THIS IS A DRAFT ORDINANCE. CHANGES CAN BE MADE UP TO RATIFICATION OF THE ORDINANCE. PLEASE EXCUSE ANY FORMATTING ISSUES
ORDINANCE NO. 2025-03
ORDINANCE AUTHORIZING THE TOWN OF CHURUBUSCO, INDIANA TO ISSUE ITS TAXABLE ECONOMIC DEVELOPMENT REVENUE BONDS AND APPROVING OTHER ACTIONS IN RESPECT THERETO
WHEREAS, the Churubusco Economic Development Commission (“Commission”) conducted a public hearing and adopted a resolution, which resolution has been transmitted hereto, finding that the financing of certain economic development facilities of Biggs, Inc. (“Company”) complies with the purposes and provisions of IC 36 7 11.9 and 12 and that such financing will be of benefit to the health and welfare of the Town of Churubusco, Indiana (“Town” and “Issuer”) and its citizens;
WHEREAS, the Town has determined to pledge loan payments (“Note Payments”) received pursuant to a Loan Agreement between the Town and the Company, dated as of the first day of the month the hereinafter defined Bonds are sold or issued (“Loan Agreement”) and, if necessary, payments made pursuant to a Letter of Credit of a financial institution acceptable to the Authority (as defined herein), on behalf of the Company (“Letter of Credit”), to be used to pay debt service on the Bonds. The Town shall issue its Taxable Economic Development Revenue Bonds, Series 2025 (Turtle Meadows Project) (“Bonds”), pursuant to this ordinance to finance the cost of all or a portion of the construction of infrastructure improvements including, but not limited to, roads, sewer and water utilities and stormwater management systems, together with all necessary appurtenances, related improvements and equipment (“Infrastructure Project”), to support the development of a new residential housing community consisting of approximately 23 single-family workforce housing lots, 19 villa lots and 9 estate lots (“Development” and, together with the Infrastructure Project, collectively, “Project”), to be constructed by the Company, and costs of issuance on the Bonds and related expenses;
WHEREAS, the Commission has heretofore approved and recommended the adoption of this form of ordinance by this Town Council, has considered the issue of adverse competitive effect and has approved the forms of and has transmitted for approval by the Town Council the Loan Agreement (including form of promissory note (“Note”)) dated as of the first day of the month the Bonds are sold or issued (“Loan Agreement”) and the Trust Indenture (including form of the Bonds) dated as of the first day of the month the Bonds are sold or issued (“Indenture” and, together with the Loan Agreement, collectively, “Financing Documents”);
WHEREAS, the Town may enter into a Residential Housing Infrastructure Financial Assistance Agreement (substantially in the form attached as Exhibit B hereto and made a part hereof), together with any subsequent amendments thereto (“Financial Assistance Agreement”) with the Indiana Finance Authority (“Authority”), as part of its residential housing infrastructure assistance program (“IFA Program”) established and existing pursuant to IC 5-1.2-15.5, pertaining to the Infrastructure Project and the financing of the Infrastructure Project if the Bonds are sold to the Authority through its IFA Program;
WHEREAS, the Town may accept other forms of financial assistance, as and if available from the IFA Program; and
WHEREAS, there are no other bonds, pledges or obligations payable from the Note Payments;
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF CHURUBUSCO, INDIANA, THAT:
Section 1. It is hereby found that: (i) the financing of the economic development facilities, including the Project, and referred to in the Financing Documents approved by the Commission and presented to this Town Council; (ii) the issuance and sale of the Town’s Taxable Economic Development Revenue Bonds, Series 2025 (Turtle Meadows Project) (“Bonds”); (iii) utilizing the loan of the proceeds of the Bonds to the Company for the construction of the Infrastructure Project; (iv) the payment of the Bonds from the Note Payments pursuant to the Loan Agreement and Note and, if necessary, payments made pursuant to the Letter of Credit; and (v) the securing of the Bonds under the Indenture, complies with the purposes and provisions of IC 36-7-11.9 and -12 and will be of benefit to the health and welfare of the Town and its citizens. The proceeds of the Bonds will be used for the financing of the construction of the Infrastructure Project and costs of issuance and related expenses. The Town Council further finds, determines, ratifies and confirms that the promotion of economic development, creation of new job opportunities and housing to assist in alleviating the housing shortage in the Town and increased investment in the Town, is desirable to preserve the health, safety and general welfare of the citizens of the Town; and that it is in the public interest that the Commission and the Issuer to take such action as they lawfully may to encourage economic development, creation of job opportunities, creation of housing and increased investment in the Town.
