HomeMy WebLinkAbout1998-OR-27 AN ORDINANCE CONCERNING THE CONSTRUCTION OF ADDITIONS
AND IMPROVEMENTS TO THE SEWAGE WORKS OF THE CITY OF
JEFFERSONVILLE; AUTHOI~IZING' THE ISSUANCE OF SEWAGE
WORKS REVENUE BONDS, FOR SUCH PURPOSE;~ADDRESSING OTH~R
MATTERS CONNECTED TH~REW1TH, INCLUDING THE ISSUANCE OF
NOTES IN ANTICII~ATION OF BONDS; AND REPEALING ORDINANCES
INCONSISTENT ]t'F, REWITH
WHEREAS, the City of Ieffersonville, Indiana (the "City") has heretofore established,
constructed and financed a municipal sewage works and now owns and operates the sewage works
pursuant to lC 36-9-23, and other applicable laws; and
WHEREAS, the Common Council of the City now finds that certain improvements and
extensions to said works are necessary; and that plans, specifications and estimates have been
prepared and filed by the eng/neers employed by the City for the construction of said improvements
and extensions (as more fully set forth in Exhibit A attached hereto) (the "Project"), which plans and
specifications have been or will be submitted to all government authorities having jurisdiction,
particularly the Indiana Department of Environmental Management ("IDEM"), if and to the extent
IDEM approval is required under Indiana law, and have been or will be approved by the aforesaid
government authorities and are hereby incorporated herein by reference and open for inspection at
the office of the Clerk-Treasurer as required by law; and
WHEREAS, the City has obtained engineer's estimates of the costs for the construction of
the Project; that on the basis of said estimates, the estimated cost of the Project, as defined in IC
36-9-23 and lC 36-9-1, i~cluding incidental expenses, will not exceed the mount of $15,500,000;
and
WHEREAS, the City has applied for a low in~erest loan from the Indiana State Revolving
Loan Fund in the mount not to exceed $15,500,000; and
WHEREAS, the City will enter into a Financial Assistance Agreement'(as hereinafter defined)
with the State of Indiana, pertaining to the Project and the financing thereof} and
WHEREAS, the Common Council finds that there are not available sufficient funds of the
sewage works to construct the Project, and that sewage works revenue bonds shall be issued to pay
the costs of the Project, including incidental expenses; and
WHEREAS, the Common Council finds that there are now outstanding bonds issued on
account of the refunding of the City's sewage works bonds of 1969 and payable out of the revenues
therefrom designated the "Sewage Works Refunding Revenue Bonds of 1990, Series A", dated
November 29, 1990 (the "Series A Bonds"), originally issued in the amount of $1,075,000,
authorized by Ordinance No. 90-OR-53, adopted by the Common Council on October 25, 1990 (the
"October Ordinance"), now outstanding in the fimount of $85,000; and
WHEREAS, the Common Council also finds that there are outstanding bonds issued on
account of the construction of the City's sewage works and payable out of the revenues therefrom
designated the "Sewage Works Revenue Bonds of 1990, Series B", dated December 1, 1990 (the
"Series B Bonds") originally issued in the amount of $6,500,000 and now outstanding in the amount
of $520,000, and the "Sewage Works Revenue Bonds, Series C", dated January I, 1991 (the "Series
C Bonds") originally issued in the amount of $1,000,000 and now outstanding in the amount of
$80,000, both of which were issued pursuant to the Ordinance No. 90-OR-59 adopted by the
Common Council on November 27, 1990 (collectively with the October Ordinance the "1990
Ordinance"); and
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WHEREAS, the Common Council also finds that there are outstanding bonds issued on
account of the refunding of certain maturities of the Series A Bonds, the Series B Bonds and the
Series C Bonds and payable out of the revenues therefrom designated the "Sewage Works Revenue
Refunding Bonds of 1995" dated November 1, 1995 (the "1995 Bonds"), originally issued in the
amount of $6,705,000, authorized by Ordinance No. 95-OR-41, adopted by the Common Council
of the City on October 15, 1995 (the "1995 Ordinance"), now Outstanding in the amount of
$6,580,000; and
WHEREAS, the outstanding Series A Bonds, Series B Bonds and Series C Bonds constitute
a first charge on the net revenues of the sewage works and are therefore senior to the 1995 Bonds
(the "Senior Bonds"); and
WHEREAS, the conditions precedent to the issuance of additional parity bonds set forth in
Section 21 of the 1995 Ordinance have been satisfied; and
WHEREAS, the City desires to authorize the issuance of BANs hereunder, if necessary,
payable solely from the proceeds of the sewage works revenue bonds issued to finance the
aforementioned costs of the Project, and to authorize the refunding of said BANs, if issued; and
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 oflC 36-9-23, as amended, (the "Act");
NOW THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY
OF JEFFERSONVILLE THAT:
Section 1. Project. The City shall proceed with the construction of the Project in accordance
with the cost estimates, and the plans and specifications heretofore prepared and filed by the
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consulting engineers employed by the Board of Works o~'the City (the "Board") which cost estimates,
plans and specifications are by reference made a part of this ordinance as fully as if the same were
attached hereto and incorporated herein and two copies ofwhieh are now on file in the Ogee of the
Clerk-Treasurer of the City and are open for public inspection pursuant to IC 36-1-5-4. The cost of
construction of the Project shall not exceed the sum of $15,500,000, plus investment earnings,
without further authorization fi.om this Common Council. The terms "sewage treatment works,"
"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 include all structures and property of
the City's sewer utility, including items defined at IC 36-9-t-8. The Project shall be constructed in
accordance with the plans and specifications heretofore mentioned, which plans and specificat~o s
are hereby approved. The Project shall be constructed and the bonds herein authorized shall be issued
pursuant to and in accordance with the Act.
Section 2. Issuance of Obligations. (a) The City shall issue, if necessary, one or more BANs
for the purpose of procuring interim financing to apply to the cost of the Project. The City shall issue
its BANs in an amount not to exceed $15,000,000 to be designated "Sewage Works Bond
Anticipation Notes." Said BANs shall be numbered consecutively fi.om I upward, shall be in
multiples of One Dollar ($1) shall be dated as of the date of delivery thereof, and shall bear interest
at a ra~e not to exceed $.0% per annum if sold at public sale or 3.9% per annum if sold to the State
of Indiana (the exact rate or rates to be determined through negotiations with the purchaser of the
BANs) payable upon maturity. The BANs will mature one (1) year alter their date of delivery. The
BANs are subject to renewal or extension at an interest rate or rates not to exceed 5.0% per annum
(the exact rate or rates to be negotiated with the purchaser of the BANs). The term of the BANs and
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all renewal BANs may not exceed five years from the date of delivery of the initial BANs. The BANs
shall be registered in the name of the purchasers thereof.
The BANs shall be issued pursuant to IC 5-1-14.-5 if sold to a financial institution 6r any other
purchaser or pursuant to IC 5-1.5-8-6.1 if sold to the Indiana Bond Bank and pursuant to IC 13-18-
13 if issued to the State of Indiana. The principal of and interest on the BANs shall be payable solely
from the issuance of revenue bonds pursuant to and in the manner prescribed by the Act. The
revenue bonds will be payable solely out of and constitute a charge against the Net Revenues (herein
defined as gross revenues of the sewage works of the City remaining aider the payment of the
reasonable expenses of operation, repair and maintenance) of the sewage works oftbe City, including
the works herein authorized to be acquired and constructed and all additions and improvements
thereto and replacements thereof subsequently constructed or acquired, aRer payment of the Senior
Bonds and on a parity with the 1995 Bonds.
(b) The City shall issue its "Sewage Works Revenue Bonds of 1998" (the "Bonds"), in
one or more series, in an aggregate principal amount not to exceed $15,500,000, in substantially the
amounts and maturities as set forth in Exhibit B, for the purpose of procuring funds to be applied to
the costs of the Project, and the payment of Costs of issuance. The Bonds shall rank on a parity for
all purposes with the 1995 Bonds and junior to the Senior Bonds.
The Bonds shall be issued in the denomination of One Dollar ($1) each or integral multiples
thereof~ numbered consecutively from 1 upward, dated as of the first day oftbe month in which they
are sold and interest shall be payable semiannually on January 1 and July 1 in each year, beginning on
January 1 or July 1 following the original date of the Bonds as determined by the Clerk-Treasurer,
with the advice of the City's financial advisor, or as set forth in the Financial Assistance Agreement
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to be entered into between the City and the State of Indiana (the "Financial Assistance Agreement"),
or in the bond sale notice if the Bonds are sold to any other purchaser. The Bonds shall be sold at
a price of not less than par, unless sold to the Indiana Bond Bank, in which case such price shall not
be less than 97.0% of the par value thereof(the "Sale Price"). The Bonds shall be payable in lawful
money of the United States of.america, at the principal office of the Paying Agent (as hereinafter
defined) and such Bonds shall bear interest at a rate or rates not exceeding 7.5% per annum unless
sold to the State of Indiana or the Indiana Bond Bank, in which case the Bonds shall bear interest at
a rate or rates not exceeding 3.9°/0 per annum (the exact rate or rates to be determined by bidding or
through negotiations with the State of Indiana or the Indiana Bond Bank). The Bonds will mature,
January 1 of each year thereafter over a period ending no later than twenty (20) years a~er substantial
compl~on of the Project if sold to the State of Indiana, or from January 1, 1999 if sold to the public,
in such amounts which will achieve as level debt service as practicable.
Interest on the BANs and the bonds shall be Calculated according to a 360-day calendar year
containing twelve 30-day months.
(c) The City shall complete the Project from the proceeds of the BANs or Bonds issued
by the City, with the principal and interest of the BANs payable from the proceeds of the Bonds and
the principal and interest on the Bonds payable from sewage fee revenues received by the City.
Section 3. Registrar and Paving Agent. The Mayor is hereby authorized to appoint a
qualified financial institution to serve as Registrar and Paying Agent for the Bonds (the "Registrar",
or "Paying Agent"). The Registrar is hereby charged with the responsibility of authenticating the
Bonds. The Clerk-Treasorer is hereby authorized to enter into such agreements or understandings
with such institution as will enable the institution to perform the services required ora Registrar and
Paying Agent. The Clerk-Treasurer 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 fi.om the
Sinking Fund established to pay the principal of and interest on the Bonds as fiscal agency charges.
The principal of the Bonds shall be payable at the principal corporate trust office of the Paying
Agent. All payments of interest on the Bonds shall be paid by check, mailed one business day prior
to the interest payment date to the registered owners thereof as the names appear as of the fifteemh
day of the month preceding the interest payment date and at the addresses as they appear on the
registration books kept by the Registrar or at such other address as is provided to the Paying Agent
in writing by such registered owner. 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.
If the BANs or Bonds are registered in the name of the State of Indiana or the Indiana Bond
Bank or a registered owner in whose name is h'eld $1,000,000 or more of principal amount of the
Bonds, the principal of and interest thereon may shall be paid by wire transfer to such financial
institution if directed by the State of Indiana (the "State") or the Indiana Bond Bank or such
registered owner, or as otherwise agreed, 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.
