ORDINANCE NO. 2021-05
An Ordinance of the Town of Churubusco authorizing the current refunding by the Town of its outstanding Sewage Works Revenue Bonds, Series 2006, if economically advantageous, and authorizing the issuance of sewage works revenue bonds for the purpose of providing funds to pay the cost of certain additions, extensions and improvements to the municipal sewage works of said Town, providing for the safeguarding of the interests of the owners of said bonds, other matters connected therewith, including the issuance of notes in anticipation of bonds, and repealing ordinances inconsistent herewith
WHEREAS, the Town of Churubusco, Indiana (“Town”) has heretofore established, constructed and financed a municipal sewage works and now owns and operates the sewage works pursuant to IC 36-9-23, and other applicable laws; and
WHEREAS, the Town Council of the Town (“Council”) now finds that certain improvements, additions and extensions to said works are necessary; and that plans, specifications and estimates have been or will be prepared and filed by the engineers employed by the Town for the construction of said improvements and extensions, as more fully described on Exhibit A attached hereto (“Project”), which plans and specifications have been or will be approved by the Council and by all governmental authorities having jurisdiction, including, particularly, the Indiana Department of Environmental Management; and
WHEREAS, the Council finds that there are now outstanding bonds originally issued to finance the construction of improvements and additions to the sewage works and payable out of the revenues therefrom designated as “Sewage Works Revenue Bonds, Series 2006,” originally dated July 31, 2006 (“2006 Bonds”), now outstanding in the amount of $298,000, and maturing annually over a period ending January 1, 2027; which 2006 Bonds constitute a first charge upon the Net Revenues (as hereinafter defined) of the sewage works; and
WHEREAS, the Council finds that, to the extent economically advantageous, the 2006 Bonds of the sewage works should be refunded to obtain a reduction in interest payments to effect a savings to the Town; that the refunding of those outstanding bonds, together with redemption premium, if any, and accrued interest thereon and including all costs related to the refunding cannot be provided for entirely out of funds of the sewage works now on hand and the refunding should be accomplished by the use of certain funds on hand and the issuance of refunding revenue bonds of the sewage works; and
WHEREAS, the Town has obtained engineer’s estimates of the costs of the construction of the Project and will advertise for and receive bids for the Project, which bids will be subject to the Town’s determination to construct the Project and subject to the Town obtaining funds to pay for the Project; that on the basis of said estimates, the estimated cost of the Project, including estimated incidental expenses and the current refunding of the 2006 Bonds, if economically advantageous, is in the maximum amount not to exceed of $10,500,000; and
WHEREAS, to the extent the 2006 Bonds are not refunded and remain outstanding, the ordinance authorizing the issuance of the 2006 Bonds permits the issuance of additional bonds ranking on a parity with the bonds authorized herein provided that certain conditions can be met, and the Town finds that the finances of said sewage works will enable the Town to meet the conditions for the issuance of additional parity bonds and that, accordingly, the revenue bonds authorized herein shall constitute a first charge on the Net Revenues of the waterworks, on a parity with the 2006 Bonds, to the extent not refunded; and
WHEREAS, the Council finds that the 2006 Bonds may, if economically advantageous, be refunded pursuant to the provisions of IC 5-1-5 to enable the Town to obtain a reduction in interest payments to effect a savings to the Town; and
WHEREAS, the Council finds that it is necessary to authorize the financing of the Project and the refunding of the 2006 Bonds, if economically advantageous, by the issuance of sewage works revenue bonds, in one or more series, in an aggregate principal amount not to exceed $10,500,000, and, if necessary, bond anticipation notes (“BANs”); and
WHEREAS, the bonds to be issued pursuant to this ordinance will constitute a first charge against the Net Revenues of the sewage works, on a parity with the 2006 Bonds to the extent they remain outstanding, and are to be issued subject to the provisions of the laws of the State of Indiana, including, without limitation, IC 5-1-5 and IC 36-9-23, each as in effect on the issue date of the bonds issued hereunder (collectively, “Act”), and the terms and restrictions of this ordinance; and
WHEREAS, the Town desires to authorize the issuance of BANs hereunder, if necessary, in one or more series to finance the aforementioned costs of the Project, and to authorize the refunding of the BANs, if issued; and
WHEREAS, the Council has been advised that it may be cost efficient to purchase municipal bond insurance and a debt service reserve surety for all or a portion of the bonds authorized herein; and
WHEREAS, the Council now finds that all conditions precedent to the adoption of an ordinance authorizing the issuance of revenue bonds, refunding revenue bonds and BANs have been complied with in accordance with the provisions of the Act;
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF CHURUBUSCO, INDIANA, THAT:
Section 1. Project and Refunding Authorization. The Town now finds it necessary, if economically advantageous, to provide funds for refunding the 2006 Bonds thereby reducing its interest payments and effecting a savings, as reported by the Town’s municipal advisor, Baker Tilly Municipal Advisors, LLC (“Municipal Advisor”). The Town shall proceed with the construction of the Project in accordance with the cost estimates and the plans and specifications heretofore prepared and filed or to be prepared and filed by the consulting engineers employed by the Town, which cost estimates and all plans and specifications are by reference made a part of this ordinance as fully as if the same were attached hereto and incorporated herein and two copies of which are now on file or shall be placed on file in the office of the Clerk-Treasurer of the Town and are open for public inspection pursuant to IC 36-1-5-4. The cost of construction of the Project and refunding the 2006 Bonds shall not exceed the sum of $10,500,000, plus investment earnings on the bond and BAN proceeds, without further authorization from this Council. The terms “sewage works,” “sewage works system,” “system” and other like terms where used in this ordinance shall be construed to mean the Town’s existing sewage works system and all real estate and equipment used in connection therewith and appurtenances thereto, and all extensions, additions and improvements thereto and replacements thereof now or at any time hereafter constructed or acquired, and all other items as defined in IC 36-9-1-8, as amended. To the extent the 2006 Bonds remain outstanding, these terms will also include the Treatment Works, as defined in the Financial Assistance Agreement between the Town and the Indiana Finance Authority (“Authority”), dated July 31, 2006 (“Financial Assistance Agreement”). The Project shall be constructed in accordance with the plans and specifications heretofore mentioned, which plans and specifications are hereby approved. The Project shall be constructed, the refunding, to the extent economically advantageous, of the 2006 Bonds shall be accomplished, and the bonds herein authorized shall be issued pursuant to and in accordance with the Act.
Section 2. Issuance of Bonds and BANs. (a) The Town shall issue, if necessary, its BANs for the purpose of procuring interim financing to apply to the cost of the Project. The Town shall issue its BANs, in one or more series, in an aggregate principal amount not to exceed Ten Million Five Hundred Thousand Dollars ($10,500,000) to be designated “Sewage Works Bond Anticipation Notes of ______” (to be completed with the year in which issued and series designation, if any). The BANs shall be sold at a price not less than 99% of their par value, shall be numbered consecutively from 1 upward, shall be in denominations of One Thousand Dollars ($1,000) or integral multiples thereof, as designated in the purchase agreement for the BANs, shall be dated as of the date of delivery thereof, and shall bear interest at a rate not to exceed 5.0% per annum (the exact rate or rates to be determined through negotiation). Interest shall be payable semiannually on January 1 and July 1 commencing on the first January 1 or the first July 1 after the date of issuance of the BANs as determined by the Clerk-Treasurer, with the advice of the Municipal Advisor, and upon maturity or redemption. Each series of BANs will mature no later than five (5) years after their date of delivery. The BANs are subject to renewal or extension at an interest rate or rates not to exceed 5.0% per annum (the exact rate or rates to be determined through negotiation). The term of the BANs and all renewal BANs may not exceed five years from the date of delivery of the initial BANs. The BANs shall be registered in the name of the purchasers thereof.
The BANs shall be issued pursuant to IC 5-1.5-8-6.1 if sold to the Indiana Bond Bank, pursuant to IC 5-1.2-1 through IC 5-1.2-4 and IC 5-1.2-10 if sold to the Authority, or pursuant to IC 5-1-14-5 if sold to a financial institution or any other purchaser. The principal of and interest on the BANs shall be payable from the issuance of revenue bonds pursuant to and in the manner prescribed by the Act. Interest on the BANs may also be payable from Net Revenues of the sewage works, junior and subordinate to the 2006 Bonds to the extent the 2006 Bonds remain outstanding, the bonds issued under this ordinance and any bonds issued in the future which are secured with a pledge of Net Revenues. If any interest on the BANs to be paid from Net Revenues is to occur on a date other than January 1 or July 1, by reason of maturity or redemption, such payment may only occur if all of the principal and interest on all then outstanding bonds of the sewage works of the Town due on the next succeeding principal and interest payment date is fully accumulated in the Bond and Interest Account of the Sewage Works Sinking Fund. The revenue bonds will be payable solely out of and constitute a first charge against the Net Revenues (defined as the gross revenues of the sewage works after deduction only for the payment of the reasonable expenses of operation, repair and maintenance, excluding transfers for payment in lieu of property taxes (“PILOTs”)) of the sewage works of the Town.
