Ordinance 1999-5
An Ordinance concerning the construction of certain additions, extensions and improvements to the waterworks of the Town of Millersburg and the advance refunding by the Town of Millersburg of its Waterworks Revenue Bonds of 1990; authorizing the issuance of waterworks revenue bonds for such purpose; providing for the collection, segregation and distribution of the revenues of the waterworks and the safeguarding of the interests of the owners of the waterworks refunding revenue bonds, other matters connected therewith, including the issuance of notes in anticipation of bonds, and repealing ordinances inconsistent herewith
WHEREAS, the Town of Millersburg, Indiana (the “Town”) has heretofore established, constructed and financed a municipal waterworks and now owns and operates the waterworks pursuant to IC 8-1.5, and other applicable laws; and
WHEREAS, the Town Council of the Town now finds that certain improvements and extensions to said works are necessary; and that plans, specifications and estimates have been
prepared and filed by the 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 said Town Council and by all governmental authorities having jurisdiction; and
WHEREAS, the Town has obtained engineer estimates of the costs for the construction of said Project and has advertised for and received bids therefore, which bids are subject to the Town’s obtaining hinds to pay for said Project; that on the basis of said estimates and construction bids, the estimated cost of the Project, including incidental expenses, is in the amount of $250,000; and
WHEREAS, the Town Council finds that certain hereinafter described outstanding bonds of the waterworks should be refunded to obtain a reduction in interest payments and effect a savings to the Town; that the refunding of those outstanding bonds, together with accrued interest thereon and including all costs related to the refunding cannot be provided for entirely out of funds of the waterworks now on hand and the refunding should be accomplished by the issuance of waterworks refunding revenue bonds of the waterworks; and
WHEREAS, the Town Council finds that there are now outstanding bonds issued on account of the construction of improvements and additions to the Town’s waterworks and payable out of the revenues there from designated “Waterworks Revenue Bonds of 1990,” dated October 17, 1990 (the “1990 Bonds”), originally issued in the amount of $950,000, now outstanding in the amount of $716,000 and maturing annually over a period ending January 1, 2011, which 1990 Bonds constitute a first charge upon the Net Revenues (as hereinafter defined) of the waterworks; and
WHEREAS, the Town Council finds that the 1990 Bonds (the “Refunded Bonds”) should 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 Town finds that it does not have sufficient funds available to pay the costs of said Project and to refund the Refunded Bonds and that it will be necessary to obtain such hinds by the issuance of revenue bonds in two series, in an amount not to exceed $1,050,000, and, if necessary, bond anticipation notes (the “BANs”); and
WHEREAS, the Town desires to authorize the issuance of BANs hereunder, if necessary, payable solely from the proceeds of the waterworks revenue bonds issued to finance the aforementioned cost of the Project, and to authorize the refunding of said BANs, if issued; and
WHEREAS, the Town reasonably expects to reimburse certain preliminary costs of the Project with proceeds of either its temporary debt or its long term debt to be incurred by the Town in an amount not to exceed $250,000; and
WHEREAS, the Town Council now finds that all conditions precedent to the adoption of an ordinance authorizing the issuance of said bonds and BANS have been complied with in accordance with the provisions of IC 5-1-5 and IC 8-1.5 as in effect on the date of delivery of the bonds authorized herein (collectively, the “Act”); and
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF MILLERSBURG, INDIANA, THAT:
Section 1. Authorization of Project and Refunding. The Town proceed with the Project in accordance with the cost estimates, bids and the plans and specifications heretofore prepared and filed by the consulting engineers employed by the Town, which cost estimates, bids, 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 in the office of the Clerk- Treasurer of the Town and are open for public inspection pursuant to IC 36-1-5-4; that the Town proceed with the refunding of the Refunded Bonds; that the cost of construction of said Project shall not exceed the sum of $250,000, plus investment earnings on the bond and BAN proceeds, without further authorization from this Town Council. Based upon a report of the Town’s financial advisor, the refunding will allow the Town to obtain a reduction in interest payments to effect a savings to the Town. The terms “waterworks,” “works,” and other like terms where used in this ordinance shall be construed to mean and include the existing waterworks system mid 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.
The Town hereby declares its official intent to complete the Project; to reimburse certain costs of completing the Project with proceeds of either temporary debt or long term debt to be incurred by the Town, and to issue debt not exceeding $250,000 in aggregate principal amount for purposes of paying and reimbursing costs of the Project.
Sec. 2. Issuance of BANs and Bonds (a) The Town shall issue, if necessary, its BANs for the purpose of procuring interim financing to apply to the cost of said Project. The Town shall issue its BANs iii an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) to be designated “Waterworks Bond Anticipation Notes.’ Said BANs shall be sold at not less than 99.5% of their par value, shall be numbered consecutively from 1 upward, shall be in multiples of$1,000, shall be dated as of the date of delivery thereof, and shall bear interest at a rate not to exceed 6% per annum (the exact rate or rates to be determined through negotiations with the purchaser of the BANs) payable at maturity or upon redemption. The BANs will mature no later than 2 years after their date of delivery. The BANs are subject to renewal or extension at an interest rate or rates hot to exceed 6% per annum (the exact rate or rates to be negotiated with the purchaser of the BANs). 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 or pursuant to IC 5-1-14-5 if sold to a financial institution. Time principal of and interest on the BANs shall be payable solely from the issuance of revenue bonds pursuant to and in the manner prescribed by the Act. T revenue bonds will be payable solely out of and constitute a first charge against the Net Revenues (herein defined as gross revenues of the waterworks of the Town remaining after the payment of the reasonable expenses of operation, repair and maintenance) of the waterworks of the Town, including the works herein authorized to be acquired and constructed and all additions and improvements thereto and replacements thereof subsequently constructed or acquired.