Each Bond shall be transferable or exchangeable only upon the hooks of the City kept for that
purpose at the principal corporate trust office of the Registrar by the registered owner in person, or
by its attorney duly authorized in writing, upon surrender of such Bond together with a written
instrument of transfer or exchange satisfactory to the Registrar duly executed by the registered
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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 c~ise may be, in exchange
therefor. The costs of such transfer or exchange shall be borne by the City except for any tax or
governmental charge required to be paid with respect to the transfer or exchange, which taxes or
governmental charges are payable by the person requesting such transfer or exchange. The City,
Kegistrar 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 30 days' notice in writing to the City and by first class mail to each registered owner of the
Bonds then outstanding, and such resignation will take effect at the end of such 30 day period or
upon the earlier appointment ora successor registrar and paying agent by the City. Any such notice
to the City may be served personally or sent by registered mail. The Registrar and Paying Agent may
be removed at any time as Registrar and Paying Agent by the City, in which event the City may
appoint a successor registrar and paying agent. The City shall notify each registered owner of the
Bonds then outstanding by first class mail of the removal of the Registrar and Paying Agent. Notices
to the registered owners of the Bonds shall be deemed to be given when mailed by first class mail to
the addresses of such registered owners as they appear on the registration books kept by the
Registrar.
Upon the appointment of any successor registrar and paying agent by the City, the Clerk-
Treasurer is authorized and directed to enter into such agreements and understandings with such
successor registrar and paying agent as will enable the itigtitution to perform the services required of
a registrar and paying agent for the Bonds. The Clerk-Treasurer is further authorized to pay such
fees as the successor registrar and paying agent may charge for the services it provides as registrar
and paying agent and such fees may be paid from the Sinking Fund established to pay the principal
of and interest on the Bonds and fiscal agency charges. Any predecessor registrar and paying agent
shall deliver ail of the Bonds and any cash or investments in its possession with respect thereto,
together with the registration books, to the successor registrar and paying agent.
As to the BANs, and the Bonds if sold to the State or the Indiana Bond Bank, the Clerk-
Treasurer shall serve as Registrar and Paying Agent and is hereby charged with the duties of Ragistrar
and Paying Agent.
Interest on the 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 f~eenth day of the month preceding an iriterest payment 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 15th day of the month proceeding the first interest payment
date, in which case they shall bear interest from the original date until the principal shall be fully paid.
Interest on the Bonds sold to the State or the Indiana Bond Bank to finance Eligible Costs
(as defined in the Financial Assistance Agreement) shall be paid from the date which is two years after
the date of delivery of the Bonds, as set forth in the Financial Assistance Agreement.
Section 4. Redemption of BANs and Bonds. (a) The BANs are prepayable by the City, in
whole or in part, at any time upon 7 days' notice to the owner of the BANs, without any premium.
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(b) The Bonds are redeemable at the optiofl of the City on dates and with premiums as
deteniiined by the Clerk-Treasurer with the advice of the City's financial advisor, but not earlier than
January 1, 2008, and on any date thereafter, on sixty (60) days' notice, in whole or in part, in inverse
order of maturity and by lot within a maturity, at face value, together with a premium no greater than
two percent (2%), plus accrued interest to the date of redemption.
If less than all of the Bonds are called for redemption at one time then the Bonds shall be
redeemed in inverse order of maturity and by lot within maturities as selected by the Registrar. Each
One Dollar ($1) principal amount shall be considered a separate bond for purposes of optional
redemption.
Notice of such redemption shall be given at least sixty (60) days prior to the date fixed for
redemption by mail unless the notice is waived by the registered owner ora Bond. Such notice shall
be mailed to the address of the registered owners of the Bonds to be redeemed as shown on the
registration records of the City as of the date which is seventy-five (75) days 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 shall 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 principal office of the Paying Agent 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 Ne~;otiabiliW. Each of the BANs and Bonds shall be executed in
the name of the City by the manual or facsimile signature of the Mayor, and attested by the manual
or facsimile signature of the Clerk-Treasurer, and the Seal of the City shall be affixed, imprinted or
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impressed to or on each of the BANs and Bonds manually, by facsimile or any other means; and these
officials, by the execution of a Signature and No Litigation Certificate, shall adopt as and for their
own proper signatures the facsimile signatures appearing on the Bonds. In case any officer whose
signature or facsimile signature appears on the Bonds shall cease to be such officer before the delivery
of the Bonds, the signature of such officer shall nevertheless be valid and sufficient for all purposes
the same as if such officer had remained in office until such delivery.
The BANs and Bonds shall have ail of the qualities and incidents of negotiable instruments
under the laws of the State of Indiana, subject to the provisions for registration herein.
The Bonds shall also be authenticated by the manual signature of the Registrar, and no Bond
shall be valid or become obligatory for any purpose until the certificate of authentication thereon has
been so executed.
The Bonds may, in compliance with all applicable laws, be issued and held in book-entry form
on the books of the central depository system, Th6 Depository Trust Company, its successors, or any
successor central depository system appointed by the City fi.om time to time (the "Cleating Agency").
The City and Registrar may, in connection herewith, do or perform or cause to be done or performed
any acts or things not adverse to the rights of the holders of the Bonds, as are necessary or
appropriate to accomplish or recognize such book-entry form Bonds.
During any time that the Bonds are held in book-entry form on the books of a Clearing
Agency (1) any such Bond may be registered upon the books kept by the Registrar in the name of
such Clearing Agency, or any nominee thereof, including CEDE & Co., as nominee of The
Depository Trust Company; (2) the Cleating Agency in whose name such Bond is so registered shall
be, and the City and the Registrar and Paying Agent may deem and treat such Cleating Agency as,
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the absolute owner and holder of such Bond for all purposes of this Ordinance, incltiding, without
limitation, the receiving ofpaymant of the principal of; premium, if any, on and interest on such Bond,
the receiving of notice and giving of consent; (3) neither the City nor the Registrar or Paying Agent
shall have any responsibility or obligation hereunder to any direct or indirect participant, within the
meaning of Section 17A of the Securities Exchange Act of 1934, as amended, of such Cleating
Agency, or any person on behalf of which, or otherwise in respect of which, any such participant
holds any interest in any Bond, including, without limitation, any responsibility or obligation
hereunder to maintain accurate records of any interest in any Bond or any responsibility or obligation
hereunder with respect to the receiving of payment of principal, premium, if any, or interest on any
Bonds, the receiving of notice or the giving of consent; and (4) the Clearing Agency is not required
to present any Bond called for partial redemption prior to receiving payment so long as the Registrar
and Paying Agent and the Clearing Agency have agreed to the method for noting such partial
redemption.
If either (i) the City receives notice from the Cleating Agency which is currently the registered
owner of the Bonds to the effect that such Clearing Agency is unable or unwiliing to discharge its
responsibility as a Clearing Agency for the Bonds or (ii) the City elects to discontinue its use of such
Cleating Agency as a Clearing Agency for the Bonds, then the City and Registrar and Paying Agent
each shall do or perform or cause to be done or performed all acts or things, not adverse to the fights
of the holders of the Bonds, as are necessary or appropriate to discontinue use of such Clearing
Agency as a Clearing Agency for the Bonds and to transfer the ownership of each of the Bonds to
such person or persons, including any other Clearing Agency, as the holder of the Bonds may direct
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in accordance with this Ordinance. Any expenses of~uch discontinuance and transfer, including
expenses of printing new certificates to evidence the Bonds, shall be paid by the City.
During any time that the Bonds are held in book-entry form on the books o~' a Clearing
Agency, the Registrar and Paying Agent shall be entitled to request and rely upon a certificate or
other written representation fi.om the Clearing Agency or any participant or indirect participant with
respect to the identity of any beneficial owners of the Bonds as of a record date selected by the
Registrar and Paying Agent. For purposes of determining whether the consent, advice, direction or
demand ora Registered Owner of the Bond has been obtained, the Registrar or Paying Agent shall
be entitled to treat the beneficial owners of the Bonds as the Bondholders.
During any time that the Bonds are held in book-entry form on the books of a Cleating
Agency, the Clerk-Treasurer and/or the Registrar are authorized to enter into a Letter of
Representations agreement with the Clearing Agency, and the provisions of any such Letter of
Representations or any successor agreement shall control on the matters set forth herein.
Section 6. Form of Bonds. The form and tenor of the Bonds shall be substantially as follows,
all blanks to be filled in properly and all necessary additions and deletions to be made prior to delivery
thereof:
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STATE OF INDIANA
UNITED STATES OF AMERICA
CITY OF JEFFERSONVILLE
SEWAGE WORKS REVENUE
BOND OF 1998, SERIES __
Interest Maturity Original Authentication
Rate Date Date Date
COUNTY OF CLARK
CUSIP
REGISTERED OWNER:
PRINCIPAL SUM:
Dollars ($ )
The City of Jeffersonville, in Clark County, State of Indiana, for value received, hereby
promises to pay to the Registered Owner named above or registered assigns, solely out of the special
revenue fund hereinaiter referred to, the Principal Sum set forth above on the Maturity Date set forth
above [or so much thereof as may be advanced from time to time and be outstanding as evidenced
by the records of the registered owner making payinent for this Bond, or its assigns] (unless this bond
be subject to and be called for redemption prior to maturity as hereinafter provided), and to pay
interest hereon at the Interest Rate per annum stated above, from the interest payment date to which
interest has been paid next preceding the Authentication Date of this bond unless this bond is
authenticated after the fffieenth 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 June 15, 1998, in which case it shall bear interest from
the Original Date, until the principal is paid, which interest is payable semiannually on the first days
of January and July in each year, beginning on July 1, 1998. [or as provided in the Financial
'Assistance Agreement]
The prindpal of this bond is payable at the principal office of . (the
"Registrar", or ~Paying Agent"), in the City of _, . All payments of
interest on this bond shall be paid by check, mailed one bus'mess day prior to the interest payment date
or, in the event of purchase by the State of Indiana or the Indiana Bond Bank or such owner in whose
name is registered $1,000,000 or more principal amount of the Bonds by wire transfer for deposit to
a financial institution as designated by the State of Indiana or the Indiana Bond Bank or such
registered owner 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 atier such due date, to the registered owner hereof as
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of the fifteenth day of the month preceding such interest i~ayment date at the address as it appears on
the registration books kept by the Registrar or at such other address as is provided to the Paying
Agent in writing by the registered owner. 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!egal 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 1T IS A PART SI-I~1,1, IN ANY RESPECT
CONSTITUTE A CORPORATE INDEBTEDNESS OF TI-IE CITY WITHIN THE PROVISIONS
AND LIMITATIONS OF THE CONSTITUTION OF THE STATE OF INDIANA.
The terms and provisions of this bond are continued on the reverse side hereof and such terms
and provisions shall for all purposes have the same effect as though fully set forth at this place.
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 the Mayor, its
corporate seal to be hereunto affixed, imprinted oi' impressed by any means and attested manually or
by facsimile by its Clerk-Treasurer.
CITY OF JEFFERSONVILLE, INDIANA
By
Mayor
[SEAL]
Attest:
Clerk-Treasurer
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REGISTRAR'S CERTIFICATE oF AUTHENTICATION'
This bond is one of the bonds described in the within-mentioned Ordinance.
as Registrar
By
Authorized Representative
(To be printed on Reverse Side)
This bond is one of an authorized issue of bonds of the City of Jeffersonville, issued in series,
of like date, tenor and effect, except as to rates of interest and dates of maturity; aggregating
Million ~ Hundred Thousand Dollars ($ ), numbered consecutively from R-1 upward
(the "Bonds"), issued for the purpose of providing funds to be applied on the cost of additions and
improvements to the City's sewage works (the "Project") to refund interim notes, if any, issued in
anticipation of the Bonds and to pay costs of issuance of the Bonds. This bond is issued pursuant to
an ordinance adopted by the Common Council of said City on the day of ,1998, entitled
"An Ordinance concerning the construction of additions and improvements to the sewage works of
the City of Jeffersonville, authorizing the issuance of Sewage Works Revenue Bonds of 1998, for
such purpose; addressing other matters connected therewith, including the issuance of notes in
anticipation of bonds; and repealing ordinances inconsistent herewith" (the "Ordinance"), and in
accordance with the provisions of Indiana law, Including without limitation Indiana Code 36-9-23,
as amended (the "Act"), the proceeds of which bonds are to be applied to the costs of the Project,
the payment of notes issued in anticipation of the bonds, if any, and expenses incurred in connection
therewith.
