HomeMy WebLinkAbout2022-OR-52 Ordinance Athorizing the Restructering and Reissuance of its Sewage Works Revenue Bonds of 2020 AMENDED AND RESTATED ORDINANCE NO. 2022-OR-
An Amended and'Restated Ordinance of the City of Jeffersonville authorizing the
restructuring and reissuance of its Sewage Works Revenue Bonds of 2020,
Series B, 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 Common Council ("Common Council") of the City of Jeffersonville,
Indiana ("City"), adopted Ordinance No. 2022-OR-45 on August 15, 2022 ("Original
Ordinance"), which Original Ordinance approved the issuance of sewage works revenue bonds
and bond anticipation notes, in one or more series; and
WHEREAS, the Common Council now seeks to amend and restate the Original
Ordinance in its entirety authorize the Interest Rate Adjustment on the 2020B Bonds (each as
defined herein) and the reissuance of the 2020B Bonds via the issuance of the Replacement
2020B Bonds (as defined herein); and
WHEREAS, the Interest Rate Adjustment on the 2020B Bonds will generate an
additional $5,000,000 in savings that will be otherwise used by the City to fmance a portion of
the costs of the Project;
NOW, THEREFORE, the Original Ordinance is hereby amended and restated to provide
in its entirety hereafter as follows, namely:
WHEREAS, the 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, including without limitation IC 5-1-5, each as in effect on the date of delivery of
the bonds issued pursuant to the terms of this Ordinance (collectively,the "Act"); and
4880-8280-5039.3
WHEREAS, the Common Council now finds that certain improvements, additions and
extensions to said works are necessary; and that 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 plans and specifications have been or will be submitted to the Common Council and all
governmental authorities having jurisdiction, including, particularly, the Indiana Department of
Environmental Management ("Department") and have been.or will be approved by the aforesaid
governmental authorities and are incorporated herein by reference and are open for inspection at
the office of the Clerk of the City("Clerk")as required by law; and
WHEREAS, the City has obtained engineer's estimates of the costs for the construction
of the Project, which bids have been 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 basis of said
engineer's estimates, the cost of the Project, including estimated incidental expenses,
contingencies and allowances for unforeseen items, is an estimated amount not to exceed Fifty
Million Dollars($50,000,000); and.
WHEREAS,.the Common Council fmds that a grant from the Regional Economic
Acceleration and Development Initiative (READI), in the amount of$5,000,000; a contribution
from the River Ridge Development Authority, in the amount of$12,000,000; a contribution of
American Rescue Plan Act (ARPA) funds of the City, in the amount of $5,430,000 and a
contribution of ARPA funds of Clark County, Indiana, in the amount of $1,500,000 may.be
available to apply to the costs of the Project, leaving a balance not to exceed$26,070,000, which
balance is hereby authorized to be financed by the issuance of sewage works revenue bonds and,, '.
-2- '
4880-8280-5039
if necessary, bond anticipation notes ("BANs") in an aggregate principal amount not to exceed
$26,070,000; and
WHEREAS, the Common Council finds that there are 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 of 2011, Series B ("2011B Bonds"), now
outstanding in the aggregate principal amount of$212,863, and maturing annually over a period
ending January 1, 2028; (ii) Sewage Works Revenue Bonds of 2011, Series C ("2011C Bonds"),
now outstanding in the aggregate principal amount of$12,074,000, and maturing annually over a
period ending January 1, 2033; (iii) Sewage Works Revenue Bonds of 2012 ("2012 Bonds"),
now outstanding in the aggregate principal amount of$7,009,000, and maturing annually over a
period ending January 1, 2033; (iv) Sewage Works Refunding Revenue Bonds of 2013
("2013 Bonds"),now outstanding in the aggregate principal amount of$4,605,000, and maturing
annually over a period ending January 1, 2026; (v) Sewage Works Refunding Revenue Bonds,
Series 2017A ("2017A Bonds"), now outstanding in the aggregate principal amount of
$10,735,000, and maturing annually over a period ending January 1, 2031; (vi) Sewage Works
Revenue Bonds of 2020, Series A ("2020A Bonds"), now outstanding in the aggregate principal
amount of $14,650,000, and maturing annually over a period ending January 1, 2041;
(vii) Sewage Works Refunding Revenue Bonds of 2020 ("2020 Refunding Bonds"), now
outstanding in the aggregate principal amount of $4,045,000, and maturing annually over a
period ending January 1, 2029; (viii) Sewage Works Revenue Bonds of 2020, Series B ("2020B
Bonds"), now outstanding in the aggregate principal amount of $25,000,000, and maturing
annually over a period ending January 1, 2042; and (ix) Sewage Works Refunding Revenue
-3 -
4880-8280-5039
Bonds of 2021 ("2021 Bonds"), now outstanding in the aggregate principal amount of
$14,790,000, and maturing annually over a period ending January 1, 2032; which 2011B Bonds,
2011C Bonds, 2012 Bonds, 2013 Bonds, 2017A Bonds, 2020A Bonds, 2020 Refunding Bonds,
2020B Bonds and 2021 Bonds (hereinafter, collectively, "Outstanding Bonds"), constitute a first
charge upon the Net Revenues (as hereinafter defined) of the sewage works; and
WHEREAS, other than the Outstanding Bonds, the City has no outstanding bonds
payable from the Net Revenues of the sewage works, and
WHEREAS, the 2020B Bonds were sold through the IFA Program (as defined below)
with the Authority(as defined below) as the registered owner of the 2020B Bonds; and
WHEREAS, in connection with the issuance of the Bonds authorized hereunder, if sold
to the Authority as part of its IFA Program, the City shall execute and exchange replacement
2020B Bonds ("Replacement 2020B Bonds") for the current outstanding 2020B Bonds, that
modify the terms of the outstanding 2020B Bonds to reflect a reduction of the stated interest rate
per annum from two percent (2%) to a new interest rate that will generate $5,000,000 in savings
on the overall debt service on the outstanding 2020B Bonds ("Interest Rate Adjustment"); and
WHEREAS,the ordinances authorizing the issuance of the Outstanding Bonds permit the
issuance of additional bonds ranking on a parity with the Outstanding Bonds provided that
certain conditions can be met, and the City finds that the finances of said 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 and to be issued pursuant to this ordinance will
constitute a first charge against the Net Revenues of the sewage works, on a parity with the
Outstanding Bonds (as modified by the Replacement 2020B Bonds), and are to be issued subject
to the provisions of the Act, and the terms and restrictions of this ordinance; and
-4-
4880-8280-5039
WHEREAS, the City desires to authorize the issuance of BANs hereunder, if necessary,
in one or more series, payable from the proceeds of the sewage works revenue bonds issued to
finance the aforementioned costs of the Project and to authorize the refunding of the BANs, if
issued; and
WHEREAS, the City may enter into a Financial Assistance Agreement, Funding
Agreement and/or Financial Aid Agreement (collectively, the "Financial Assistance
Agreement") with the Indiana Finance Authority ("Authority") as part of its wastewater loan
program, supplemental drinking water and wastewater assistance program, water infrastructure
assistance program and/or water infrastructure grant program established and existing pursuant
to IC 5-1.2 1 through IC 5-1.2-4, IC 5-1.2-10, IC 5-1.2-11, IC 5-1.2-14 and/or IC 5-1.2-14.5
(collectively, the "IFA Program"), pertaining to the Project, the financing of the Project and the
herein defined Interest Rate Adjustment, if the bonds are sold to the IFA Program; and
WHEREAS, the City understands that for the Project to be permitted to be financed
under the IFA Program, the City must (a) agree to own, operate and maintain the sewage works
and the Project for their useful life and (b) represent and warrant to the Authority that the City
has no intent to sell, transfer or lease the sewage works or the Project for their useful life; and
WHEREAS, the City may accept other forms of financial assistance, as and if available,
from the IFA Program; and
WHEREAS, the Common Council has been advised that it may be cost efficient to
purchase municipal bond insurance and/or a debt service reserve surety for all or a portion of the
bonds authorized herein; and
-5 -
4880-8280-5039
WHEREAS,the Common Council now finds that all conditions precedent to the adoption
of an ordinance authorizing the issuance of sewage works revenue bonds and BANs have been
complied with in accordance with the provisions of the Act;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE
CITY OF JEFFERSONVILLE,INDIANA, THAT:
Section 1. Authorization of Project and Interest Rate Adjustment. (a) The City may
proceed with the construction of the Project in accordance with the plans, specifications and cost
estimates heretofore prepared and filed by the consulting engineers employed by the City, which
cost estimates, plans and specifications are now on file or shall be placed on file in the office of
the Clerk, and are hereby adopted and approved, and by reference made a part of this ordinance
as fully as if the same were attached hereto and incorporated herein and two (2) copies of which
are open for public inspection pursuant to IC 36-1-5-4. The estimated cost of the Project is
expected not exceed $50,000,000, plus investment earnings on the BAN and bond proceeds,
without further authorization from this Common Council. 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 and
includes all structures and property of the City's sewer works utility, including items defined at
IC 36-9-1-8. The Project, which is hereby approved, shall be constructed in accordance with the
preliminary plans and specifications heretofore mentioned, which preliminary plans and
specifications are hereby approved. The Project shall be constructed and the BANs and bonds
herein authorized shall be issued pursuant to and in accordance with the Act.
(b) In the event the Bonds(as defined herein) or BANs are purchased by the Authority
as part of the IFA Program, on behalf of the City, the Common Council hereby(i) agrees to own,
-6 -
4880-8280-5039
operate and maintain the sewage works and the Project for their useful life and(ii)represents and
warrants to the Authority that the City has no intent to sell, transfer or lease the sewage works or
the Project for their useful life.
(c) The City hereby declares its official intent to complete the Project; to reimburse
certain costs of completing the Project with proceeds of debt to be incurred by the City, and to
issue debt not exceeding $26,070,000 in aggregate principal amount for purposes of paying and
reimbursing costs of the Project.
(d) The City shall proceed with the Interest Rate Adjustment, as directed by the
Authority. To evidence the Interest Rate Adjustment, the City authorizes the execution and
delivery of the Replacement 2020B Bonds. The revised and final principal and interest payment
schedule of the Replacement 2020B Bonds shall be set forth in the Financial Assistance
Agreement. The Common Council hereby authorizes the Mayor and the Clerk to take all actions
necessary and to execute all documents, certificates, instruments, and agreements, needed in
connection with the Interest Rate Adjustment and the Financial Assistance Agreement. The
Outstanding Bonds shall include the modifications resulting from the Replacement 2020B Bonds
and, for purposes of this Ordinance, the term Outstanding Bonds shall be construed to mean the
"Outstanding Bonds," as modified by the Replacement 2020B Bonds.
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 and
paying cost of issuance. The City shall issue its BANs, in one or more series, in an aggregate
principal amount not to exceed Twenty-Six Million Seventy Thousand Dollars ($26,070,000) to
be designated "Sewage Works Bond Anticipation Notes of 20 " (to be completed with the
year in which issued and the appropriate series designation, if any). The BANs shall be sold at a
-7 -
4880-8280-5039
price not less than ninety-nine percent (99%) of their par value or at a price not less than one
hundred percent (100%) of their par value if sold to the Authority as part of the IFA Program,
shall be numbered consecutively from 1 upward, shall be in denominations of One Thousand
Dollars ($1,000) or integral multiples thereof; or, if sold to the Authority as part of the IFA
Program, in denominations of One Dollar ($1) or integral multiples thereof, as designated in the
hereinafter defined Note Purchase Agreement for the BANs, or if the BANs are sold to any other
purchaser as a draw instrument. The BANs shall be dated as of the date of delivery thereof, and
shall bear interest at a rate not to exceed five percent (5%) per annum (the exact rate or rates to
be determined through bidding or negotiation with the purchaser of the BANs) payable upon
maturity or upon redemption. The 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 five percent (5%) per annum(the exact rate or rates to be determined through negotiation
with the purchaser of the BANs). The term of the BANs and all renewal BANS may not exceed
five (5) years from the date of delivery of the initial BANs. The BANs shall be registered in the
name of the purchasers thereof. Payment on the BANs may be made in installments. Interest
shall be payable semiannually on January 1 and July 1 commencing on the first January 1 or the
first July 1 after the date of issuance of the BANs as determined by the Clerk, with the advice of
the City's municipal advisor, and upon maturity or redemption.
The $50,000,000 par amount of bond par allowance included $4,585,000 of allowances
for increased costs. The City's current funding plan for the estimated $45,415,000 of project
costs is anticipated to be funded with an expected contribution from the River Ridge
Development Authority, in the amount of$12,000,000; an expected contribution of ARPA funds
of the City, in the amount of$5,430,000 and an expected contribution of ARPA funds of Clark
-8 -
4880-8280-5039
County, Indiana, in the amount of $1,500,000 may-be available to apply to the costs of the
Project. A READI grant, in the amount of$5,000,000 is also anticipated but it may not be fully
available until after the funding is required to let the construction bids. The City plans to
contribute $8,000,000 of capacity fee funds and issue a$13,485,000 BAN to fund the balance of
the Project. To the extent necessary,the City plans to use any other legally available funds of the
City to fund costs of the Project.
The BANs shall be issued pursuant to IC 5-1.5-8-6.1 if sold to the Indiana Bond Bank,
pursuant to IC5-1.2-1 through IC 5-1.2-4 and IC 5-1.2-10, IC 5-1.2-11 and/or IC 5-1.2-14 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 from the issuance of
revenue bonds pursuant to and in the manner prescribed by the Act. Interest on the BANs may
also be payable from capitalized interest and Net Revenues of the sewage works, provided,
however, any pledge of Net Revenues will be junior and subordinate to the payment of the
Outstanding Bonds, the bonds issued under this ordinance and any bonds issued in the future
which are secured with a pledge of Net Revenues. If any interest on the BANs to be paid from
Net Revenues is to occur on a date other than January 1 or July 1, by reason of maturity or
redemption, such payment may only occur if all of the principal and interest on all then
outstanding bonds of the sewage works of the City due on the next succeeding principal and
interest payment date is fully accumulated in the Bond and Interest Account of the Sewage
Works Sinking Fund. The revenue bonds will be payable solely out of and constitute a first
charge against the Net Revenues (herein defined as gross revenues, inclusive of System
Development Charges (as hereafter defined), after deduction only for the payment of the
reasonable expenses of operation, repair and maintenance, excluding transfers for payment in
-9 -
4880-8280-5039
lieu of property taxes ("PILOTs")) of the sewage works of the City, on a parity with the
Outstanding Bonds. For purposes of this ordinance, "System Development Charges" shall mean
the proceeds and balances from any non-recurring charges such as tap fees, subsequent connector
fees, capacity or contribution fees, and other similar one-time charges that are available for
deposit under this ordinance; provided, however, that any System Development Charges that are
enacted under IC 36-9-23-29, shall be considered as Net Revenues of the sewage works.
(b) The City is hereby authorized to issue its sewage works revenue bonds, in one or
more series, to be designated "Sewage Works Revenue Bonds of 20 ," to be completed with
the year in which issued and series designation, if any; if the City, with the advice of its
municipal advisor, determines that it is necessary to issue its bonds solely to finance the Project
(the "Bonds"), in an aggregate principal amount not to exceed $26,070,000 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/or a debt service reserve surety, if necessary.
