PROPOSED ORDINANCE FOR MAXWELL'S (AKA WEST HARRISON,LLC) $3 MILLION BOND FOR COUNCIL FEB 23 MEETING
ORDINANCE NO. _______________
AN ORDINANCE OF THE DEARBORN COUNTY COUNCIL AUTHORIZING THE ISSUANCE OF DEARBORN COUNTY, INDIANA, TAXABLE ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2016B (WEST HARRISON, LLC PROJECT), AND THE PROVISION (OR DEEMED PROVISION) OF THE PROCEEDS THEREOF TO WEST HARRISON, LLC, AND AUTHORIZING AND APPROVING OTHER ACTIONS IN RESPECT THERETO
WHEREAS, Dearborn County, Indiana (the “County”), is a political subdivision of the State of Indiana and by virtue of I.C. 36-7-11.9 and I.C. 36-7-12 (collectively, the “Act”), is authorized and empowered to adopt this ordinance (this “Bond Ordinance”) and to carry out its provisions; and
WHEREAS, West Harrison, LLC (or an affiliate thereof) (the “Company”), desires to finance the acquisition, construction, renovation, and equipping of economic development facilities for use by the Company in its commercial development and related operations, which are in or directly serving and benefiting the West Harrison Expanded Economic Development Area (collectively, the “Project”); and
WHEREAS, the Company has advised the Dearborn County Economic Development Commission (the “Commission”) and the County that it proposes that the County issue its Taxable Economic Development Revenue Bonds, Series 2016B (West Harrison, LLC Project) in an amount not to exceed Three Million Dollars ($3,000,000) (the “Bonds”), under the Act and provide (or be deemed to provide) the proceeds of such Bonds to the Company for the purpose of financing a portion of the costs of the Project; and
WHEREAS, the completion of the Project results in the diversification of industry and the creation of business opportunities in the County; and
WHEREAS, pursuant to I.C. § 36-7-12-24, the Commission published notice of a public hearing (the “Public Hearing”) on the proposed issuance of the Bonds to finance the Project; and
WHEREAS, on the date specified in the notice of the Public Hearing, the Commission held the Public Hearing on the Project; and
WHEREAS, the Commission has performed all actions required of it by the Act preliminary to the adoption of this Bond Ordinance and has approved and forwarded to the County Council the forms of: (1) a Financing Agreement between the County and the Company (the “Agreement”); (2) a Trust Indenture the (“Indenture”) between the County and a trustee to be selected by the County Auditor (the “Trustee”); (3) the Bonds; and (4) this Bond Ordinance (the Agreement, the Indenture, the Bonds, and this Bond Ordinance, collectively, the “Financing Agreements”).
NOW, THEREFORE, BE IT ORDAINED BY THE COUNTY COUNCIL OF DEARBORN COUNTY, INDIANA, THAT:
1. Findings; Public Benefits. The County Council hereby finds and determines that the Project involves the acquisition, construction and equipping of an “economic development facility” as that phrase is used in the Act; that the Project will increase employment opportunities and increase diversification of economic development in the County, will improve and promote the economic stability, development and welfare in the County, will encourage and promote the expansion of industry, trade and commerce in the County and the location of other new industries in the County; that the public benefits to be accomplished by this Bond Ordinance, in tending to overcome insufficient employment opportunities and insufficient diversification of industry, are greater than the cost of public services (as that phrase is used in the Act) which will be required by the Project; and, therefore, that the financing of the Project by the issue of the Bonds under the Act: (i) will be of benefit to the health and general welfare of the County; and (ii) complies with the Act.
2. Approval of Financing. The proposed financing of the Project by the issuance of the Bonds under the Act, in the form that such financing was approved by the Dearborn County Economic Development Commission, is hereby approved.
3. Authorization of the Bonds. The issuance of the Bonds, payable solely from a portion of real property tax increment revenues generated in the Skally’s Bakery Allocation Area, is hereby authorized.
