69-85 Ordinance
ORDINANCE NO. 69-85
AN ORDINANCE AUTHORIZING THE ISSUANCE OF A $1,568,000
VILLAGE OF DUBLIN, OHIO INDUSTRIAL DEVELOPMENT
REVENUE BOND (RIVER'S EDGE ONE PROJECT); AUTHORIZING
A LOAN AGREEMENT AND A BOND PURCHASE AGREEMENT
RELATING THERETO; AND DECLARING AN EMERGENCY.
WHEREAS, the Village of Dublin, Ohio (herein called the "Issuer") is
a municipal corporation and political subdivision in and of the State of Ohio,
and by virtue of the laws of the State of Ohio, including Article VIII,
Section 13 of the Constitution of Ohio and Chapter 165 of the Ohio Revised
Code, is authorized and empowered, among other things, (a) to make loans for
the acquisition, construction and equipping of a commercial facility within
the boundaries of the Issuer, upon certain determinations by the Legislative
Authority of the Issuer heretofore made and herein confirmed, (b) to issue
revenue bonds of the Issuer for the purpose of providing funds to make such
loans, (c) to secure such revenue bonds by a pledge and assignment of revenues
from the loan of the bond proceeds for the payment of such revenue bonds, and
(d) to enact this Bond Legislation and enter into the Bond Purchase Agreement
and the Loan Agreement hereinafter identified, upon the terms and conditions
provided therein; and
WHEREAS, River's Edge One (hereinafter called the "Company") is a
general partnership duly organized under the laws of the State of Ohio; and
WHEREAS, the Legislative Authority of the Issuer has heretofore found
and determined, and does hereby confirm that (a) the property to be acquired,
constructed and equipped with the proceeds of the Bond herein authorized is
now and after improvement will be useful to the Project hereinafter
identified, and (b) the Project will benefit the people of the State of Ohio
and the Issuer by increasing opportunities for employment and strengthening
the economic welfare of the State of Ohio and the Issuer; and the Issuer shall
assist in the financing of such property for the purpose of promoting the
commercial and economic development of the Issuer, and thereby of the State of
Ohio, and to create jobs and employment opportunities and improve the economic
,,- welfare of the people of the Issuer and thereby of the State of Ohio; and
WHEREAS, it has been estimated and is determined by the Legislative
Authority that the amount necessary to finance the cost of the Project,
including necessary expenses incidental thereto, will require the issuance,
sale and delivery of a Bond in the maximum principal amount of $1,568,000 as
hereinafter provided, which Bond shall be payable from and secured by a pledge
and assignment of the revenues to be derived from the Loan Agreement
hereinafter identified and further secured by a Bond Purchase Agreement
hereinafter provided for between the Issuer and the Lender;
NOW, THEREFORE, BE IT ORDAINED, by the Council of the Village of
Dublin, Ohio:
SECTION 1. Determination and Approval of Legislative Authority.
Pursuant to Section 165.03, Ohio Revised Code, the Legislative Authority
hereby finds and determines that the Project is a "project" as defined in
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Chapter 165 of the Ohio Revised Code, is consistent with the provisions of
Section 13 of Article VIII, Ohio Constitution and will benefit the people of
the Issuer by creating or preserving jobs and employment opportunities and
promoting the industrial and economic development of the Issuer and the State.
The Legislative Authority, as the "applicable elected representative"
of the Issuer for purposes of Section 103(k) of the Code, hereby approves the
issuance of the Bond in the principal amount of $1,568,000, the proceeds of
which will be loaned to the Company to assist in financing the costs of the
Project, generally consisting of the acquisition, construction and equipping
of an office building and the site thereof, which facility will be located at
the Southwest corner of the intersection of u.S. 33 and Ohio Route 161 in
Dublin, Ohio. The Project will be owned by the Company and a major portion of
the building will be leased to the National Water Well Association, a
nonprofit Ohio corporation.
SECTION 2. Definitions. In addition to the words and terms elsewhere
defined in the Bond Legislation, the following words and terms as used in this
Bond Legislation and in the Bond Purchase Agreement shall have the following
meanings unless the context or use indicates another or different meaning or
intent and such definitions shall be equally applicable to both the singular
and plural form of any of the words and terms herein defined:
"Authorized Company Representative" means the person at the time
designated to act on behalf of the Company by written certificate furnished
to the Issuer and the Lender, containing the specimen signature of such person
and signed on behalf of the Company by a general partner of the Managing
General Partner of the Company. Such certificate may designate an alternate
or alternates.
"Bond" means the $1,568,000 Industrial Development Revenue Bond
identified in Section 3 of this Bond Legislation.
"Bondholder" or "holder" means the Person to whose order the
principal of and interest on the Bond are payable.