Each series of Bonds shall be sold at a price not less than par value if sold to the
Authority as part of its IFA Program or not less than 99% of the par value thereof if sold to any
other purchaser, shall be issued in the denomination of One Dollar ($1) or integral multiples
thereof if sold to the Authority as part of its IFA 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 sold or
issued, or as of the date of delivery, as determined by the Controller with the advice of the City's
municipal advisor, provided that if sold to the Authority as part of its IFA Program, the Bonds
shall be dated the date of delivery. The Bonds shall bear interest at a rate or rates not exceeding
- 10-
4880-8280-5039
five percent (5%) per annum (the exact rate or rates to be determined through negotiation with
the Authority, through its IFA Program or as determined by bidding). Interest on the Bonds is
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 as designated by the Controller, with the advice
of the City's municipal advisor. Principal shall be payable in lawful money of the United States
of America, at the principal office of the Paying Agent (as hereinafter defined) and the each
series of Bonds shall mature annually on January 1, or shall be subject to mandatory sinking fun
redemption if term bonds are issued, on January 1 of each year over a period ending no later than
twenty (20) years after the date of issuance of the Bonds, and in such amounts that will either:
(a)produce as level annual debt service as practicable taking into account the annual debt service
on the Outstanding Bonds and all series of Bonds issued hereunder, or (b) if the Bonds are sold
to the Authority as part of its IFA Program, allow the City to meet the coverage and/or
amortization requirements of the IFA Program. If the Bonds are sold to the Authority as part of
its IFA Program, such debt service schedules shall be finalized and set forth in the Financial
Assistance Agreement.
All or a portion of the Bonds may be issued as one or more term bonds, upon election of
the purchaser thereof. Such term bonds shall have a stated maturity or maturities consistent with
the maturity schedule determined in accordance with the preceding paragraph on January 1 on
the dates as determined by the purchaser thereof, but in no event later than the final serial
maturity date of the Bonds as determined in accordance with the above paragraph. The term
bonds shall be subject to mandatory sinking fund redemption and final payment(s) at maturity at
one hundred percent (100%) of the principal amount thereof, plus accrued interest to the
- 1 1 -
4880-8280-5039
redemption date, on principal payment dates which are hereinafter determined in accordance
with the above paragraph.
Each series of Bonds issued hereunder shall rank on a parity with each other for all
purposes, including the pledge of Net Revenues under this ordinance.
Notwithstanding anything in this ordinance to the contrary, the BANs and Bonds issued
hereunder may bear interest that is taxable and includable in the gross income of the owners
thereof. If any BANs or Bonds are issued on a taxable basis, the designated name shall include
the term"Taxable" as the first word in the designated name.
Interest on the Bonds and 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 IFA 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 IFA 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 (or both) 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).
- 12 -
4880-8280-5039
Section 3. Registrar and Paying Agent; Book-Entry Provisions. The Controller 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 Controller is hereby authorized to enter
into such agreements or understandings with such institution as will enable the institution to
perform the services required of a Registrar and Paying Agent. The Controller is further
authorized to pay such fees as the institution 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
hereunder 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 IFA Program or
any other purchaser that does not object to such designation, the Controller 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 IFA 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 as part of its IFA Program is the owner of the Bonds or BANs,
such Bonds and BANs shall be presented for payment as directed by the Authority.
If such Bonds and BANs are not sold to the Authority as part of its IFA Program or if
wire transfer payment is not required, the principal of and interest on the BANs and the principal
of the Bonds shall be payable at the designated corporate office of the Paying Agent and all
payments of interest on the Bonds shall be paid by check, mailed one (1) business day prior to
- 13 -
4880-8280-5039
the interest payment date to the registered owners thereof as the names appear as of the fifteenth -
r
(15th) day of the month preceding the interest payment date ("Record Date"), 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 on or before such Record Date. 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 designated corporate 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
- 14-
4880-8280-5039
1
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
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 thirty (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 thirty(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
Controller 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 Controller 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
- 15 -
4880-8280-5039
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.
Interest on any Bonds sold to the Authority as part of its IFA Program shall be payable
from the date or dates of payments made by the Authority as part of its purchase of the Bonds
pursuant to 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
- 16 -
4880-8280-5039
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
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
- 17 -
4880-8280-5039
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
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
- 18 -
4880-8280-5039
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
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 the
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
- 19 -
4880-8280-5039
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
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) Commencing three hundred sixty-
five (365) days after their initial date of delivery, the BANs are prepayable by the City, in whole
or in part, on any date, upon seven (7) days' notice to the owner of the BANs without premium.
(b) For any Bonds not sold to the Authority as part of its IFA Program, such Bonds
are redeemable at the option of the City, but no sooner than five (5) years from their date of
issuance, and 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 one percent(1%),plus accrued interest to the date fixed for redemption;
provided however, if the Bonds are sold to the IFA Program and registered in the name of the
Authority, the Bonds shall not be redeemable at the option of the City unless and until consented
to by the Authority. The exact redemption dates and premiums shall be established by the
Controller with the advice of the City's municipal advisor,prior to the sale of the Bonds.
For any Bonds sold to the Authority as part of its IFA Program, the Bonds are
redeemable at the option of the City on any date no sooner than ten (10) years after their date of
delivery, 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
two percent (2%), plus in each case accrued interest to the date fixed for redemption. The exact
-20 -
4880-8280-5039
redemption dates and premiums shall be determined by the Controller, with the advice of the
City's municipal 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
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 one hundred percent (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.
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 for redemption 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.
-21 -
4880-8280-5039
Notice of redemption shall be given not less than sixty(60) days, if the Bonds are sold to
the Authority as part of its IFA 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 IFA Program, and forty-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 series of the BANs and Bonds shall be
executed in the name of the City by the manual, facsimile or electronic signature of the Mayor of
the City ("Mayor"), 'countersigned by the manual, facsimile or electronic signature of the
Controller, and attested by the manual, facsimile or electronic signature of its Clerk, and the seal
of the City shall be affixed, imprinted or impressed to or on each of the BANs and/or 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
-22 -
4880-8280-5039
purposes the same as if such officer had remained in office until such delivery. The officers have
full authority to execute any and all documents necessary to issue the Bonds and/or BANs and
the use of electronic signatures by the officers are hereby authorized and affirmed with full valid
legal effect and enforceability.
The Bonds and BANs, and any bonds ranking on a parity therewith, as to both principal
and interest, shall be payable from and secured by an irrevocable pledge of and shall constitute a
first charge upon the Net Revenues of the sewage works of the City. The City shall not be
obligated to pay the Bonds or BANs or the interest thereon except from the Net Revenues of said
works, and the Bonds and BANs shall not constitute an indebtedness of the City within the
meaning of the provisions and limitations of the constitution of the State of Indiana.
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, facsimile or electronic 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.
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.
-23 -
4880-8280-5039
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF CLARK
CITY OF JEFFERSONVILLE
SEWAGE WORKS REVENUE BONDS OF [, SERIES ]
[Interest Rate] [Maturity Date] Original Date Authentication Date [CUSIP]
(SEE EXHIBIT A)
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 on the dates 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 prior to
maturity as provided for herein), and to pay interest hereon until the Principal Sum shall be fully
paid at the interest rate[s] per annum stated [above] OR [on Exhibit A attached hereto] 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 date in which case it shall bear interest from such interest payment date, or unless this
bond is authenticated on or before 15, 20 , in which case it shall bear interest
from the Original Date,] which interest is payable semiannually on January 1 and July 1 in each
year, beginning on 1, 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 designated corporate office of
("Registrar" or "Paying Agent"), in the of
.] 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 [paid by
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 an interest payment date, 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.
-24-
4880-8280-5039
[Notwithstanding anything to the contrary herein, this bond shall not be required to be presented
or surrendered to receive payment in connection with any mandatory sinking fund redemption
until the final maturity date of this bond or earlier payment in full of this bond.] [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 numbering, rates of interest[, series
designation,] and date of maturity]]; in the total aggregate principal amount of
Dollars ($ ); numbered consecutively from 1
up; issued for the purpose of providing funds to be applied on the cost of certain additions,
extensions and improvements to the City's sewage works ("Projects")[, to refund interim notes
issued in anticipation of the bonds] to pay incidental expenses incurred in connection therewith
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 , 2022, entitled "An Amended and
Restated Ordinance of the City of Jeffersonville authorizing the restructuring and reissuance of
its Sewage Works Revenue Bonds of 2020, Series B, 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 and 36-9-23, each as in effect on the date of delivery of the bonds of this issue
(collectively, the "Act"), the proceeds of which bonds are to be applied to the costs of the
Projects, [the payment of notes issued in anticipation of the bonds,] and expenses incurred in
connection therewith[, including premiums 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 Projects and the purchase of this bond as part of the wastewater loan program
-25 -
4880-8280-5039
established and existing pursuant to IC 5-1.2-1 through IC 5-1.2-4 [and IC 5-1.2-10.] [IC 5-1.2-
11.] [IC 5-1.2-14.1]
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 Outstanding Bonds (as defined in the
Ordinance) 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 (herein defined as the gross revenues, inclusive of System Development
Charges (as defined in the Ordinance), after deduction only for the payment of the reasonable
expenses of operation, repair and maintenance, excluding transfers for payment in lieu of
property taxes) of the sewage works of the City. This bond and the issue of which it is a part
constitute a first charge upon the Net Revenues, and shall rank on a parity with the Outstanding
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
Series 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,
repair and maintenance] OR [Operation and Maintenance (as defined in the Financial Assistance
Agreement[, as defined in the Ordinance)]] 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 under Indiana law.
[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 DTC, or any substitute
agreement, effecting such Book-Entry System.]
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
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 against all the Net Revenues of the sewage
works on a parity with the Outstanding Bonds.
The bonds of this issue maturing on January 1, 20 , and thereafter, are redeemable at
the option of the City on January 1, 20 , or any date thereafter, on [sixty(60)] OR [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:
-26 -
4880-8280-5039
%if redeemed on 1,20 or thereafter
on or before ,20 ;
%if redeemed on 1,20 or thereafter
on or before ,20 ;
0%if redeemed on 1,20 or thereafter
prior to maturity;
plus, in each case accrued interest to the date fixed for redemption[; provided however if the
Bonds are sold to the IFA Program and registered in the name of the Authority, the Bonds shall
not be redeemable at the option of the City unless and until consented to by the Authority].
[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 the dates and in the amounts set forth below:
20 Term Bonds
Date 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 redemption 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)] OR [forty-five (45)]
days prior to such redemption date, not less than [sixty (60)] OR [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
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.
-27 -
4880-8280-5039
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.]
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[$5,0001 OR [$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.
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, countersigned with the manual, facsimile or electronic signature of its Controller, its
corporate seal to be hereunto affixed, imprinted or impressed by any means and attested
manually, facsimile or by electronically by its Clerk.
-28 -
4880-8280-5039
CITY OF JEFFERSONVILLE, INDIANA
By
Mayor
Countersigned:
Controller
[SEAL]
Attest:
Clerk
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 NOTICE: The signature to this assignment
an eligible guarantor institution participating in must correspond with the name as it appears on
a Securities Transfer Association recognized the face of the within bond in every particular,
signature guarantee program. without alteration or enlargement or any
change whatsoever.
[EXHIBIT A
[To be completed on a separate page]
-29 -
4880-8280-5039
(End of Bond Form)]
Section 7. Authorization for Preparation and Sale of the BANs and the Bonds;
Municipal Bond Insurance; Official Statement; Continuing Disclosure. (a)The Controller is
hereby authorized and directed to have the BANs and the Bonds prepared, and the Mayor, the
Controller and the Clerk are hereby authorized and directed to execute and attest the BANs and
the Bonds in the form and manner provided herein. The Controller is hereby authorized and
directed to deliver the BANs and the Bonds to the respective purchasers thereof after a sale made
in accordance with the provisions of this ordinance, provided that at the time of said delivery of
the BANs and the Bonds, the Controller shall collect the full amount which the respective
purchasers have agreed to pay therefor, which amount shall not be less than the par value of the
BANs if sold to the Authority as part of its IFA Programs, not less than ninety-nine percent
(99%) of the par value of the BANs if sold to any other purchaser, and not less than the par value
of the Bonds if sold to the Authority as part of its IFA Programs, and not less than ninety-nine
percent (99%) 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. The City may receive payment for the BANs
and the Bonds in installments. The Bonds, when fully or 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 City's sewage works, on parity with the Outstanding Bonds, to be
set aside into the Sinking Fund as herein provided. The proceeds derived from the sale of the
BANs and the Bonds shall be and are hereby set aside for application on the costs of the Project
hereinbefore referred to, the refunding of the BANs, if issued, and the expenses necessarily
incurred in connection with the BANs and Bonds. The proper officers of the City are hereby
-30-
4880-8280-5039
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.
(b) Distribution of an Official Statement (preliminary and final) prepared by Baker
Tilly Municipal Advisors, LLC, on behalf of the City ("Official Statement"), is hereby
authorized and approved and the Mayor and/or the Controller are authorized and directed to
execute the final and preliminary Official Statements on behalf of the City in a form consistent
with this ordinance. The Mayor and/or the Controller is hereby authorized to designate the
preliminary Official Statement as "nearly final" for purposes of Rule 15c2-12 as promulgated by
the Securities and Exchange Commission("Rule").
If an Official Statement is not required upon delivery of the Bonds, the City shall obtain
an investment letter from the purchaser of the Bonds which satisfies federal and state securities
laws applicable to the Bonds.
(c) If the Bonds are subject to the Rule, the Mayor and Controller are hereby
authorized and directed to complete, execute and attest a Continuing Disclosure Undertaking
("Disclosure Undertaking") for the Bonds on behalf of the City, in a form consistent with this
ordinance. Notwithstanding any other provisions of this ordinance, failure of the City to comply
with the Disclosure Undertaking shall not be considered an event of default under the Bonds or
this ordinance.
(d) In the event the municipal 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 Controller 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
-31 -
4880-8280-5039
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 Controller 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
7-
and the commitment to issue such policy. Such agreement is hereby incorporated herein by
reference and shall be deemed as a part of this ordinance for all purposes, including the rights of
the bond insurer providing the policy.
C
Section 8. Sale of the Bonds; Award of Bonds. If the Bonds will be sold at a
competitive sale, the Controller shall cause to be published either (i) a notice of such sale in
The News and Tribune,the only newspaper published in the City, or such newspaper which meet
the requirements of IC 5-3-1, two (2) times, at least one (1) 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 News and
Tribune and the Indianapolis Business Journal all in accordance with IC 5-1-11 and IC 5-3-1. A
notice or summary notice of sale may also be published one (1)time in the Indianapolis Business
Journal, and a notice or 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 Controller and the attorneys employed by the City shall deem
advisable and any summary notice may contain any information deemed so advisable. The
notice will also state that the winning bidder will agree to assist the City in establishing the issue
price of the Bonds under Treas. Reg. Section 1.148-1(f) ("Issue Price Regulation"). The criteria
-32 -
4880-8280-5039
for establishing the issue price under the Issue Price Regulation shall be set forth in the
preliminary Official Statement and/or the bid form. Said notice may provide, among other
things, that electronic bidding will be permitted and that the successful bidder shall be required
to submit a certified or cashier's check or a wire transfer in an amount equal to one percent (1%)
of the aggregate principal amount of the Bonds described in the notice within twenty-four (24)
hours of the award of the Bonds. 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 the proceeds of such deposit shall become the property of
the City and shall be considered as its liquidated damages on account of such default. All bids
for the Bonds shall be sealed and shall be presented either to the Controller, or at the office of the
City's municipal advisor on behalf of the Controller. The Controller, or the City's municipal
advisor on behalf of the Controller, shall continue to receive all bids offered until the hour on the
day fixed in the notice, at which time and place the Controller, or the City's municipal advisor on
behalf of the Controller, shall open and consider the bids. Bidders for the Bonds shall be
required to name the rate or rates of interest which the Bonds are to bear, not exceeding the
maximum rate hereinbefore fixed, and that such interest rate or rates shall be in multiples of one-
eighth (1/8), one-twentieth(1/20) or one-hundredth (1/100)of one percent(1%). The notice may
provide that the rate bid on any maturity shall be equal to or greater than the rate bid on the
immediately preceding maturity. No conditional bid or bid for less than ninety-nine percent
(99%) of the par amount of the Bonds will be considered. Prior to the delivery of the Bonds, the
Controller shall obtain a legal opinion as to the validity of the Bonds from Ice Miller LLP, bond
counsel, of Indianapolis, Indiana, and shall furnish this opinion to the purchaser of the Bonds.