(b) The Town shall issue its sewage works revenue bonds, in one or more series, to be designated as “Sewage Works Revenue and Refunding Revenue Bonds of ______” (to be completed with the year in which issued and the appropriate series designation, if any); if the Town, with the advice of its Municipal Advisor, determines that it is necessary to issue its bonds in more than one series, the bonds shall be designated “Sewage Works [Refunding] Revenue Bonds of _______,” to be completed with the year in which issued and insertion of the word “Refunding” for the refunding series (hereinafter referred to collectively as the (“Bonds”), in an aggregate principal amount not to exceed $10,500,000 for the purpose of procuring funds to be applied on the cost of the Project, refunding the 2006 Bonds, the payment of costs of issuance, refunding the BANs, if issued, and all other costs related to the Project, including premiums for municipal bond insurance and a debt service reserve surety, if necessary. The Town shall apply moneys currently held for the payment of debt service on the 2006 Bonds to the refunding as provided herein.
The Bonds shall be sold at a price not less than 99% of the par value thereof, shall be issued in denominations of Five Thousand Dollars ($5,000) each or integral multiples thereof, numbered consecutively from 1 upward, dated as of the first day of the month in which they are issued or sold or as of the date of delivery, as determined by the Clerk-Treasurer with the advice of the Town’s Municipal Advisor. The Bonds shall bear interest at a rate or rates not exceeding 5.0% per annum (the exact rate or rates to be determined by bidding) payable semiannually on January 1 and July 1 in each year, commencing on the first January 1 or the first July 1 following delivery of the Bonds and as designated by the Clerk-Treasurer, with the advice of the Town’s Municipal Advisor. The Bonds shall mature semiannually on January 1 and July 1, over a period ending no later than January 1, 2045 and in amounts that produce as level debt service as practicable with $5,000 denominations. To the extent the 2006 Bonds are not refunded and remain outstanding, the Bonds shall mature annually on January 1 through January 1, 2027 and semiannually on January 1 and July 1 thereafter, over a period ending no later than January 1, 2045 and in amounts that produce as level debt service as practicable with $5,000 denominations, taking into account the annual debt service on all series of Bonds issued under this ordinance and the annual debt service on the 2006 Bonds. If issued in series, the Bonds shall mature in such amounts which take into account the annual debt service on all series of Bonds issued under this ordinance.
All or a portion of the Bonds may be issued as one or more term bonds, upon election of the purchaser. Such term bonds shall have a stated maturity or maturities on the dates as determined by the purchaser, but in no event later than the final serial maturity date of the Bonds as determined in the above paragraph. The term bonds shall be subject to mandatory sinking fund redemption and final payment(s) at maturity at 100% of the principal amount thereof, plus accrued interest to the redemption date, on principal payment dates which are hereinafter determined in accordance with the above paragraph.
Interest on the Bonds and the BANs shall be calculated according to a 360-day calendar year containing twelve 30-day months.
Each series of Bonds issued hereunder shall rank as a parity for all purposes, including the pledge of Net Revenues under this ordinance.
Section 3. Registrar and Paying Agent; Book-Entry Provisions. The Clerk-Treasurer is hereby authorized to contract with a qualified financial institution to serve as Registrar and Paying Agent for the Bonds (“Registrar” or “Paying Agent”). The Registrar is hereby charged with the responsibility of authenticating the Bonds. The Clerk-Treasurer is hereby authorized to enter into such agreements or understandings with the Registrar as will enable the institution to perform the services required of a registrar and paying agent. The Clerk-Treasurer is further authorized to pay such fees as the Registrar may charge for the services it provides as Registrar and Paying Agent and such fees may be paid from the Sewage Works Sinking Fund established to pay the principal of and interest on the Bonds as fiscal agency charges.
As to the BANs and as to the Bonds, if sold to a purchaser that does not object to such designation, the Clerk-Treasurer may serve as Registrar and Paying Agent and is hereby charged with the duties of Registrar and Paying Agent.
The principal of the Bonds shall be payable at the principal corporate trust office of the Paying Agent. All payments of interest on the Bonds shall be paid by check, mailed one business day prior to the interest payment date to the registered owners thereof as the names appear as of the fifteenth day of the month preceding the interest payment date (“Record Date”) and at the addresses as they appear on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in writing by such registered owner. If payment of principal or interest is made to a depository, payment shall be made by wire transfer on the payment date in same-day funds. If the payment date occurs on a date when financial institutions are not open for business, the wire transfer shall be made on the next succeeding business day. The Paying Agent shall be instructed to wire transfer payments by 1:00 p.m. (New York City time) so such payments are received at the depository by 2:30 p.m. (New York City time). Notwithstanding anything to the contrary herein, the Bonds shall not be required to be presented or surrendered to receive payment in connection with any mandatory sinking fund redemption until the final maturity date of the Bonds or earlier payment in full of the Bonds. All payments on the Bonds shall be made in any coin or currency of the United States of America, which on the date of such payment, shall be legal tender for the payment of public and private debts.
Each Bond shall be transferable or exchangeable only upon the books of the Town kept for that purpose at the principal corporate trust office of the Registrar by the registered owner in person, or by its attorney duly authorized in writing, upon surrender of such Bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the registered owner, or its attorney duly authorized in writing, and thereupon a new fully registered Bond or Bonds in an authorized aggregate principal amount and of the same maturity, shall be executed and delivered in the name of the transferee or transferees or the registered owner, as the case may be, in exchange therefor. The costs of such transfer or exchange shall be borne by the Town 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 Town, Registrar and Paying Agent for the Bonds may treat and consider the person in whose name such Bonds are registered as the absolute owner thereof for all purposes including for the purpose of receiving payment of, or on account of, the principal thereof and interest due thereon.
The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent upon giving 30 days’ notice in writing to the Town and by first class mail to each registered owner of the Bonds then outstanding, and such resignation will take effect at the end of such 30 day period or upon the earlier appointment of a successor registrar and paying agent by the Town. Any such notice to the Town 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 Town, in which event the Town may appoint a successor registrar and paying agent. The Town 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 Town, the Clerk-Treasurer is authorized and directed to enter into such agreements and understandings with such successor registrar and paying agent as will enable the institution to perform the services required of a registrar and paying agent for the Bonds. The Clerk-Treasurer is further authorized to pay such fees as the successor registrar and paying agent may charge for the services it provides as registrar and paying agent and such fees may be paid from the Sewage Works Sinking Fund set forth in Section 14 hereof. Any predecessor registrar and paying agent shall deliver all of the Bonds and any cash or investments in its possession with respect thereto, together with the registration books, to the successor registrar and paying agent.
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 Record Date and on or before such interest payment date in which case they shall bear interest from such interest payment date, or unless the Bonds are authenticated on or before the Record Date preceding the first interest payment date, in which case they shall bear interest from the original date until the principal shall be fully paid.
The Town has determined that it may be beneficial to the Town to have the Bonds held by a central depository system pursuant to an agreement between the Town and The Depository Trust Company, New York, New York (“Depository Trust Company”) and have transfers of the Bonds effected by book-entry on the books of the central depository system (“Book Entry System”). Such Bonds shall be initially issued in the form of a separate single authenticated fully registered Bond for the aggregate principal amount of each separate maturity of the Bonds. In such case, upon initial issuance, the ownership of such Bonds shall be registered in the register kept by the Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company.
With respect to the Bonds registered in the register kept by the Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company, the Town and the Paying Agent shall have no responsibility or obligation to any other holders or owners (including any beneficial owner (“Beneficial Owner”)) of the Bonds with respect to (i) the accuracy of the records of the Depository Trust Company, CEDE & CO., or any Beneficial Owner with respect to ownership questions, (ii) the delivery to any bondholder (including any Beneficial Owner) or any other person, other than the Depository Trust Company, of any notice with respect to the Bonds including any notice of redemption, or (iii) the payment to any bondholder (including any Beneficial Owner) or any other person, other than the Depository Trust Company, of any amount with respect to the principal of, or premium, if any, or interest on the Bonds except as otherwise provided herein.
No person other than the Depository Trust Company shall receive an authenticated Bond evidencing an obligation of the Town to make payments of the principal of and premium, if any, and interest on the Bonds pursuant to this ordinance. The Town and the Registrar and Paying Agent may treat as and deem the Depository Trust Company or CEDE & CO. to be the absolute bondholder of each of the Bonds for the purpose of (i) payment of the principal of and premium, if any, and interest on such Bonds; (ii) giving notices of redemption and other notices permitted to be given to bondholders with respect to such Bonds; (iii) registering transfers with respect to such Bonds; (iv) obtaining any consent or other action required or permitted to be taken of or by bondholders; (v) voting; and (vi) for all other purposes whatsoever. The Paying Agent shall pay all principal of and premium, if any, and interest on the Bonds only to or upon the order of the Depository Trust Company, and all such payments shall be valid and effective fully to satisfy and discharge the Town’s and the Paying Agent’s obligations with respect to principal of and premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. Upon delivery by the Depository Trust Company to the Town of written notice to the effect that the Depository Trust Company has determined to substitute a new nominee in place of CEDE & CO., and subject to the provisions herein with respect to consents, the words “CEDE & CO.” in this ordinance shall refer to such new nominee of the Depository Trust Company. Notwithstanding any other provision hereof to the contrary, so long as any Bond is registered in the name of CEDE & CO., as nominee of the Depository Trust Company, all payments with respect to the principal of and premium, if any, and interest on such Bonds and all notices with respect to such Bonds shall be made and given, respectively, to the Depository Trust Company as provided in a representation letter from the Town to the Depository Trust Company.
