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AN ORDINANCE PROVIDING FOR THE ISSUANCE AND SALE OF NOTES IN THE AGGREGATE PRINCIPAL AMOUNT OF $1,100,000, IN ANTICIPATION OF THE ISSUANCE OF BONDS, TO PAY COSTS OF IMPROVING BALLENTINE AVENUE AND GEORGE STREET, BETWEEN CERTAIN TERMINI, BY CONSTRUCTING STORM WATER SEWERS AND SANITARY SEWERS, TOGETHER WITH ALL NECESSARY APPURTENANCES THERETO, AND DECLARING AN EMERGENCY
WHEREAS, the Auditor as fiscal officer of this City has certified to this Council that the estimated life or period of usefulness of the improvement described in Section 1 is at least five years, the estimated maximum maturity of the Bonds described in Section 1 is 40 years, and the maximum maturity of the Notes described in Section 3 is 20 years;
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Marion, County of Marion, Ohio, that:
Section 1. It is necessary to issue bonds of this City in the aggregate principal amount of $1,100,000 (the “Bonds”) to pay costs of improving Ballentine Avenue and George Street, between certain termini, by constructing storm water sewers and sanitary sewers, together with all necessary appurtenances thereto (the “Improvement”).
Section 2. The Bonds shall be dated August 1, 2014, shall bear interest at the now estimated rate of six percent (6% ) per year, payable semiannually until the principal amount is paid, and are estimated to mature in 20 annual principal installments on December 1 of each year that are in such amounts that the total principal and interest payments on the Bonds in any fiscal year in which principal is payable are substantially equal. The first principal payment of the Bonds is estimated to be December 1, 2015.
Section 3. It is necessary to issue and this Council determines that notes in the aggregate principal amount of $1,100,000 (the “Notes”) shall be issued in anticipation of the issuance of the Bonds to pay costs of the Improvement and the financing costs of the issuance of the Notes. The Notes shall be dated their date of issuance and shall mature one year from the date of issuance, provided that the date of issuance shall not be later than September 12, 2013, and further provided that the Auditor may, if it is determined to be necessary or advisable to the sale of the Notes, establish a maturity date that is up to 15 days less than one year from the date of issuance by setting forth that maturity date in a final terms certificate in accordance with Section 6 of this Ordinance (the “Final Terms Certificate”). The Notes shall bear interest at a rate or rates not to exceed six percent (6%) per year (computed on the basis of a 360 day year consisting of twelve 30-day months), payable at maturity and until the principal amount is paid or payment is provided for. The rate of interest on the Notes shall be determined by the Auditor in the Final Terms Certificate.
Section 4. The principal of and interest on the Notes shall be payable in lawful money of the United States of America, and shall be payable, without deduction for services of the City’s paying agent, at the office of a bank or trust company designated by the Auditor in the Final Terms Certificate after determining that the payment at that bank or trust company will not endanger the funds or securities of the City and that proper procedures and safeguards are available for that purpose (the “Paying Agent”).
Section 5. The Notes shall be signed by the Mayor and Auditor, in the name of the City and in their official capacities, provided that one of those signatures may be a facsimile. The Notes shall be issued in the denominations and numbers as requested by Fifth Third Securities, Inc. (the “Original Purchaser”) and approved by the Auditor in the Final Terms Certificate, and the entire principal amount may be represented by a single note, may be issued as fully registered securities (for which the Auditor will serve as note registrar), and may be issued in book entry or other uncertificated form in accordance with Section 9.96 and Chapter 133 of the Revised Code if it is determined by the Auditor that issuance of the Notes in that form will facilitate the sale and delivery of the Notes. The Notes shall not have coupons attached, shall be numbered as determined by the Auditor and shall express upon their faces the purpose, in summary terms, for which they are issued and that they are issued pursuant to this Ordinance.