-33 -
4880-8280-5039
The cost of this opinion shall be considered as part of the costs incidental to these proceedings
and may be paid out of proceeds of the Bonds.
The Bonds shall be awarded by the Controller to the best bidder who has submitted a bid
in accordance with the terms of this ordinance, IC 5-1-11 and the notice. The best bidder shall
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 therefrom the premium bid, if any. The Controller shall have full right to reject
any and all bids. If an acceptable bid is not received on the date and time fixed in the notice for
sale of the Bonds, the Controller shall be authorized to continue to receive bids from day to day
thereafter without further advertisement for a period not to exceed thirty (30) days, during which
time no bid which provides a net interest cost to the City which is equal to or higher than the best
bid received at the time of the advertised sale will be considered.
As an alternative to public sale, the Controller may negotiate the sale of the Bonds to the
Authority as part of its IFA Programs. The Mayor and the Controller are hereby authorized to:
(i) submit an application to the Authority as part of its IFA Programs; (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 Controller consistent with
the terms of this ordinance. The Mayor and Controller are hereby authorized to execute and
deliver the Financial Assistance Agreement with terms consistent with the terms of this
ordinance. The substantially final form of Financial Assistance Agreement attached hereto as
Exhibit B and incorporated herein by reference is hereby approved by the Common Council, and
the Mayor and Controller are hereby authorized to execute and deliver the same, and to approve
-34-
4880-8280-5039
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.
Section 9. Use of Proceeds and Costs of Issuance. The proceeds from the sale of the
Bonds, to the extent not used to refund BANs, and BAN proceeds, excluding any BAN proceeds
to be used for capitalized interest, 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"). Any BAN proceeds to be used for capitalized interest shall be deposited into the
Sewage Works Sinking Fund as further described in Section 14 herein. All funds deposited to
the credit of the Sewage Works Sinking Fund or 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, as amended and
supplemented, and as applicable, pursuant to IC 5-1.2-1 through IC 5-1.2-4, IC 5-1.2-10, IC 5-
1.2-11, IC 5-1.2-14 and/or IC 5-1.2-14.5. The funds in the Construction Account shall be
expended only for the purpose of paying the costs of the Project, refunding the BANs, if issued,
or as otherwise permitted or required by the Act or for the remaining expenses of issuance of the
Bonds or BANs. The cost of obtaining the services of Ice Miller LLP, Baker Tilly Municipal
Advisors, LLC and counsel for the City, shall be considered as a part of the cost of the Project on
account of which the BANs and 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 the Project, shall either (1) be
paid into the Sewage Sinking Fund and used solely for the purposes of the Sewage Works
-35 -
4880-8280-5039
Sinking Fund or (2) be used for the same purpose or type of project for which the Bonds were
originally issued, all in accordance with IC 5-1-13, as amended and supplemented.
If the Bonds are sold to the Authority as part of its IFA Programs, to the extent (a) that
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 amounts of the Bond maturities to effect such reduction in a manner that will
still achieve the annual debt service as described in Section 2 hereof subject to and upon the
terms set forth in the Financial Assistance Agreement.
Section 10. Financial Records and Accounts. The City shall keep proper records and
books of account, separate from all of its other records and accounts, in which complete and
correct entries shall be made showing all revenues received on account of the operation of the
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.
If any series of Bonds or BANs are sold to the Authority as part of its IFA 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.
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
-36 -
4880-8280-5039
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. The City shall not be
obligated to pay the Bonds or the interest thereon except-for the Net Revenues, and the Bonds
shall not constitute- an indebtedness of the City within the meaning of the provisions and
limitations of the constitution of the State of Indiana.
Section 12. Revenue Fund. All income and revenues derived from the operation of
the sewage works and from the collection of sewer and storm water rates and charges (including
any System Development Charges that are not considered Net Revenues) shall be deposited in
the Revenue Fund("Revenue Fund") hereby continued and segregated and deposited as set forth
in this ordinance. The Revenue Fund shall be maintained separate and apart from all other
accounts of the City. Of these revenues the proper and reasonable expenses of operation, repair
and maintenance of the works shall be paid, the principal of and interest on 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 to the works 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, other than to pay
PILOTs, so long as any obligations payable from the Net Revenues of the sewage works are
outstanding.
Section 13. Operation and Maintenance Fund. There is hereby continued a fund
known as the Operation and Maintenance Fund ("O&M Fund"). On the last day of each
calendar month, a sufficient amount of revenues of the sewage works shall be transferred from
the Revenue Fund to the O&M Fund so that the balance.maintained in the O&M Fund is
sufficient to pay the expenses of operation,repair and maintenance of the works for the then next
-37 -
4880-8280-5039
succeeding two (2) calendar months. The moneys credited to the O&M 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 O&M Fund shall be used for
PILOTs, depreciation, replacements, improvements, extensions or additions. Any moneys in the
O&M 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 any outstanding bonds of the sewage works.
Section 14. Sewage Works Sinking Fund. (a) There is hereby continued a fund 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 the bonds, which fund is designated as the Sewage Works
Sinking Fund ("Sinking Fund"). 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 the sewage
works to meet the requirements of the Bond and Interest Account and the Reserve Account (as
defined below) hereby continued in the Sinking Fund. Such payments shall continue until the
balances in the Bond and Interest Account and the Reserve Account equal the principal of and
interest on all of the then outstanding bonds of the sewage works to their final maturity and
provide for payment of all fiscal agency charges.
(b) Bond and Interest Account. There is hereby continued, withing the Sinking Fund,
the Bond and Interest Account ("Bond and Interest Account"). There shall be credited on the
last day of each calendar month from the Revenue Fund to the Bond and Interest Account an
amount of the Net Revenues equal to: (i) at least one-sixth (1/6) of the interest on all then
outstanding bonds payable on the then next succeeding interest payment date; and (ii) at least
one-twelfth (1/12) of the principal payable on all then outstanding bonds payable on the then
-38 -
4880-8280-5039
next succeeding principal payment date, until the amount of interest and principal payable on the
then next succeeding interest and principal payment date shall have been so credited. There shall
similarly be credited to the Bond and Interest Account any amount 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.
(c) Debt Service Reserve Account. (i) There is hereby continued, within the Sinking
Fund, the Debt Service Reserve Account ("Reserve Account"). On the date of delivery of the
Bonds, the City may deposit funds on hand of the sewage works, Bond proceeds or any
combination thereof, into the Reserve Account up to an amount which shall not exceed or cause
the balance therein to not exceed the hereinafter defined Reserve Requirement. If no deposit is
made or if the initial deposit does not cause the balance in the Reserve Account to equal the
Reserve Requirement, a sum of Net Revenues of the sewage works shall be deposited into the
Reserve Account on the last day of each calendar month until the balance therein equals but does
not exceed the least of: (i)the maximum annual principal and interest requirements on the
Outstanding Bonds, the 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 basis with the Bonds
("Parity Bonds"); (ii) 125% of the average annual debt service on the Bonds, the Outstanding
Bonds or any Parity Bonds; or (iii) 10% of the stated principal amount or issue price, as
applicable, of the Bonds, the Outstanding Bonds and any Parity Bonds ("Reserve Requirement");
provided; however, that if any Bonds are sold to, or for so long as the Outstanding Bonds are
-39 -
4880-8280-5039
owned by the Authority as part of its IFA Programs, the Reserve Requirement shall not be less
than the maximum annual debt service on the Bonds, the Outstanding Bonds and any Parity
Bonds. The monthly deposits of Net Revenues shall be equal in amount and sufficient to
accumulate the Reserve Requirement within five (5) years of the date of delivery of the Bonds.
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. In the event moneys in the Reserve
Account are transferred to the Bond and Interest Account to pay principal of or interest on any
Outstanding Bonds, the Bonds or any Parity Bonds, then such depletion of the balance in the Reserve
Account shall be made up from the next available Net Revenues remaining after credits into the Bond and
Interest Account. Any interest earnings that accumulate in excess of the Reserve Requirement shall be
considered as revenues of the sewage works and shall 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.
(ii) The Reserve Account may be satisfied with cash, a debt service reserve surety bond or a
combination thereof. If any of the Bonds are sold to the Authority as part of the IFA Programs, the City
shall obtain the consent of the Authority to fund the Reserve Account, in whole or in part, with a surety
bond. If such surety bond is purchased, the Mayor and the Controller are hereby authorized to execute
and deliver all agreements with the provider of the surety bond to the extent necessary to comply with the
-40-
4880-8280-5039
terms of such surety bond and the commitment to issue such surety. Such agreement shall be deemed a
part of this ordinance for all purposes and is hereby incorporated herein by reference.
(d) If the Bonds are sold to the Authority as part of its IFA Programs, 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 Authority as part of its IFA
Programs, 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 this Section 14, and
the fmancial 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 with respect to the Bonds. The Mayor and the Controller 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 Controller, 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. After meeting the requirements of the O&M
Fund and the Sinking Fund, any excess revenues shall be transferred or credited from the
Revenue Fund to the Improvement Fund, and said Improvement Fund shall be used for
-41 -
4880-8280-5039
improvements,replacements, additions or extensions to the sewage works and to make payments
representing PILOTs. The City reserves the right to transfer PILOTs from the Improvement
Fund no more frequently than semiannually, in accordance with the Act, and only if all required
transfers have been made to the Sinking Fund and the O&M Fund and the Accounts of the
Sinking Fund contain the required balances as of the date the PILOTs are paid. Moneys in the
Improvement Fund shall be transferred to the Sinking Fund if necessary, to prevent a default in
the payment of principal or interest on the bonds payable from the Sinking Fund or, if necessary,
to eliminate any deficiencies in credits to or minimum balance in the Reserve Account. Moneys
in the Improvement Fund also may be transferred to the O&M Fund to meet unforeseen
contingencies in the operation, repair and maintenance of the sewage works. If any BANs or
Bonds are sold to the Authority as part of its IFA Programs, so long as any of the BANs or
Bonds are outstanding, no moneys derived from the revenues of the sewage works shall be
transferred to the General Fund of the City or be used for any purpose not connected with the
sewage works other than to pay PILOTs as set forth in this Section 15. In no event shall any
PILOTs be treated as an expense of operation and maintenance, nor in any case shall it be
payable from the O&M Fund or the Sinking Fund.
Section 16. Maintenance of Accounts; Investments. The Sinking Fund shall be
deposited in and maintained as a separate banking account or accounts from all other accounts of
the City. The O&M Fund and the Improvement Fund may be maintained in a single banking
account, or accounts, but such account, or accounts, shall likewise be maintained separate and
apart from all other banking 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
-42-
4880-8280-5039
moneys therein may be invested in obligations in accordance with the applicable laws, including
particularly IC 5-13, as amended or supplemented and as applicable, pursuant to IC 5-1.2-1
through IC 5-1.2-4, IC 5-1.2-10,.IC 5-1.2-11 and/or IC 5-1.2-14, 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. Nothing in this Section or elsewhere in this ordinance shall be
construed to require that separate bank accounts be established and maintained for the Funds and
Accounts created and/or continued by this ordinance except that (a) the Sinking Fund and the
Construction Account shall be maintained as a separate bank account from the other Funds and
Accounts of the sewage works and (b) the other Funds and Accounts of the sewage works shall
be maintained as a separate bank account from the other funds and accounts of the City.
Section 17. Defeasance of the Bonds. If, when the Bonds or a portion thereof shall
have become due and payable in accordance with their terms or shall have been duly called for
redemption or irrevocable instructions to call the 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 and coupons then
outstanding shall be paid; or (i) sufficient moneys (insured at all times by the Federal Deposit
Insurance Corporation or otherwise collateralized with obligations described in (ii)below), or
(ii) direct obligations of(including obligations issued or held in book entry form on the books of)
the Depaitinent of the Treasury of the United States of America, the principal of and the interest
on which when due will provide sufficient moneys for such purpose, shall be held in trust for
such purpose, and provision shall also be made for paying all fees and expenses for the
redemption, then and in that case the Bonds issued hereunder or any designated portion thereof
-43 -
4880-8280-5039
issued hereunder shall no longer be deemed outstanding or entitled to the pledge of the Net
Revenues of the City's sewage works.
Section 18. Rate Covenant. The City covenants and agrees that it shall establish,
maintain and collect reasonable and just and equitable rates and/or charges for the use of and the
service rendered by the sewage works, to be paid by the owner of each and every lot, parcel of
real estate or building that is connected with and uses the sewage works, or that in any way uses
or is served by the sewage works, at a level adequate to produce and maintain sufficient revenue
(including user and other charges, fees, income or revenues available to the City), provided that
System Development Charges shall be excluded, to the extent permitted by law, when
determining if such rates and charges are sufficient so long as the Bonds are outstanding and
owned by the Authority as part of its IFA Program, to provide for the proper and reasonable
expenses of operation, repair and maintenance, or Operation and Maintenance (as defined in the
Financial Assistance Agreement) if the Bonds are sold to the Authority as part of its IFA
Program, of the sewage works to comply with and satisfy all covenants contained in this
ordinance and the Financial Assistance Agreement, and to pay all obligations of the sewage
works and of the City with respect to the sewage works. 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, repair and maintenance, or Operation and
Maintenance, as the case may be, 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.
-44-
4880-8280-5039
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, onto refund obligations, subject to
the following conditions:
(a) All required payments into the Sinking Fund shall have been made to date in
accordance with the provisions of this ordinance, and the interest on and principal of all bonds
payable from the Net Revenues of the sewage works shall have been paid 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 set forth 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 such
Parity Bonds, the sewage rates and charges shall be increased sufficiently so that said increased
rates and charges applied to the previous year's operations would have produced Net Revenues
for said period equal to 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 to the final maturity of the then outstanding bonds or, in the case of
the construction of new sewage works, which works would serve additional customers at the
customers' existing serviceable structures required to connect to the sewage works, the Net
-45 -
4880-8280-5039
Revenues of the sewage works in the fiscal year immediately preceding the issuance of any such
Parity Bonds together,with the anticipated Net Revenues from the new system 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.