Upon receipt by the Town of written notice from the Depository Trust Company to the effect that the Depository Trust Company is unable or unwilling to discharge its responsibilities and no substitute depository willing to undertake the functions of the Depository Trust Company hereunder can be found which is willing and able to undertake such functions upon reasonable and customary terms, then the Bonds shall no longer be restricted to being registered in the register of the Town kept by the Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company, but may be registered in whatever name or names the bondholders transferring or exchanging the Bonds shall designate, in accordance with the provisions of this ordinance.
If the Town determines that it is in the best interest of the bondholders that they be able to obtain certificates for the fully registered Bonds, the Town may notify the Depository Trust Company and the Registrar, whereupon the Depository Trust Company will notify the Beneficial Owners of the availability through the Depository Trust Company of certificates for the Bonds. In such event, the Registrar shall prepare, authenticate, transfer and exchange certificates for the Bonds as requested by the Depository Trust Company and any Beneficial Owners in appropriate amounts, and whenever the Depository Trust Company requests the Town and the Registrar to do so, the Registrar and the Town will cooperate with the Depository Trust Company by taking appropriate action after reasonable notice (i) to make available one or more separate certificates evidencing the fully registered Bonds of any Beneficial Owner’s Depository Trust Company account or (ii) to arrange for another securities depository to maintain custody of certificates for and evidencing the Bonds.
If the Bonds shall no longer be restricted to being registered in the name of a Depository Trust Company, the Registrar shall cause the Bonds to be printed in blank in such number as the Registrar shall determine to be necessary or customary; provided, however, that the Registrar shall not be required to have such Bonds printed until it shall have received from the Town indemnification for all costs and expenses associated with such printing.
In connection with any notice or other communication to be provided to bondholders by the Town or the Registrar with respect to any consent or other action to be taken by bondholders, the Town or the Registrar, as the case may be, shall establish a record date for such consent or other action and give the Depository Trust Company notice of such record date not less than fifteen (15) calendar days in advance of such record date to the extent possible.
So long as the Bonds are registered in the name of the Depository Trust Company or CEDE & CO. or any substitute nominee, the Town and the Registrar and Paying Agent shall be entitled to request and to rely upon a certificate or other written representation from the Beneficial Owners of the Bonds or from the Depository Trust Company on behalf of such Beneficial Owners stating the amount of their respective beneficial ownership interests in the Bonds and setting forth the consent, advice, direction, demand or vote of the Beneficial Owners as of a record date selected by the Registrar and the Depository Trust Company, to the same extent as if such consent, advice, direction, demand or vote were made by the bondholders for purposes of this ordinance and the Town and the Registrar and Paying Agent shall for such purposes treat the Beneficial Owners as the bondholders. Along with any such certificate or representation, the Registrar may request the Depository Trust Company to deliver, or cause to be delivered, to the Registrar a list of all Beneficial Owners of the Bonds, together with the dollar amount of each Beneficial Owner’s interest in the Bonds and the current addresses of such Beneficial Owners.
The Town is authorized to issue its BANs in book-entry form and, in that case, all of the provisions set forth in this Section 3 shall apply.
Section 4. Redemption of BANs and Bonds. (a) The BANs are prepayable by the Town, in whole or in part, at any time, upon 20 days’ notice to the owner of the BANs without any premium.
(b) The Bonds are redeemable at the option of the Town, but no earlier than January 1, 2029, or thereafter on any date, on thirty (30) days’ notice, in whole or in part, in the order of maturity as determined by the Town and by lot within a maturity, at face value, together with a premium not to exceed 1%, plus in each case accrued interest to the date fixed for redemption. The exact redemption features shall be determined by the Clerk-Treasurer with the advice of the Town’s Municipal Advisor prior to the sale of the Bonds.
(c) If any Bond is issued as a term bond, the Paying Agent shall credit against the mandatory sinking fund requirement for the Bonds maturing as term bonds, and corresponding mandatory redemption obligation, in the order determined by the Town, any Bonds maturing as term bonds which have previously been redeemed (otherwise than as a result of a previous mandatory redemption requirement) or delivered to the Registrar for cancellation or purchased for cancellation by the Paying Agent and not theretofore applied as a credit against any redemption obligation. Each Bond maturing as a term bond so delivered or canceled shall be credited by the Paying Agent at 100% of the principal amount thereof against the mandatory sinking fund obligation on such mandatory sinking fund date, and any excess of such amount shall be credited on future redemption obligations, and the principal amount of the Bonds to be redeemed by operation of the mandatory sinking fund requirement shall be accordingly reduced; provided, however, the Paying Agent shall credit only such Bonds maturing as term bonds to the extent received on or before forty-five (45) days preceding the applicable mandatory redemption date as stated above.
(d) Each authorized denomination shall be considered a separate bond for purposes of optional and mandatory redemption. If less than an entire maturity is called for redemption, the Bonds to be called shall be selected by lot by the Registrar. If some Bonds are to be redeemed by optional redemption and mandatory sinking fund redemption on the same date, the Registrar shall select by lot the Bonds for optional redemption before selecting the Bonds by lot for the mandatory sinking fund redemption.
Notice of redemption shall be given not less than thirty (30) days prior to the date fixed for redemption unless such redemption notice is waived by the owner of the Bond or Bonds redeemed. Such notice shall be mailed to the address of the registered owner as shown on the registration record of the Town as of the date which is forty-five (45) 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 may be determined by the Town. Interest on the Bonds so called for redemption shall cease on the redemption date fixed in such notice if sufficient funds are available at the place of redemption to pay the redemption price on the date so named. Coincidentally with the payment of the redemption price, the Bonds so called for redemption shall be surrendered for cancellation.
Section 5. Execution and Negotiability. Each of the BANs and Bonds shall be executed in the name of the Town by the manual or facsimile signature of the Town Council President and attested by the manual or facsimile signature of its Clerk-Treasurer, and the seal of the Town shall be affixed, imprinted or impressed to or on each of the BANs and Bonds manually, by facsimile or any other means; and these officials, by the execution of a Signature and No Litigation Certificate, shall adopt as and for their own proper signatures the facsimile signatures appearing on the Bonds or BANs. The use of electronic signatures by the Town Council President and Clerk-Treasurer are authorized and affirmed with full valid legal effect and enforceability. In case any officer whose signature or facsimile signature appears on the Bonds or BANs shall cease to be such officer before the delivery of the Bonds or BANs, the signature of such officer shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery.
The BANs and Bonds shall have all of the qualities and incidents of negotiable instruments under the laws of the State of Indiana, subject to the provisions for registration herein.
The Bonds shall also be authenticated by the manual signature of the Registrar, and no Bond shall be valid or become obligatory for any purpose until the certificate of authentication thereon has been so executed.
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:
[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Town of Churubusco, Indiana, or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]
NO. _____
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF WHITLEY
TOWN OF CHURUBUSCO
SEWAGE WORKS [REFUNDING] REVENUE [AND
REFUNDING REVENUE] BOND OF __________[, SERIES _____]
[INTEREST RATE] [MATURITY DATE] ORIGINAL DATE AUTHENTICATION DATE
[CUSIP]
REGISTERED OWNER:
PRINCIPAL SUM:
The Town of Churubusco, in Whitley County, State of Indiana (“Town”), for value received, hereby promises to pay to the Registered Owner named above or registered assigns, solely out of the special revenue fund hereinafter referred to, the Principal Sum set forth above on the Maturity Date [set forth above] OR [on January 1 [and July 1] [on the dates] [in the years] and in the amounts as set forth on Exhibit A attached hereto] (unless this bond be subject to and shall have been duly called for redemption and payment as provided for herein), and to pay interest hereon until the Principal Sum shall be fully paid at the [Interest Rate per annum stated above] OR [at the interest rates per annum as set forth on Exhibit A attached hereto] 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 fifteenth day of the month preceding an interest payment date and on or before such interest payment in which case it shall bear interest from such interest payment date, or unless this bond is authenticated on or before _____ 15, ____, in which case it shall bear interest from the Original Date, until the principal is paid, which interest is payable semiannually on the first days of January and July in each year, beginning on ___________, 20__. Interest shall be calculated according to a 360-day calendar year containing twelve 30-day months.
The principal of this bond is payable at the principal office of _____________________ ______ (“Registrar” or “Paying Agent”), in the ____________ of ____________, Indiana. All payments of interest on this bond shall be paid by check mailed one business day prior to the interest payment date to the registered owner hereof, as of the fifteenth day of the month preceding such payment, at the address as it appears on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in writing by the registered owner. If payment of principal or interest is made to a depository, payment shall be made by wire transfer on the payment date in same-day funds. If the payment date occurs on a date when financial institutions are not open for business, the wire transfer shall be made on the next succeeding business day. The Paying Agent shall wire transfer payments by 1:00 p.m. (New York City time) so such payments are received at the depository by 2:30 p.m. (New York City time). [Notwithstanding anything to the contrary herein, this bond shall not be required to be presented or surrendered to receive payment in connection with any mandatory sinking fund redemption until the final maturity date of this bond or earlier payment in full of this bond.] All payments on the bond shall be made in any coin or currency of the United States of America, which on the dates of such payment, shall be legal tender for the payment of public and private debts.