The Notes may be issued to any securities depository (a “Depository”) that is a clearing agency under federal law operating and maintaining, with any participants contracting with a Depository under a book entry system and includes security brokers and dealers, banks and trust companies, and clearing corporations or otherwise (“Participants”), a system (a “book entry system”) under which (i) the ownership of beneficial interests in the Notes and the principal of, and interest on, the Notes may be transferred only through a book entry, and (ii) a single physical Note certificate is issued by the City and payable only to a Depository or its nominee, with such Notes “immobilized” in the custody of the Depository or its agent for that purpose. If, and as long as a book entry system is utilized, (i) the Notes may be issued in the form of a single Note made payable to the Depository or its nominee and immobilized in the custody of the Depository or its agent for that purpose; (ii) the beneficial owners in book entry form shall have no right to receive the Notes in the form of physical securities or certificates; (iii) ownership of beneficial interests in book entry form shall be shown by book entry on the system maintained and operated by the Depository and its Participants, and transfers of the ownership of beneficial interests shall be made only by book entry by the Depository and its Participants; and (iv) the Notes as such shall not be transferable or exchangeable, except for transfer to another Depository or to another nominee of a Depository, without further action by the City.
If any Depository determines not to continue to act as a Depository for the Notes for use in a book entry system, the Auditor may attempt to establish a securities depository/book entry relationship with another qualified Depository. If the Auditor does not or is unable to do so, the Auditor, after making provision for notification of the beneficial owners by the then Depository and any other arrangements deemed necessary, shall permit withdrawal of the Notes from the Depository, and shall cause the Notes in bearer or payable form to be signed by the officers authorized to sign the Notes and delivered to the assigns of the Depository or its nominee, all at the cost and expense (including any costs of printing), if the event is not the result of City action or inaction, of those persons requesting such issuance.
The Auditor is also hereby authorized and directed, to the extent necessary or required, to enter into any agreements determined necessary in connection with the book entry system for the Notes, after determining that the signing thereof will not endanger the funds or securities of the City.
Section 6. The Notes shall be sold to the Original Purchaser at a purchase price of not less than par plus accrued interest by the Auditor in accordance with law and the provisions of this Ordinance. The note purchase agreement by and between the City and the Original Purchaser (the “Note Purchase Agreement”) now on file with the Clerk of this Council is now approved, and the Auditor is authorized to sign and deliver, on behalf of the City, the Note Purchase Agreement with such changes that are not inconsistent with the provisions of this Ordinance, are not materially adverse to the interests of the City and are approved by the Auditor. That any such changes to the Note Purchase Agreement are not materially adverse to the interests of the City and approved by the Auditor shall be evidenced conclusively by the signing of the Note Purchase Agreement by the Auditor. The Auditor shall sign the Final Terms Certificate referred to in Section 3 and 4 and cause the Notes to be prepared, and have the Notes signed and delivered, together with a true transcript of proceedings with reference to the issuance of the Notes if requested by the Original Purchaser, to the Original Purchaser upon payment of the purchase price. The Mayor, the Auditor, the Law Director, the Clerk of Council and other City officials, as appropriate, are each authorized and directed to sign any transcript certificates, financial statements and other documents and instruments and to take such actions as are necessary or appropriate to consummate the transactions contemplated by this Ordinance. The Auditor is authorized, if it is determined to be in the best interest of the City, to combine the Notes with one or more other note issues of the City into a consolidated note issue pursuant to Section 133.30(B) of the Revised Code.
Section 7. The proceeds from the sale of the Notes shall be paid into the proper fund or funds and those proceeds are appropriated and shall be used for the purpose for which the Notes are being issued. Any income earned from the investment of the proceeds of the Notes shall be deposited into the fund in which such proceeds are deposited (and shall not be transferred to the General Fund). The proceeds from the sale of the Notes and the investment earnings on those proceeds are appropriated for the uses described above.
Section 8. The par value to be received from the sale of the Bonds or of any renewal notes and any excess funds resulting from the issuance of the Notes shall, to the extent necessary, be used to pay the principal of and interest on the Notes at maturity and are pledged for that purpose.