For purposes of this subsection, the records of the sewage works shall be analyzed and all
showings shall be prepared by a certified public accountant or independent financial auditor
employed by the City for that purpose. In addition, for purposes of this subsection with respect
to any Parity Bonds hereafter issued, while the Bonds remain outstanding and owned by the
Authority as part of its IFA Program, Net Revenues may not include any revenues from the
System Development Charges unless the Authority provides its consent to include all or some
portion of the System Development Charges as part of the Net Revenues or otherwise consents
to the issuance of such Parity Bonds without satisfying this subsection(b).
(c) The interest on the additional Parity Bonds shall be payable semiannually on
January 1 and July 1 and the principal of, or mandatory sinking fund redemption dates for, the
additional Parity Bonds shall be payable annually on January 1.
(d) If the Authority purchases the Bonds as part of its IFA Program, so long as any
Bonds or Outstanding Bonds are outstanding and owned by the Authority, (i)the City obtains the
consent of the Authority, (ii)the City has faithfully performed and is in compliance with each of
its obligations, agreements and covenants contained in the Financial Assistance Agreement and
this ordinance, and (iii) the City is in compliance with, its .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. .
-46 -
4880-8280-5039
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 BANs and the Bonds, it is 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 employers' 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.
(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) The City shall at:all times maintain its sewage works 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 herein authorized are outstanding, the City
shall acquire and maintain insurance coverage, including fidelity bonds,•to protect the sewage
works and its operations. If the Authority purchasers the Bonds as part of its IFA Program, so
long as the Bonds are outstanding and owned by the Authority, such insurance shall be
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. Insurance proceeds and
-47 -
4880-8280-5039
condemnation awards shall be used either in replacing or repairing the sewage works or used for
a different use as permitted by the.Act; provided, however, if the Authority owns the Bonds, the
Authority consents to a different use of such proceeds or awards.
(e) So long as any of the Bonds or BANs are outstanding, the City shall not sell,
transfer, lease or otherwise encumber the sewage works, or any portion thereof, or any interest
therein, except only such machinery, equipment or other property as may be replaced, or shall no
longer be necessary for use in .connection with said utility, provided that, if the Authority
purchases the Bonds as part of its IFA Program, so long as the Bonds are outstanding and owned
by the Authority,the City shall obtain the prior written consent of the Authority.
(f) If the Authority purchases the Bonds as part of its IFA Program, so long as the
Bonds are outstanding and owned by the Authority, and, except as otherwise specifically
provided in Section 19 hereof, the City shall not without the prior written consent of the
Authority (i) enter into any lease, contract or agreement or incur any other liabilities in
connection with the sewage works other than for normal operating expenditures or (ii) borrow
any money (including without limitation any loan from other utilities operated by the City) in
connection with the sewage works.
(g) Except as hereinbefore provided in Section 19 of this ordinance, so long as any of
the Bonds herein authorized are outstanding, no additional bonds or other obligations pledging
any portion of the revenues of said sewage works shall be authorized, executed, or issued by the
City except such as shall be made junior and subordinate in all respects to the Bonds herein
authorized, unless all of the Bonds herein authorized.are redeemed, retired or defeased pursuant
to Section 17 hereof coincidentally with the delivery of such additional bonds or other
obligations.
-48 -
4880-8280-5039
(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 of the owners of the Bonds or BANs, nor shall the Common Council
adopt any law, ordinance or resolution which in any way adversely affects the rights of such
owners so long as any of the Bonds, BANs or the interest thereon remain unpaid. Except for the
changes set forth in Section 21(a)-(f), this ordinance may be amended, however, without the
consent of Bond or BAN owners, if the Common 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 IFA 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 the governing Act.
The provisions of this,ordinance shall also be construed to create a trust in the portion of the Net
Revenues herein directed to be set apart and paid into the Sinking Fund for the uses and purposes
of said fund as in this ordinance set forth. The owners of the Bonds shall have all of the rights,
-49-
4880-8280-5039
remedies and privileges set forth in the provisions of the governing Act, 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, 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 herein authorized or
in the event of default in respect to any of the provisions of this ordinance or the governing Act.
(k) For purpose this Section 20, the term "lease" shall include any lease, contract, or
other instrument conferring a right upon the City to use property in exchange for a periodic
payments made from the revenues of the sewage works,whether the City desires to cause such to
be, or by its terms (or its intended effects) is to be, (i)payable as rent, (ii) booked as an expense
or an expenditure, or(iii) classified for,accounting or other purposes as a capital lease, financing
lease, operating lease, non-appropriation leases, installment purchase agreement or lease, or
otherwise(including any combination thereof).
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,
anything contained in this ordinance to the contrary notwithstanding, to consent to and approve
the adoption by the Common Council of the City of such ordinance or ordinances 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 IFA Program, the City
-50-
4880-8280-5039
shall obtain the prior written consent of the Authority; and provided, further, that nothing herein
contained shall permit or be construed as permitting:
(a) An extension of the maturity of the principal of or interest 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) Except as provided in Section 2 with respect to the BANs, 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;
(f) A reduction in the Reserve Requirement; or
(g) The extension of mandatory sinking fund redemption dates,if any.
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 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 thereof, or in any
manner to question the propriety of the adoption thereof, or to enjoin or restrain the Common
Council of the City from adopting the same, or from taking any action pursuant to the provisions
-51 -
4880-8280-5039
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 Controller is hereby authorized to invest
money 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 the then current market rate) to the extent
necessary or advisable to preserve the excludability from gross income of interest on the Bonds
and BANs under federal law.
(b) The Controller shall keep full and accurate records of investment earnings and
income from moneys held in the funds and accounts referenced herein. In order to comply with
the provisions of the ordinance, the Controller 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 excludability. The Controller may pay any fees as operation expenses of the
sewage works.
Section 23. Tax Covenants. In order to preserve the excludability of interest on any
tax-exempt Bonds and BANs issued hereunder from gross income for federal income tax
-52 -
4880-8280-5039
purposes under Section 103 of the Internal Revenue Code of 1986 as existing on the date of
issuance of the Bonds or BANs, as the case may be ("Code"), and as an inducement to
purchasers of the Bonds and 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 ten percent (10%) of the proceeds of the Bonds or 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, a management or incentive payment contract, arrangements such as take-or-pay or 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 BANs, as
the case may be. If the City enters into a management contract for the sewage works, the terms
of the contract will comply with IRS Revenue Procedure 2017-13, as it may be amended,
supplemented or superseded for time to time, so that the contract will not give rise to private
business use under the Code and the regulations promulgated thereunder, unless such use in
aggregate relates to no more than ten percent (10%) of the proceeds of the Bonds or BANS, as
the case may be.
(b) No more than ten percent (10%) of the principal of or interest on the Bonds or
BANs is(under the terms of the Bonds or BANs, this ordinance or any underlying arrangement),
directly or indirectly, secured by an interest in property used or to be used for any private
-53 -
4880-8280-5039
business use or payments in respect of any private business use or payments in respect of such
property or to be derived from payments (whether or not to the City) in respect of such property
or borrowed money used or to be used for a private business use.
(c) No more than five percent (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 five
percent (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 paragraph (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 five percent (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 excludability from gross income for federal
tax purposes on the Bonds or BANs pursuant to Section 103 of the Code, nor will the City act in
any other manner which would adversely affect such excludability. The City covenants and
-54-
4880-8280-5039
agrees not to enter into any contracts or arrangements which would cause the Bonds or BANs to
be treated as private activity bonds under 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) 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.
(i) The City represents that it will rebate any arbitrage profits to the United States as
required by the Code and the regulations promulgated thereunder.
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 ("Note Purchase 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 IFA Program, the Financial Assistance Agreement shall serve as the Note Purchase
Agreement. The Common 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 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.
(b) The Mayor and the Controller are hereby authorized and directed to execute a
Note Purchase Agreement or Financial Assistance Agreement (and any amendments made from
-55 -
4880-8280-5039
time to time) in such form or substance as they shall approve acting upon the advice of counsel.
The Mayor, the Controller and the Clerk 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 excludability of interest on the any tax-exempt
BANs and Bonds 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 Sections
are unnecessary to preserve the Tax Exemption.
Section 26. Rates and Charges. The estimate of the rates and charges of the sewage
works is set forth in Ordinance No. 2011-OR-73 adopted on February 22, 2012. Such ordinance
is hereby incorporated herein by reference.
Section 27. Conflicting Ordinances. All ordinances and parts of ordinances in conflict
herewith (including the Original Ordinance) are hereby repealed; provided that the adoption of
this ordinance shall not be construed as modifying, amending or repealing the ordinances
authorizing the Outstanding Bonds or as adversely affecting the rights of the holders of the
aforementioned Outstanding Bonds.
Section'28. Ordinance Constitutes Resolution under IC 36-9-23. For purposes of
Sections 10 and 12 of IC 36-9-23, this ordinance shall constitute and be deemed as the
"resolution"as such term is used under Sections 10 and 12 of IC 36-9-23.
-'56-
4880-8280-5039
Section 29. Headings. The headings or titles of the several sections shall be solely for
convenience of reference and shall not affect the meaning, construction or effect of this
ordinance.
Section 30. Effective Date. This ordinance shall be in full force and effect from and
after its passage and execution by the Mayor.
* * * * *
•
-57-
4880-8280-5039
,
2022-OR-
Passed and adopted by the Common Council of the City of Jeffersonville, Clark County, Indiana, this
( day of �f. , 20 _.
( (J .
Matt we President and
Presiding Officer
ATTEST:
Lisa GiII1, Clerk
resented by me as Clerk to the Mayor of said City of Jeffersonville this 17 day of
, 20 , c .t ":,(`
v/��c.X�f
Lisa Gill, Cl �k
This Ordinance approved and signed by thi 7 - ay of �P/' , 20 2a:
Mike Mo re, Mayor
Voted for: Voted Against:
•
Passed and adopted by the Common Council of the City of Jeffersonville, Indiana, this
day of crh f, , 2022.
COMMON COUNCIL
Presiding Of icer
Attest:
C erk
Presented by me to the Mayor of the City of Jeffersonville, Indiana, on the day of
, 2022, at : .m.
Clerk
EXHIBIT A
Description of Project
Design and construction of the North Water Reclamation Facility expansion project with will
increase the average design flow rate from 3.0 MGD to 6.0 MGD, and the peak design flow rate
from 9.0 MGD to 18.0 MGD. The Project includes:
• Expansion of the existing headworks building, including a new fine screen, grit removal
system, grit washer, Parshall flume, and odor control system;
• Modifications to the existing oxidation ditch and secondary clarifiers;
• New oxidation ditch with biological nutrient removal, aerators and mixers;
• MLSS splitter box modifications;
• Two new circular clarifiers with RAS/WAS pump stations;
• New UV disinfection system,replacing the existing system;
• Cascade aeration improvements, including replacement flume;
• Non-potable water pump station expansion;
• Sludge digestion improvements, including new sludge holding tank, blowers and
diffusers;
• Sludge dewatering improvements, including new centrifuge, conveyors, polymer feed
and sludge pumps;
• New plant recycle pump station;
• Chemical feed/storage building;
• New administration building;
• Backup generator; and
• Conveyance piping, electrical, instrumentation and controls.
4880-8280-5039
EXHIBIT B
FORMS OF FINANCIAL ASSISTANCE AGREEMENT
4880-8280-5039
STATE OF INDIANA
WASTEWATER REVOLVING LOAN PROGRAM
RESTATED FINANCIAL ASSISTANCE AGREEMENT [ day of
20 1 by and between the Indiana Finance Authority(the"Finance Authority"), a body politic and
corporate, not a state agency but an independent instrumentality of the State of Indiana (the
"State") and the City of Jeffersonville, Indiana (the "Participant"), a political subdivision as
defined in I.C. 5-1.2-2-57 and existing under I.C. 36-4, witnesseth:
WHEREAS, the State's Wastewater Revolving Loan Program (the "Wastewater SRF
Program")has been established in accordance with the federal Clean Water Act and the regulations
promulgated thereunder, and pursuant to I.C. 5-1.2-10 (the "Wastewater SRF Act"), which
Wastewater SRF Act also establishes the wastewater revolving loan fund (the "Wastewater SRF
Fund"); and
WHEREAS, pursuant to the Wastewater SRF Act, the State was authorized to fund the
Wastewater SRF Program with federal capitalization grants,together with required state matching
funds therefor, and to operate the Wastewater SRF Program, and prior to May 15, 2005 so funded
and operated the Wastewater SRF Program; and
WHEREAS, pursuant to Public Law 235 - 2005, by operation of law and effective May
15, 2005,the Finance Authority has become the successor to the State in all matters related to the
Wastewater SRF Program (including use and acceptance of federal capitalization grants and
required state matching funds and operation of the Wastewater SRF Program); and
WHEREAS, the Participant is a duly existing political subdivision of the State, lawfully
empowered to undertake all transactions and execute all documents mentioned or contemplated
herein; and
WHEREAS, the Participant has previously entered into (A) four Financial Assistance
Agreements with the Finance Authority, dated respectively as of November 23, 2011,November
12, 2012, February 14, 2020 and April 20, 2021 (collectively the "Prior SRF Agreements"), to
borrow money from the Wastewater SRF Program to construct and acquire separate projects (as
described and defined in the Prior SRF Agreements) and (B) a Brownfield Loan Agreement with
the Finance Authority dated March 31, 2011 ("Brownfield Loan Agreement" and together with
the Prior SRF Agreements, collectively, the "Prior Agreements"), to borrow money from the
Environmental Remediation Revolving Loan Fund Program to construct and acquire a separate
project(as described and defined in the Brownfield Loan Agreement); and
WHEREAS, the Participant is also entering into an Amended and Restated Financial
Assistance Agreement with the Finance Authority, dated even herewith this Agreement,in respect
to a prior borrowing from the Wastewater SRF Program(the"2022 Amended and Restated FAA"
and, together with the Prior Agreements, collectively,the "Other Agreements");
WHEREAS, the Participant has determined to undertake a wastewater treatment system
project(as more fully described herein,the "Project") and to borrow money from the Wastewater
22401544.v1
SRF Program to construct and acquire the Project; and
WHEREAS,the Finance Authority and the Participant desire to set forth the terms of such
financial assistance as hereinafter provided; and
NOW THEREFORE,in consideration of the mutual covenants herein set forth,the Finance
Authority and the Participant agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms shall, for all purposes of this Agreement,
have the following meaning:
"Agency"shall mean the United States Environmental Protection Agency or its successor.
"Asset Management Program" means programs, plans and documentation (including a
Fiscal Sustainability Plan) that demonstrates that the Participant has the financial, managerial,
technical,and legal capability to operate and maintain its Treatment Works and which is consistent
with SRF Policy Guidelines including applicable requirements of the Wastewater SRF Act.
"Authorizing Instrument(s)" shall mean the separate trust indenture(s) of the Participant
entered into with a corporate trustee or the detailed resolution(s) or ordinance(s) of the governing
body of the Participant pursuant to which the Bonds are issued in accordance with State law.
"Authorized Representative" shall mean the Controller of the Participant or such other
officer, official, or representative of the Participant duly authorized to act for and on behalf of the
Participant as provided for herein.
"Bond" or "Bonds" shall mean the instrument(s) which evidence(s) the Loan, as
authorized by the Authorizing Instrument and containing the terms set forth in Section 2.02 of this
Agreement.
"Bond Fund" shall mean the separate and segregated fund or account established and
created by the Participant pursuant to the Authorizing Instrument from which payment of the
principal of and interest on the Bonds is required to be made by the Participant.