THE TOWN SHALL NOT BE OBLIGATED TO PAY THIS BOND OR THE INTEREST HEREON EXCEPT FROM THE HEREINAFTER DESCRIBED SPECIAL FUND, AND NEITHER THIS BOND NOR THE ISSUE OF WHICH IT IS A PART SHALL IN ANY RESPECT CONSTITUTE A CORPORATE INDEBTEDNESS OF THE TOWN WITHIN THE PROVISIONS AND LIMITATIONS OF THE CONSTITUTION OF THE STATE OF INDIANA.
This bond is [the only] one of an authorized issue of bonds of the Town[, to be issued in series], of like date, tenor and effect, except as to rates of interest, [series designation] and dates of maturity]; aggregating _________________________ Dollars ($_________________) [for this series]; numbered consecutively from 1 up; issued for the purpose of providing funds to be applied on the [cost of additions, extensions and improvements to the Town’s sewage works ("Project"),] [refunding the 2006 Bonds (as defined in the hereinafter defined Ordinance] [,to refund interim notes issued in anticipation of the bonds] and to pay issuance expenses[, including [a] premium[s] for [municipal bond insurance and] a debt service reserve surety]. This bond is issued pursuant to an Ordinance adopted by the Town Council of the Town on the ___ day of ___________, 2021, entitled “An Ordinance of the Town of Churubusco authorizing the current refunding by the Town of its outstanding Sewage Works Revenue Bonds, Series 2006 and authorizing the issuance of sewage works revenue bonds for the purpose of providing funds to pay the cost of certain additions, extensions and improvements to the municipal sewage works of said Town, providing for the safeguarding of the interests of the owners of said bonds, other matters connected therewith, including the issuance of notes in anticipation of bonds, and repealing ordinances inconsistent herewith” (“Ordinance”), and in accordance with the provisions of Indiana law, including without limitation [Indiana Code 5-1-5 and] Indiana Code 36-9-23 as in effect on the date of delivery of the bonds of this issue ([collectively,] “Act”), the proceeds of which bonds are to be applied to the costs of [the Project][, the refunding and legal defeasance of the 2006 Bonds][, the payment of notes issued in anticipation of the bonds,] and expenses incurred in connection therewith[, including [a] premium[s] for [municipal bond insurance and] [a debt service reserve surety].
Pursuant to the provisions of the Act and the Ordinance, the principal of and interest on this bond and all other bonds of said issue[, including the Sewage Works [Refunding] Revenue [and Refunding Revenue] Bonds of 20_____[, Series _______] (“Series ________Bonds”)] and any bonds hereafter issued on a parity therewith are payable solely from the Sewage Works Sinking Fund [created][continued] by the Ordinance (“Sinking Fund”) to be provided from the Net Revenues (defined as gross revenues of the sewage works after deduction only for the payment of the reasonable expenses of operation, repair and maintenance, excluding transfers for payment in lieu of property taxes) of the sewage works of the Town. [The bonds of this issue rank on a parity with the 2006 Bonds, as defined in the Ordinance].
[Pursuant to the Ordinance and the Escrow Agreement defined therein, the Town has set aside securities (purchased from proceeds of the bonds of this issue and funds on hand of the Town) and certain cash in a Trust Account to provide payment of principal of and interest and redemption premium, if any, on the 2006 Bonds by the purchase of obligations of the United States of America.]
The Town irrevocably pledges the entire Net Revenues of the sewage works to the prompt payment of the principal of and interest on the bonds authorized by the Ordinance, of which this is one, and any bonds ranking on a parity therewith[, including the [2006 Bonds] [and the Series _____ Bonds], to the extent necessary for that purpose, and covenants that it will cause to be fixed, maintained and collected such rates and charges for services rendered by the utility as are sufficient in each year for the payment of the proper and reasonable expenses of operation,, repair and maintenance 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 Town 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 Town further covenants that it will set aside and pay into its Sinking Fund monthly, as available, or more often if necessary, a sufficient amount of the Net Revenues of the works for payment of (a) the interest on all bonds which by their terms are payable from the revenues of the sewage works, as such interest shall fall due, (b) the necessary fiscal agency charges for paying bonds and interest, (c) the principal of all bonds which by their terms are payable from the revenues of the sewage works, as such principal shall fall due, and (d) an additional amount as a margin of safety to [create and] maintain the debt service reserve required by the Ordinance. Such required payments shall constitute a first charge upon all the Net Revenues of the sewage works[, on a parity with the [2006 Bonds and the] Series ____ Bonds].
The bonds of this issue maturing on and after _________ 1, 20___, are redeemable at the option of the Town on __________ 1, 20___, or any date thereafter, on thirty (30) days’ notice, in whole or in part, in the order of maturity as determined by the Town and by lot within a maturity, at face value, together with [no premium] OR [the following premiums:
1% if redeemed on ___________ 1, 20__ or thereafter
on or before ______________, 20__;
0% if redeemed on ___________ 1, 20__ or thereafter
prior to maturity;]
plus accrued interest to the date fixed for redemption.
[The bonds maturing on _____ 1, 20____, are subject to mandatory sinking fund redemption prior to maturity, at a redemption price equal to the principal amount thereof plus accrued interest on the dates and in the amounts set forth below:
_________Term Bond
Date Amount
*
* Final Maturity]
Each Five Thousand Dollars ($5,000) principal amount shall be considered a separate bond for purposes of optional [and mandatory] redemption. If less than an entire maturity is called for redemption, the bonds to be redeemed shall be selected by lot by the Registrar. [If some bonds are to be redeemed by optional redemption and mandatory sinking fund redemption on the same date, the Registrar shall select by lot the bonds for optional redemption before selecting the bonds by lot for the mandatory sinking fund redemption.]
Notice of such redemption shall be mailed to the address of the registered owner as shown on the registration records of the Town, as of the date which is forty-five (45) days prior to such redemption date, not less than thirty (30) days prior to the date fixed for redemption unless the notice is waived by the registered owner of this bond. The notice shall specify the date and place of redemption and sufficient identification of the bonds called for redemption. The place of redemption may be determined by the Town. 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 Town may deposit in trust with its depository bank an amount sufficient to pay such bond or the redemption price, as the case may be, and thereafter the registered owner shall look only to the funds so deposited in trust with said bank for payment and the Town shall have no further obligation or liability in respect thereto.
This bond is transferable or exchangeable only upon the books of the Town kept for that purpose at the [principal corporate trust] office of the Registrar by the registered owner hereof in person, or by his attorney duly authorized in writing, upon surrender of this bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the registered owner, or his attorney duly authorized in writing, and thereupon a new fully registered bond or bonds in an authorized aggregate principal amount and of the same maturity, shall be executed and delivered in the name of the transferee or transferees or to the registered owner, as the case may be, in exchange therefor. This bond may be transferred without cost to the registered owner except for any tax or governmental charge required to be paid with respect to the transfer. The Town, the Registrar, the Paying Agent and any other registrar or paying agent for this bond may treat and consider the person in whose name this bond is registered as the absolute owner hereof for all purposes including for the purpose of receiving payment of, or on account of, the principal hereof and interest due hereon.
[The bonds shall be initially issued in a Book Entry System (as defined in the Ordinance). The provisions of this bond and of the Ordinance are subject in all respects to the provisions of the Letter of Representations between the Town and The Depository Trust Company, or any substitute agreement, effecting such Book Entry System.]
This bond is subject to defeasance prior to redemption or payment as provided in the Ordinance referred to herein. THE OWNER OF THIS BOND, BY THE ACCEPTANCE HEREOF, HEREBY AGREES TO ALL THE TERMS AND PROVISIONS CONTAINED IN THE ORDINANCE. The Ordinance may be amended without the consent of the owners of the bonds as provided in the Ordinance.
The bonds maturing in any one year are issuable only in fully registered form in the denomination of $5,000 or any integral multiple thereof.
It is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the execution, issuance and delivery of this bond have been done and performed in regular and due form as provided by law.
This bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been executed by an authorized representative of the Registrar.
IN WITNESS WHEREOF, the Town of Churubusco, in Whitley County, Indiana, has caused this bond to be executed in its corporate name by the manual or facsimile signature of its Town Council President, its corporate seal to be hereunto affixed, imprinted or impressed by any means and attested manually or by facsimile by its Clerk-Treasurer.
TOWN OF CHURUBUSCO, INDIANA
By ___________________________________
Town Council President
[SEAL]
Attest:
______________________________
Clerk-Treasurer
REGISTRAR’S CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds described in the within-mentioned Ordinance.
_________________________________,
as Registrar
By ________________________________
Authorized Representative
[INSURANCE LEGEND]
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto this bond and all rights thereunder, and hereby irrevocably constitutes and appoints , attorney, to transfer the within bond in the books kept for the registration thereof with full power of substitution in the premises.
Dated:
__
NOTICE: Signature(s) must be guaranteed by an eligible guarantor institution participating in a Securities Transfer Association recognized signature guarantee program. _____________________________________
NOTICE: The signature to this assignment must correspond with the name as it appears on the face of the within bond in every particular, without alteration or enlargement or any change whatsoever.