Section 2. At the public hearing held before the Commission, the Commission considered whether the funding and construction of the Project would have an adverse competitive effect on any similar facilities located in or near the Town, and subsequently found, based on findings of fact set forth in its resolution transmitted hereto (“Resolution”) and the absence of evidence from the public or a competitor of substantive probative value, that the funding and construction of the Project would not have an adverse competitive effect. This Town Council hereby confirms the findings on adverse competitive effect set forth in the Commission’s Resolution, and hereby finds that the construction of the Project will be of benefit to the health and welfare of the citizens of the Town.
Section 3. The substantially final forms of the Loan Agreement (including form of Note) and the Indenture (including form of Bonds) approved by the Commission are hereby approved (herein collectively referred to as the “Financing Documents” referred to in IC 36 7 11.9 and 12), and the Financing Documents are attached hereto as Exhibit A. In accordance with the provisions of IC 36-1-5-4, two (2) copies of the Financing Documents are on file in the office of the Clerk-Treasurer for public inspection.
Section 4. The Clerk-Treasurer may negotiate the sale of the Bonds to the Authority as part of its IFA Program. The Town Council President and the Clerk-Treasurer are hereby authorized to: (i) execute a Financial Assistance Agreement (including any amendment thereof) with the Authority with terms conforming to this ordinance; and (ii) sell such Bonds upon such terms as are acceptable to the Town Council President and the Clerk-Treasurer consistent with the terms of this ordinance and the Indenture. In the event the Bonds are sold to the Authority through the IFA Program, the Financial Assistance Agreement for the Bonds and the Infrastructure Project shall be executed by the Town. The substantially final form of Financial Assistance Agreement attached hereto as Exhibit B and incorporated herein by reference is hereby approved by the Town Council, and the Town Council President and the 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 5. The Town may issue its Bonds, maturing no later than twenty (20) years after their date of issuance, in the aggregate principal amount not to exceed $1,100,000. The Bonds are to be issued for the purpose of procuring funds to pay the costs of construction of the Infrastructure Project, all as more particularly set out in the Indenture and the Loan Agreement, which Bonds will be payable as to principal and interest from Note Payments and, if necessary, payments made pursuant to the Letter of Credit, all pursuant to the Financing Documents or as otherwise provided in the above described Indenture. The Bonds shall be issued in fully registered form in denominations of $1 and integral multiples thereof if sold to the Authority as a part of its IFA Program, or as provided in the above-described Indenture, payable semiannually on February 1 and August 1 and if the Bonds are sold to the Authority as part of its IFA Program, allow the Town to meet the coverage and/or amortization requirements of the IFA Program. If the Bonds are sold to the Authority as part of its IFA Program, such debt service schedule shall be finalized and set forth in the Financial Assistance Agreement. The Bonds shall be subject to optional redemption prior to maturity at the option of the Town, no later than ten (10) years after their date of delivery, on any date, on no longer than sixty (60) days’ notice, in whole or in part, in the inverse order of maturity, and by lot within a maturity, at face value together with a premium no greater than 2%, plus accrued interest to the date fixed for redemption; provided, however, for Bonds sold to the IFA Program and registered in the name of the Authority, the Bonds shall not be redeemable at the option of the Town unless and until consented to by the Authority, and as further provided in the Indenture. The Bonds may be issued as term bonds subject to mandatory sinking fund redemption. Payments on the Bonds are payable in lawful money of the United States of America by check mailed or delivered to the registered owners or by wire transfer as provided in the Indenture. The Bonds shall never constitute a general obligation of, an indebtedness of, or a charge against the general credit of the Town as described in the Indenture nor are the Bonds payable in any manner from revenues raised by taxation.