"Business Day" shall mean any day other than a Saturday, Sunday or State legal holiday
or any other day on which financial institutions in the State are authorized by law to close and to
remain closed.
"Clean Water Act" shall mean the Federal Water Pollution Control Act, 33 U.S.C.
Sections 1251-1387, and other laws,regulations and guidance supplemental thereto (including the
2014 Appropriations Act and the Water Resources Reform and Development Act of 2014), as
amended and supplemented from time to time.
2
22401544.v 1
"Code" shall mean the Internal Revenue Code of 1986, as amended and supplemented
from time to time,together with the regulations related thereto.
"Construction Fund" shall mean the separate and segregated fund or account established
and created by the Participant pursuant to the Authorizing Instrument to receive proceeds of the
Bonds and from which Eligible Costs of the Project may be paid by the Participant.
"Credit Instrument" means a letter of credit, surety bond, liquidity facility, insurance
policy or comparable instrument furnished by a Credit Provider that is used by the Participant to
meet all or a portion of any debt service reserve requirement securing the Bonds or any other bonds
payable from the revenues of the Treatment Works, which bonds are on a parity with the Bonds.
"Credit Provider"means a bank, insurance company, financial institution or other entity
providing a Credit Instrument.
"Department" shall mean the Indiana Department of Environmental Management created
under I.C. 13-13-1-1 or its successor.
"Deposit Agreement" shall mean an agreement between the Participant and the Deposit
Agreement Counterparty in such form as from time to time determined by the Finance Authority
pursuant to which (a) the Participant's Bond Fund (including any reserve account established and
created by the Participant pursuant to the Authorizing Instrument related thereto) shall be held by
such Deposit Agreement Counterparty and available for payment of the Bonds and any other
similar obligations of the Participant that are payable from the Bond Fund regardless whether they
are on a parity basis, (b) such Deposit Agreement Counterparty serves as the paying agent for the
Bonds and any other such similar obligations of the Participant that are payable from the Bond
Fund, and (c) the Participant's Construction Fund may be held by such Deposit Agreement
Counterparty upon any Loan disbursement by the Finance Authority to it from time to time.
"Deposit Agreement Counterparty" shall mean the financial institution that enters into
a Deposit Agreement with the Participant, which financial institution shall be approved by the
Finance Authority and may be replaced by the Finance Authority from time to time.
"Director of Environmental Programs" shall mean the person designated by the Finance
Authority as authorized to act as the Director of Environmental Programs (which designation
includes such Director's assumption of the duties previously assigned to the Wastewater SRF
Program Representative and the Wastewater SRF Program Director) and where not limited, such
person's designee.
"Disbursement Agent" shall mean the party disbursing the Loan to or for the benefit of
the Participant, which shall be the Trustee unless amounts are held in the Construction Fund, in
which case the Disbursement Agent shall thereafter be the Deposit Agreement Counterparty as the
party disbursing amounts that are held in the Construction Fund unless otherwise agreed by the
Finance Authority.
3
22401544.v1
"Disbursement Request" shall mean a request for a disbursement of the Loan made by
an Authorized Representative in such form as the Finance Authority may from time to time
prescribe.
"Eligible Cost" shall mean and include, whether incurred before or after the date of this
Agreement, all costs which have been incurred and qualify for Financial Assistance, including
engineering, financing and legal costs related thereto.
"Finance Authority" shall mean the Indiana Finance Authority, a body politic and
corporate, not a state agency but an independent instrumentality of the State.
"Finance Authority Bonds" shall mean any Finance Authority State Revolving Fund
Program Bonds or other similar obligations of the Finance Authority issued as a part of the
Wastewater SRF Program within the meaning of the Wastewater SRF Indenture.
"Financial Assistance" shall mean the financial assistance authorized by the Clean Water
Act, including the Loan.
"Fiscal Sustainability Plan" means in connection with a project that provides for the
repair, replacement, or expansion of an existing Treatment Works, a plan that is consistent with
SRF Policy Guidelines including applicable requirements of the Wastewater SRF Act and includes
(a) an inventory of critical assets that are a part of the Treatment Works, (b) an evaluation of the
condition and performance of inventoried assets or asset groupings; (b) a certification that the
Participant has evaluated and will be implementing water and energy conservation efforts as part
of the plan; and (d) a plan for maintaining, repairing, and, as necessary, replacing the Treatment
Works and a plan for funding such activities.
"Loan" shall mean the purchase of the Bonds by the Finance Authority to finance the
planning, designing, constructing, renovating, improving and expanding of the Participant's
Treatment Works or refinance an existing debt obligation where such debt was incurred and
building of such systems began after March 7, 1985, but does not mean the provision of other
Financial Assistance.
"Loan Reduction Payment" shall mean in any circumstances where there is a balance
(inclusive of Loan proceeds and any earnings) in the Construction Fund, any action causing such
balance to be applied to a reduction in the maximum aggregate amount of the Loan outstanding
other than pursuant to regularly scheduled principal payments or optional redemptions applicable
to the Bonds. A Loan Reduction Payment shall not be applicable unless Loan amounts are held in
the Construction Fund.
"Non-Use Close-out Date" shall mean that date which is the earlier of(a)the first date as
of which the full amount of the Loan has been disbursed on a cumulative basis (which shall also
be deemed to have occurred when and if such amounts have been deposited in the Participant's
Construction Fund) or (b) the date as of which the Participant binds itself that no further Loan
disbursements will be made under this Agreement.
4
22401544.v1
"Non-Use Fee" shall mean a fee in an amount determined by the Finance Authority
charged to compensate it for costs and expenses within the Wastewater SRF Program. Such
amount shall be the greater of (A) the product of the undrawn balance of the Loan on each
applicable Non-Use Assessment Date multiplied by one percent(1%)or(B)One Thousand Dollars
($1,000). Such fee shall apply and be payable under Section 5.09 herein with respect to each Non-
Use Assessment Date until the Non-Use Close-out Date shall occur. A Non-Use Fee shall not be.
applicable if the full amount of the Loan has been disbursed and deposited in the Participant's
Construction Fund by the Non-Use Assessment Date.
"Non-Use Assessment Date" shall mean [ 1, 20 1 and the first day of each
sixth (6th) calendar month thereafter unless and until the Non-Use Close-out Date occurs in
advance of any such Non-Use Assessment Date.
"Operation and Maintenance"shall mean the activities required to assure the continuing
dependable and economic function of the Treatment Works, including maintaining compliance
with National Pollutant Discharge Elimination System permits, as follows:
(1) Operation shall mean the control and management of the united processes
and equipment which make up the Treatment Works, including financial and personnel
management,records,reporting,laboratory control,process control, safety and emergency
operation planning and operating activities.
(2) Maintenance shall mean the preservation of the functional integrity and
efficiency of equipment and structures by implementing and maintaining systems of
preventive and corrective maintenance, including replacements.
"Plans and Specifications" shall mean the detailed written descriptions of the work to be
done in undertaking and completing the Project, including the written descriptions of the work to
be performed and the drawings, cross-sections, profiles and the like which show the location,
dimensions and details of the work to be performed.
"Preliminary Engineering Report" shall mean the information submitted by the
Participant that is necessary for the Finance Authority to determine the technical, economic and
environmental adequacy of the proposed Project.
"Project" shall mean the activities or tasks identified and described in Exhibit A to this
Agreement, and incorporated herein, as amended or supplemented by the Participant and
consented to by the Finance Authority, for which the Participant may expend the Loan.
"Purchase Account" shall mean the account by that name created by the Wastewater SRF
Indenture and held as part of the Wastewater SRF Fund.
"SRF Policy Guidelines" shall mean guidance of general applicability (as from time to
time published, amended and supplemented by the Finance Authority) pertaining to participants
utilizing financial assistance in connection with their projects funded in whole or in part through
the Wastewater SRF Program.
5
22401544.v1
"State" shall mean the State of Indiana.
"Substantial Completion of Construction" shall mean the day on which the Finance
Authority(or if designated by the Finance Authority,the Department)determines that all but minor
components of the Project have been built, all equipment is operational and the Project is capable
of functioning as designed.
"System Development Charges" shall mean the proceeds and balances from any non-
recurring charges such as tap fees, subsequent connector fees, capacity or contribution fees, and
other similar one-time charges applicable to the Treatment Works that are available for deposit
under the Authorizing Instrument.
"Treatment Works" shall mean any devices and systems used in the storage, treatment,
recycling,and reclamation of municipal sewage or industrial wastes of a liquid nature to implement
section 201 of the Clean Water Act, or necessary to recycle or reuse water at the most economical
cost over the estimated life of the works, including intercepting sewers, outfall sewers, sewage
collection systems, pumping, power, and other equipment, and their appurtenances; extensions,
improvements, remodeling, additions, and alterations thereof; elements essential to provide a
reliable recycled supply such as standby treatment units and clear well facilities; and acquisition
of the land that will be an integral part of the treatment process (including land use for the storage
of treated wastewater in land treatment systems prior to land application) or will be used for
ultimate disposal of residues resulting from such treatment and acquisition of other land, and
interests in land,that are necessary for construction.
"Trustee" shall mean The Bank of New York Mellon Trust Company,N.A.,Indianapolis,
Indiana, in its capacity as trustee or its successor under the Wastewater SRF Indenture.
"2014 Appropriations Act" shall mean the Consolidated Appropriations Act, 2014 (also
known as H.R. 3457), and other laws, regulations and guidance supplemental thereto (including
the Clean Water Act), as amended and supplemented from time to time.
"Wastewater SRF Fund" shall mean the wastewater revolving loan fund as established
by I.C. 5-1.2-10-2.
"Wastewater SRF Indenture" shall mean the Seventh Amended and Restated
Wastewater SRF Trust Indenture, dated as of September 1, 2019 between the Finance Authority
(as successor by operation of law to the State in all matters related to the Wastewater SRF Program)
and the Trustee, as amended and supplemented from time to time.
(End of Article I)
6
22401544.v1
ARTICLE II
PURPOSE OF BORROWING AND
LOAN TERMS
Section 2.01. Amount; Purpose. The Finance Authority agrees to Loan an amount not
to exceed [ ] Dollars ($[ ]) in aggregate principal amount
to the Participant as Financial Assistance to pay for the Eligible Costs, as hereinafter described, of
the Project on, and subject to,the terms and conditions contained herein. The Loan shall be used
only to pay the following Eligible Costs: (a) eligible planning services for the production of a
Preliminary Engineering Report ("Planning"), (b) eligible design services for the production of
Plans and Specifications ("Design") and (c) eligible construction costs, including financing and
legal costs ("Construction"). The Loan shall be funded solely from available proceeds of the
Finance Authority Bonds contained in the Purchase Account or from other sources that the Finance
Authority may, in its sole discretion, designate. The Loan is evidenced by the Bonds executed and
delivered by the Participant contemporaneously herewith. The Bonds shall be in fully registered
form, with the Finance Authority registered as the registered owner. So long as the Finance
Authority is the registered owner,the principal of and redemption premium, if any,and interest on
the Bonds shall be paid to the Trustee by a wire transfer referenced as follows: The Bank of New
York, ABA 021 000 018, For Credit to 610026840C, Account Name: City of Jeffersonville
Sewage Works, Attn: Derick Rush. The Participant agrees to undertake and complete the Project
and to receive and expend the Loan proceeds in accordance with this Agreement.
Section 2.02. The Bonds.
(a) Until paid, the Bonds will bear interest at the per annum rate of [ ] percent
([ 1%). Such interest shall be calculated on the basis of a 360 day year comprised of twelve
30 day months, and be as provided in I.C. 5-1.2-10-15 and-20. Interest, if any, on the Bonds will
be payable on January 1 and July 1 of each year, commencing [ ] 1, 20[ ]. The Bonds
will be in the aggregate principal amount of[ ] Dollars($[ D. Subject
to Section 2.05 and 2.06 herein, the Bonds will mature on January 1 of each of the years set forth
in, and at the principal amount set opposite each such month and year set forth in the schedule
contained in the attached Exhibit B to this Agreement(which is hereby incorporated by reference);
provided, however, notwithstanding the foregoing or the terms of the Bonds to the contrary, no
maturity of Bonds shall extend beyond the date which is thirty-five(35)years after the date of this
Agreement. If the maturity date for any Bonds is beyond such date, unless otherwise agreed to,
such Bonds, together with accrued and unpaid interest thereon, will be due and payable on such
date.
(b) The Bonds will be subject to redemption by the Participant as provided in the
Authorizing Instrument; provided however that in no event shall the Participant exercise any
provision contained in the Authorizing Instrument or the Bonds permitting a redemption of the
Bonds at the option of the Participant unless and until such has been consented by the Authority.
The Loan, and the Bonds evidencing it, will be subject to payment by the Participant as provided
in this Agreement.
7
22401544.v 1
(c) The form and other terms of the Bonds will be in conformity with the Authorizing
Instrument.
(d)The additional terms contained in the attached Exhibit D are applicable to this Loan(as
and to the extent set forth in Exhibit D)to the same effect as if such were set forth in this section.
Section 2.03. Disbursement Conditions. Each of the following shall be a condition
precedent to the disbursement of the Loan or any portion thereof(including from the Construction
Fund):
(a) (1) With respect to procurement of professional services related to the Project
to be paid from Loan proceeds, the Participant shall have complied with applicable State
law and SRF Policy Guidelines. Additionally costs related Planning and Design shall only
be Eligible Costs upon compliance with paragraph A of the attached Exhibit D. (2) With
respect to procurement of all other goods and services related to the Project to be paid from
Loan proceeds, the Participant shall have complied with I.C. 36-1-12 and SRF Policy
Guidelines.
(b) No representation, warranty or covenant of the Participant contained in this
Agreement or in any paper executed and delivered in connection with the transactions
contemplated by this Agreement shall be false or inaccurate in any material respect.
(c) The Participant shall undertake and faithfully perform each of its obligations,
agreements and covenants contained in this Agreement, the Authorizing Instrument and
the Bonds.
(d) There shall be available to the Finance Authority uncommitted funds in an
amount sufficient to satisfy the Finance Authority's obligations hereunder from the
proceeds of Finance Authority Bonds in the Purchase Account or from other sources that
the Finance Authority may, in its sole discretion, designate; provided however, once Loan
proceeds have been deposited in the Construction Fund, such condition shall be deemed
satisfied.
(e) The Participant shall have undertaken all actions necessary to comply with and
satisfy the conditions and requirements for a Loan secured with money made available
from the Wastewater SRF Fund as set forth in federal and State statutes, rules and
regulations, including I.C. 5-1.2-10, SRF Policy Guidelines, the Clean Water Act and 40
C.F.R. Part 35.
(f) Prior to making any Loan disbursement to pay any Construction costs, the
Project shall have been approved by the State's Historical Preservation Officer in a manner
consistent with the policies and practices of the Wastewater SRF Program (the"Historical
Preservation Approval"). Notwithstanding any provision of this Agreement to the
contrary, in the event a Historical Preservation Approval has not been given within four
(4) months after the date of this Agreement, the Finance Authority may, in its sole
discretion, (i) reduce the aggregate amount of the Loan to the amount then disbursed and
8
22401544.v1
outstanding under this Agreement and(ii)if any amounts are held in the Construction Fund,
require a Loan Reduction Payment pursuant to Section 2.06 herein as if it were a date that
was three(3)years after the dated date of the Bonds. Upon giving notice to the Participant
of such action, no further Loan disbursement(including from the Construction Fund)may
be made under this Agreement unless consented to by the Finance Authority.