[EXHIBIT A]
(End of Bond Form)
Section 7. Authorization for Preparation and Sale of the BANs and the Bonds; Official Statement; Escrow Agreement; Continuing Disclosure; Municipal Bond Insurance. (a) The Clerk-Treasurer is hereby authorized and directed to have the BANs and the Bonds prepared, and the Town Council President and Clerk-Treasurer are hereby authorized and directed to execute and attest the BANs and the Bonds in the form and manner provided herein. The Clerk-Treasurer is hereby authorized and directed to deliver the BANs and the Bonds to the respective purchasers thereof. At the time of delivery of the BANs and the Bonds, the Clerk-Treasurer shall collect the full amount which the respective purchasers have agreed to pay therefor, which amount shall not be not less than 99% of the par value of the BANs and not less than 99% of the par value of the Bonds, plus accrued interest to the date of delivery, if any. The Town may receive payment on the BANs in installments. The Bonds, when fully paid for and delivered to the purchaser, shall be the binding special revenue obligations of the Town payable out of the Net Revenues of the sewage works, on a parity with 2006 Bonds to the extent not refunded. The proper officers of the Town are hereby directed to sell the Bonds, to draw all proper and necessary warrants, and to do whatever acts and things which may be necessary to carry out the provisions of this ordinance.
(c) Distribution of an Official Statement (preliminary and final) prepared by the Municipal Advisor, on behalf of the Town, is hereby approved and the Town Council President or the Clerk-Treasurer are authorized and directed to execute the Official Statement on behalf of the Town in a form consistent with this ordinance. The Town Council President or the Clerk-Treasurer are hereby authorized to designate the preliminary Official Statement as “nearly final” for purposes of Rule 15c2-12 promulgated by the Securities and Exchange Commission (“Rule”).
If an Official Statement is not required upon delivery of the Bonds, the Town shall obtain an investment letter from the purchaser of the Bonds which satisfies federal and state securities laws applicable to the Bonds.
(d) To the extent required, the Clerk-Treasurer is hereby authorized to appoint a financial institution to serve as escrow trustee (“Escrow Trustee”) for the 2006 Bonds in accordance with the terms of the Escrow Agreement between the Town and the Escrow Trustee (“Escrow Agreement”). The Town Council hereby authorizes the Town Council President and the Clerk-Treasurer to complete, execute and attest the same on behalf of the Town so long as its provisions are consistent with this ordinance.
(e) To the extent required, the execution, by either the Town Council President, the Clerk-Treasurer, the purchaser of the Bonds, or the Town’s Municipal Advisor, of a subscription for United States Treasury Obligations – State and Local Government Series for investments of proceeds of the Bonds to be held under the Escrow Agreement in a manner consistent with this ordinance is hereby approved.
(f) If the Bonds are subject to the Rule, a Continuing Disclosure Undertaking (“Undertaking”) for the Bonds is hereby authorized and approved by the Town Council, and the Town Council President and Clerk-Treasurer are hereby authorized and directed to complete, execute and attest the same on behalf of the Town. Notwithstanding any other provisions of this ordinance, failure of the Town to comply with the Undertaking shall not be considered an event of default under the Bonds or this ordinance.
(g) In the event the Municipal Advisor to the Town certifies to the Town that it would be economically advantageous for the Town to acquire a municipal bond insurance policy for any of the Bonds, the Town hereby authorizes and directs the Town Council President and Clerk-Treasurer to obtain such an insurance policy. The acquisition of a municipal bond insurance policy is hereby deemed economically advantageous in the event the difference between the present value cost of (a) the total debt service on the Bonds if issued without municipal bond insurance and (b) the total debt service on the Bonds if issued with municipal bond insurance, is greater than the cost of the premium on the municipal bond insurance policy. If such an insurance policy is purchased, the Town Council President and Clerk-Treasurer are hereby authorized to execute and deliver all agreements with the provider of the policy, to the extent necessary to comply with the terms of such insurance policy and the commitment to issue such policy. Such agreement is hereby incorporated herein by reference and shall be deemed as a part of this ordinance for all purposes, including the rights of the bond insurer providing the policy.
Section 8. Bond Sale. (a) If any series of the Bonds will be sold at a competitive sale, prior to the sale of any series of the Bonds, the Clerk-Treasurer shall cause to be published either (i) a notice of bond sale in the newspaper or newspapers published in the Town which meet the requirements of IC 5-3-1, two times, at least one week apart, the first publication made at least fifteen (15) days before the date of the sale and the second publication being made at least three (3) days before the date of the sale, or (ii) a notice of intent to sell in the newspaper or newspapers published in the Town which meet the requirements of IC 5-3-1 and the Indianapolis Business Journal 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 Indianapolis Business Journal, and a summary notice may also be published in The Bond Buyer in New York, New York. The notice shall state the character and amount of the Bonds, the maximum rate of interest thereon, the terms and conditions upon which bids will be received and the sale made, and such other information as the Clerk-Treasurer and the attorneys employed by the Town shall deem advisable and any summary notice may contain any information deemed so advisable. The notice will also state that the winning bidder will agree to assist the Town in establishing the issue price of the Bonds under Treas. Reg. Section 1.148-1(f) (“Issue Price Regulation”). The criteria for establishing the issue price under the Issue Price Regulation shall be set forth in the preliminary Official Statement and/or the bid form. The notice may provide, among other things, that electronic bidding will be permitted and that the winning bidder shall be required to submit a certified or cashier’s check in an amount equal to 1% of the principal amount of the Bonds described in the notice within twenty-four hours of the sale 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 Town 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-eighth (1/8), one-twentieth (1/20) or one-hundredth (1/100) of one percent (1%). The notice may state that 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 99% of the face amount of the Bonds will be considered. The opinion of Ice Miller LLP, bond counsel of Indianapolis, Indiana, approving the legality of the Bonds, will be furnished to the purchaser at the expense of the Town.
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 Town, to be determined by computing the total interest on all of the Bonds to their maturities and adding thereto the discount bid, if any, and deducting the premium bid, if any. The right to reject any and all bids shall be reserved. If an acceptable bid is not received on the date of sale, the sale may be continued from day to day thereafter without further advertisement for a period of thirty (30) days, during which time no bid which provides a higher net interest cost to the Town than the best bid received at the time of the advertised sale will be considered.
If a series of Bonds are sold solely to refund the 2006 Bonds, the Town Council President and the Clerk-Treasurer are hereby authorized to negotiate the sale of the Bonds in accordance with a bond purchase agreement or bond placement agreement (“Purchase Agreement”) between the Town and the purchaser of the series of Bonds being issued to refund the 2006 Bonds. The Town Council President and the Clerk-Treasurer are authorized to execute the Purchase Agreement and deliver the Bonds to the purchaser of the Bonds so long as their terms are consistent with this ordinance. Such Purchase Agreement shall establish a final principal amount, interest rates, maturity schedule, optional redemption provisions and term bond mandatory redemptions, if any.
Section 9. Use of Proceeds; Refunding of the 2006 Bonds and Costs of Issuance. Any accrued interest and any premium received at the time of the delivery of the Bonds shall be deposited in the Sewage Works Sinking Fund hereinafter defined. If the 2006 Bonds are refunded, the Clerk-Treasurer shall, with the assistance of the Town’s Municipal Advisor and legal counsel, determine the date the 2006 Bonds will be paid, which date will be as soon as legally possible after delivery of the Bonds. The Town shall use Bond proceeds and funds on hand allocable to the 2006 Bonds to pay the principal of and interest and redemption premium, if any, on the 2006 Bonds due on the date on which the 2006 Bonds may be called for redemption. To the extent required, concurrently with the delivery of the Bonds, the Clerk-Treasurer shall acquire if available, with a portion of the proceeds of the Bonds and cash on hand, direct obligations of or obligations the principal and interest on which are unconditionally guaranteed by, the United States of America (“Government Obligations”) to be used, together with certain cash from the proceeds of the Bonds and cash on hand as set forth in the Escrow Agreement, to refund and legally defease the 2006 Bonds all as set forth in the Escrow Agreement. In order to refund the 2006 Bonds, to the extent required, the Clerk-Treasurer shall deposit Government Obligations and certain cash with the Escrow Trustee under the Escrow Agreement in an amount sufficient to provide money for payment of the principal of and interest and redemption premium, if any, on the 2006 Bonds until the earliest date upon which the 2006 Bonds may be called for redemption.
The Town shall obtain a verification of an accountant as to the sufficiency of the funds deposited in the Trust Account under the Escrow Agreement to accomplish said refunding and legal defeasance of the 2006 Bonds.