Section 9. During the year or years in which the Notes are outstanding, there shall be levied on all the taxable property in the City, in addition to all other taxes, the same tax that would have been levied if the Bonds had been issued without the prior issuance of the Notes. The tax shall be within the ten-mill limitation imposed by law, shall be and is ordered computed, certified, levied and extended upon the tax duplicate and collected by the same officers, in the same manner, and at the same time that taxes for general purposes for each of those years are certified, levied, extended and collected, and shall be placed before and in preference to all other items and for the full amount thereof. The proceeds of the tax levy shall be placed in the Bond Retirement Fund, which is irrevocably pledged for the payment of the principal of and interest on the Notes or the Bonds when and as the same fall due.
In each year to the extent money from the City’s sanitary sewer system is available for the payment of the principal of and interest on that portion of the Notes and the Bonds issued to pay costs of constructing sanitary sewer and related appurtenances, and to the extent such money is appropriated for that purpose, the tax to be levied shall be reduced by the amount of the money so available and appropriated.
In each year to the extent money from the City’s storm water system is available for the payment of the principal of and interest on that portion of the Notes and the Bonds issued to pay costs of constructing storm water sewers and related appurtenances, and to the extent such money is appropriated for that purpose, the tax to be levied shall be reduced by the amount of money so available and appropriated.
Section 10. The City covenants that it will use, and will restrict the use and investment of, the proceeds of the Notes in such manner and to such extent as may be necessary so that (a) the Notes will not (i) constitute private activity bonds, arbitrage bonds or hedge bonds under Sections 141, 148 or 149 of the Internal Revenue Code of 1986, as amended (the Code) or (ii) be treated other than as bonds to which Section 103(a) of the Code applies, and (b) the interest on the Notes will not be an item of tax preference under Section 57 of the Code.
The City further covenants that (a) it will take or cause to be taken such actions that may be required of it for the interest on the Notes to be and remain excluded from gross income for federal income tax purposes, (b) it will not take or authorize to be taken any actions that would adversely affect that exclusion, and (c) it, or persons acting for it, will, among other acts of compliance, (i) apply the proceeds of the Notes to the governmental purpose of the borrowing, (ii) restrict the yield on investment property, (iii) make timely and adequate payments to the federal government, (iv) maintain books and records and make calculations and reports and (v) refrain from certain uses of those proceeds, and, as applicable, of property financed with such proceeds, all in such manner and to the extent necessary to assure such exclusion of that interest under the Code.
The City hereby designates the Notes as “qualified tax-exempt obligations” pursuant to Section 265(b)(3) of the Code. In connection with that designation, the City hereby represents and covenants that as a “qualified borrower” it, together with all its subordinate entities or entities that issue obligations on its behalf, or on behalf of which it issues obligations, in or during the calendar year in which the Bonds are issued, (i) have not issued and will not issue tax-exempt obligations designated as “qualified tax-exempt obligations” for purposes of Section 265(b)(3) of the Code, including the Bonds, in an aggregate principal amount in excess of $10,000,000, and (ii) have not issued, do not reasonably anticipate issuing, and will not issue, tax-exempt obligations (including the Bonds, but excluding the other obligations that are “private activity bonds” as defined in Section 141 of the Code, and excluding refunding obligations that are not “advance refunding obligations” as defined in Section 149(d)(5) of the Code) in an aggregate amount exceeding $10,000,000, unless the City first obtains a written opinion of nationally recognized bond counsel that such designation or issuance, as applicable, will not adversely affect the status of the Bonds as “qualified tax-exempt obligations”. The City further represents that it has not formed or participated in the formation of, or benefited from or availed itself of, any entity in order to avoid the purposes of subparagraph (C) or (D) of Section 265(b)(3) of the Code, and covenants that it will not form, participate in the formation of, or benefit from or avail itself of any such entity. The City further represents that the Bonds are not being issued as part of a direct or indirect composition issue that combines issues or lots of tax-exempt obligations of different issuers.