Reference is hereby made to the Financial Assistance Agreement between the City and the
State of Indiana as to certain terms and covenants pertaining to the sewage works project and this
Bond (the "Financial Assistance Agreement")
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, the Senior Bonds (as hereinafter defined), the 1995 Bonds (as
hereinafter defined) and any bonds hereafter issued on a parity therewith are payable solely fi.om the
Sewage Works Sinking Fund (the "Sinking Fund") continued by the 1995 Ordinance (as defined in
the Ordinance) and maintained under the Ordinance to be provided fi.om the Net Revenues (herein
defined as the gross revenues of the sewage works of the City remaining after the payment of the
reasonable expenses of operation, repair and maintenance) of the sewage works of the City, including
all additions and improvements thereto and replacements thereof subsequently constructed or
acquired.
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The City irrevocably pledges the entire Net R~¥enues 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, after payment of the Sewage Works Refunding
Revenue Bonds of 1990, Series A (the "Series A Bonds"), the seWage Works Revenue Bonds of
1990, Series B(the "Series B Bonds") and the Sewage Works Revenue Bonds, Series C (the "Series
C Bonds") (the Series A Bonds, the Series B Bonds and the Series C Bonds, collectively the "Senior
Bonds") and on parity with the Sewage Works Revenue Bonds of 1995 (the "1995 Bonds") issued
pursuant to the 1995 Ordinance (as defined in the Ordinance), and covenants that it will cause to be
fixed, maintained and collected such rates and charges for services rendered by the utility as are
sufficient in each year for the payment of the proper and reasonable expenses of Operation and
Maintenance (as defined in the Financial Aqsistance Agreement) of the sewage works and for the
payment of the sums required to be paid into the Sinking Fund under the provisions of the Act and
the Ordinance. If the City or the proper officers thereof shall fail or refuse to so fix, maintain and
collect such rates or charges, or if there be a default in the payment of the interest on or principal of
this bond, the owner of this bond shall have all of the rights and remedies provided for in the Act,
including the right to have a receiver appointed to administer the works and to charge and collect
rates sufficient to provide for the payment of this bond and the interest hereon.
The City further covenants that it will set aside and pay into the Sinking Fund a sufficient
amount of the Net Revenues of the works for payment of (a) the principal and interest on all bonds
which by their terms are payable from the revenues or the sewage works, as such principal and
interest shall fall due, (b) the necessary fiscal agency charges for paying bonds and interest, and (c)
an additional amount to accumulate and maintain a reserve for the payment of the bonds equal to the
Reserve Requirement, which is equal to the least of (i) the maximum annual debt service on the
bonds, ('fi) 125% of the average annual debt servic~ on the bonds, and (iii) 10% of the stated principal
amount of the bonds. Such required payments shall constitute a first charge upon all the Net
Revenues of the sewage works. Reference is made to the Ordinance for a more complete statement
of the revenues from which and conditions under which this bond is payable, a statement of the
conditions on which obligations may hereafter be issued on parity with this bond, the manner in which
the Ordinance may be amended and the general covenants and provisions pursuant to which this bond
has been issued.
The bonds of this issue maturing on and after January 1, 2009 are redeemable at the option
of the City on Sanuary 1, 2008, or any date thereafter, on sixty (60) days' notice, in whole or in part,
in inverse order of maturity and by lot within a maturity, at face value, together with the following
premiums:
2% if redeemed on January 1, 2008 or thereafter;
on or before December 31, 2008,
1% if redeemed on January 1, 2009, or thereat~er
on or before December 31, 2009;
0% if redeemed on January 1, 2010, or thereafter
prior to maturity;
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plus accrued interest to the date fixed for redemption. ' If less than all of the bonds ari~ called for
redemption at one time, the bonds shall be redeemed in inverse order of maturity and by lot within
a maturity. Each One Dollar ($I) principal mount shall be considered a separate bond for
purposes of redemption. ~
Notice of such redemption shall be mailed to the address of the registered owners of the
bonds to be redeemed as shown on the registration records of the City, as of the date which is
seventy-five (75) days prior to such redemption date, not less than sixty (60) 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 thereai~er the registered owner shall look only to
the funds so deposited in trust with said bank for payment and the City shall have no further
obligation or liability in respect thereto.
This bond is transferable or exchangeable only upon the books of the City kept for that
purpose at the principal corporate trust office of the Registrar by the registered owner hereof in
person, or by his attorney duly authorized in writing, upon surrender of this bond together with a
written instrument of transfer or exchange satisfactory to the Registrar duly executed by the
registered owner, or his attorney duly authorized in writing, and thereupon a new fully registered
bond or bonds in an authorized aggregate principal amount and of the same maturity, shall be
executed and delivered in the name of the transferee or 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 thereon.
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 if the Common Council determines, in its sole discretion, that
the amendment shall not adversely affect the rights of any of the owners of the bonds.
The bonds maturing in any one year are issuable only in fully registered form in the
denomination of $1 or any integral multiple thereof.
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The following abbreviations, when used in the inscription of the face of this bond, shall be
construed as through they were written out in full according to applicable laws or regulations:
TEN. COM.
TEN. ENT.
Yr. TEN.
UNIF. TRAN.
MIN. ACT
as tenants in common ,
as tenants by 'the entireties
as joint tenants with right of survivorship and not as tenants
in common
Custodian
(Cust.) (Minor)
under Uniform Transfer to Minors Act of
(State)
Additional abbreviations may also be used although not in the above list.
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto __
this bond and all rights thereunder, and hereby irrevocably constitutqs 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: The Signature to this assignment
must correspond with the name as it appears
on the face of the within bond in every
particular, without alteration or enlargement
or any change whatsoever.
NOTICE: Signature(s) must be guaranteed
by an eligible guarantor participating in a
Securities Transfer Association recognized
signature guarantee program.
[END OF BOND FORM]
Section 7. Authorization for Preparation and Sale of the BANs and the Bonds. (a) The
Clerk-Treasurer is hereby authorized and directed to have the BANs and the Bonds prepared, and
the Mayor and Clerk-Treasurer are hereby authorized and directed to execute and attest the
BANs and the Bonds in the form and manner provided herein. The Clerk-Treasurer is hereby
authorized and directed to deliver the BANs and the Bonds to the respective purchasers thereof.
At the time of delivery of the BANs and the Bonds, the Clerk-Treasurer shall collect the full
amount which the respective purchasers have agreed to pay therefor, which amount shall not be
less than 99.0% of the face value of said BANs or the Sale Price with respect to the Bonds, as the
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case may be. If the Bonds or BANs are sold to the State of Indiana or the Indiana Bond Bank,
the City may receive payment for the Bonds and BANs in installments.
(b) The Bonds, when fully paid for and delivered to the Purchaser, as hereinafter
defined, shall be the binding special revenue obligations of the City, payable out of the Net
Revenues of the sewage works. The proper officers of the City are hereby directed to sell the
Bonds to the Purchaser, to draw all proper and necessary warrants, and to do whatever acts and
things which may be necessary to carry out the provisions of this ordinance.
(c) Distribution of an Official Statement (preliminary and final), if required, to be
prepared by Municipal Consultants, on behalf of the City, is hereby ratified and approved and the
Mayor or Clerk-Treasurer are authorized and directed to execute the final Official Statement on
behalf of the City in a form consistent with this ordinance and by such execution, its distribution.
The Mayor or Clerk-Treasurer are hereby authorized to designate the Official Statement as
"nearly final" for purposes of Rule 15c2-12 promulgated by the Securities and Exchange
Commission.
Section 8. Bond Sale Notice. Prior to the sale of the Bonds, the Clerk-Treasurer shall
cause to be published a notice of such sale, two times, at least one week apart, the first
publication made at least fifteen (15) days before the date of the sale and the second publication
being made at least three (3) days before the date of the sale, all in accordance with IC 5-1-11 and
IC 5-3-1. A notice of sale may also be published one time in the Court & Commercial,
Indianapolis, Indiana and a summary notice of sale may also be published in ~ in
New York, New York. The bond sale notice shall state the time and place of sale, the character
and amount of the Bonds, the maximum rate of interest thereon, the terms and conditions upon
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which bids will be received and the sale made, and such other information as the Clerk-Treasurer
and the attorneys employed by the City shall deem advisable and any summary notice may contain
any information deemed so advisable. The notice may provide, among other things, that each bid
shall be accompanied by a certified or cashier's check in an amount equal to one percent (1%) of
the principal amount of the Bonds described in the notice and that in the event the successful
bidder shall fail or refuse to accept delivery of the Bonds and pay for the same as soon as the
Bonds are ready for delivery, or at the time fixed in the notice of sale, then said check and the
proceeds thereof shall be the property of the City and shall be considered as its liquidated
damages on account of such default; that bidders for the Bonds will be required to name the rate
or rates of interest which the Bonds are to bear, not exceeding the maximum rate hereinbefore
fixed, and that such interest rate or rates shall be in multiples of one one-hundredth (1/100) of one
percent (1%). The rate bid on a maturity shall be equal to or greater than the rate bid on the
immediately preceding maturity. No conditional bid or bid for less than the sale price of the
Bonds will be considered. The opinion of Barnes & Thornburg, bond counsel of Indianapolis,
Indiana, approving the legality of said Bonds, will be furnished to the purchaser at the expense of
the City.
The Bonds shall be awarded by the Clerk-Treasurer to the best bidder who has submitted
his bid in accordance with the terms of this ordinance, IC 5-1-11 and the notice of sale. The best
bidder will be the one who offers the lowest net interest cost to the City, to be determined by
computing the total interest on all of the Bonds to their maturities and adding thereto the discount
bid, if any, and deducting the premium bid, if any. The right to reject any and all bids shall be
reserved. If an acceptable bid is not received on the date of sale, the sale may be continued from
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day to day thereai~er without further advertisement fo{ ~ period of thirty (30) days, during which
e any bid which is lower than the best bids recemved at the time of the advertised sale will be
considered.
As an alternative to public sale, the Clerk-Treasurer may negotiate the sale of the Bonds
to the State of Indiana or the Indiana Bond Bank at an interest rate or rates not exceeding seven
and one-half percent (7.5%) per annum. The Mayor and the Clerk-Treasurer are hereby
authorized to (i) submit an application to the State of Indiana and/or the Indiana Bond Bank, (ii)
execute a purchase agreement with the State of Indiana and/or the Indiana Bond Bank; (iii)
execute, if necessary, the Financial Assistance Agreement; and (iv) sell such Bonds upon such
terms as are acceptable to the Mayor and the Clerk-Treasurer consistent with the terms of this
ordinance.
The financial Assistance Agreement for the Bonds and the Project shall be executed by the
City and the State of Indiana. The substantially'final form of the Financial Assistance Agreement,
attached hereto as Exhibit C and incorporated herein by reference, is hereby approved by the
Common Council, and the Mayor and Clerk-Treasurer are hereby authorized to execute and
deliver the same, and to approve any changes in form or substance to the Financial Assistance
Agreement, such approval 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
issued pursuant to this Ordinance, or fund the Reserve Requirement, and .BAN proceeds shall be
deposited in a bank or banks which are legally designated depositories for the funds of the City, in
a special account or accounts to be designated as "City of Jeffersonville, Sewage Works
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Construction Fund" (the "Construction Fund") as established in this Ordinance. All funds
deposited to the credit of the Sinking Fund (as hereafter defined) or Construction Fund 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, and
the acts amendatory thereof and supplemental thereto. The funds in the Construction Fund shall
be expended only for the purpose of paying the cost of the Project, refunding the BANs, if issued,
or as otherwise required by the Act or for the expenses of issuance of the Bonds.
