issuer will use its best efforts to restrict the use of the proceeds of the Bonds in such a manner and pursuant to the expectations at the time the Bonds are delivered to the purchasers thereof, so that they will not constitute arbitrage bonds under Section 148 of the Code and the regulations prescribed under that Section. The Mayor and the Clerk-Treasurer of the Issuer, or any other officer having responsibility with respect to the issuance of the Bonds, are authorized and directed, alone or in conjunction with any of the foregoing, or with any other officer, employee, consultant or agent of the Issuer, to deliver a certificate for inclusion in the transcript of proceedings for the Bonds, setting forth the facts, estimates and circumstances and reasonable expectations pertaining to said Section 148 and regulations thereunder. Section 7. Loan Agreement, Promissory Note, Indenture, Official Statement, Bond Purchase Agreement, and all other Documents to be Executed or Accepted by the Issuer. In order to better secure the payment of the principal of, premium, if any, and interest on the Bonds as the same shall become due and payable, the Mayor and the Clerk-Treasurer of the Issuer are authorized and directed JB/ORD/413285.1 4 to execute, acknowledge and deliver, in the name and on behalf of the Issuer, the Indenture, the Loan Agreernent, Promissory Note and the Bond Purchase Agreement, and ail other material documents and assignments to be executed or accepted by it in substantially the forms submitted to the Issuer or its counsel, which are hereby approved, with such changes therein not inconsistent with this Bond Ordinance and not substantially adverse to the Issuer as may be permitted by the Act and approved by the officers executing the same on behaifofthe Issuer without further approval of the Common Council or of the Commission if such changes do not affect terms set forth in I.C. 36-7-12-27(a)(1) through (a)(10). The approval of such changes by such officers, to the extent not substantially adverse to the Issuer, shall be conclusively evidenced by the execution or acceptance of receipt of any of the foregoing documents by such officers. The Issuer approves and ratifies the use and distribution of an Official Statement, in substantially the form submitted to the Issuer, in connection with the issuance, sale and delivery of the Bonds, and authorizes and directs the Mayor of the Issuer to sign the Official Statement if so requested by counsel to the Underwriter. Section 8. Covenants of the Issuer. In addition to other covenants of the Issuer in this Bond Ordinance, the Issuer further covenants and agrees as follows: (a) Pawnent of Principal, Premium and Interest. The Issuer will, solely from the sources herein provided, pay or cause to be paid the principal of, premium, if any, and interest on each and all Bonds on the dates, at the places and in the manner provided herein and in the Bonds, and in ail other documents referred to herein. (b) Performance of Covenants, Authority and Actions. The Issuer will at all times faithfully observe and perform all agreements, covenants, undertakings, stipulations and provisions contained in the Indenture, the Loan Agreement and the Bond Purchase Agreement executed and delivered, or received, pursuant to this Bond Ordinance, and in all other proceedings of the Issuer pertaining to the Indenture, the Loan Agreement and the Bond Purchase Agreement. The Issuer warrants and covenants that it is, and upon delivery of the Bonds will be, duly authorized by the laws of the State of Indiana, including particularly and without limitation, the Act, to issue the Bonds and to execute the Loan Agreement, the Indenture and the Bond Purchase Agreement, and all other documents to be executed or received by it, to provide the security for payment of the principal of, premium, if any, and interest on the Bonds in the manner and to the extent herein set forth; that all actions on its part for the issuance of the Bonds and execution or acceptance and delivery of the Loan Agreement, the Indenture, the Bond Purchase Agreement and all other documents to be executed or accepted by it have been or will be duly and effectively taken; and that the Bonds will be valid and enforceable special, limited obligations of the Issuer according to the terms thereof. Each provision of this Bond Ordinance, the Indenture, each Bond, the Loan Agreement, the Bond Purchase Agreement and all other documents to be executed by the Issuer is binding upon such officer of the Issuer as may from time to time have the authority under law to take such actions as may be necessary to perform all or any part of the duty required by such provision; and each duty of the Issuer and of its officers and employees undertaken pursuant to such proceedings for the Bonds and all other documents to be executed by the Issuer is established as a duty of the Issuer and of each such officer and employee having authority to perform such duty. JB/ORD/413285.1 5 Section 9. No Personal Liability. No recourse under or upon any obligation, covenant, acceptance or agreement contained in this Bond Ordinance, or in the Bonds, the Loan Agreement, the Indenture, the Bond Purchase Agreement, or under any judgment obtained against the Issuer or by the enforcement of any assessment or by any legal or equitable proceeding by virtue of any constitution or statute or otherwise, or under any circumstances, under or independent of such documents, shall be had against any member, director, officer or attorney, as such, past, present, or future, of the Issuer, either directly or through the Issuer, or otherwise, for the payment for or to the Issuer or any