"Bond Legislation" means this ordinance.
"Bond Purchase Agreement" means the Bond Purchase Agreement between
the Issuer and the Lender, dated as of November I, 1985, including this Bond
Legislation as part thereof, as the same may be amended, modified or
supplemented by any amendments or modifications thereof or supplements thereto
entered into in accordance with the provisions thereof.
"Code" means the Internal Revenue Code of 1954, as amended, and
references to the Code and Sections of the Code shall include relevant
regulations and proposed regulations thereunder and any successor provisions
to such Sections, regulations or proposed regulations.
"Company" means River's Edge One, a general partnership organized
under the laws of the State of Ohio, and its lawful successors and assigns,
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including surviving, resulting or transferee entities as provided in Section
7.3 of the Loan Agreement.
"Date of Taxability" means the date as of which all or any part of
the interest on the Bond is first required to be included for federal income
tax purposes in the gross income of a holder thereof by reason of the
occurrence of any circumstance on the basis of which a Determination of
Taxability shall have been made.
"Determination of Taxability" means either of the following shall
have occurred:
(i) The receipt by the Lender or the Bondholder of a ruling or
technical advice by the Internal Revenue Service in which the Company
has participated or has had the opportunity to participate, which has
the effect of requiring all or any portion of the interest on the
Bond to be included in the gross income for federal income tax
purposes of a holder or former holder thereof (other than a holder or
former holder who is or was a "substantial user" of the Project or a
"related person" as such terms are used in Section I03(b) of the
Code); or
(ii) The delivery to the Lender, the Company and the Issuer of a
written opinion of Independent Tax Counsel to the effect that such
interest is so includible.
"Financial Institution" means any life or casualty insurance company,
any registered investment company, or any state or federally chartered
commercial bank, savings bank or savings and loan association whose accounts
are insured by either the Federal Deposit Insurance Corporation or the Federal
Savings and Loan Insurance Corporation.
"Guaranty Agreement means the Guaranty Agreement, dated as of
November 1, 1985, among Jay H. Lehr, Pat B. Alcorn, Graham D. Browne, David L.
Teal and Philip N. Pappas, as guarantors, and the Lender.
"Independent Tax Counsel" means an attorney or firm of attorneys of
nationally recognized standing on the subject of municipal bonds selected by
the Lender or the Bondholder and approved by the Company, which approval shall
not be unreasonably withheld.
"Interest Rate for Advances" means a rate per annum which is the sum
of the Prime Rate plus 2%.
"Issuer" means the Village of Dublin, Ohio, a municipal corporation
and political subdivision in and of the State, and its lawful successors.
"Legislative Authority" means the Council of the Issuer and any
officer, board, commission or other body which hereafter succeeds, by
operation of law, to the powers and duties of such council.
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"Lender" means Bank One, Columbus, NA, Columbus, Ohio, and its
successors and assigns of which the Company has notice.
"Loan Agreement" means the Loan Agreement between the Issuer and the
Company, dated as of November 1, 1985, as from time to time amended pursuant
to Section 11.5 thereof.
"Loan Payments" means the amounts required to be paid by the Company
pursuant to Sections 4.2 or 4.8 of the Loan Agreement.
"Mortgage" means the Open End Mortgage and Security Agreement,
between the Company and the Lender, dated as of November 1, 1985, pursuant to
which the Company grants a mortgage on and a security interest in the Project
to the Lender as additional security for the Note and the Bond.
"Note" means the Promissory Note dated the date of the Bond payable
to the order of the Issuer made by the Company to evidence the Company's
obligations under the Loan Agreement and in particular the Company's obligation
to make Loan Payments pursuant to the Loan Agreement, which Promissory Note is
to be substantially in the form of Exhibit C to the Loan Agreement.
"Person" means natural persons, firms, partnerships, associations,
corporations and public bodies.
"Prime Rate" means the rate of interest per annum designated from
time to time by Bank One, Columbus, NA, Columbus, Ohio, as its prime rate of
interest, such rate changing automatically and immediately from time to time
effective as of the effective date of each such announced change.
"Project" means the Project Site and the property identified in
Exhibit A to the Loan Agreement, together with any additions and improvements
thereto, modifications thereof and substitutions therefor, which property
constitutes a commercial office facility.
"Project Site" means the real estate described in Exhibit B to the
Loan Agreement together with any additions thereto, modifications thereof and
substitutions therefor.
"State" means the State of Ohio.
SECTION 3. Authorization and Terms of the Bond. It is hereby
determined to be necessary to, and the Issuer shall, issue, sell and deliver,
as provided herein, a bond designated "Village of Dublin, Ohio, Industrial
Development Revenue Bond (River's Edge One Project)", in the aggregate
principal amount of $1,568,000, pursuant to the authority of Article VIII,
Section 13 of the Constitution of Ohio and Chapter 165 of the Ohio Revised
Code, for the purpose of providing funds to lend to the Company so that the
Company may acquire, construct and equip a commercial facility consisting of
two office buildings and the site thereof.