Any balance or balances remaining unexpended in such special fund or funds after
completion of the Project, which are not required to meet unpaid obligations incurred in
connection with such Project, shall either (1) be paid into the Sinking Fund and used solely for the
purposes of the 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.
With respect to any Bonds sold to the Slate of Indiana or the Indiana Bond Bank to
finance Eligible Costs, to the extent that the total principal amount of the Bonds is not paid by the
purchaser or drawn down by the City, the City shall reduce the principal amount of the Bond
maturities to effect such reduction in a manner that will still achieve as level an annual debt service
as practicable as described in Section 2(b).
Section 10. Accrued Interest. The accrued interest received at the time of delivery of the
Bonds, if any, and premium, if any, shall be deposited in the Sinking Fund (as hereafter defined).
Section 11. 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
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sewage works and ail disbursements made therefrom and all transactions relating to the utility.
The City shall maintain on file the audited financial statements of the utility prepared by the State
Board of Acoounts. There shall be furnished, upon written request, to any owner of the Bonds,
the most recent copy of the audited financial statements of the utility prepared by the State Board
of Accounts. Copies of ail such statements and reports shall be kept on file in the office of the
Clerk-Treasurer.
If the Bonds or BANs are sold to the State of Indiana or Indiana Bond Bank to finance
Eligible Costs, the City shall establish and maintain the records and other financiai 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 annuai basis, as promulgated by the Governmental Accounting Standards Board
and (ii) the rule~, regulations and guidance of the State Board of Accounts.
Section 12. Pledge of Net Revenues. The Bonds, 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 charge upon all the Net Revenues (herein defined as gross
revenues after deduction only for the payment of the reasonable expenses of operation, repair and
maintenance) of the sewage works of the City. The City shall not be obligated to pay the Bonds
or the interest thereon except from the Net Revenues of the works, and the Bonds shall not
constitute an indebtedness of the City or any municipal corporation or political subdivision of the
State of Indiana within th.e meaning of the provisions and limitations of the constitution of the
State of Indiana.
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Section 13. Funds and Accounts
(a) Sewage Works Revenue Fund. All revenues derived from the operation of the
sewage works and from the collection of sewer rates and charges shall be deposited in the
Revenue Fund (the "Revenue Fund"), segregated and deposited as set forth in the 1995 Ordinance
and continued herein. Of the revenues in the Revenue Fund, the proper and reasonable expenses
of operation, repair and maintenance of the works shall be paid, the principal and interest of all
bonds and fiscal agency charges of registrars or paying agents shall be paid, and the costs of
replacements, extensions, additions and improvements shall be paid. No moneys derived from the
revenues of the sewage works shall be transferred to any other fund of the City or be used for any
purposes not connected with the sewage works so long as any bonds payable from the revenues
of the sewage works are outstanding.
(b) Sewage Works Operation and Maintenance Fund. On the last day of each calendar
month, revenues of the sewage works shall be transferred from the Revenue Fund to the
Operation and Maintenance Fund continued the 1995 Ordinance and herein (the "Operation and
Maintenance Fund"). The balance maintained in this Operation and Maintenance Fund shall be
sufficient to pay the expenses of operation, repair and maintenance for the then next succeeding
two (2) calendar months. The moneys credited to this Operation and Maintenance 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 Operation and
Maintenance Fund shall be used for depreciation, replacements, improvements, extensions or
additions. Any monies in the Operation and Maintenance Fund may be transferred to the Sewage
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Works Sinking Fund if necessary to prevent a default in the payment of principal of or interest on
the outstanding bonds of the sewage works.
(c) Sinking Fund. There is hereby continued a sinking fund, continued by the 1995
Ordinance and herein, for the payment of the principal of and interest on revenue bonds which by
their terms are payable from the net revenues of the sewage works and the payment of any fiscal
agency charges in connection with the payment of bonds, which fund shall be designated the
"Sewage Works Sinking Fund" (herein, "Sewage Works Sinking Fund" or "Sinking Fund").
There shall be set aside and deposited in the Sewage Works 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 (hereinat~er defined) and Debt Service Reserve
Account (hereinafter defined) in the Sinking Fund. Such payments shall continue until the
balances in the Bond and Interest Account and the Debt Service Reserve Account equal the
principal of and interest on all of the then outstanding bonds of the sewage works to their final
maturity.
(ii) Bond and Interest Account. There shall be credited on the last day of each
eaiendar month from the Revenue Fund to the Bond and Interest Account of the Sinking Fund
herein established (the "Bond and Interest Account") an amount of the Net Revenues equal to (i)
one-sixth (1/6) of the interest of all then outstanding bonds payable on the then next succeeding
interest payment date and (ii) at least one-twelt~h (1/12) o£the principal on ail then outstanding
bonds payable on the then next succeeding respective interest and principal payment dates until
the amount of the interest and principal payable on the next succeeding interest and principal
payment dates shall have been so credited. There shall similarly be credited to the account any
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amount necessary to pay the bank fiscal agency charges for paying interest on outstanding bonds
as the same become payable. The City shall, fi.om 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.
(iii) Debt Service Reserve Account. Funds representing the margin of safety
for the Bonds established and maintained pursuant to this Ordinance shall be deposited into the
Debt Service Reserve Account of the Sinking Fund (the "Debt Service Reserve Account"). The
initial deposit or the balance accumulated in the Debt Service Reserve Account shall not exceed
the least of(i) the maximum annual debt service on the Bonds, (ii) 125% of average annual debt
service on the Bonds or (iii) 10% of the stated principal amount of the bonds ("Reserve
Requirement"). The balance in the Debt Service Reserve Account, allocable to the bonds, shall
never exceed the Reserve Requirement. If the initial balance in the Debt Service Reserve Account
is less than the Reserve Requirement, an amount of Net Revenues shall be credited to the Debt
Service Reserve Account on the last day of each calendar month until the balance therein equals
the Reserve Requirement. The monthly deposits shall be equal in amount and sufficient to
accumulate the Reserve Requirement within five (5) years of the date of delivery of the Bonds.
The Debt Service Reserve Account shall constitute the margin for safety and protection against
default in the payment of principal of and interest on the bonds, and the moneys in the Debt
Service Reserve Account shall be used to pay current principal and interest on the 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 Debt Service Reserve Account shall be made up fi.om
the next available Net Revenues remaining after credifs into the Bond and Interest Account. Any
moneys in the Debt Service Reserve Account in excess of the Reserve Requirement shall either be
transferred to the Sewage Works Improvement Fund or be used for the purchase of outstanding
bonds or installments of principal of fully registered bonds.
(d) Sewage Works Improvement Fund. Any excess revenues over and above the
requirements of the Operation and Maintenance Fund and Sinking Fund may be transferred or
credited from the Revenue Fund to the Sewage Works Improvement Fund continued by the 1995
Ordinance and herein (the "Improvement Fund"), and the Improvement Fund shall be used for
improvements, replacements, additions and extension of the sewage works. Moneys in the
Sewage Works Improvement Fund shall be transferred to the Sinking Fund if necessary to prevent
a default in the payment of principal and interest on the then outstanding bonds or, if necessary, to
eliminate any deficiencies in credits to or minimum balance in the Debt Service Reserve Account
of the Sewage Works Sinking Fund or may be ttansferred to the Operation and Maintenance Fund
to meet unforeseen contingencies in the operation, repair and maintenance of the sewage works.
Section 14. Investment of Funds. The Sinking Fund shall be deposited in and maintained
as a separate account or accounts from ail other accounts of the City. The Revenue Fund and the
Improvement Fund may be maintained in a single account, or accounts, but such account, or
accounts, shall likewise be maintained separate and apart from all other accounts of the City and
apart from the Sinking Fund account or accounts. All moneys deposited in the accounts shall be
deposited, held and secured as public funds in accordance with the public, depository laws of the
State of Indiana; provided that moneys therein may be invested in obligations in accordance with
the applicable laws, including particularly IC 5-13, as amended or supplemented, and in the event
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of such investment the income therefrom shall become'a part of the funds invested and shall be
used only as provided in this ordinance.
Section 15. 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 a 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 a portion thereof then outstanding shall be paid; or (i)
sufficient moneys, or (ii) direct obligations of, or obligations the principal of and interest on which
are unconditionally guaranteed by, the United States of America, the principal of and the interest
on which when due will provide sufficient moneys for such purpose, shall be held in trust for such
purpose, and provision shall also be made for paying all fees and expenses for the redemption,
then and in that case the Bonds or any designated portion thereof issued hereunder shall no longer
be deemed outstanding or entitled to the pledge'ofthe Net Revenues of the City's sewage works.
Section 16. Rate Covenant. The City covenants and agrees that, by ordinance of the
Common Council, it will establish just and equitable rates or charges for the use of and the service
rendered by the works, to be paid by the owner of each and every lot, parcel of real estate or
building that is connected with and uses said sewage works by or through any part of the sewage
system of the City, or that in any way uses or is served by such works; that such rates or charges
shall be sufficient in each year to provide for proper Operation and Maintenance (as defined in the
Financial Assistance Agreement) of the 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. The City covenants and agrees that it
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will establish rates and charges in a manner which reflects a customer's fair share of the sewage
works' capital costs and a customer's proportionate share of Operation and Maintenance. The
fair share of the sewage works' capital costs shall be determined by the City. The proportionate
share of Operation and Maintenance shall be based on the actual (or estimated) wastewatar flow
and loading contributed by a customer in relation to the total wastewater flow and loading
contributed by all customers. Such rates or charges shall, if necessary, be changed and readjusted
from time to time so that the revenues therefrom shall always be sufficient to meet Operation and
Maintenance of the sewage works, satisfy all covenants in the Ordinance and the Financial
Assistance Agreement, including the requirements of the Sinking Fund. The rates or charges so
established shall apply to any and all use of such works by and service rendered to the City and all
departments thereof, and shall be paid by the City or the various departments thereof as the
charges accrue.
Section 17. Additional Bond Provisions~ The City reserves the right to authorize and
issue additional BANs at any time ranking on a parity with the BANs. In the event any additional
bonds are issued pursuant to this section and Section 21 of the 1995 Ordinance, the term "Bonds"
in this ordinance shall, unless the context requires otherwise, be deemed to mean such additional
bonds and the Bonds authorized and issued pursuant to this Ordinance. The City reserves the
right to authorize and issue additional 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 at its sewage works, or to refund obligations, subject to the
following conditions:
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(a) 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.
(b) The net operating revenues of the sewage works in the fiscal year immediately
preceding the issuance of any such bonds ranking on a parity with the Bonds shall be not less than
one hundred twenty-five percent (125%) of the maximum annual interest and principal
requirements of the then outstanding bonds and the additional parity bonds proposed to be issued;
or, prior to the issuance of the party bonds, the sewage rates and charges shall be increased
sufficiently so that increased rates and charges applied to the previous year's operations would
have produced net operating revenues for said year equal to not less than one hundred twenty-five
percent (125%) of'the maximum annual interest and principal requirements of all bonds payable
from the revenues of the sewage works, including the additional parity bonds proposed to be
issued.