The remaining proceeds from the sale of the Bonds, to the extent not used to refund BANs, and BAN proceeds shall be deposited in a bank or banks which are legally designated depositories for the funds of the Town, in a special account or accounts to be designated as “Town of Churubusco, Sewage Works Construction Account” (“Construction Account”). All funds deposited to the credit of the Sewage Works Sinking Fund or the Construction Account shall be deposited, held, secured or invested in accordance with the laws of the State of Indiana relating to the depositing, holding, securing or investing of public funds, including particularly IC 5-13, as amended and supplemented. The funds in the Construction Account shall be expended only for the purpose of paying the cost of the Project, refunding the BANs, if issued, or as otherwise required by the Act or for the expenses of issuance of the Bonds. The cost of obtaining the services of Ice Miller LLP, the Municipal Advisor and counsel for the Town, shall be considered as a part of the cost of the Project on account of which the BANs and Bonds are issued. Any balance or balances remaining unexpended in such special account or accounts after completion of the Project, which are not required to meet unpaid obligations incurred in connection with such Project, shall either (1) be paid into the Sinking Fund and used solely for the purposes of said Sinking Fund or (2) be used for the same purpose or type of project for which the Bonds were originally issued, all in accordance with IC 5-1-13, as amended and supplemented.
Section 10. Financial Records and Accounts. The Town shall keep proper records and books of account, separate from all of its other records and accounts, in which complete and correct entries shall be made showing all revenues received on account of the operation of the sewage works and all disbursements made therefrom and all transactions relating to the utility. Copies of all such statements and reports shall be kept on file in the office of the Clerk-Treasurer.
Section 11. Pledge of Net Revenues. The interest on and the principal of the Bonds issued pursuant to the provisions of this ordinance, and any bonds hereafter issued on a parity therewith, shall constitute a first charge on all the Net Revenues, on a parity with the 2006 Bonds to the extent not refunded, and such Net Revenues are hereby irrevocably pledged to the payment of the interest on and principal of such Bonds, to the extent necessary for that purpose.
Section 12. Revenue Fund. All income and revenues derived from the operation of the sewage works and from the collection of sewer and storm water rates and charges shall be deposited in the Revenue Fund (“Revenue Fund”) hereby continued. Out the revenues in the Revenue Fund, the proper and reasonable expenses of operation, repair and maintenance of the works shall be paid, the requirements of the Sewage Works Sinking Fund shall be met and the costs of depreciation, replacements, improvements, extensions or additions to the works shall be paid.
Section 13. Operation and Maintenance Fund. The Operation and Maintenance Fund (“O&M Fund”) is hereby continued. On or before the last day of each calendar month, revenues of the sewage works shall be transferred from the Revenue Fund to the O&M Fund. The balance maintained in the O&M 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 the O&M Fund shall be used for the payment of the reasonable and proper operation, repair and maintenance expenses of the sewage works on a day-to-day basis. Any monies in the O&M Fund may be transferred to the Sinking Fund if necessary to prevent a default in the payment of principal of or interest on the outstanding bonds of the sewage works.
Section 14. Sewage Works Sinking Fund. (a) There is hereby continued a sinking fund for the payment of the principal of and interest on revenue bonds which by their terms are payable from the Net Revenues of the sewage works and the payment of any fiscal agency charges in connection with the payment of bonds, which fund shall be designated the Sewage Works Sinking Fund (“Sinking Fund”). After meeting the requirements of the O&M Fund, there shall be set aside and deposited in the Sinking Fund, as available, and as hereinafter provided, a sufficient amount of the Net Revenues of the sewage works to meet the requirements of the Bond and Interest Account and the Reserve Account hereby continued in the Sinking Fund. Such payments shall continue until the balances in the Bond and Interest Account and the Reserve Account equal the principal of and interest on all of the then outstanding bonds of the sewage works to the final maturity and provide for payment of all fiscal agency charges.
(b) Bond and Interest Account. The Bond and Interest Account is hereby continued. There shall be credited on the last day of each calendar month from the Revenue Fund to the Bond and Interest Account of the Sinking Fund an amount of the Net Revenues equal to (i) at least one-sixth (1/6) of the interest of all then outstanding bonds payable on the next succeeding interest payment date and (ii) at least one-sixth (1/6) of the principal or, to the extent the 2006 Bonds remain outstanding, at least one-twelfth (1/12) of the principal through January 1, 2027 and then one-sixth (1/6) or of the principal, on all then outstanding bonds payable on the then next succeeding principal payment date, until the amount of interest and principal payable on the then next succeeding interest and principal payment date shall have been so credited. There shall similarly be credited to the account any amounts necessary to pay the bank fiscal agency charges for paying principal and interest on the bonds as the same become payable. The Town shall, from the sums deposited in the Sinking Fund and credited to the Bond and Interest Account, remit promptly to the registered owner or to the bank fiscal agency sufficient moneys to pay the interest and principal on the due dates thereof together with the amount of bank fiscal agency charges. To the extent the 2006 Bonds are refunded, any moneys heretofore accumulated to pay principal and interest for the 2006 Bonds shall be applied on the payments made to accomplish the refunding and defeasance of the 2006 Bonds.
(c) Reserve Account. There is hereby continued, within the Sinking Fund, the Reserve Account (“Reserve Account”). To the extent the 2006 Bonds are refunded, any moneys accumulated as a reserve for the 2006 Bonds may either be used for the refunding of the 2006 Bonds or held in the Reserve Account as a reserve for any Bonds issued under this ordinance. On the date of delivery of the Bonds, funds on hand of the sewage works, Bond proceeds or a combination thereof may be deposited into the Reserve Account. The initial balance or the balance to be maintained in the Reserve Account shall equal but not exceed the least of: (i) maximum annual debt service on the Bonds and any bonds issued in the future by the Town which are payable from Net Revenues of the sewage works and which rank on a parity with the Bonds (“Parity Bonds”), (ii) 125% of average annual debt service on the Bonds or any Parity Bonds, or (iii) 10% of the proceeds of the Bonds or any Parity Bonds (“Reserve Requirement”). To the extent the 2006 Bonds remain outstanding and are held by the Authority, the Reserve Requirement shall be the combined maximum annual debt service on the 2006 Bonds, the Bonds and any Parity Bonds. If the initial deposit into the Reserve Account does not cause the balance therein to equal the Reserve Requirement or if no deposit is made, then, after meeting the requirements of the Bond and Interest Account set forth above, an amount of Net Revenues shall be credited to the Reserve Account on or before the last day of each calendar month until the balance therein equals the Reserve Requirement. The monthly deposits shall be equal in amount and sufficient to accumulate the Reserve Requirement within five years of the date of delivery of the Bonds.
The Town may fund all or part of the Reserve Account with a debt service reserve surety bond. If such a surety bond is purchased, the Town Council President and Clerk-Treasurer are hereby authorized to execute and deliver all agreements with the provider of the surety bond, to the extent necessary to comply with the terms of such surety bond and the commitment to issue such surety bond. Such agreement is hereby incorporated herein by reference and shall be deemed as a part of this ordinance for all purposes, including the rights of the provider of the surety bond.
The Reserve Account shall constitute the margin for safety and protection against default in the payment of principal of and interest on the 2006 Bonds if outstanding, the Bonds and any Parity Bonds, and the moneys in the Reserve Account shall be used to pay current principal and interest on the2006 Bonds if outstanding, the Bonds and any Parity Bonds to the extent that moneys in the Bond and Interest Account are insufficient for that purpose. Any deficiency in the balance maintained in the Reserve Account shall be promptly made up from the next available Net Revenues remaining after credits into the Bond and Interest Account. Any amounts in the Reserve Account in excess of the Reserve Requirement shall be transferred to the Sewage Works Improvement Fund.
Section 15. Sewage Works Improvement Fund. Any excess revenues may be transferred or credited from the Revenue Fund to the Sewage Works Improvement Fund (“Improvement Fund”), hereby continued on or before the last day of each calendar month, after meeting the requirements of the O&M Fund and the Sinking Fund, and the Fund shall be used for improvements, replacements, additions and extensions of the sewage works and to make payments representing PILOTs. The Town reserves the right to transfer PILOTs from the Improvement Fund no more frequently than semiannually, in accordance with the Act, and only if all required transfers have been made to the O&M Fund and the Sinking Fund and the Accounts of the Sinking Fund contain the required balances as of the date the PILOTs are paid. In no event shall any PILOTs be treated as an expense of operation and maintenance, nor in any case shall it be payable from the O&M Fund or the Sinking Fund. Moneys in the Improvement Fund shall be transferred to the Sinking Fund if necessary to prevent a default in the payment of principal and interest on the then outstanding bonds or, if necessary, to eliminate any deficiencies in credits to or minimum balance in the Reserve Account of the Sinking Fund or may be transferred to the O&M Fund to meet unforeseen contingencies in the operation, repair and maintenance of the sewage works.
Section 16. Maintenance of Funds. The Sinking Fund shall be deposited in and maintained as a separate account or accounts from all other accounts of the Town. The O&M Fund and the Improvement Fund may be maintained in a single account, or accounts, but such account, or accounts, shall likewise be maintained separate and apart from all other accounts of the Town 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 of such investment the income therefrom shall become a part of the funds invested and shall be used only as provided in this ordinance.
Section 17. Defeasance of the Bonds. If, when any of the Bonds issued hereunder shall have become due and payable in accordance with their terms or shall have been duly called for redemption or irrevocable instructions to call the Bonds or any portion thereof for redemption shall have been given, and the whole amount of the principal and the interest and the premium, if any, so due and payable upon all of the Bonds or any portion thereof shall be paid; or (i) sufficient moneys, or (ii) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America, the principal of and the interest on which when due will provide sufficient moneys, shall be held in trust for such purpose, and provision shall also be made for paying all fees and expenses for the redemption, then and in that case the Bonds issued hereunder or any designated portion thereof shall no longer be deemed outstanding or entitled to the pledge of the Net Revenues of the Town’s sewage works.