(g) In the event the Bonds are payable from rates and charges of the Treatment
Works and if requested by the Finance Authority, the Participant shall provide evidence
satisfactory to the Finance Authority demonstrating that such rates and charges are at a
level adequate to produce and maintain sufficient net revenue after providing for the proper
Operation and Maintenance of the Treatment Works, on a proforma basis consistent with
SRF Policy Guidelines, to provide 1.25x coverage on all obligations of the Treatment
Works (including the Bonds).
Section 2.04. Disbursement Procedures. Loan proceeds (including any held from time
to time in the Construction Fund) shall be disbursed to the Participant by the Disbursement Agent
for actual Eligible Costs incurred with respect to the Project. The Finance Authority may, in its
discretion, cause Loan disbursements to be made (a) directly to the person or entity identified in
the Disbursement Request to whom payment is due, or(b) if advised in writing by the Participant
that I.C. 36-1-12-14 or a similar law applies to the Project, to the Participant for purposes of
collecting retainage, or some combination thereof. Any Loan proceeds in excess of the amount
subject to retainage controlled by the Participant will be immediately remitted to the person or
entity to whom payment is due,no later than three (3) Business Days after receipt or the date such
Loan proceeds are no longer subject to retainage. The Finance Authority may, in its discretion,
cause Loan disbursements to be made from time to time, in whole or in part, to the Participant's
Construction Fund for disbursement consistent with this Agreement. Loan disbursements shall
not be made more frequently than monthly and shall only be made following the submission of a
Disbursement Request to the Finance Authority. Disbursement Requests shall be approved by the
Director of Environmental Programs prior to submission to the Disbursement Agent for a Loan
disbursement. Disbursement Requests shall be numbered sequentially,beginning with the number
1.
Section 2.05. Effect of Disbursements. Loan disbursements made to or for the benefit of
the Participant shall be deemed to be a purchase of the Bonds in such amounts and with such
maturities as achieves as level debt service as practicable, and with no maturity longer than the
original maturity schedule; provided that any principal payments originally scheduled under
Section 2.02 herein as being due prior to one year after Substantial Completion of Construction
shall first be deemed to be a purchase of the Bonds in order of maturity. The deposit of Loan
proceeds in the Construction Fund shall be deemed to be a purchase of the Bonds. Interest on the
Loan commences on disbursement of the Loan to or for the benefit of the Participant (including
any amounts disbursed to the Construction Fund)by the Finance Authority and the Bonds shall be
deemed to be purchased in the full amount thereof. Each disbursement (including any amounts
disbursed from the Construction Fund) shall be made pursuant to a Disbursement Request. In the
event any Loan disbursement(including any amounts disbursed from the Construction Fund) shall
be made in excess of Eligible Costs, such excess disbursements shall be immediately paid by the
Participant to the Disbursement Agent (and if made from any amounts held in the Construction
9
22401544.v1
•
Fund, shall be immediately deposited by the Participant into such Construction Fund) and
thereafter may,subject to the terms and conditions set forth in this Agreement,be applied thereafter.
to pay Eligible Costs of the Project by the Participant.
Section 2.06. Acknowledgment of Amount of Loan; Final Disbursement. (a) Within
30 days after any request by the Finance Authority from time to time,the Participant shall execute
and deliver to the Finance Authority an acknowledgment in the form prescribed by the Finance
Authority which acknowledges the outstanding principal of and interest on the Bonds. Unless the
Finance Authority consents in writing, no Loan disbursement shall be made more than one year
after Substantial Completion of Construction. After Substantial Completion of Construction,upon
the request of the Finance Authority, the Participant shall replace, at its expense, the Bonds with
substitutes issued pursuant to the Authorizing Instrument to evidence the outstanding principal
under the Loan.
(b) In the event there remains a balance (inclusive of Loan proceeds and any earnings) in
the Construction Fund on the date that is the earlier of(i)one year after Substantial Completion of
Construction or(ii)three(3)years after the dated date of the Bonds(or in either such circumstance,
such later date as the Finance Authority may approve in its discretion), the Participant agrees to
make a Loan Reduction Payment, to the Finance Authority within 10 days after any Finance
Authority written demand. Any Loan Reduction Payment shall be applied to pay principal in such
amounts and with such maturities as achieves as level debt service as practicable consistent with
methodology prescribed in the Authorizing Instrument and as originally applied to the Bonds, and
with no maturity longer than the original maturity schedule; provided that any principal payments
originally scheduled under Section 2.02 herein as being due prior to the Loan Reduction Payment
shall be unaffected by such payment.If the Authorizing Instrument permits the Participant to apply
Bond proceeds to pay interest accruing on or before Substantial Completion of Construction, the
Participant may seek to reimburse itself for such interest costs it has paid pursuant to a
Disbursement Request provided. If the Participant fails to make such Loan Reduction Payment by
such date,the Finance Authority and Deposit Agreement Counterparty are authorized to cause any
balance held in the Construction Fund to be so applied without further direction and authorization
from the Participant.Notwithstanding the foregoing, if requested by the Finance Authority, in lieu
of the Participant making a Loan Reduction Payment, the Finance Authority may in its discretion
require the Participant to hold any remaining balance (inclusive of Loan proceeds and any
earnings) in the Construction Fund until such amounts may be applied on the first optional
redemption date applicable to the Bonds,and upon any such request,the Participant agrees to cause
such amounts to be so held and applied on such date.
(End of Article II)
10
22401544.v1
ARTICLE III
REPRESENTATIONS,WARRANTIES AND COVENANTS
OF THE PARTICIPANT
Section 3.01. Planning, Design and Construction Covenants. The Participant hereby
covenants and agrees with the Finance Authority that the Participant will:
(a) Provide information as requested by the. Finance Authority to determine the
need for, or to complete any necessary, environmental review or analysis.
(b) Comply with the procurement procedures and affirmative action requirements
contained in SRF Policy Guidelines in the Planning,Design and Construction of the Project
to the extent that such are to be paid from Loan proceeds.
(c) With respect to prime and first tier contract awards,report minority and women
business enterprise utilization in the Planning, Design and Construction of the Project, to
the extent that such are to be paid from Loan proceeds,by executing and deliveringAgency
Form SF 5700-52 to the Finance Authority whenever any agreements or subagreements
are awarded. (These reports must be submitted on regular reporting cycles consistent with
SRF Policy Guidelines commencing after such agreement or subagreement is awarded.)
(d) Comply with all applicable federal, State and local statutes, rules and
regulations relating to the acquisition and construction of the Treatment Works.
(e) In the event Construction is to be paid from Loan proceeds, prior to an award
of any contract for Construction of the Project, obtain a construction permit from the
Department and receive the written approval of the Finance Authority of the Preliminary
Engineering Report.
(f) Obtain the property rights necessary to construct the Treatment Works and, in
procuring any such rights comply with federal and State law.
(g) In the event Construction is to be paid from Loan proceeds, comply with the
federal Davis-Bacon Act, codified at 40 U.S.C. 276a-276a-5 unless separately waived by
the Finance Authority.
(h) In the event Construction is to be paid from Loan proceeds,execute and deliver
to the Finance Authority,Agency Form 4700-4 ("Pre-award Compliance Review Report
for Wastewater Treatment Construction Grants") and such other forms as may be required
by the Clean Water Act or SRF Policy Guidelines.
(i) In the event Construction is to be paid from Loan proceeds, follow guidance
issued by the Finance Authority in procuring contracts for Construction, including (1)
submission to the Finance Authority of Project change orders, (2) obtaining approval from
the Director of Environmental Programs of any Project change order which significantly
11
22401544.v1
changes the scope or Design of the Project or,when taking into account other change orders
and contracts, are reasonably expected to result in expenditures in an amount greater than
the Loan, (3)receiving approval from the Director of Environmental Programs prior to the
award of any contract for Construction and (4) receiving authorization from the Director
of Environmental Programs prior to initiating procurement of Construction of the Project.
(j) In the event Construction is to be paid from Loan proceeds, before awarding
Construction contracts, receive approval of the Director of Environmental Programs for
the user charge system (including any use ordinance and interlocal agreement) associated
with the Project.
(k) In the event Construction is to be paid from Loan proceeds, cause the Project
to be constructed in accordance with the Preliminary Engineering Report and Plans and
Specifications, using approved contract papers.
(1) Permit the Finance Authority and its agents to inspect from time to time (1)the
Project, (2) the Treatment Works and (3) the books and other financial records of the
Treatment Works, including the inspections described in SRF Policy Guidelines.
Construction contracts shall provide that the Finance Authority or its agents will have
access to the Project and the work related thereto and that the Participant's contractor will
provide proper facilities for such access and inspection. All files and records pertaining to
the Project shall be retained by the Participant for at least six years after Substantial
Completion of Construction.
(m) Upon Substantial Completion of Construction and when requested by the
Finance Authority,provide audited reports to the Finance Authority to permit the Finance
Authority to determine that the Loan proceeds have been used in compliance with this
Agreement.
(n) In the event Construction is to be paid from Loan proceeds, within one year of
Substantial Completion of Construction,consistent with SRF Policy Guidelines, certify to
the Finance Authority that the Project meets performance standards, or if not met, (1)
submit to the Finance Authority(or if directed by the Finance Authority,to the Department)
a corrective action plan and (2) promptly and diligently undertake any corrective action
necessary to bring the Project into compliance with such standards.
(o) In the event Construction is to be paid from Loan proceeds, within one year of
Substantial Completion of Construction, provide as-built plans for the Project to the
Finance Authority (or if directed by the Finance Authority,to the Department).
Section 3.02. General Covenants. The Participant hereby covenants and agrees with the
Finance Authority that the Participant will:
(a) Comply with all applicable federal, State and local statutes, rules and
regulations relating to Operation and Maintenance.
12
22401544.v 1
(b) (1) Own, operate and maintain the Project and the Treatment Works for their
useful life,or cause them to be operated and maintained for their useful life; (2)at all times
maintain the Treatment Works in good condition and operate it in an efficient manner and
at a reasonable cost; and (3) not sell, transfer, lease or otherwise encumber the Treatment
Works or any portion thereof or any interest therein without the prior written consent of
the Finance Authority.
(c) Obtain and maintain the property rights necessary to operate and maintain the
Treatment Works, and in procuring any such rights, comply with federal and State law.
(d) Acquire and maintain insurance coverage acceptable to the Finance Authority,
including fidelity bonds, to protect the Treatment Works and its operations. All insurance
shall be placed with responsible insurance companies qualified to do business under State
law. Insurance proceeds and condemnation awards shall be used to replace or repair the
Treatment Works unless the Finance Authority consents to a different use of such proceeds
or awards.
(e) Establish and maintain the books and other financial records of the Project
(including the establishment of a separate account or subaccount for the Project) in
accordance with (1) generally accepted governmental accounting principles, as
promulgated by the Government Accounting Standards Board (including GASB No. 34
standards relating to the reporting of infrastructure) and (2) the rules, regulations and
guidance of the State Board of Accounts.
(f) Provide to the Finance Authority such periodic financial and environmental
reports as it may request from time to time, including (1) annual operating and capital
budgets and (2) such other information requested or required of the Finance Authority or
the Participant by the Agency.
(g) Provide to the Finance Authority audited financial statements of the Participant
inclusive of the activities of the Treatment Works, commencing with financial statements
for a calendar year period that ends not more than two (2) years after the date of this
Agreement(and for each calendar year period that ends every two (2)years thereafter until
the Loan has been repaid), which audit (i) shall have been performed by the Indiana State
Board of Accounts or by an independent public accountant and (ii) shall be submitted to
the Finance Authority no later than nine (9)months following the end of the calendar year
period to which such audit pertains.
(h) Develop, certify, implement and maintain an Asset Management Program
(including a Fiscal Sustainability Plan)of the Participant that meets SRF Policy Guidelines
including applicable requirements of the Wastewater SRF Act. The Participant
acknowledges that its agreement to develop, certify, implement and maintain an Asset
Management Program (including a Fiscal Sustainability Plan) as provided in this
subsection was a condition of the Loan. Unless the Participant's Asset Management
Program (including a Fiscal Sustainability Plan) was certified prior to the date of this
Agreement, the Participant agrees to submit a certification (on and in a form as provided
13
22401544.v 1
by the Finance Authority) related to the Participant's Asset Management Program
(including a Fiscal Sustainability Plan) prior to submitting its request for a final Loan
disbursement related to the Project. Over the term of the Loan, the Participant further
agrees to continue to update, implement and maintain the Participant's Asset Management
Program (including a Fiscal Sustainability Plan)to assure it has the financial, managerial,
technical, and legal capability to operate and maintain its Treatment Works consistent with
SRF Policy Guidelines including applicable requirements of the Wastewater SRF Act.
(i) Provide notice to the Finance Authority under the circumstances contemplated,
and undertake inspections as required, by SRF Policy Guidelines.
(j) (1) Establish and maintain just and equitable rates and charges for the use of
and the service rendered by the Treatment Works, to be paid by the owner of each and
every lot, parcel of real estate or building that is connected with and uses the Treatment
Works, or that in any way uses or is served by the Treatment Works, (2) establish, adjust
and maintain rates and charges at a level adequate to produce and maintain sufficient
revenue (when determined including user and other charges, fees, income or revenues
available to the Participant, provided that to the extent permitted by law System
Development Charges shall be excluded when determining if such are sufficient)to provide
for the proper Operation and Maintenance of the Treatment Works, to comply with and
satisfy all covenants contained herein and to pay all obligations of the Treatment Works
and of the Participant with respect thereto, and (3) if and to the extent Bonds are payable
from property taxes, levy each year a special ad valorem tax upon all property located in
the boundaries of the Participant, to pay all obligations of the Participant with respect
thereto.
(k) If the Bonds are payable from the revenues of the Treatment Works,not borrow
any money,enter into any contract or agreement or incur any other liabilities in connection
with the Treatment Works without the prior written consent of the Finance Authority if
such undertaking would involve, commit or use the revenues of the Treatment Works;
provided that the Participant may authorize and issue additional obligations, payable out
of the revenues of its Treatment Works,ranking on a parity with the Bonds for the purpose
of financing the cost of future additions, extensions and improvements to the Treatment
Works, or to refund obligations of the Treatment Works, subject to the conditions, if any,
in the Authorizing Instrument.
(1) Comply with the Civil Rights Act of 1964, as amended, 42 U.S.C.
Section 2000d et seq., the Age Discrimination Act, as amended, Public Law 94-135,
Section 504 of the Rehabilitation Act of 1973, as amended (including Executive Orders
11914 and 11250), 29 U.S.C. Section 794, Section 13 of the Federal Water Pollution
Control Act Amendments of 1972, Public Law 92-500, Executive Order 11246 regarding
equal employment opportunity, and Executive Orders 11625 and 12138.
(m) Undertake all actions necessary to investigate all potential, material claims
which the Participant may have against other persons with respect to the Treatment Works
and the Project and take whatever action is necessary or appropriate to (1) recover on any
14
22401544.v1
actionable, material claims related to the Project or the Planning, Design or Construction
thereof, (2) meet applicable Project performance standards and (3) otherwise operate the
Treatment Works in accordance with applicable federal, State and local law.
(n) Not modify, alter, amend, add to or rescind any provision of the Authorizing
Instrument without the prior written consent of the Finance Authority.