(b) The Town shall issue its bonds in two series to be designated “Waterworks Refunding Revenue Bonds of 1999, Series A and Waterworks Revenue Bonds of 1999, Series B,” in an aggregate principal amount not to exceed One Million Fifty Thousand Dollars ($1,050,000) for the purpose of procuring funds to be applied on the cost of the Project, the refunding of the Refunded Bonds, the refunding of the BANs, if issued, the payment of costs of issuance, and all other costs related to the refunding and the Project. The Bonds of Series A (the “Series A Bonds”) shall be issued to refund the Refunded Bonds, and the Bonds of Series B (tile “Series B Bonds”)(the Series A Bonds and Series B Bonds shall be referred to collectively as the “Bonds”) shall be issued to pay the costs of the Project. The Series A Bonds and the Series B Bonds shall rank oil a parity for all purposes, including the pledge of Net Revenues under t ordinance. The Town must either issue its Series A Bonds and Series B Bonds concurrently or issue its Series A Bonds first to refund the Refunded Bonds before it issues the Series B Bonds. The Town shall apply moneys currently held for the payment of debt service on the Refunded Bonds to the refunding as provided in Section 9.
The Bonds shall be issued in the denomination 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 sold and interest shall be payable semiannually on January 1 and July 1 in each year, beginning on July 1, 1999. The Bonds shall be sold at a price of not less than 98.5% of the par value thereof The Bonds shall be payable in lawful money of the United States of America, at the principal office of the Paying Agent (as hereinafter defined) and such Bonds shall bear interest at a rate or rates not exceeding 6.5% per annum (the exact rate or rates to be determined by bidding). The Bonds shall mature annually, or shall be subject to mandatory sinking fund redemption if term bonds are issued, on January 1 of each year, over a period ending not later than January 1, 2014 and in such amounts which will produce as level annual debt service as practicable with $5,000 denominations.
All or a portion of the Bonds may be issued as one or more term bonds, upon election of the successful bidder. Such term bonds shall have a stated maturity or maturities of January 1, in the years as determined by the successful bidder, but in no event later than the last 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 iii accordance with the above paragraph.
Interest on the Bonds and BANs shall be calculated according to a 360-day calendar year containing twelve 30-day months.
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 (the “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 Sinking Fund established to pay the principal of and interest on the Bonds as fiscal agency charges.
The principal of the Bonds and
BANs shall be payable at the principal corporate trust office of the Paying
Agent. All payments of interest on the Bonds and BANs 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 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 pay by 1:00 pin. (New York City time) so such payments are
received at the depository by 2:30 p.m. (New York City time). All payments
on the Bonds and BANs shall be made in any coin or currency of the
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 therefore. 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 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 w 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 Waterworks Sinking Fund created in Section 15 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. As to the BANs, the Clerk-Treasurer shall serve as Registrar and Paying Agent and is hereby charged with the duties of Registrar and Paying Agent.
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 agree 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”). The Bonds may be initially issued iii the form of a separate single authenticated fully registered Bond for the aggregate principal amount of each separate maturity of the Bonds. hi 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 ‘nay notify the Depository Trust Company and the Registrar, whereupon the Depository Trust Co 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 iii 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 the Depository Trust Company, the Registrar shall cause said 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 said 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 iii 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.
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 fifteenth day of the month preceding an interest payment date and on or before such interest payment date in which case they shall bear interest from such interest payment date, or unless the Bonds are authenticated on or before the fifteenth day of the month preceding the first interest payment date, in which case they shall bear interest from the original date until the principal shall be fully paid.
Section 4. Redemption of BANs and Bonds (a) The BANs are prepayable by the Town, in whole or in part, at any time upon 7 days’ notice to the owner of the BANs without any premium.
(b) The Bonds maturing on or after January 1, 2008, are redeemable at the option of the Town on January 1, 2007 or any date thereafter, on thirty days’ notice, in whole or in part, in the order of maturity as determined by the Town and by lot within a maturity, at fact value, together with the following premiums:
1% if redeemed on January 1,2007, or thereafter on or before December 31, 2007; 0.5% if redeemed on January 1, 2008, or thereafter on or before December 31, 2008; 0.0% if redeemed on January 1, 2009, or thereafter prior to maturity; plus, in each case, accrued interest to the date of redemption.
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 cancelled 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.
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 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.
In either case, notice of such redemption shall be given at least thirty (30) days prior to the date fixed for redemption by mail unless the notice is waived by the registered owner of a Bond. Such notice shall be mailed to the address of the registered owners as shown on the registration records 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 shall 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 principal office of the Paying Agent to pay the redemption price on the date so named. Coincidentally with the payment of the redemption price, the Bonds so called for redemption shall be surrendered for cancellation.
Section 5. Execution and Negotiability Each of the BANs and Bonds shall be executed in the name of the Town by the manual or facsimile signature of the President of the Town Council 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. In case any officer whose signature or facsimile signature appears on the Bonds shall cease to be such officer before the delivery of the Bonds, the signature of such officer shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery.
The BANs and Bonds shall have 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 prior to delivery; (Example is viewable at the Town Hall, in the office of the Clerk/Treasurer)