Section 18. Rate Covenant. The Town covenants and agrees that, by ordinance of the Council, it will establish and maintain just and equitable rates or charges for the use of and the service rendered by said works, to be paid by the owner of each and every lot, parcel of real estate or building that is connected with and uses said sewage works by or through any part of the sewage system of the Town, or that in any way uses or is served by such works at a level adequate to produce and maintain sufficient revenue (including user and other charge, fees, income or revenues available to the Town) to provide for the proper operation and maintenance (or, to the extent the 2006 Bonds remain outstanding, the Operation and Maintenance (as defined in the Financial Assistance Agreement)) of the sewage works; that such rates or charges shall be sufficient in each year to provide for the payment of the proper and reasonable expenses of operation, repair and maintenance (or Operation and Maintenance, as the case may be) and for the payment of the sums required to be paid into the Sinking Fund by the Act and this ordinance and to comply with and satisfy all covenants contained in this ordinance. Such rates and charges shall, if necessary, be changed and readjusted from time to time so that the revenues therefrom shall always be sufficient to meet the expenses of operation, repair and maintenance (or Operation and Maintenance, as the case may be) of the sewage works, and the requirements of the Sinking Fund. The rates and charges so established shall apply to any and all use of such works by and service rendered to the Town and all departments thereof, and shall be paid by the Town or the various departments thereof as the charges accrue.
Section 19. Additional Bond Provisions. The Town reserves the right to authorize and issue additional BANs at any time ranking on a parity with the BANs. The Town reserves the right to authorize and issue additional Parity Bonds payable out of the Net Revenues of its sewage works ranking on a parity with the Bonds for the purpose of financing the cost of future additions, extensions and improvements to the sewage works, or to refund obligations, subject to the following conditions:
(a) All required payments into the Sinking Fund shall have been made in accordance with the provisions of this ordinance, and the interest on and principal of all bonds payable from the Net Revenues of the sewage works shall have been paid to date in accordance with their terms. The Reserve Requirement shall be satisfied for the additional Parity Bonds either at the time of delivery of the additional Parity Bonds or over a five year or shorter period, in a manner which is commensurate with the requirements established in Section 14(c) of this ordinance.
(b) The Net Revenues of the sewage works in the fiscal year immediately preceding the issuance of any such Parity Bonds shall be not less than one hundred twenty-five percent (125%) of the maximum annual interest and principal requirements of the then outstanding bonds and the additional Parity Bonds proposed to be issued; or, prior to the issuance of the Parity Bonds, the sewage rates and charges shall be increased sufficiently so that said increased rates and charges applied to the previous fiscal year’s operations would have produced Net Revenues for said year equal to not less than one hundred twenty-five percent (125%) of the maximum annual interest and principal requirements of all bonds payable from the revenues of the sewage works, including the additional Parity Bonds proposed to be issued.
For purposes of this subsection, the records of the sewage works shall be analyzed and all showings prepared and certified by a certified public accountant employed by the Town for that purpose.
(c) The interest on the additional Parity Bonds shall be payable semiannually on the first days of January and July and the principal of, or mandatory sinking fund redemption dates for, the additional Parity Bonds shall be payable semiannually on January 1 and July 1 or, to the extent the 2006 Bonds remain outstanding, shall be payable annually on January 1 through January 1, 2027 and semiannually thereafter on January 1 and July 1.
Section 20. Further Covenants of the Town; Maintenance, Insurance, Pledge Not To Encumber, Subordinate Indebtedness, and Contract with Bondholders. For the purpose of further safeguarding the interests of the owners of the Bonds and BANs, it is hereby specifically provided as follows:
(a) All contracts let by the Town in connection with the construction of the Project shall be let after due advertisement as required by the laws of the State of Indiana, and all contractors shall be required to furnish surety bonds in an amount equal to one hundred percent (100%) of the amount of such contracts, to insure the completion of said contracts in accordance with their terms, and such contractors shall also be required to carry such employer’s liability and public liability insurance as are required under the laws of the State of Indiana in the case of public contracts, and shall be governed in all respects by the laws of the State of Indiana relating to public contracts.
(b) The Project shall be constructed under the supervision and subject to the approval of such competent engineer as shall be designated by the Town. All estimates for work done or material furnished shall first be checked by the engineer and approved by the Town.
(c) So long as any of the Bonds or BANs are outstanding, the Town shall at all times maintain the sewage works system in good condition, and operate the same in an efficient manner and at a reasonable cost.
(d) So long as any of the Bonds or BANs are outstanding, the Town shall maintain insurance on the insurable parts of said works, of a kind and in an amount, including fidelity bonds, such as would normally be carried by private corporations engaged in a similar type of business. All insurance shall be placed with responsible insurance companies qualified to do business under the laws of the State of Indiana. To the extent the 2006 Bonds remain outstanding, such insurance coverage shall be acceptable to the Authority. All insurance proceeds shall be used either in replacing or restoring the property destroyed or damaged or shall be deposited into the Sinking Fund and, to the extent the 2006 Bonds remain outstanding, only with the consent of the Authority.
(e) So long as any of the Bonds or BANs are outstanding, the Town shall not mortgage, pledge or otherwise encumber the property and plant of its sewage works system, or any part thereof, nor shall it sell, lease or otherwise dispose of any part of the same, excepting only such machinery, equipment or other property as may be replaced, or shall no longer be necessary for use in connection with said utility. To the extent the 2006 Bonds remain outstanding, the Town shall not do so without the prior written consent of the Authority.
(f) To the extent the 2006 Bonds remain outstanding, the Town shall not borrow any money, enter into any contract or agreement or incur any other liabilities in connection with the sewage works, other than for normal operating expenditures, without the prior written consent of the Authority, if such undertaking would involve, commit or use the revenues of the sewage works.
(g) Except as otherwise specifically provided in Section 19 of this ordinance, so long as any of the Bonds are outstanding, no additional bonds or other obligations pledging any portion of the revenues of said sewage works shall be authorized, issued or executed by the Town except such as shall be made junior and subordinate in all respects to the Bonds, unless all of the Bonds are redeemed or defeased pursuant to Section 17 hereof coincidentally with the delivery of such additional bonds or other obligations.
(h) The Town shall take all action or proceedings necessary and proper, to the extent permitted by law, to require connection of all property where liquid and solid waste, sewage, night soil or industrial waste is produced with available sanitary sewers. The Town shall, insofar as possible, and to the extent permitted by law, cause all such sanitary sewers to be connected with said sewage works.
(i) The provisions of this ordinance shall constitute a contract by and between the Town and the owners of the Bonds and BANs herein authorized, all the terms of which shall be enforceable by any holder of the Bonds or the BANs by any and all appropriate proceedings in law or in equity. After the issuance of the Bonds or BANs, this ordinance shall not be repealed or amended in any respect which will adversely affect the rights or interests of the owners of the Bonds or BANs, nor shall the Council adopt any law, ordinance or resolution which in any way adversely affects the rights of the holders of the Bonds or BANs so long as any of the Bonds, BANs or the interest thereon, remain unpaid. Except in the case of changes described in Section 21(a)-(f), this ordinance may be amended, however, without the consent of Bond or BAN owners, if the Council determines, in its sole discretion, that such amendment would not adversely affect the owners of the Bonds or BANs.
(j) The provisions of this ordinance shall be construed to create a trust in the proceeds of the sale of the Bonds and BANs herein authorized for the uses and purposes herein set forth, and the owners of the Bonds and BANs shall retain a lien on such proceeds until the same are applied in accordance with the provisions of this ordinance and of the governing Act. The provisions of this ordinance shall also be construed to create a trust in the Net Revenues herein directed to be set apart and paid into the Sinking Fund for the uses and purposes of that Fund as in this ordinance set forth. The owners of the Bonds shall have all the rights, remedies and privileges set forth in the provisions of the governing Act hereinbefore referred to, including the right to have a receiver appointed to administer said sewage works, in the event the Town shall fail or refuse to fix and collect sufficient rates and charges for those purposes, or shall fail or refuse to operate and maintain said system and to apply the revenues derived from the operation thereof, or if there be a default in the payment of the principal of or interest on any of the Bonds or in the event of default in respect to any of the provisions of this ordinance or the governing Act.
Section 21. Amendments with Consent of Bondholders. Subject to the terms and provisions contained in this section and Section 20(h), and not otherwise, the owners of not less than sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Bonds issued pursuant to this ordinance and then outstanding shall have the right from time to time, to consent to and approve the adoption by the Council of the Town of such ordinance or ordinances supplemental hereto or amendatory hereof, as shall be deemed necessary or desirable by the Town for the purpose of modifying, altering, amending, adding to or rescinding in any particular any of the terms or provisions contained in this ordinance, or in any supplemental ordinance; provided, however, that nothing herein contained shall permit or be construed as permitting:
(a) An extension of the maturity of the principal of or interest on, or any mandatory sinking fund redemption date for, any Bond issued pursuant to this ordinance; or
(b) A reduction in the principal amount of any Bond or the redemption premium or the rate of interest thereon; or
(c) Except as set forth in Section 2 regarding the pledge of Net Revenues to the BANs, the creation of a lien upon or a pledge of the revenues or Net Revenues of the sewage works ranking prior to the pledge thereof created by this ordinance; or
(d) A preference or priority of any Bond or Bonds issued pursuant to this ordinance over any other Bond or Bonds issued pursuant to the provisions of this ordinance; or
(e) A reduction in the aggregate principal amount of the Bonds required for consent to such supplemental ordinance; or
(f) A reduction in the Reserve Requirement.