4. Terms of the Bonds. (a) The Bonds, in the aggregate principal amount not to exceed Three Million Dollars ($3,000,000), shall (i) be executed at or prior to the closing date by the manual or facsimile signatures of the Board of Commissioners and the Auditor of the County; (ii) be dated as of the date of their delivery; (iii) mature on a date not later than February 1, 2031; (iv) bear interest at such rates as determined with the purchaser thereof (the “Purchaser”) not exceeding eight percent (8.0%) per annum (not including Additional Interest, as provided in the Indenture); (v) be issuable in such denominations as set forth in the Indenture; (vi) be issuable only in fully registered form; (vii) be subject to registration on the bond register as provided in the Indenture; (viii) be payable in lawful money of the United States of America; (ix) be payable at the office of the Trustee as provided in the Indenture; (x) be subject to optional redemption prior to maturity and subject to redemption as otherwise provided in the Financing Agreements; (xi) be issued in one or more series; and (xii) contain such other terms and provisions as may be provided in the Indenture.
(b) The Bonds and the interest thereon do not and shall never constitute an indebtedness of, or a charge against the general credit or taxing power of, the County, but shall be special and limited obligations of the County, payable solely from revenues and other amounts derived from the Financing Agreements. Forms of the Financing Agreements are before this meeting and are by this reference incorporated in this Bond Ordinance, and the Auditor of the County is hereby directed, in the name and on behalf of the County, to insert them into the minutes of the County Council and to keep them on file.
5. Sale of the Bonds. The Board of Commissioners and the Auditor of the County are hereby authorized and directed, in the name and on behalf of the County, to sell (or be deemed to sell) the Bonds to the Company at such price as is determined on the date of sale and approved by the Auditor of the County.
6. Execution and Delivery of Financing Agreements. The Board of Commissioners and the Auditor of the County are hereby authorized and directed, in the name and on behalf of the County, to execute or endorse and deliver the Agreement, the Indenture, and the Bonds, submitted to the County
Council, which are hereby approved in all respects.
7. Changes in Financing Agreements. The Board of Commissioners and the Auditor of the County are hereby authorized, in the name and on behalf of the County, without further approval of the County Council or the Commission, to approve such changes in the Financing Agreements as may be permitted by the Act, such approval to be conclusively evidenced by their execution thereof.
8. General. The Board of Commissioners and the Auditor of the County, and each of them, are hereby authorized and directed, in the name and on behalf of the County, to execute or endorse any and all agreements, documents and instruments, perform any and all acts, approve any and all matters, and do any and all other things deemed by them, or either of them, to be necessary or desirable in order to carry out and comply with the intent, conditions and purposes of this Bond Ordinance (including the preambles hereto and the documents mentioned herein), the Project, the issuance and sale of the Bonds, and the securing of the Bonds under the Financing Agreements, and any such execution, endorsement, performance or doing of other things heretofore effected be, and hereby is, ratified and approved.
9. Binding Effect. The provisions of this Bond Ordinance and the Financing Agreements shall constitute a binding contract between the County and the holders of the Bonds, and after the issuance of the Bonds this Bond Ordinance shall not be repealed or amended in any respect which would adversely affect the rights of the holders of the Bonds as long as the Bonds or interest thereon remains unpaid.
10. Repeal. All ordinances or parts of ordinances in conflict herewith are hereby repealed.
11. Effective Date. This Bond Ordinance shall be in full force and effect immediately upon adoption and compliance with I.C. § 36-2-6.
12. Copies of Financing Agreements on File. Two copies of the Financing Agreements incorporated into this Bond Ordinance were duly filed in the office of the Auditor of the County, and are available for public inspection in accordance with I.C. § 36-1-5-4.
13. Effectiveness of Ordinance. This Ordinance shall be in full force and effect from and after its passage by the County Council.
DULY ADOPTED by the County Council of Dearborn County, Indiana, this _______ day of _____________, 2016.
DEARBORN COUNTY COUNCIL
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ATTEST:
Gayle Pennington, Auditor
DMS 3465105v2
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