For purposes of this subsection, the records of the sewage works shall be analyzed and all
showings prepared and certified by a duly licensed consulting engineer or certified public
accountant employed by the City for that purpose, who shall certify that he has no pecuniary
interest in said additions, extensions, and improvements or the financing thereof'in any way
whatsoever other than to analyze the records of said sewage works and to prepare said showings.
(c) The principal of such parity bonds shall be payable on ~'anuary 1 and the interest
shall be payable on January 1 and July 1 in the years in which principal and interest are payable.
Parity bonds may also be issued to refund less than all of the then outstanding bonds
issued pursuant to this ordinance or ranking on a parity therewith but any such refunding bonds
shall be subject to the conditions in this section unless the bonds being refunded mature within
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three (3) months of the date of such refunding and no 6ther funds are available to pay such
maturing bonds.
(d) A debt service reserve for the additional parity bonds commensurate wiih and
proportional to the reserve created for the Bonds shall be created and maintained. Such reserve
may be funded from bond proceeds or by Net Revenues over time.
(e) If the Bonds are sold to the State of Indiana or the Indiana Bond Bank to finance
Eligible Costs; (i) the City obtains the consent of the State of Indiana; (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 the Ordinance, and (iii) the City is in compliance with
its National Pollutant Discharge Elimination System/Permits, except for non-compliance for which
the purpose of the bonds are issued, including refunding bonds issued prior to, but part of an
overall plan to eliminate such non-compliance.
Section 18. 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 hereby
specifically provided as follows:
(a) The City shall at all times maintain the sewage works system in good condition,
and operate the same in an efficient manner and at a reasonable cost.
(b) So long as any of the Bonds and BANs are outstanding, the City shall maintain
insurance on the insurable_parts of said work, ora kind and in an amount acceptable to the State
of Indiana, including fidelity bonds, such as would normally be carried by private corporations
-33-
engaged in a similar type of business. All insurance shall be placed with responsible insurance
companies qualified to do business under the laws of the State of Indiana.
As an alternative to maintaining such insurance, the City may mamntmn a self-
insurance program with catastrophic or similar coverage so long as such program meets the
requirements of any applicable laws or regulations and is maintained in a manner consistent with
programs maintained by similarly situated municipalities.
Insurance proceeds or self-insurance proceeds shall be used in replacing or
repairing the property destroyed or damaged, or if not used for that purpose, shall be treated and
applied as net revenues of the works.
(c) So long as any of the BANs and Bonds are outstanding, the City shall not
mortgage, pledge or otherwise encumber the property and plant of its sewage works system, or
any part thereof without the prior written consent of the State of Indiana if such BANs or Bonds
are sold to the State of Indiana. The City shall not sell, lease or otherwise dispose of any part of
the same, excepting only such machinery, equipment or other property as may be replaced, or
shall no longer be necessary for use in connection with said utility.
(d) If the BANs or Bonds are sold to the State of Indiana or the Indiana Bond Bank to
finance Eligible Costs, the City shall not borrow any money, enter into any contract or agreement
or incur any liabilities in connection with the sewage works, other than normal operating
expenditures, without the prior written consent of the State of Indiana if such undertaking would
involve, commit or use the revenues of the sewage works.
(e) Except as otherwise specifically provided in Section 17 of this Ordinance, so long
as any of the Bonds are outstanding, no additional bonds or other obligations pledging any
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portion of the revenues of the system shall be authorized, issued or executed by the City, except
such as shall be made junior and subordinate in all respects to the Bonds, unless all of the Bonds
are redeemed and retired coincidentally with the delivery of such additional bonds or other
obligations.
(f) The City shall take all actions 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.
(g) The provisions of this ordinance shall constitute a contract by and between the
City and the owners of the Bonds and BANs herein authorized, all the terms o£which shall be
enforceable by any bondholder by any and all appropriate proceedings in law or in equity. After
the issuance of the Bonds and BANs, this ordinance shall not be repealed, amended or modified in
any respect which will adversely affect the rights or interests of the owners of the Bonds and
BANs, nor shall the Common Council or any other body of the City adopt any law, ordinance or
resolution in any way adversely affecting the rights of such owners so long as any of the Bonds
and BANs, or the interest thereon, remain outstanding or unpaid. Except in the case of changes
described in Section 19, this Ordinance may be amended, however, without the consent of the
owners of the Bonds or BANs, 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 State of Indiana or the Indiana Bond Bank to finance
Eligible Costs, the City shall obtain prior written consent of the State oflndiann.
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(h) The provisions of this ordinance shall b'e 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 seth proceeds until the same are
applied in accordance with the provisions of this ordinance and said governing Act. The
provisions of this ordinance shall also be construed to create a trust in the Net Revenues herein
directed to be set apart and paid into the Sinking Fund for the uses and purposes of that Fund as
in this ordinance set forth. The owners of the Bonds shall have all the rights, remedies and
privileges set forth in the provisions of the governing Act, including the right to have a receiver
appointed to administer the sewage works in the event the City shall fail or refuse to fix and
collect sufficient rates and charges for those purposes, or shall fail or refuse to operate and
maintain said system and to apply properly the revenues derived from the operation thereof, or if
there be a default in the payment of the interest on or principal of the Bonds.
(i) None of the provisions of this ordinance shall be construed as requiring the
expenditure of any funds of the City derived from any sources other than the proceeds of the
Bonds and the operation of the sewage works system.
Section 19. Amendments with Consent of Bondholders. Subject to the terms and
provisions contained in this section and Sections 18, the owners of not less than sixty-six and two-
thirds percent (66 2/3%) in aggregate principal amount of the Bonds issued pursuant to this
ordinance and then outstanding shall have the right from time to time, to consent to and approve
the adoption by the 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
-36-
terms or provisions contained in this ordinance, or in any supplemental ordinance; provided,
however, that if the Bonds or BANs are sold to the State of Indiana or the Indiana Bond Bank to
finance Eligible Costs, the City shall obtain the prior written consent of the State of Indiana; and
provided, further, that nothing herein contained shall permit or be construed as permitting:
(a) An extension of the maturity of the principal of or interest on any Bond issued
pursuant to this ordinance; or
Co) A reduction in the principal amount of any Bond or the redemption premium or the
rate of interest thereon; or
(c) The creation ora 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.
If the owners of not less than sixty-six and two-thirds percent (66 2/3%) in aggregate
principal amount of the Bonds outstanding at the time of adoption of such supplemental ordinance
shall have consented to and approved the adoption thereof by written instrument to be maintained
on file in the office of the Clerk-Treasurer of the City, no owner of any Bond issued pursuant to
this ordinance shall have any right to object to the adoption of such supplemental ordinance or to
object to any of the terms and provisions contained therein or the operation 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
thereof. Upon the adoption of any supplemental ordinance pursuant to the provision~ of his
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 ail
owners of Bonds then outstanding, shall thereai~er be determined, exercised and enforced in
accordance with this ordinance, subject in ail 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 ail the Bonds then outstanding.
Section 20. Tax Covenants. In order to preserve the exclusion of interest on the Bonds
and BA2qs from gross income for federal tax purposes under Section 103 of the Internal Revenue
Code of 1986 as existing on the date of issuance of the Bonds (the "Code") and as an inducement
to purchasers of the Bonds and BANs, the City represents, covenants and agrees that:
(a) iXlo person or entity other than the City or another state or local governmental unit
will use proceeds of the Bonds or BANs or property financed by the Bond or BAN proceeds
other than as a member of the general public, lq'o person or entity other than the City or another
state or Iocai governmentai unit will own property financed by Bond or BAN proceeds or will
have any actual or beneficiai 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 d~ff'erentlates that person s or entity s use of such property from use by the
general public.
-38-
(b) No portion of the principal of or interest on the Bonds or BANs is (under the
terms of the Bonds, BANs, this ordinance or any underlying arrangement), directly or indirectly,
secured by an interest in property, used or to be used for any private business use or payments in
respect of any private business use or payments in respect of such property or to ~.,~ derived fi-om
payments (whether or not to the City) in respect of such property or bo~owed money used or to
be used for a private business use.
(c) No Bond or BAN proceeds will be loaned to any person or entity other than
another state or local governmental unit. No 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 will not take any action nor fall to take any actic~n with respect to the
Bonds or BAN that would result in the loss of the exclusion 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 exclusion.
(e) It shall be not an event of default under this ordinance ifthe interest on any Bond
or BANs are 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.
(f) These covenants are based solely on current law in effect and i~ existence on the
date of delivery of such Bgnds and BANs.
Section 21. 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 to a financial
-39-
institution, the State of Indiana, the Indiana Bond Bank, or to any other purchaser, pursuant to a
Bond Anticipation Note Purchase Agreement (the "BAN Purchase Agreement") to be entered
into between the City and the purchaser of the BAN or BANs or otherwise: If the BAJqs are sold
to the State of Indiana, the Financial Assistance Agreement shall serve as the BAN Purchase
Agreement. The Common Council hereby authorizes the issuance and execution of the BAN or
BANs in lieu of initially issuing the 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 Clerk-Treasurer are hereby authorized and directed to execute
a BAN Purchase Agreement or Financial Assistance Agreement, and any amendments made from
time to time, in such form or substance as they shall approve acting upon the advice of counsel.
The Mayor and the Clerk-Treasurer may also take such other actions or deliver such other
certificates as are necessary or desirable in connection with the issuance of the BANs or the
Bonds and the other documents needed for the financing as they deem necessary or desirable in
connection therewith.
Section 22. Noncompliance with Tax Covenants. Notwithstanding any other provisions
of this ordinance, the covenants and authorizations contained in this ordinance (the "Tax
Sections") which are designed to preserve the exclusion of interest on the Bonds and BANs from
gross income under federal law (the "Tax Exemption") need not be complied with if the City
-40-
receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to
preserve the Tax Exemption.
Section 23. Rate Ordinance. The rates and charges of the sewage works are set forth in
Ordinance No.98-OR% adopted on April .._, 1995. Such ordinance is incorporated hereby by
reference.
Section 24. S~6~Faction of Parity Bond Tests. The Common Council hereby finds and
determines that all conditions of Section 21 of the 1995 Bonds have been met and the 1995 Bonds
and the Bonds issued under this Ordinance will be on parity therewith.
Section 25. Severability. If any section, paragraph or provision of this ordinance shall be
held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such
section, paragraph or provision shall not affect any of the remaining provisions of this ordinance.
Section 26. Other Action. The appropriate officers are hereby authorized to take all
actions to obtain a rating, bond insurance or any other form of credit enhancement for the Bonds
if economically feasible and desirable and with the favorable recommendation of the financial
advisors to the City. In addition, the appropriate off%ers of the City are hereby authorized and
directed to take any other action deemed necessary or advisable in order to effectuate the
acquisition and construction of the Project, the issuance of the BANs or Bonds, or any other
purposes of this ordinance.
Section 27. Amendment of Ordinance without Consent of Bondholders. The Common
Council may, from time to time, and without the consent of bondholders, adopt ordinances
supplemental hereto (which supplemental ordinances shall thereafter form a part hereof) for any
one or more of the following purposes:
(a) To cure any ambiguity or formal defect or onussion in this ordinance or in any
supplemental ordinance;
fo) To grant to or confer upon the owners of the Bonds any additional benefits, fights,
remedies, Powers, authoriiy or security that may lawfully be granted to or conferred upon the
owners of the Bonds, or to make any change which, in the judgment of the Common Council, is
not to the prejudice of the owners of the Bonds;
(c) To modify, amend or supplement this ordinance to permit the qualification of the
Bonds for sale under the securities laws of the United States of America or of any of the states of
the United States of America or to obtain or maintain bond insurance With respect to payments of
principal of and interest on the Bonds;
(d) To provide for the refunding or advance refunding of the Bonds;
(e) To procure a rating on the Bonds from a nationally recognized securities rating
agency designated in such supplemental resolutibn, if such supplemental resolution Will not
adversely affect the owners of the Bonds; or
(f) Any other purpose which in the judgment of the Common Council does not
adversely impact the interests of the owners of the Bonds.