The Auditor or any other officer of the City having responsibility for issuance of the Notes is hereby authorized (a) to make or effect any election, selection, designation, choice, consent, approval, or waiver on behalf of the City with respect to the Notes as the City is permitted to or required to make or give under the federal income tax laws, including, without limitation thereto, any of the elections provided for in Section 148(f)(4)(C) of the Code or available under Section 148 of the Code, for the purpose of assuring, enhancing or protecting favorable tax treatment or status of the Notes or interest thereon or assisting compliance with requirements for that purpose, reducing the burden or expense of such compliance, reducing the rebate amount or payments or penalties, or making payments of special amounts in lieu of making computations to determine, or paying, excess earnings as rebate, or obviating those amounts or payments, as determined by that officer, which action shall be in writing and signed by the officer, (b) to take any and all other actions, make or obtain calculations, make payments, and make or give reports, covenants and certifications of and on behalf of the City, as may be appropriate to assure the exclusion of interest from gross income and the intended tax status of the Notes, and (c) to given one or more appropriate certificates of the City, for inclusion in the transcript of proceedings for the Notes, setting forth the reasonable expectations of the City regarding the amount and use of all the proceeds of the Notes, the facts, circumstances and estimates on which they are based, and other facts and circumstances relevant to the tax treatment of the interest on and the tax status of the Notes.
Section 11. If, in the judgment of the Auditor, the filing of an application for (i) a rating on the Notes by one or more nationally recognized rating agencies, or (ii) a policy of insurance from a company or companies to better assure the payment of principal of and interest on the Notes, is in the best interest of and financially advantageous to this City, the Auditor is authorized to prepare and submit those applications, to provide to each such agency or company such information as may be required for the purpose, and to provide further for the payment of the cost of obtaining each such rating or policy, except to the extent otherwise paid in accordance with the Note Purchase Agreement, from the proceeds of the Notes to the extent available and otherwise from any other funds lawfully available and that are appropriated or shall be appropriated for that purpose. To the extent the Auditor has taken such actions, those actions are hereby ratified and confirmed.
Section 12. The Clerk of Council is directed to deliver a certified copy of this Ordinance to the County Auditor.
Section 13. This Council determines it is in the interest of the City to retain the law firm of Benesch, Friedlander, Coplan & Aronoff LLP (“Benesch”) to represent the City as bond counsel in connection with its proposed issuance of the Notes. This Council approves the form of the engagement letter from Benesch now on file with this Council and authorizes the Mayor to sign and accept that engagement letter with such changes as the Mayor deems necessary. This Council also recognizes that few law firms actively represent public and private entities in connection with the authorization, issuance, sale and purchase of obligations issued by Ohio political subdivisions and that the Original Purchaser may in the future request Benesch to represent the Original Purchaser in a matter or matters unrelated to the City. If such a request occurs, the Mayor is further authorized, after consultation with the Law Director, to waive any conflict of interest if Benesch represents the Original Purchaser in a matter or matters unrelated to the City.
Section 14. This Council determines that all acts and conditions necessary to be done or performed by the City or to have been met precedent to and in the issuing of the Notes in order to make them legal, valid and binding general obligations of the City have been performed and have been met, or will at the time of delivery of the Notes have been performed and have been met, in regular and due form as required by law; that the full faith and credit and general property taxing power (as described in Section 9) of the City are pledged for the timely payment of the principal of and interest on the Notes; and that no statutory or constitutional limitation of indebtedness or taxation will have been exceeded in the issuance of the Notes.
Section 15. This Council finds and determines that all formal actions of this Council concerning and relating to the passage of this Ordinance, and that all deliberations of this Council and of any committees that resulted in those formal actions, were taken in meetings open to the public, in compliance with the law.
Section 16. This Ordinance is declared to be an emergency measure necessary for the immediate preservation of the public peace, health and safety of the City and for the further reason that this Ordinance is required to be immediately effective in order to issue and sell the Notes, which is necessary to enable the City to potentially combine the Notes with one or more other note issues of the City into a consolidated note issue and achieve savings in costs of issuance and a lower interest rate for the Notes; wherefore, this Ordinance shall be in full force and effect immediately upon its passage and approval by the Mayor.
President of Council
Mayor Scott Schertzer
Clerk of Council