Notwithstanding anything contained herein, the Town may accept any other forms of financial assistance, as and if available, from the IFA Program (including without limitation any forgivable loans, grants or other assistance) whether available as an alternative to any Bond related provision otherwise provided for herein or as a supplement or addition thereto. If required by the IFA Program to be eligible for such financial assistance, one or more of the series of the Bonds issued hereunder may be issued on a basis such that the payment of the principal of or interest on (or both) such series of Bonds is junior and subordinate to the payment of the principal of and interest on other series of Bonds issued hereunder, all as provided by the terms of such series of Bonds as modified pursuant to this authorization. Such financial assistance, if any, shall be provided in the Financial Assistance Agreement and the Bonds of each series of Bonds issued hereunder (including any modification made pursuant to the authorization in this paragraph to the form of Bonds otherwise contained herein).
Notwithstanding anything in this ordinance to the contrary, any series of Bonds issued hereunder may bear interest that is taxable and included in the gross income of the owners thereof. If any such Bonds are issued on a taxable basis, the designated name shall include the term “Taxable” as the first word in the designated name.
Section 6. The Town Council President and the Clerk-Treasurer are authorized and directed to sell the Bonds to the Authority, or its designee, at a price of not less than 100% of the par value thereof and shall bear accrue interest at a rate not to exceed five percent (5%) per annum (the exact rate or rates to be determined by negotiation with the Authority as part of its IFA Program). Interest on the Bonds is payable semiannually on February 1 and August 1 in each year, commencing on the first February 1 or the first August 1 after the date of issuance of the Bonds, as designated by the Clerk-Treasurer, with the advice of its municipal advisor. Interest on the Bonds shall be calculated according to a 360-day calendar year containing twelve 30-day months. Interest on the Bonds sold to the Authority as part of its IFA Program shall be payable from the date or dates of payment made by the Authority as part of its purchase of the Bonds pursuant to the Financial Assistance Agreement.
Section 7. The Bonds may be both purchased by the Authority in installments and drawn down by the Company in installments (subject to the Internal Revenue Code).
Section 8. The Town Council President and the Clerk-Treasurer are authorized and directed to execute and attest, manually, electronically or by facsimile, and to affix or imprint by any means the Town seal to, the documents constituting the Financing Documents approved herein on behalf of the Town and any other document which may be necessary or desirable prior to, on or after the date hereof to consummate or facilitate the transaction, including the Bonds authorized herein. The Town Council President and the Clerk-Treasurer are hereby expressly authorized to approve any modifications or additions to the documents constituting the Financing Documents which take place after the date of this ordinance with the review and advice of counsel to the Town; it being the express understanding of this Town Council that the Financing Documents are in substantially final form as of the date of this ordinance. The approval of these modifications or additions shall be conclusively evidenced by the execution and attestation thereof and the affixing of the seal thereto or the imprinting of the seal thereon; provided, however, that no such modification or addition shall change the terms and conditions set forth in IC 36-7-12-27(a)1-10, including the maximum principal amount of, interest rate on or term of the Bonds as approved by the Town Council by this ordinance without further consideration by the Town Council. The signatures of the Town Council President and the Clerk-Treasurer on the Bonds may be either manual, facsimile or electronic signatures. The use of electronic signatures by the Town Council President and the Clerk-Treasurer are authorized and affirmed with full valid legal effect and enforceability. The Clerk-Treasurer is authorized to arrange for delivery of such Bonds to The Bank of New York Mellon Trust Company, N.A. (“Trustee”), and payment for the Bonds will be made to the Trustee and after such payment, the Bonds will be delivered by the Trustee to the purchaser thereof. The Bonds shall be originally dated the date of issuance and delivery thereof.
Section 9. The provisions of this ordinance and the Indenture securing the Bonds shall constitute a contract binding between the Town and the holders of the Bonds, and after the issuance of the Bonds, this ordinance shall not be repealed or amended in any respect which would adversely affect the rights of such holders so long as the Bonds or the interest thereon remains unpaid; provided, however, that in any case so long as the Bonds are outstanding and held by the Authority, the Town Council shall not amend or supplement this ordinance without the prior written consent of the Authority.
Section 10. This ordinance shall constitute “official action” for purposes of compliance with state laws requiring governmental action as authorization for future reimbursement from the proceeds of bonds.
Section 11. This ordinance shall be in full force and effect from and after its passage.
Passed and adopted by the Town Council of the Town of Churubusco, Indiana this 19th day of February, 2025.
TOWN COUNCIL OF THE TOWN OF CHURUBUSCO, INDIANA