Section 28. Conflicting Ordinances. All ordinances and parts of ordinances in conflict
herewith, except the 1990 Ordinance and the 1995 Ordinance, are hereby repealed. None of the
provisions of this Ordinance shall be construed to adversely affect the fights of the owners of the
1990 Bonds or the 1995 Bonds.
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.
-42-
Section 30. Effective Date. This ordinance shall be in full force and effect from and after
its passage and signing by the Mayor.
-43-
Passed and adopted by the Common Council of the City of Jeffersonville this'.~xlay of
COlVIIVlON COUNCIL
Printed:
Its: Presiding Officer
Attest:
C. lard Spencer/Jr., Cle~reasurer .
· t~iented bY me t° the May°r °fthe Cit~°f Jeffers°nville this ~ day °f~ 1998 at
,1998 a
~2. Richard Spencer, Jif, Clerk-T.(easurer
igned and approved by me, the Mayor of the City of Jeffersonville, this _~_ day of~
-44-
Exhibit
PROJECT DESCRIPTION
The Project is defined as improvements to the wastewater collection and treatment
process and will be completed in two (2) distinct phases as follows:
Phase I (Interceptor and Collection Project)
Rehabilitation, construction, reconstruction and extension of interceptor and
collection sewers for the following individual projects:
2.
3.
4.
5.
Sth Street Combined Sewer Rehabilitation
Graham Street Combined Sewer Rehabilitation
10th Street New Sanitary Sewer Interceptor Installation
Home Vista Subdivision Collector Sewer Installation
1996 Annexation Areas Collector Sewer Installation
Estimated Construction Costs
Phase II (Lift Station and Treatment Plant)
Improvements and reconstruction of sewage treatment plant and lift station.
Estimated Construction Costs $6.891.80~0
-45-
CITY OF JEFFERSONVILLE
SEWAGE WORKS REVENUE BONDS OF 1998
Exhibit B
Proposed Principal payable January 1 annually,
beginning January 1, 2000
Interest payable semi-annually,
beginning July 1, 1999
PROPOSED SCHEDULE
Date
Principal Amount
Date Principal Amount
2000 $525,000 2011
2001 545,000 2012
2002 565,000 2013
2003 585,000 2014
2004 610,000 2015
2005 635,000 2016
2006 660,000 2017
2007 685,000 2018
2008 710,000 2019
2009 740,000
2010 765,000 Total
$795000
830 000
860 000
895 000
930 000
965 000
1,000,000
1,040,000
1,080,000
Note: These maturities may represent one or more series of bonds per maturity.
46-
DRAFT (10/8/97)~
STATE OF INDIANA
WASTEWATER REVOLVING LOAN PROGRAM
FINANCIAL ASSISTANCE AGREEMENT made as of this day of {DATE} by
and between the State of Indiana (the "State") acting by and through the State Budget Agency
(the "Budget Agency") and the {Qualified Entity} (the "Qualified Entity"), a political
subdivision as del'reed in I.C. 13-11-2-16,~'and existing under I.C. {36-5}{36-9-25}{13-
26}{14-33}, wimesseth:
WHEREAS, the State has had a longstanding commitment to fund water quality
projects for political subdivisions of the State; and
WHEREAS, the State's Wastewater Revolving Loan Program (the "SRF Program")
has been established in accordance with the federal Clean Water Act and the regulations
promulgated thereunder, and pursuant to I.C. 13-18-13 (the "SRF Act"), which SRF Act also
establishes the wastewater revolving loan fund (the "SKF Fund"); and
WHEREAS, through the cooperation of federal, state and local governments, more
than a billion dollars of water quality projects have been built in Indiana in the past two
decades; and
WHEREAS, hundreds of millions of dollars of additional water quality projects in
Indiana are critically needed, and the political subdivisions need -- and desire -- low-cost
financing therefor; and
WHEREAS, the State is authorized pursuant to the SKF Act to fund the SKF Program
with federal capitalization grants, together with required State matching funds, therefor; and
WHEREAS, the SKF Program is a critical source of low-cost financing for political
subdivisions' water quality projects; and
WHEREAS, the Indiana Bond Bank (the "Bond Bank") has had a longstanding
commitment to finance water quality projects for qualified entities by issuing its bonds,
pursuant to I.C. 5-1.5 (the "Bond Bank Act") for the purpose of buying securities of such
qualified entities; and
WHEREAS, in keeping with its public purpose under the Bond Bank Act, the Bond
Bank intends to cooperate with the State in financing the SKF Program, including the
required State matching funds, and the political subdivisions' water quality projects and, to
that end, the State intends to cooperate with the Bond Bank; and
The form of the Financial Assistance Agreement is drafted by SRF
Program Counsel prior to adoption of the local ordinance/resolution authorizing the
issuance of the SRF Participant's bonds. It must be attached to the
ordinance/resolution in order to approve its form.
WHEREAS, to finance the SRF Program, including the required State matching
funds, the Bond Bank has previously and will issue from time to time one or more series of
its State Revolving Fund Program Bonds; and
WHEREAS, the Qualified Entity is a duly existing political subdivision of tile State,
lawfully empowered to undertake all transactions and execute all documents mentioned or
contemplated herein; and
WHEREAS, the Qualified Entity has determined to undertake a wastewater treatment
system project (as more fully described herein, the "Project") and to borrow money from the
SRF Program to construct and acquire the Project; and
WHEREAS, the State and the Qualified Entity desire to set forth the terms of such
financial assistance as hereinafter provided.
NOW THEREFORE, in consideration of the mutual covenants herein set forth, the
State and the Qualified Entity agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms shall for, all purposes of this
Agreemem, have the following meaning:
"A e_Agg_~" shall mean the United States Environmental Protection Agency or its
successor.
"Authorizing Instrument(s)." shall mean the separate trust indenture(s) of the
Qualified Entity entered into with a corporate trustee or the detailed resolution(s) or
ordinance(s) of the governing body of the Qualified Entity pursuant to which the Bonds are
issued ha accordance with State law.
"Authorized Representative" shall mean the {Authorized_Rep} of the Qualified
Entity or such other officer, official, or representative of the Qualified Entity duly authorized
to act for and on behalf of the Qualified Entity 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 ha Section 2.02
of this Agreement.
"Bond Bank Bonds" shall mean any Indiana Bond Bank State Revolving Fund
Program Bonds issued as a part of the SRF Program.
Page 2
"Bond Fund shall mean the separate and segregated fund or account established and
created by the Political Subdivision pursuant to the Authorizing Instrument from which
payment of the principal of and interest on the Bonds is required to be made by the Qualified
Entity. ~
.~" shall mean the State Budget Agency created under I.C. 4~12-1-3 or
its successor.
.~" 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.
§§ 1251-1387, as amended and supplemented from time to time.
"Code" shall mean the Internal Revenue Code of 1986, as amended and supplemented
from time to ~ime, together with the regulations related thereto.
(.Commitmenf~ shall mean the letter of the State, acting through the Budget Agency,
accepted by the Qualified Entity, pursuant to which a binding commitment to make a Loan to
the Qualified Entity for the Project was made.)
.~" shall mean the Indiana Department of Environmental Management
created under I.C. 13-13-1-1 or its successor.
"Disbursement Request" shall mean a request for a disbursement of the Loan made
by an Authorized Representative in the form of Exhibit A to this Agreement, with
appropriate attachments, or in such other forms as the State may from time to time prescribe.
.~" 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.
"Facilities Plan" shall mean the information submitted by the Qualified Entity that is
-necessary for the Depa~unent to determine the technical, economic and environmental
adequacy of the proposed Project.
"Financial Assistance" shall mean the financial assistance authorized by the Clean
Water Act, including the Loan.
"Loan" shall mean the purchase of the Bonds by the State to finance the planning,
designing, c0~structing, renovating, improving and expanding of the Qualified Entity'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.
Page 3
"Operation and Maintenance" shall mean the activities required to assure the
continuing dependable and economic function of thg'Treatment Works, including'maintalning
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 maintaining systems of preventive and
corrective maintenance, including replacement.
"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.
"Project" shall mean the activities or tasks identified and described in Exhibit B to
this Agreement, as amended or supplemented by the Qualified Entity and consented to by the
State, for which the Qualified Entity may expend the Loan.
"Purchase Account" shall mean the account by that name created by the SRF
Indenture and held as part of the SRF Fund.
"SRF Fund" shall mean the wastewat~r revolving loan fund as established by I.C.
13-18-13-2.
"SRF Indenture" shall mean the State Revolving Loan Fund Trust Indenture, dated
as of January 1, 1993 between the State and the Trustee, as amended and supplemented from
time to time.
"SRF Program Director" shall mean the person designated by the Department and
the Budget Agency as authorized to act as the SRF Program Director for purposes of this
Agreement.
"State" shall mean the State of Indiana, acting through the Department and the
Budget Agency.
"Substantial Completion of Construction" shall mean the day on which the
Depaxtment 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.
"Treatment Works" shall mean all, or any part of, the devices and systems for
storage, transport, treatment, recycling and reclamation of municipal sewage, domestic
sewage or liquid industrial wastes, or necessary to recycle or reuse water at the most
Page 4
economical cost over the life of the wastewater treatment system, including one or more of
the following:
(1) Intercepting sewers, outfall sewers, sewage collection systems,
individual systems, pumping, power and other equipment and their appurtenances.
(2)
thereof.
Extensions, improvements, kemodeling, additions and alterations
(3) Elements essential to provide a reliable recycled supply such as standby
treatment units and clear well facilities.
(4) Any part of the wastewater treatment system including the land which
will be an integral part of the treatment process or is used for ultimate disposal of
residue resulting from such treatment, including land used for (i) composting sludge,
(ii) temporary storage of such sludge and (iii) the storage of treated wastewater in
land treatment systems before land application.
(5) Any other method or system for preventing, abating, reducing, storing,
treating, separating or disposing of municipal or industrial waste, including waste in
combined storm water and sanitary sewer systems.
"Trustee" shall mean NBD Bank, N.A., Indianapolis, Indiana, in its capacity as
trustee or its successor under the SKF Indenture.
(End of'Article I)
Page 5
ARTICLE II
PURPOSE OF BORROWING AND
LOAN TERMS
Section 2.01. Amount; Purpose. The State agrees to Loan an amount not to exceed
{Loan Amount}Dollars (${Loan Amount}) in aggregate principal amoum to the Qualified
Entity-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 Facilities Plan ("Plo~ning"), (b) eligible design services for the production of
Plan.q 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 Bond Bank Bonds contained in the Purchase Account or from other sources the State, in
its sole discretion, may designate. The Loan is evidenced by the Bonds executed and
delivered by the Qualified Entity contemporaneously herewith. The Bonds shall be in fully
registered form, with the Bond Bank registered as the registered owner. Pursuant to certain
agreements between the State and the Bond Bank, so long as the Bond Bank 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: NBD Bank, N.A., Indianapolis,
Indiana/Corporate Trust; ABA No. 074 000 052; Contact: Robert J. Kocher; Account No.