receiver thereof, or for or to any holder of the Bonds secured thereby, or otherwise, of any sum that may be due and unpaid by the Issuer upon any of such Bonds. Any and all personal liability of every nature, whether at common law or in equity, or by statute or by constitution or otherwise, of any such member, director, officer or attorney, as such, to respond by reason of any act or omission on his or her part, or otherwise, for, directly or indirectly, the payment for or to the Issuer or any receiver thereof, or for or to any owner or holder of the Bonds, or otherwise, of any sum that may remain due and unpaid upon the Bonds hereby secured or any of them, shall be expressly waived and released as a condition of and consideration for the execution and delivery of the Loan Agreement, the Indenture and the Bond Purchase Agreement, and the issuance of the Bonds. Section 10. No Debt or Tax Pledge. The Bonds shall not constitute a debt or pledge of the faith and credit of the Issuer, the State or any political subdivision thereof, and the holders or owners thereof shall have no right to have taxes levied by the Issuer, the State or of any political subdivision, for the payment of the principal thereof or interest thereon. Moneys raised by taxation shall not be obligated or pledged for the payment of principal of or interest on the Bonds, and the Bonds shall be payable solely from the revenues and security interests pledged for their payment as authorized by the Indenture. Section 11. Severability. If any section, paragraph or provision of this Bond Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Bond Ordinance. Section 12. Repeal of Conflictinff Ordinances and Resolutions. All ordinances, resolutions and orders, or parts thereof, in conflict with the provisions of this Bond Ordinance are, to the extent of such conflict, hereby repealed. Section 13. Public Inspection. A copy of the Loan Agreement, the Indenture, the Bond Purchase Agreement, the Official Statement and the form of the City of Jeffersonville, Indiana Variable Rate Demand Economic Development Revenue Bonds, Series 2002 (Southern Indiana Mental Health and Guidance Center, Inc., d/b/a LifeSpring Project) are available for public inspection upon request to the Clerk-Treasurer of the Issuer. Section 14. Compliance with Open Door Law. It is hereby determined that all formal actions of the Common Council relating to the adoption of this Bond Ordinance were taken in an open meeting of the Common Council, that all deliberations of the Common Council and of its committees, if any, which resulted in formal action, were in meetings open to the public, and that all JB/ORD/413285.1 6 such meetings were convened, held and conducted in compliance with applicable legal requirements, including Indiana Code 5-14-1.5, et sea., as supplemented and amended. Section 15. Effective Date. This Bond Ordinance shall be in full force and effect upon compliance with Indiana Code 36-4-6 et seq. Passed and adopted by the Common Council of the City of Jeffersonville, Clark County, Indiana, this ~_~ day of September, 2002. an, Presider tfficer ATTEST: Pegg~ ~Y'rl~e~, Clerk-Treasurer Presented by me, as Clerk-Treasurer, to the Mayor of said City of Jeffersonville at ~ o'clock'.~m, this ~_ day of September, 2002. Peggy ~, Clerk-Treasurer Approved and signed by me at o'clock I_~.m. this J ff. day of September, 2002. JB/ORD/413285.1 7 EXCERPTS FROM THE MINUTES OF A MEETiNG OF THE COMMON COUNCIL OF THE CITY OF JEFFERSONVILLE, iNDIANA HELD ON SEPTEMBER 23, 2002 The Common Council of the City of Jeffersonville, Indiana (the "Common Council") held a regular meeting on September 23, 2002 at 7:30 p.m. in Room 308, Third Floor, City- County Building, Jeffersonville, Indiana 47130. The meeting was called to order by the presiding officer. On call of the roll, members of the Common Council were shown to be present or absent as follows: Present: Absent: Resolution dated September 13, 2002, previously adopted by the Jeffersonville Economic Development Commission approving the proposed issuance by the City of Jeffersonville, Indiana of its economic development revenue bonds in an amount not to exceed $2,580,000 and the form of Financing Agreement (as defined in such Resolution), and recommending that the Common Council approve the Financing Agreement and proposed form of Ordinance, was presented to the Common Council for consideration. A general discussion followed concerning the proposed financing of the economic development facilities for the Southern Indiana Mental Health and Guidance Center, Inc., d/b/a LifeSpring (the "Applicant"), and the proposed form of Ordinance was examined by members of the Common Council. After consideration of the proposed Ordinance, and upon motion duly made and seconded, Ordinance No. was approved and adopted by the following vote: JB/MINRO/418009.1 Ayes: Nays: Abstaining: Upon this motion and vote thereon, the Common Council did adopt and approve an Ordinance for the issuance of economic development revenue bonds for the Applicant to acquire, construct, install, rehabilitate and equip economic development facilities in the City of Jeffersonville, Indiana, to-wit: The Common Council then proceeded with other business to come before it. I, Peggy Wilder, the Clerk-Treasurer of the City of Jeffersonville, Indiana, do hereby certify that the above and foregoing is a true and exact excerpt of minutes of the meeting of the Common Council of the City of Jeffersonville, Indiana, held on September 23, 2002, as such appears in the official minutes of said Common Council in my custody. Peggy Wilder, Clerk-Treasurer City of Jeffersonville, Indiana JB/MINRO/418009.1 2