(o) In the event the Participant adopts an ordinance or resolution to refund the Bonds,
within 5 days of the adoption of the ordinance or resolution, provide written notice to the
Finance Authority of the refunding.Any refunding of the Bonds shall only be undertaken by
the Participant with the prior written consent of the Finance Authority.
(p) In any year in which total expenditures of Federal financial assistance received
from all sources exceeds $750,000 the Participant shall comply with the Federal Single
Audit Act (SAA) of 1984, as amended by the Federal Single Audit Act Amendments of
1996 (see 2 CFR 200 Subpart F) and have an audit of their use of Federal financial
assistance.The Participant agrees to provide the Finance Authority with a copy of the SAA
audit within 9 months of the audit period.
(q) Inform the Finance Authority of any findings and recommendations pertaining
to the SRF program contained in an audit of 2 CFR 200 Subpart F (a/Ida"Super Circular")
matters in which SRF Federal financial assistance was less than$750,000.
(r) Initiate within 6 months of the audit period corrective actions for those audit
reports with findings and recommendations that impact the SRF financial assistance.
(s) Notwithstanding anything in the Authorizing Instrument related to the Bonds
(or in any authorizing instrument related to any other outstanding bonds payable from the
revenues of the Treatment Works which are on a parity with the Bonds)to the contrary, in
the event any Credit Provider that has provided a Credit Instrument fails to be rated on a
long term basis at least "A-/A3" by Standard &Poor's Ratings Services, a Division of the
McGraw-Hill Companies, and Moody's Investors Service, Inc., and their successors (such
Credit Instrument, a "Disqualified Instrument"), within 12 months of such failure (or
pursuant to such other schedule as may be approved by the Finance Authority), the
Participant shall cause cash (or a replacement Credit Instrument from a Credit Provider
that is rated on along term basis at least"AA-/Aa3"by Standard&Poor's Ratings Services,
a Division of the McGraw-Hill Companies, and Moody's Investors Service, Inc., and their
successors)(or some combination thereof)in an aggregate amount equal to the stated credit
available under the Disqualified Instrument(s) to be deposited in the related reserve
account(s) in lieu of such Disqualified Instrument(s). No Disqualified Instrument shall be
included as part of the reserve balance which satisfies any such reserve requirement under
any such authorizing instrument. Nothing in this subsection shall waive or modify
additional requirements contained in any such authorizing instrument (including the
Authorizing Instrument related to the Bonds); the provisions of this subsection and any
such authorizing instrument (including the Authorizing Instrument related to the Bonds)
shall both be required to be met. Unless and until notice shall be given by the Finance
15
22401544.v 1
Authority to the Participant, a surety policy issued by MBIA Insurance Corporation or
Financial Guaranty Insurance Company that has been reinsured by National Public Finance
Guarantee Corporation(formerly known as MBIA Insurance Corp. of Illinois) shall not be
treated as a Disqualified Instrument.
(t) (i) comply with Title 40 CFR Part 34 (New Restrictions on Lobbying) and the
Byrd Anti-Lobbying Amendment("Lobbying Restrictions"); (ii)provide certifications and
disclosures related to Lobbying Restrictions in a form and manner as may from time to
time be required by SRF Policy Guidelines or the Clean Water Act including without
limitation the Lobbying Restrictions; and(iii)pay any applicable civil penalty required by
the Lobbying Restrictions as may be applicable to making a prohibited expenditure under
Title 40 CFR Part 34, or failure to file any required certification or lobbying
disclosures. The Participant understands and acknowledges that pursuant to such
Lobbying Restrictions,the making of any such prohibited expenditure, or any such failure
to file or disclose, is subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure or failure.
(u) Comply with all federal requirements applicable to the Loan (including those
imposed by the 2014 Appropriations Act and related SRF Policy Guidelines) which the
Participant understands includes, among other, requirements that all of the iron and steel
products used in the Project are to be produced in the United States ("American Iron and
Steel Requirement") unless (i) the Participant has requested and obtained a waiver from
the Agency pertaining to the Project or (ii) the Finance Authority has otherwise advised
the Participant in writing that the American Iron and Steel Requirement is not applicable
to the Project.
(v) Comply with all record keeping and reporting requirements under the Clean
Water Act, including any reports required by a Federal agency or the Finance
Authority such as performance indicators of program deliverables, information on costs
and project progress. The Participant understands that(i) each contract and subcontract
related to the Project is subject to audit by appropriate federal and state entities and
(ii)failure to comply with the Clean Water Act and this Agreement may be a default
hereunder that results in a repayment of the Loan in advance of the maturity of the Bonds
and/or other remedial actions.
(w) Whenever from time to time requested by the Finance Authority, submit
evidence satisfactory to the Finance Authority demonstrating that the Participant's rates
and charges are at a level adequate to produce and maintain sufficient net revenue after
providing for the proper Operation and Maintenance of the Treatment Works, on a
proforma basis consistent with SRF Policy Guidelines, to provide 1.25x coverage on all
obligations of the Treatment Works (including the Bonds) and, in the event the
Participant's rates and charges are insufficient to demonstrate such coverage, then to the
extent permitted by law annually enact an increase in its rates and charges reasonably
designed to be consistent with SRF Policy Guidelines regarding such coverage.
(x)Notwithstanding any provision of the Authorization Instrument to the contrary,
16
22401544.v1
not make any payment in lieu of property taxes from any account of the Treatment Works
(i) if the Finance Authority provides notice to the Participant that the Finance Authority
has determined in its reasonable discretion that such a transfer adversely affects the Finance,
Authority and (ii) more frequently than semiannually if the Authority provides notice to
the Participant so requiring such a limitation on frequency.
(y) Comply with all requirements of this Agreement applicable to the Loan
(including those imposed by the attached Exhibit D).
Section 3.03. Representations and Warranties of the Participant. After due
investigation and inquiry, the Participant hereby represents and warrants to the Finance Authority
that:
(a) The Participant is duly organized and existing under State law, and constitutes
a"political subdivision"within the meaning of I.C. 5-1.2-2-57) and a"participant"within
the meaning of I.C. 5-1.2-2-54. The Project and the Treatment Works are subject to I.C.
36-9-23.
(b) The Participant has full power and authority to adopt the Authorizing
Instrument, enter into this Agreement and issue the Bonds and perform its obligations
hereunder and thereunder.
(c) By all required action, the Participant has 'duly adopted the Authorizing
Instrument and authorized the execution and delivery of this Agreement,the Bonds and all
other papers delivered in connection herewith.
(d) Neither the execution of, nor the consummation of the transaction
contemplated by,this Agreement nor the compliance with the terms and conditions of any
other paper referred to herein,shall conflict with,result in a breach of or constitute a default
under, any indenture,mortgage, lease, agreement or instrument to which the Participant is
a party or by which the Participant or its property,including the Treatment Works,is bound
or any law, regulation, order, writ, injunction or decree of any court or governmental
agency or instrumentality having jurisdiction.
(e) There is no litigation pending or, to the knowledge of the Participant, upon
investigation, threatened that (1) challenges or questions the validity or binding effect of
this Agreement, the Authorizing Instrument or the Bonds or the authority or ability of the
Participant to execute and deliver this Agreement or the Bonds and perform its obligations
hereunder or thereunder or (2) would, if adversely determined, have a significant adverse
effect on the ability of the Participant to meet its obligations under this Agreement, the
Authorizing Instrument or the Bonds.
(f) The Participant has not at any time failed to pay when due interest or principal
on, and it is not now in default under, any warrant or other evidence of obligation or
indebtedness of the Participant.
17
22401544.v1
(g) All information furnished by the Participant to the Finance Authority or any of
the persons representing the Finance Authority in connection with the Loan or the Project
is accurate and complete in all material respects including compliance with the obligations,
requirements and undertakings imposed upon the Participant pursuant to this Agreement.
(h) The Participant has taken or will take all proceedings required by law to enable
it to issue and sell the Bonds as contemplated by this Agreement.
(i) For any outstanding bonds payable from the revenues of the Treatment Works
which are on a parity with the Bonds, each Credit Provider, if any, that has provided a
Credit Instrument is at least rated on a long term basis "A-/A3" long term by Standard &
Poor's Ratings Services, a Division of the McGraw-Hill Companies and Moody's Investors
Service,Inc.,and their successors, except as represented and set forth in Exhibit C attached
thereto (and with respect to which true, accurate and complete copies of each such Credit
Instrument have been delivered to the Finance Authority).
Each of the foregoing representations and warranties will be deemed to have been made by
the Participant as of the date of this Agreement and as of the date of any disbursement of Loan
proceeds (including from the Construction Fund). Each of the foregoing representations and
warranties shall survive the Loan disbursements regardless of any investigation or investigations
the Finance Authority may have undertaken.
Section 3.04. Covenants Regarding Assignment. The Participant acknowledges that the
Finance Authority may pledge, sell or assign the Bonds or cause the Bonds to be pledged, sold or
assigned,and certain of its rights related thereto,as permitted pursuant to Section 5.02 herein. The
Participant covenants and agrees to cooperate with and assist in, at its expense, any such
assignment. . Within 30 days following a request by the Finance Authority, the Participant
covenants and agrees with the Finance Authority that the Participant will, at its expense, furnish
any information, fmancial or otherwise, with respect to the Participant, this Agreement, the
Authorizing Instrument and the Bonds and the Treatment Works as the Finance Authority
reasonably requests in writing to facilitate the sale or assignment of the Bonds.
Section 3.05. Nature of Information. All information furnished by the Participant to the
Finance Authority or any person representing the Finance Authority in connection with the Loan
or the Project may be furnished to any other person the Finance Authority, in its judgment, deems
necessary or desirable in its operation and administration of the Wastewater SRF Program.
Section 3.06. Tax Covenants. The Participant hereby covenants that it will not take, or
cause or permit to be taken by it or by any party under its control, or fail to take or cause to permit
to be taken by it or by any party under its control, any action that would result in the loss of the
exclusion from gross income for federal income tax purposes of interest on the Bonds pursuant to
Section 103 of the Code. The Participant further covenants that it will not do any act or thing that
would cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the
Code or"arbitrage bonds"within the meaning of Section 148 of the Code. In furtherance and not
in limitation of the foregoing, the Participant shall take all action necessary and appropriate to
comply with the arbitrage rebate requirements under Section 148 of the Code to the extent
18
22401544.v1
applicable to the Participant or the Bonds, including accounting for and making provision for the
payment of any and all amounts that may be required to be paid to the United States of America
from time to time pursuant to Section 148 of the Code.
Section 3.07. Non-Discrimination Covenant. Pursuant to and with the force and effect
set forth in I.C. 22-9-1-10,the Participant hereby covenants that the Participant, and its contractor
and subcontractor for the Project, shall not discriminate against any employee or applicant for
employment,to be employed in the performance of this Agreement,with respect to the hire,tenure,
terms, conditions or privileges of employment, or any matter directly or indirectly related to
employment, because of race, color,religion, sex, disability, national origin or ancestry.
(End of Article III)
19
22401544.v1
ARTICLE IV
DEFAULTS
Section 4.01. Remedies. The Finance Authority's obligation to make a disbursement
under the Loan to the Participant hereunder may be terminated at the option of the Finance
Authority,without giving any prior notice to the Participant, in the event: (a)the Participant fails
to undertake or perform in a timely manner any of its agreements, covenants, terms or conditions
set forth herein or in any paper entered into or delivered in connection herewith (including the
Authorizing Instrument); or(b) any representation or warranty made by the Participant as set forth
herein or in any paper entered into or delivered in connection herewith is materially false or
misleading. Any such event shall constitute an event of default and in addition to any other
remedies at law or in equity, the Finance Authority may (x) require a Loan Reduction Payment
pursuant to Section 2.06 herein as if it were a date that was three (3) years after the dated date of
the Bonds, (y) in the event a Deposit Agreement has not previously been entered into related to
the Participant's Bond Fund (including any related reserve), require the Participant to enter into a
Deposit Agreement (or to modify any such previously entered Deposit Agreement) and the
Participant shall enter into (or modify) such an agreement within 5 days after any such demand
and (z) without giving any prior notice, declare the entire outstanding principal amount of the
Loan,together with accrued interest thereon, immediately due and payable.
Section 4.02. Effect of Default. Failure on the part of the Finance Authority in any
instance or under any circumstance to observe or perform fully any obligation assumed by or
imposed upon the Finance Authority by this Agreement or by law shall not make the Finance
Authority liable in damages to the Participant or relieve the Participant from paying any Bond or
fully performing any other obligation required of it under this Agreement or the Authorizing
Instrument; provided, however, that the Participant may have and pursue any and all other
remedies provided by law for compelling performance by the Finance Authority of such obligation
assumed by or imposed upon the Finance Authority. The obligations of the Finance Authority
hereunder do not create a debt or a liability of the Finance Authority or the State under the
constitution of the State or a pledge of the faith or credit of the Finance Authority or the State and
do not directly, indirectly or contingently, obligate the Finance Authority or the State to levy any
form of taxation for the payment thereof or to make any appropriation for their payment. Neither
the Finance Authority or the State, nor any agent, attorney, member or employee of the Finance
Authority or the State shall in any event be liable for damages, if any, for the nonperformance of
any obligation or agreement of any kind whatsoever set forth in this Agreement.
Section 4.03. Defaults under Other Agreements. The Participant and the Finance
Authority agree that any event of default occurring under the Other Agreements shall constitute
an event of default under this Agreement. Similarly, the Participant and the Finance Authority
agree that any event of default under this Agreement,or under any subsequent financial assistance
agreement entered into between the Participant and the Finance Authority,shall constitute an event
of default under the Other Agreements and the subsequent financial assistance agreement, if any,
as the case may be.
(End of Article IV)
20
22401544:v1
ARTICLE V
MISCELLANEOUS
Section 5.01. Citations. Any reference to a part, provision, section or other reference
description of a federal or State statute, rule or regulation contained herein shall include any
amendments, replacements or supplements to such statutes, rules or regulation as may be made
effective from time to time. Any reference to a Loan disbursement shall include any disbursement
from the Construction Fund. Any use of the term"including"herein shall not be a limitation as to
any provision herein contained but shall mean and include,without limitation,the specific matters
so referenced.
Section 5.02. Assignment. Neither this Agreement,nor the Loan or the proceeds thereof
may be assigned by the Participant without the prior written consent of the Finance Authority and
any attempt at such an assignment without such consent shall be void. The Finance Authority may
at its option sell or assign all or a portion of its rights and obligations under this Agreement, the
Authorizing Instrument, and the Bonds to an agency of the State or to a separate body corporate
and politic of the State or to a trustee under trust instrument to which the Finance Authority, the
State or any assignee is a beneficiary or party. The Finance Authority may at its option pledge or
assign all or a portion of its rights under this Agreement, the Authorizing Instrument, and the
Bonds to any person. The Participant hereby consents to any such pledge or assignment by the
Finance Authority. This Agreement shall be binding upon and inure to the benefit of any permitted
secured party, successor and assign.
Section 5.03. No Waiver. Neither the failure of the Finance Authority nor the delay of
the Finance Authority to exercise any right,power or privilege under this Agreement shall operate
as a waiver thereof,nor shall any single or partial exercise of any right,power or privilege preclude
any other further exercise of any other right,power or privilege.
Section 5.04. Modifications. No change or modification of this Agreement shall be valid
unless the same is in writing and signed by the parties hereto.