24834. The Qualified Entity 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) The Bonds will {bear interest at the per annum rate of three and nine tenths
percent (3.9%){not bear interest for the one year period from the date of this Agreement and
thereafter will bear interest at the per annum rate of three and five tenths percent
(3.5%)}{not bear interest for the two year period from the date of this Agreement and
thereafter will bear interest at the per annum rate of two and nine tenths pement (2.9%)}
(calculated on the basis of a 360-day year comprised of twelve 30-day months) until paid, as
provided in I.C. 13-18-13-10 and -15. Interest, if any, on the Bonds will be payable on
{Interest_Payment Dates} of each year, commencing {First_Payment_Date}. The Bonds will
be in the aggregate'principal mount of {Loan_Amount}Dollars (${Loan_Amount}). Subject
to Section 2.05 herein, the Bonds will mature on {Principal_Payment_Dates} 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 Exhibit C to this Agreement; 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 twenty (20) years after Substantial Completion
of Construction. 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.
Co) The Bonds will be subject to redemption by the Qualified Entity as provided in
the Authorizing Instrument.
Page 6
(c) The form and other terms of the Bonds W'_fll be in Conformity with the
Authorizing Instrument.
Section 2.03. Disbursement Conditions. Each of the following shall be a, condition
precedent to the disbursement of the Loan or any portion thereof:
(a) (1) With respect to procurement of professional services related to the
Project to be paid from Loan proceeds, the Qualified Entity shall have complied with
327 I.A.C. 13-11-1. (2) With respect to procurement of all other goods and services
related to the Project to be paid from Loan proceeds, the Qualified Entity shall have
complied with I.C. 36-1-12.
(b) No representation, warranty or covenant of the Qualified Entity 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 Qualified Entity 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 State uncommitted funds in an amount
sufficient to satisfy the State's obligations hereunder from the proceeds of Bond Bank
Bonds in the Purchase Account.
(e) The Qualified Entity shall have undertaken all actions necessary to comply
with and satisfied the conditions and requirements for a Loan secured with money
made available from the SRF Fund as set forth in federal and State statutes, rules and
regulations, including I.C. 13-18-13, 327 I.A.C. 13, the Clean Water Act and 40
C.F.R. Part 35.
Section 2.04. Disbursement Procedures. Loan proceeds shall be disbursed to the
Qualified Entity by the Trustee for actual Eligible Costs incurred with respect to the Project.
The State 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 Co) if
advised in writing by the Qualified Entity that I.C. 36-1-12-14 or a similar law applies to the
Project, to Qualified Entity for purposes of collecting retainage, or some combination
thereof. Any Loan proceeds in excess of the amount subject to retainage controlled by the
Qualified Entity 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. Loan disbursements shall not be made more frequently than
monthly and shall only be made following the submission of a Disbursement Request to the
State. Disbursement Requests shall be approved by the Deparmaent and the SRF Program
Director prior to submission to the Trustee for a Loan disbursement. Disbursement Requests
shall be numbered sequentially, beginning with the number 1.
Page 7
Section 2.05. Effect of Disbursements.. Loan disbursements made .to or for the
benefit of the Qualified Entity shall be deemed to be a purchase of the Bonds {in order of
mamrity.}{in such mounts and with such maturities as achieves as level debt service as
practicable, and with no maturity longer tl~ 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 fzrst be deemed to be a purchase
of the Bonds in order of maturity.} Interest on the Loan commences on the day that the
State approves a Disbursement Request and forwards such Disbursement Request to the
Trustee for payment. In the event any Loan disbursement is made ia excess of Eligible
Costs, such excess disbursements shall be immediately paid by the Qualified Entity to the
Trustee and may, subject to the terms and conditions set forth in this Agreement, be
borrowed by the Qualified Entity.
Section 2.06. Acknowledo~nent of Amount of Loan; Final Disbursement. Within
30 days after any request by the State from time to time, the Qualified Entity shall execute
and deliver to the State an acknowledgment in the form prescribed by the State which
acknowledges the outstanding principal of and interest un the Bonds. Unless the State
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 State, the Qualified Entity shall replace, at its expense, the Bonds with substitutes
issued pursuant to the Authorizing Instrument to evidence the outstanding principal under the
Loan.
(End of Article II)
Page 8
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE QUALIFIED ENTITY
Section 3.01. plannln~, Design and Construction Covenants. The Qualified Entity
hereby covenants and agrees with the State that the Qualified Entity will:
(a) Provide information as requested by the State to determine the need for,
or to complete any necessary, environmental review or analysis.
(b) Comply with the procurement procedures and aff'unnative action
requirements contained in 327 I.A.C. 13-11 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 £~rst tier contract awards, repon 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
delivering Agency Form SF 334 to the Department whenever any agreements or
subagreements are awarded. (These reports must be submitted by the 15th day of
each January, April, July and October after which such agreement or subagreement is
awarded).
(d) Prior to the submission to the Depamnent of the Design of the Project,
receive the written approval of the Department as to the Facilities Plan.
(e) Comply with all applicable federal, State and local statutes, rules and
regulations relating to the acquisition and construction of the Treatment Works.
(f) In the event Construction is to be paid from Loan proceeds, prior to
advertising for Construction bids for the Project, receive the written approval of the
Department of the Plans and Specifications.
(g) Obtain the property rights necessary to construct the Treatment Works
and, in procuring any such rights comply with federal and State law.
(h) 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.
(i) In the event Construction is to be paid from Loan proceeds, execute and
deliver to the Depa~uent Agency Form 4700-4 ("Pre-award Compliance Review
Report for Wastewater Treatment Construction Grants") and Agency Form 5700-49
("Certification Regarding the Debarment, Suspension, and Other Responsibility
Matters ").
Page 9
agrees
(j) In the event Construction is to be paid from Loan proceeds, follow
guidance issued by the Department in procuring contracts for Construction, including
(I) submission to the Department of Project change orders, (2) obtaining approval
from the SRF Program Director of any Project change order which significantly
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 SRF Program Director prior to
the award of any contract for Construction and (4) receiving authorization from the
SRF Program Director prior to initiating procurement of construction of the Project.
(k) In the event Construction is to be paid from Loan proceeds, before
awarding Construction contracts, receive approval of the SRF Program Director for
the sewer charge system (including sewer use ordinance and any interlocal agreement)
associated with the Project.
(1) In the event Construction is to be paid from Loan proceeds, cause the
Project to be constructed in accordance with the planu and Specifications, using
approved contract papers.
(m) Permit the State 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 327 I.A.C. 13-12-7 and 327
I.A.C. 13-15-1. Construction contracts shall provide that the State or its agents will
have access to the Project and the work related thereto and that the Qualified Entity's
contractor will provide proper facilities for such access and inspection. All files and
records pertaining to the Project shall b'e retained by the Qualified Entity for at least
six years after Substantial Completion of Construction.
(n) Upon Substantial Completion of Construction and when requested by the
State, provide audited reports to the State to permit the State to determine that the
Loan proceeds have been used in compliance with this Agreement.
(o) In the event Construction is to be paid from Loan proceeds, within one
year of Substantial Completion of Construction, certify to the State that the Project
meets performance standards, or if not met, (1) submit to the Depa~xent a corrective
action plan, including the information described in 327 I.A.C. 13-12-9 and (2)
promptly and diligently undertake any corrective action necessary to bring the Project
into compliance with such standards.
(p) In the event Construction is to be paid from Loan proceeds, within one
year of Substantial Completion of Construction, provide as-built plan~ for the Project
to the Depa~nent.
Section 3.02. General Covenants. The Qualified Entity hereby covenants and
with the State that the Qualified Entity will:
Page 10
(a) Comply with all applicable federal, State and local statutes, rules and
regulations relating to Operation and Maintenance.
(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 usef~l life; (2)
at all times maintain the Treatment Works in good condition and operate it ih 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 State.
(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 State, 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 State consents to a different use of such proceeds or
awards.
(e) Establish and maintain the books and other fmanciai records of the Project
(including the establishment of a separate account or subaccount for the Projec0 and
the Treatment Works in accordance with (1) generally accepted governmental
accounting principles, as promulgated by the Government Accounting Standards
Board and (2) the rules, regulations and guidance of the State Board of Accounts.
(f) Provide to the State 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 State or the Qualified Entity
by the Agency.
(g) Provide notice to the Depa~iment under the circumstances contemplated,
and undertake inspections as required, by 327 I.A.C. 13-12-7.
(h) (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 sufficienl revenue (including user and other charges, fees, income or
revenues available to the Qualified Entity) 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
Qualified Entity 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
Page 11
in the boundaries of the Qualified Entity, to pay all obligations of the Qualified Entity
with respect thereto.
(i) Establish rates and charges in a manner which reflects a customer's fair
share of the Treatment Works' capital cost and a customer's proportionate share of
Operation and Maintenance. The fair share of the Treatment Works' Capital costs
shall be determined by the Qualified Entity. The proportionate share of Operation
and Maintenance shall be based on the actual (or estimated) wastewater flow and
loading contributed by a customer in relation to the total wastewater flow and loading
contributed by all customers.
O) 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 State
if such undertaking would involve, commit or use the revenues of the Treatment
Works; provided that the Qualified Entity 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.
(k) Comply with the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 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. § 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.
(1) Undertake all actions necessary to investigate all potential, material claims
which the Qualified Entity 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 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.
(m) Not modify, alter, amend, add to or rescind any provision of the
Authorizing Instrument without the prior written consent of the State.
Section 3.03. Representations and Warranties of the Qualified Entity. After due
investigation and inquiry, the Qualified Entity hereby represents and warrants to the State
that:
(a) The Qualified Entity is duly organized and existing under state law, and
constitutes a "political subdivision" within the meaning of I.C. 13-11-2-164. The
Page 12
Project and the Treatment Works are subject? I.C. {36-9-23}{36-9-25}{13-26}{14-
33}.
(b) The Qualified Entity 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 Qualified Entity 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 Qualified Entity is a party or by which the Qualified Entity 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 Qualified Entity,
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 Qualified Entity 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 Qualified Entity to meet its
obligations under this Agreement, the Authorizing Instrument or the Bonds.
(f) The Qualified Entity 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 Qualified Entity.
(g) All information furnished by the Qualified Entity to the State or any of the
persons representing the State in connection with the Loan or the Project is accurate
and complete in all material respects.
(h) The Qualified Entity has taken or Will take all proceedings required by
law to enable it to issue and sell the Bonds as contemplated by this Agreement.
Each of the foregoing representations and warranties will be deemed to have been
made by the Qualified Entity as of the date of this Agreement and as of the date of any
disbursement of Loan proceeds. Each of the foregoing representations and warranties shall
survive the Loan disbursements regardless of any investigation or investigations the State
may have undertaken.
Page 13
Section 3.04. Cown~nts Regaraln~' Assienment. The Qualified Entity
acknowledges that the State may direct the Bond Bank to sell or assign the Bonds, and
certain of its rights related thereto, as permitted pursuant to Section 5.02 herein. The
Qualified Entity covenants and agrees to cooperate with and assist in, at its expense, any
such assignment. Within 30 days following a request by the State, the Qualified Entity
covenants and agrees with the State that the Qualified Entity. will, at its expense, furnish any
mfurmauon; financial or otherwise, with respect the Qualified Entity, this Agreement, the
Authorizing Instrument and the Bonds and the Treatment Works as the State reasonably
requests in Writing to facilitate the sale or assignment of the Bonds.
Section 3.05. Nature of Information. All information furnished by the Qualified
Entity to the State or any person representing the State in connection with the Loan or the
Project may be furnished to any other person the State, in its judgment, deems necessary or
desirable in its operation and administration of the SRF Program.