If the owners of not less than sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Bonds outstanding at the time of adoption of such supplemental ordinance shall have consented to and approved the adoption thereof by written instrument to be maintained on file in the office of the Clerk-Treasurer of the Town, 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 Council of the Town from adopting the same, or from taking any action pursuant to the provisions thereof. Upon the adoption of any supplemental ordinance pursuant to the provisions of this section, this ordinance shall be, and shall be deemed, modified and amended in accordance therewith, and the respective rights, duties and obligations under this ordinance of the Town and all owners of Bonds then outstanding, shall thereafter be determined, exercised and enforced in accordance with this ordinance, subject in all respects to such modifications and amendments. Notwithstanding anything contained in the foregoing provisions of this ordinance, the rights and obligations of the Town 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 Town and the consent of the owners of all the Bonds then outstanding.
Section 22. Investment of Funds. (a) The Clerk-Treasurer is hereby authorized to invest moneys pursuant to the provisions of this ordinance and IC 5-1-14-3 (subject to applicable requirements of federal law to insure such yield is then current market rate) to the extent necessary or advisable to preserve the excludability from gross income of interest on the Bonds and BANs under federal law.
(b) The Clerk-Treasurer shall keep full and accurate records of investment earnings and income from moneys held in the funds and accounts continued or referenced herein. In order to comply with the provisions of the ordinance, the Clerk-Treasurer is hereby authorized and directed to employ consultants or attorneys from time to time to advise the Town as to requirements of federal law to preserve the tax excludability. The Clerk-Treasurer may pay any fees as operation expenses of the sewage works.
Section 23. Tax Covenants. In order to preserve the excludability of interest on the Bonds and the BANs from gross income for federal tax purposes under Section 103 of the Internal Revenue Code of 1986 as existing on the date of issuance of the Bonds or the BANs, as the case may be (“Code”) and as an inducement to purchasers of the Bonds and the BANs, the Town represents, covenants and agrees that:
(a) The sewage works will be available for use by members of the general public. Use by a member of the general public means use by natural persons not engaged in a trade or business. No person or entity other than the Town or another state or local governmental unit will use more than 10% of the proceeds of the Bonds or the BANs or property financed by the Bond or BAN proceeds other than as a member of the general public. No person or entity other than the Town or another state or local governmental unit will own property financed by Bond or BAN proceeds or will have any actual or beneficial use of such property pursuant to a lease, management, service or incentive payment contract, an arrangement including take-or-pay or other type of output contracts or any other type of arrangement that conveys other special legal entitlements and differentiates that person’s or entity’s use of such property from use by the general public, unless such uses in the aggregate relate to no more than 10% of the proceeds of the Bonds or the BANS, as the case may be. If the Town enters into a management contract for all or a portion of the sewage works, the terms of the contract will comply with the Regulations and IRS Revenue Procedure 2017-33, as amended, supplemented or superseded from time to time, so that the contract will not give rise to private business use under the Code and the Regulations unless such use in the aggregate will not relate to more than 10% of the proceeds of the Bonds or the BANs, as the case may be.
(b) No more than 10% of the principal of or interest on the Bonds or BANs is (under the terms of the Bonds or the BANs, this ordinance or any underlying arrangement), directly or indirectly, secured by an interest in property used or to be used for private business use or payments in respect of such property, or to be derived from payments (whether or not to the Town) in respect of such property or borrowed money used or to be used for a private business use.
(c) No more than 5% of the Bond or BAN proceeds will be loaned to any person or entity other than another state or local governmental unit. No more than 5% of the Bond or BAN proceeds will be transferred, directly or indirectly, or deemed transferred to a nongovernmental person in any manner that would in substance constitute a loan of the Bond or BAN proceeds.
(d) The Town reasonably expects, as of the date hereof, that the Bonds and BANs will not meet either the private business use test described in paragraphs (a) and (b) above or the private loan test described in paragraph (c) above during the entire term of the Bonds and Banks, as the case may be.
(e) No more than 5% of the proceeds of the Bonds or BANs will be attributable to private business use as described in (a) and private security or payments described in (b) attributable to unrelated or disproportionate private business use. For this purpose, the private business use test is applied by taking into account only use that is not related to any government use of proceeds of the issue (Unrelated Use) and use that is related but disproportionate to any governmental use of those proceeds (Disproportionate Use).
(f) The Town will not take any action nor fail to take any action with respect to the Bonds or BANs that would result in the loss of the excludability from gross income for federal tax purposes of interest on the Bonds or BANs pursuant to Section 103 of the Code, nor will the Town act in any other manner which would adversely affect such exclusion, and it will not make any investment or do any other act or thing during the period that the Bonds or BANs are outstanding which would cause the Bonds or BANs to be private activity bonds under the meaning of Section 141 of the Code.
(g) It shall be not an event of default under this ordinance if the interest on any Bond or BAN is not excludable from gross income for federal tax purposes or otherwise pursuant to any provision of the Code which is not currently in effect and in existence on the date of issuance of the Bonds or BANs, as the case may be.
(h) The Town represents that it will rebate any arbitrage profits to the United States in accordance with the Code.
(i) These covenants are based solely on current law in effect and in existence on the date of delivery of such Bonds or BANs, as the case may be.
Section 24. Issuance of BANs. (a) The Town, having satisfied all the statutory requirements for the issuance of its Bonds, may elect to issue its BAN or BANs pursuant to a Bond Anticipation Note Purchase Agreement (“Bond Anticipation Note Agreement”) to be entered into between the Town and the purchaser of the BAN or BANs. The Council hereby authorizes the issuance and execution of the BAN or BANs in lieu of initially issuing Bonds to provide interim financing for the Project until permanent financing becomes available. It shall not be necessary for the Town 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.
The Town Council President and the Clerk-Treasurer are hereby authorized and directed to execute a Bond Anticipation Note 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 Town Council President and the Clerk-Treasurer may also take such other actions or deliver such other certificates as are necessary or desirable in connection with the issuance of the BANs or the Bonds and the other documents needed for the financing as they deem necessary or desirable in connection therewith.
Section 25. Noncompliance with Tax Covenants. Notwithstanding any other provisions of this ordinance, the covenants and authorizations contained in this ordinance (“Tax Sections”) which are designed to preserve the excludability of interest on the Bonds and BANs from gross income under federal law (“Tax Exemption”) need not be complied with if the Town receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to preserve the Tax Exemption.
Section 26. Rates and Charges. The estimate of the rates and charges of the sewage works is set forth in Rate Ordinance No. ________, adopted on ________, 20__. Such ordinance is hereby incorporated herein by reference.
Section 27. Ordinance Constitutes Resolution under IC 36-9-23. For purposes of Sections 10 and 12 of IC 36-9-23, this ordinance shall constitute and be deemed as the “resolution” as such term is used under Sections 10 and 12 of IC 36-9-23.
Section 28. Conflicting Ordinances. All ordinances and parts of ordinances in conflict herewith are hereby repealed; provided, however, that this ordinance shall not be deemed (i) to the extent the 2006 Bonds remain outstanding, amend or repeal the ordinance authorizing the 2006 Bonds; or (ii) adversely affecting the rights of the owners of the 2006 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.
Section 30. Effective Date. 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 this ______ day of ____________, 2021.
TOWN COUNCIL OF THE TOWN OF CHURBUSCO
ATTEST:
_____________________________
Clerk-Treasurer
EXHIBIT A
Project Description
• Project A: Wastewater Treatment Plant Upgrades
o New process facilities and piping, increased capacity of major process items that limit the current capacity, electrical and control upgrades, and site improvements to:
increase the capacity to allow for future growth
replace and upgrade existing equipment that has reached the end of its useful life
continue to meet regulations
• Project B: Pump Station Upgrades
o Upgrades to four (4) existing pump stations
o Installing additional wet well capacity (C&A Tool Station only), new generators, and automatic transfer switches
• Project C: US 33 Extension South
o New gravity sanitary sewer to County limits along US 33, new pump station, and new force main to existing gravity sanitary terminated near Dollar General
• Project D: Sewer Separation Projects (D1: Alley Separation Project between Whitley St/Washington St and D7: Separation at US 33/Tully St/Liberty St)
o Sewer separation and site improvements to remove I/I from wastewater collection system within the Alley and along US 33 between Tully and Liberty
• Line Street Sewer Separation
o Approximately 75 LFT of 8” sewer replacement, new sanitary manhole, backfill, and two (2) sewer lateral replacements to remove I/I from wastewater collection system
• WWTP Security Cameras
o Installation of two (2) multi-sensor camera units including all appurtenances, mounted on the main treatment plant building for site security and monitoring
o Each camera unit contains four (4) cameras for 360-degree coverage