Section 5.05. Entire Agreement. This Agreement contains the entire agreement between
the parties hereto and there are no promises, agreements, conditions, undertakings, warranties and
representations, either written or oral, expressed or implied between the parties hereto other than
as herein set forth or as may be made in the Authorizing Instrument and the other papers delivered
in connection herewith. In the event there is a conflict between the terms of this Agreement and
the Authorizing Instrument, the terms of this Agreement shall control. It is expressly understood
and agreed that except as otherwise provided herein this Agreement represents an integration of
any and all prior and contemporaneous promises,agreements,conditions,undertakings,warranties
and representations between the parties hereto. The Original Agreement shall be deemed merged
herein and of no further force or effect. This Agreement shall not be deemed to be a merger or
integration of the existing terms under the Other Agreements except as expressly set forth in
Section 4.03 herein.
Section 5.06. Execution of Counterparts. This Agreement may be executed in any
21
22401544.v1
number of counterparts, each of which shall be executed by the Finance Authority and the
Participant, and all of which shall be regarded for all purposes as one original and shall constitute
one and the same instrument.
Section 5.07. Severability of Invalid Provisions. If any one or more of the covenants or
agreements provided in this Agreement on the part of the Finance Authority or the Participant to
be performed shall be deemed by a court of competent jurisdiction to be contrary to law or cause
the Bonds to be invalid as determined by a court of competent jurisdiction, then such covenant or
covenants or agreement or agreements shall be deemed severable from the remaining covenants
and agreements and waived and shall in no way affect the validity of the other provisions of this
Agreement.
Section 5.08. Notices. All notices hereunder shall be sufficiently given for all purposes
hereunder if in writing and delivered personally or sent or transmitted to the appropriate destination
as set forth below in the manner provided for herein. Notice to the Finance Authority shall be
addressed to:
Indiana Finance Authority
SRF Programs
100 North Senate, Room 1275
Indianapolis, Indiana 46204
Attention: Director of Environmental Programs
or at such other address(es)or number(s)and to the attention of such other person(s)as the Finance
Authority may designate by notice to the Participant. Notices to the Participant shall be addressed
to:
City of Jeffersonville, Indiana
500 Quartermaster Court
Jeffersonville, IN 47130
Attention: Controller
or at such other address(es) or number(s) and to the attention of such other person(s) as the
Participant may designate by notice to the Finance Authority. Any notice hereunder shall be
deemed to have been served or given as of(a)the date such notice is personally delivered,(b)three
(3) Business Days after it is mailed U.S. mail, First Class postage prepaid, (c) one (1) Business
Day after it is sent on such terms by Federal Express or similar next-day courier, or (d)the same
day as it is sent by facsimile transmission with telephonic confirmation of receipt by the person to
whom it is sent.
22
22401544.v 1
Section 5.09. Expenses. The Participant covenants and agrees to pay (a) the fees, costs
and expenses in connection with making the Loan, including issuing the Bonds and providing the
necessary certificates, documents and opinions required to be delivered therewith; (b) the fees,
costs and expenses in connection with making and administering the Loan; (c) the costs and
expenses of complying with its covenants made herein; and (d) any and all costs and expenses,
including attorneys' fees, incurred by the Finance Authority in connection with the enforcement
of this Agreement, the Authorizing Instrument and the Bonds in the event of the breach by the
Participant of or a default under this Agreement, the Authorizing Instrument or the Bonds.
Notwithstanding clause (b) above, the Participant shall not be obligated to pay any of the fees,
costs and expenses in connection with administering the Loan except as follows: (1)the Finance
Authority may request and the Participant shall promptly pay (no later than the date first above
written), a closing fee in connection with the Loan in an amount determined by the Finance
Authority, but not exceeding $1,000, which may not be paid from a Loan disbursement; (2) the
Finance Authority may request and the Participant shall promptly pay (no later than thirty (30)
days after any request), an annual administrative fee in connection with the Loan in an amount
determined by the Finance Authority, but not exceeding $1,000, which may not be paid from a
Loan disbursement; (3)the Finance Authority may request and the Participant shall promptly pay
(no later than thirty (30) days after any request), a Non-Use Fee in connection with the Loan,
which may not be paid from a Loan disbursement; (4) for so long as the Finance Authority is the
registered owner of the Bonds, at the direction of the Finance Authority, the interest rate on the
Bonds may be adjusted to lower the interest rate on the Bonds, and the difference between the
amount payable as the original rate on the Bonds and the lower rate shall be deemed an additional
administrative fee in connection with the Wastewater SRF Program; and (5) the Participant shall
only be obligated to pay fees, costs and expenses of the Finance Authority's counsel and financial
advisers in connection with making the Loan up to $10,000, which may be paid from a Loan
disbursement.
Section 5.10. Applicable Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Indiana.
Section 5.11. Term. This Agreement shall terminate at such time as the Participant has
fully met and discharged all of its obligations hereunder, which term may extend beyond the final
payment of the Bonds or provision for the payment of the Bonds pursuant to the Authorizing
Instrument.
Section 5.12. Non-Collusion. The undersigned attests, subject to the penalties of perjury,
that he/she is an authorized officer or representative of the Participant,that he/she has not,nor has
any other officer or representative of the Participant, directly or indirectly, to the best of the
undersigned's knowledge, entered into or offered to enter into any combination, collusion or
agreement to receive pay, and that the undersigned has not received or paid any sum of money or
other consideration for the execution of this Agreement other than that which appears upon the
face of the agreement or is a payment to lawyers, accountants and engineers by the Participant
related to customary services rendered in connection with the Loan.
23
22401544.v1
Section 5.13. Federal Award Information. The CFDA Number for the Finance
Authority's Wastewater SRF Program (also known as the Clean Water SRF Loan Program) is
66.458 and the Federal Agency & Program Name is "US Environmental Protection Agency
Capitalization Grant for Clean Water State Revolving Funds."
(End of Article V)
[THE REMAINDER OF THIS PAGE HAS
BEEN INTENTIONALLY LEFT BLANK]
24
22401544.v1
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by
their duly authorized officers or officials, all as of the date first above written.
CITY OF JEFFERSONVILLE,INDIANA INDIANA FINANCE AUTHORITY
"Participant" "Finance Authority"
By: By:
James P. McGoff
Printed: Director of Environmental Programs
Title:
Attest: -
(Signature Page to Financial Assistance Agreement)
22401544.v1
EXHIBIT A
Project Description
The Project consists of the following improvements to the Participant's Treatment Works:
• Expansion of the existing headworks building, including a new fine screen, grit
removal system, grit washer, Parshall flume, and odor control system;
• Modifications to the existing oxidation ditch and secondary clarifiers;
• New oxidation ditch with biological nutrient removal, aerators and mixers;
• MLSS splitter box modifications;
• Two new circular clarifiers with RAS/WAS pump stations;
• New UV disinfection system, replacing the existing system;
• Cascade aeration improvements, including replacement flume;
• Non-potable water pump station expansion;
• Sludge digestion improvements, including new sludge holding tank, blowers and
diffusers;
• Sludge dewatering improvements, including new centrifuge, conveyors, polymer
feed and sludge pumps;
• New plant recycle pump station;
• Chemical feed/storage building;
• New administration building;
• Backup generator; and
• Conveyance piping, electrical, instrumentation and controls.
• PVC pipe liner installation equipment;
• Utility truck with command center control room;
• Portable generator;
• Wash down system;
• Cutter robot and control systems;
• Camera with appurtenances;
• Portable air compressor;
• Steam boiler with generator;
• Winch;
• Over-the-axle trailer;
• Reel trailer; and
• Stem hoses, fittings, and lining tools.
The Project is more fully described in, and shall be in accordance with, the Preliminary
Engineering Report and the Plans and Specifications approved by the Finance Authority (or if
designated by the Finance Authority,the Department).
[End of Exhibit A]
A-1
22401544.v1
EXHIBIT B
Principal Payment Schedule for the Bonds
Maturity Date Principal
Amount
01/01/2023 $
01/01/2024
01/01/2025
01/01/2026
01/01/2027
01/01/2028
01/01/2029
01/01/2030
01/01/2031
01/01/2032
01/01/2033
01/01/2034
01/01/2035
01/01/2036
01/01/2037
01/01/2038
01/01/2039
01/01/2040
01/01/2041
01/01/2042
01/01/2043
01/01/2044
01/01/2045
01/01/2046
01/01/2047
01/01/2048
01/01/2049
01/01/2050
01/01/2051
01/01/2052
01/01/2053
01/01/2054
01/01/2055
01/01/2056
01/01/2057
TOTAL $
[End of Exhibit B]
22401544.v1
EXHIBIT C
Credit Instrument
Credit Providers rated on a long term basis lower than "A-/A3" long term by Standard&
Poor's Ratings Services, a Division of the McGraw-Hill Companies and Moody's Investors
Service, Inc. are:
• None.
[End of Exhibit C]
•
22401544.v1
Exhibit D
Additional Terms
A. The following additional terms in this Paragraph A are NOT applicable to the Loan:
"Equivalency Project" shall mean a project designated by the Finance Authority
as an"equivalency project" under the Clean Water Act related to the "US Environmental
Protection Agency Capitalization Grant for Clean Water State Revolving Funds" for the
federal fiscal year ending September 30, 2022 (or such later federal fiscal year as the
Finance Authority may otherwise designate).
"A/E Services" shall mean professional services related to the Planning or Design
of the Project including for program management, construction management, feasibility
studies,preliminary engineering,design,engineering, surveying,mapping, or architectural
related services.
The Participant understands and acknowledges that the Project has been designated as an
Equivalency Project and is required to meet the related applicable requirements of the
Clean Water Act which among other requirements requires that for costs of Planning or
Design (including costs for A/E Services) to be treated as Eligible Costs under this
Agreement, such services (and the related contract) are required to be negotiated in the
same manner as a contract for architectural and engineering services as negotiated under
chapter 11 of title 40,United States Code(as amended). In connection with any request for
disbursement of the Loan that is submitted by the Participant to the Finance Authority to
provide for the payment of any costs of Planning or Design (including costs for A/E
Services), the Participant represents and warrants that such costs relate only to services
provided under a contract negotiated in the same manner as a contract for architectural and
engineering services as negotiated under chapter 11 of title 40, United States Code (as
amended).
The Participant further understands and agrees that it is required to comply with all terms
of 2 CFR 200.216, Prohibition on certain telecommunication and video surveillance
services or equipment,which among other requirements prohibits the use of Loan proceeds
by the Participant to procure (by means of entering into, extending, or renewing contracts)
or obtain equipment, systems or services that use"covered telecommunications equipment
or services" identified in the regulation as a substantial or essential component of any
Treatment Works, or as critical technology as part of any Treatment Works. Such
prohibitions extend to the use of Loan proceeds by the Participant to enter into a contract
with an entity that "uses any equipment, system, or service that uses covered
telecommunications equipment or services" as a substantial or essential component of any
Treatment Works,or as critical technology as part of any Treatment Works.The Participant
represents and warrants that it has not procured or obtained from Loan proceeds equipment,
systems or services that use "covered telecommunications equipment or services"
identified in the regulation as a substantial or essential component of any Treatment Works,
D-1
22401544.v1
or as critical technology as part of any Treatment Works.
B. The following additional terms in this Paragraph B (related to GPR Projects and the related
defined terms) are NOT applicable to the Loan.
"GPR Projects" shall mean Project components that meet the requirement of the
"Green Project Reserve(GPR) Sustainability Incentive Program" consistent with SRF Policy
Guidelines including applicable requirements of the Wastewater SRF Act.
"GPR Projects Adjustment Fee" shall mean an amount which would equal the gross
additional interest that would have accrued on the Bonds from the date of this Agreement
through their scheduled final maturity, had such Bonds been issued at an interest rate
determined under the Wastewater SRF Program's interest rate policies and practices using the
final, actual GPR Projects Expenditures (rather than the GPR Projects Business Case
Amount), all as determined by the Finance Authority.
"GPR Projects Business Case Amount" shall mean the amount referenced in the
Participant's business case related to GPR Projects as was set in the Participant's Preliminary
Engineering Report (or categorical exclusion) posted at www.srf.in.gov, uses of funds
information submitted to the Finance Authority after the Project was bid or some other
submitted information that was used by the Finance Authority prior to the date of this
Agreement to set a special interest rate under the Wastewater SRF Program's interest rate
policies and practices applicable to the Bonds.
"GPR Projects Expenditures" shall mean those costs and expenses incurred by the
Participant that are part of the Project which are GPR Projects in nature (within the meaning
of the Wastewater SRF Act) as determined by the Finance Authority, in order for the Bonds
to receive special interest rate treatment under the Wastewater SRF Program's interest rate
policies and practices.
The Participant understands and acknowledges that a special interest rate has been applied to
the Bonds as a result of a portion of the Project having been identified by the Participant as
being a GPR Projects project. In the event GPR Projects Expenditures are hereafter
determined by the Finance Authority to be less than the GPR Projects Business Case Amount,
then the Finance Authority may request and the Participant shall promptly pay (no later than
thirty (30) days after any request), a GPR Projects Adjustment Fee in connection with the
Loan. The Participant shall certify to the Finance Authority those Loan disbursements it
represents to be its GPR Projects Expenditures when and as required by SRF Policy
Guidelines. The Participant understands and acknowledges that it is required to submit a
business case or categorical exclusion documenting the GPR Projects and the GPR Projects
Business Case Amount prior to loan closing or if a request is made pursuant to Section 3.02(f)
of this Agreement.
C. The following additional terms in this Paragraph C(related to Non point Source Projects and
the related defined terms) are NOT applicable to the Loan:
D-2
22401544.v1
"Non-point Source Adjustment Fee" shall mean an amount which would equal
the gross additional interest that would have accrued on the Bonds from the date of this
Agreement through their scheduled final maturity, had such Bonds been issued at an
interest rate determined under the Wastewater SRF Program's interest rate policies and
practices using the final, actual Non-point Source Expenditures (rather than the amount
referenced in the Participant's post-bid and other documents submitted to the Finance
Authority), all as determined by the Finance Authority.
"Non-point Source Expenditures" shall mean those costs and expenses incurred
by the Participant that are Non-point Source Projects in order for the Bonds to receive
special interest rate treatment under the Wastewater SRF Program's interest rate policies
and practices.
"Non-point Source Projects Amount" shall mean the amount referenced in the
Participant's post-bid and other documents submitted to the Finance Authority prior to the
date of this Agreement to set a special interest rate under the Wastewater SRF Program's
interest rate policies and practices applicable to the Bonds
"Non-point Source Projects" shall mean Project components that meet the
requirement of SRF Policy Guidelines and the Wastewater SRF Act to be non-point source
in nature as determined by the Finance Authority.
The.Participant understands and acknowledges that a special interest rate has been applied
to the Bonds as a result of a portion of the Project having been identified by the Participant
as being a non-point source project. In the event Non-point Source Expenditures are
hereafter determined by the Finance Authority to be less than the Non-point Source
Projects Amount, then the Finance Authority may request and the Participant shall
promptly pay (no later than thirty (30) days after any request), a Non-point Source
Adjustment Fee in connection with the Loan. The Participant shall certify to the Finance
Authority those Loan disbursements it represents to be its Non-point Source Expenditures
when and as requested by SRF Policy Guidelines.
[End of Exhibit D]
D-3
22401544.v1