Sectlon 3.06. Tax Covenants. The Qualified Entity 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 Qualified Entity further
covenants ~at it will not do any act or thing that would cause the Bonds to be "private
activity bo~ds" within the mcaniug of Section 141 of the Code or "arbitrage bonds" within
the meaning of Secuon 148 of the Code. In furtherance and not in limitation of the
foregoing, be Qualified .Entity shall take all action necessary and appropriate to comply with
the arbitrage rebate reqmrements under Section 148 of the Code to the extent applicable to
the Qualified Entity or the Bonds, including a~counting 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 frbm 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 Qualified Entity hereby covenants that the Qualified
Entity, and its contractor and subcomracmr for thc Project, shall not discriminate against any
employee or applicant for emp. loyment, to be employed in the performance of this
Agreemem, 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 ancest~.
Section 3.08. Drug-Free Work~lace Covenant. The Qualified Entity hereby
covenants that ~o make a good faith effort to provide and maintain during the term of this
Agreement. a drug-free workplace, and that it will give notice to the Budget Agency and the
Indiana DePmm~ent of Administration within ten days after receiving actual notice that an
employee ~f the Qualified Entity has been convicted of a criminal drug violation occurring in
the Qualified Entity's workplace.
(End of Article IH)
Page 14
ARTICLE IV
DEFAULTS
Section 4.01. Remedies. The State's obligation to make a disbursement under the
Loan to the Qualified Entity hereunder may be terminated at the option of the State, without
giving any prior notice to the Qualified Entity, in the event: (a) the Qualified EntitY 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;
or (b) any representation or warranty made by the Qualified Entity 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. If an event of default occurs, the State
without giving any prior notice, may 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 State in any instance or
under any circumstance to observe or perform fully any obligation assumed by or imposed
upon the State by this Agreement or by law shall not make the State liable in damages to the
Qualified Entity or relieve the Qualified Entity from paying any Bond or fully performing
any other obligation requi~ed of it under this Agreement or the Authorizing Instrument;
provided, however, that the Qualified Entity may have and pursue any and all other remedies
provided by law for compelling performance by the State of such obligation assumed by or
imposed upon the State. The obligations of the State hereunder do not create a debt or a
liability of the State under the constitution of the State or a pledge of the faith or credit of the
State and do not directly, indirectly or contingently, obligate the State to levy any form of
taxation for the payment thereof or to make arly appropriation for their payment. Neither the
State nor any agent, attorney, member or employee of 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.
(End of Article IV)
Page 15
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.
Section 5.02. Assignment. Neither this Agreement, nor the Loan or the proceeds
thereof may be assigned by the Qualified Entity without the prior written consent of the State
and any attempt at such an assignment without such consent shall be void. The State 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 State or
any assignee is a beneficiary or party. The State may at its option assign all or a po~on of
its rights under this Agreement to any person. The Qualified Entity hereby consents to any
such assignment by the State. This Agreement shall be binding upon and inure to the benefit
of any permitted successor and assign.
Section 5.03. No Waiver. Neither the failure of the State nor the delay of the State
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 chahge 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 Commitment shall be deemed merged herein
and of no further force or effect.}
Section 5.06. Execution of Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be executed by the State and the Qualified
Entity, and all of which shall be regarded for all purposes as one original and shall constitute
one and the same instrument.
Page 16
Section 5.07. Severabilitv of Invalid Provisions. If any one or more of the
covenants or agreements provided in this Agreement on the pan of the State or the Qualified
Entity 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 ~rom 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
State shall be given by providing such notice to both the Budget Agency and the Department
as follows:
State of Indiana
Depa~huent of Environmental Management
100 North Senate, 12th.Floor
Post Office Box 6015
Indianapolis, Indiana 46206-6015
Attention: SRF Program Director
State of Indiana
State Budget Agency
212 State House
Indianapolis, Indiana 46204
Attention: SRF Program Representative
or at such other address(es) or number(s) and to the attention of such other person(s) as the
State may designate by notice to the Qualified Entity. Notices to the Qualified entity shall be
addressed to:
{Qualified_Entity}
{Qualified_Entity_Addressl}
{ Qualified_Entity_Address2}
{City}, Indiana {Zip_Code}
Attention: {Authorized_Rep}
or at such other address(es) or number(s) and to the attention of such other person(s) as the
Qualified Entity may designate by notice to the State. 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.
Page 17
Section 5.09. Expenses. The Qualified Entity 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; CO) 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 State in connection with
the enforcement of this Agreement, the Authorizing Instrument and the Bonds in the-event of
the breach by the Qualified Entity of or a default under this Agreement, the Authorizing
Instrument or the Bonds. Notwithstanding clause Co) above, the Qualified Entity shall not be
obligated to pay any of the fees, costs and expenses in connection with administering the
Loan except as follows: (1) the State may request and the Qualified Entity shall promptly
pay, an annual administrative fee in connection with the Loan in an amount determined by
the State, but not exceeding $1,000; (2) for so long as the State or the Bond Bank is the
registered owner of the Bonds, at the direction of the State, 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 SRF Program; and (3) the Qualified
Entity shall only be obligated to pay fees, costs and expenses of the State's counsel and
financial advisers in connection with making the Loan up to $5,000.
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 Qualified
Entity l~as 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.
(End of Article V)
Page 18
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.
{Qualified_Entity}
'Qualified Entity"
By:
Printed:
Title:.
Attest:
Page 19
STATE BUDGET AGENCY
By:
Peggy Boehm, State Budget Dh'ector
"Budget Agency"
Approved:
DEPARTMENT OF ADMINISTRATION
By:
Betty Cockrum, Commissioner
Approved as to form and legality:
ATTORNEY GENERAL OF THE STATE OF
INDIANA
By:
Page 20
EXHIBIT A
State of Indiana
STATE WASTEWATER REVOLVING LOAN (SRF) PROGRAM
Indiana Government Center North
100 N. Senate Avenue, 12th Floor
P. O. Box 6015
Indianapolis, Indiana 46206-6015
(317) 232-8631
REQUEST FOR A DISBURSEMENT
The undersigned Authorized Representative of the Qualified Entity named in this
Request, on behalf of such Qualified Entity, hereby (i) requests that the State make a
Disbursement, or cause a Disbursement to be made, in accordance with this Request and (ii)
directs that the State mail, or cause to be mailed, the Disbursement to the Qualified Entity or
the Contractor named in this Request.
Instructions
1. This Request is applicable only to costs of the Qualified Entity's wastewater
treatment works project eligible for financing/'rom the State Wastewater Revolving Loan
Fund (the "SRF").
2. Combine multiple bills from a single contractor on one request form.
3. Attach a copy of the claim (a bill, an invoice or a statement) underlying this
Request.
4. Complete the required information and please answer all questions.
5. Indicate on this Request if the Qualified Entity has paid all or part of the
Contractor's claim and is seeking reimbursement. Attach evidence that such payment was
made and the date on which it was made.
6. Inquires related to the stares of a Disbursement request must be directed to the
Qualified Entity. The Qualified Entity can then contact this office for the information.
Please contact your contractors about lhi.q policy.
7. Requested amounts must be rounded to the nearest whole dollar.
8. The Request must be typed.
DISBURSEMENT REQUEST INFORMATION
Community:
Mailing Address:
Project No.: CS
Request No.:
Contact Person: Contact Phone No.: ( )
Community's Authorized Representative:
Authorized Representative's Phone No.:
Description of Work for which claim is being made (service, fees, type of, etc.):
Contractor .Address
Amount Re uested
$
Original Loan Amount ................................................................... $
Total Amount of Previous Disbursements ............................................ $
Amoum of this Request ................................................................. $
Balance Available after this Disbursement ........................................... $
Is a portion of the claim underlying this Request subject to retainage under I.C. 36-1-12-14
or a similar law? YES NO ~
If yes the retainage amount is .......................................................... $
This amount will be mailed to the commullity for such retainage purposes and the
remainder sent directly to the contractor identified above.
Has the Qualified Entity paid the request and seeking reimbursement? YES NO
The undersigned hereby certifies that this Request is true and correct, that the claim
underlying this Request is legally due (and is payable from the SRF) in accordance with the
Financial Assistance Agreemem with the State.
DATE:
AUTHORIZED REPRESENTATIVE SIGNATUR~
2
STATE AUTHORIZATION
The Department of Environmental Management finds $ of the claim underlying
this Request to be eligible SRF Costs to be disbursed as directed below. ,
The Program Representative hereby (i) authorizes'NBD Bank, N.A., as trustee, to disburse
the amount stated in the preceding sentence and (ii) directs that such amount be mailed to:
the Contractor at the address identified on page 2.
the Qualified Entity at the address identified on page 2.
DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT
PROGRAM REPRESENTATIVE
By: By:
Date:. Date:
Trustee Certification
The undersigned, on behalf of NBD Bank> N.A., as trustee, hereby certifies that a
Disbursement in the amount authorized by the State, together with a completed copy of this
Request, was mailed on ,199 to the party stated under "State
Authorization" above. Further, a copy of this c~mpleted Request has been mailed to the
Qualified Entity and the Department of Environmental Management.
NBD BANK, N.A., as Trustee
Date: By:
Authorized Officer
3
FagltlBIT B~
[Subject to State's approval, this information is to be supplied by
the Qualified Entity prior to Closing.]
The Project is more fully described in, and shall be in accordance with, the Facilities Plan
and the P~o~ and Specifications approved by the Department.
B-1
EXHIBIT C
Principal Payment Schedule
Date
Principal Principal
Amount Date Amount
[Subject to State's approval, this information is to be supplied by
the Qualified Entity's Financial Advisor prior to Closing.]
C-1
Form Prescribed by State Board of Accounts General Form No.
CITY OF JEFFERSONVILLE CLERK~TREASURER TO:
(Governmental Unit)
CLARK County, Indiana 221 SPRING
PUBLISH'S CLAIM
99P (Reyised
THE EVENING NEWS ~i
ST JEFFERSONVILLE, IN
47130
1987)
LIN[
Tail--number of
Total number
COUNT
Display Matter (Must not exceed ~wo actual lines, neither of
total more than four solid llnes of type in which the body
advertisement is set)--number of equilvent lines ...........
Head--number of lines ..........................................
Body--.number of lines ..........................................
lines ..........................................
of lines in notice ............................
whic~ shall
th~
73
73
COMPUTATION OF CHARGES
73 lines, 1 columns wide equals 73 equivalent lines
at .255cents per line ....................................
Addit~o-~-~al~charge for notices containing rule or tabular work
(50 perce~ ,of above amount) ...............................
Charge for ex~ra proofs of publication ($1.00 for each proof
in excess%~f two) .........................................
ToTaL A~O~T OF CLAIM ............................ ...........
~8.63
18.62
DATA FOR COMPUTING COST
Width 'of single column ~.~ ems
Number oF .~n~r~,~ on~ 1
Size ' ~' ~" point
~No~c~ O~ ~,nNA-
.~OR~ ~ ~ A -
ORD~~ A~O.~G ~ ~
and penalties of Chapter 155, Acts [953,
foregoing account is just and correct, that the
after allowing all just credits, and~that no part
Liz Baumgardner
,19 98 Title te~al bookkeeper
PUBLISHER'S AFFIDAVIT
.of Indiana)
)SS:
r~k County)
~ally appeared before me, a notary publi~ in and for
rate, the underszgnedLiz Baumgardner who, being
worn, says that ~he ~s ~eqal bookkeeper of the
~V~T~ ~W~ newspaper of'~general circu-
printed and published in the English language in
ity) ~k~) of . ~ . - --"' L_ in state and county afore-
and that the printed ma~%er attached hereto is a true
which was duly published in said paper f~r ONE tim~$~)
the dates of publication being as follows:
lgth,
-.,Lbe~ and swcrn ~o before me
mission expires: ~