The Bond shall be issued in fully registered form, without coupons,
and shall be dated as of the date of delivery thereof. In the event of a
transfer of the Bond, at the request of the Lender and upon surrender of the
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Bond to the Issuer, the Issuer shall execute and deliver to the transferee a
new Bond, in fully registered form, without coupons, in the principal amount
equal to the outstanding principal amount of the Bond surrendered and dated as
of the date to which interest has been paid on the Bond surrendered. The
Lender shall maintain registration books for the Bond. The Bond shall bear
interest from its date on the outstanding principal amount thereof at a rate
of eleven and' one-half percent (11-1/2%) per annum, subject to adjustment as
hereinafter provided. Interest shall be calculated based upon the actual
number of days elapsed and a 360 day year through and including April 30,
1986, and upon a 360 day year of twelve 30-day months after April 30, 1986.
Accrued interest on the Bond shall be payable on the first day of December,
1985 and on the first day of each month thereafter through and including May
1, 1986. Commencing June 1, 1986 and continuing on the first day of each
month through and including August 1. 1995, principal and interest shall be
payable in equal monthly installments in an amount which, if paid on the first
day of each month for 300 months, would fully amortize a loan whose principal
amount equalled the outstanding principal balance of the Bond on May 1, 1986.
The outstanding principal balance of the Bond and accrued interest thereon
shall be due and payable on September 1. 1995.
If, as a result of amendments to the Code. (a) the maximum marginal
federal income tax rate applicable to corporations, as set forth in Section 11
of the Code, shall be changed from 46%, or (b) the reduction factor for
certain financial institution preference items, as set forth in Section
291(a)(3) of the Code, shall be changed from 20%, the interest rate applicable
to the Bond shall be automatically and immediately adjusted as follows:
Adjusted interest rate (in percent per annum)=11.5[1+1.2176[.368-F(1-E)]]
Where: F = the maximum marginal federal income tax rate applicable
to the Lender. as set forth in Section 11 of the Code,
expressed as a decimal fraction; and
E = the reduction factor for certain financial institutions
preference items, as set forth in Section 291(a)(3) of
the Code. expressed as a decimal fraction.
If the interest rate on the Bond is so adjusted at any time or from time to
time, the equal monthly payments of principal and interest shall be adjusted,
effective in the month immediately following the month of such interest rate
adjustment. to an amount which, if paid on the first day of each month for a
number of months equal to the difference between 300 and the number of whole
months between June I. 1986 and the month in which such adjusted payment will
commence, would fully amortize a loan whose principal amount equaled the
outstanding principal amount of the Bond on the date of such adjustment and
which bore interest at the adjusted interest rate.
Notwithstanding the preceding two paragraphs. from and after a
Determination of Taxability until the final maturity of the Bond, by
redemption or otherwise, the interest rate on the Bond shall be a rate per
annum equal to the sum of the Prime Rate plus 1-1/2%, with each change in the
Prime Rate automatically and immediately resulting in a change in the interest
rate borne by the Bond, and the monthly installment for each calendar month
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commencing after the date of a Determination of Taxability shall be equal to
the sum of the accrued interest on the Bond based upon an interest rate equal
to the sum of the Prime Rate plus 1-1/2% and the amount by which the
outstanding principal balance of the Bond would have been reduced in such
month had the interest rate on the Bond remained at 11-1/2% per annum and had
the monthly ~nstallment payment of principal and interest remained at the
equal monthly installment amount determined pursuant to the second paragraph
of this Section 3. An amount equal to the difference between (a) the amount
of interest which would have been paid on the Bond had the interest rate per
annum been the sum of the Prime Rate plus 1-1/2% for a period (the "Payment
Period") beginning on the Date of Taxability and ending on the last day of the
month in which occurs a Determination of Taxability and (b) the amount of
interest actually paid on the Bond for the Payment Period shall be paid to the
Bondholder (or apportioned among the Bondholder and any prior Bondholders
during the Payment Period) within thirty (30) days after the date of a
Determination of Taxability. An additional amount equal to the amount of
interest and penalties imposed upon the Bondholder, or any prior Bondholders
during the Payment Period, as a direct result of the includability of interest
on the Bond in the gross income of such Bondholder or prior Bondholders for
federal income tax purposes as a result of a Determination of Taxability shall
be paid to such Bondholder or prior Bondholders within thirty (30) days after
such Bondholder or prior Bondholders furnishes to the Company evidence of the
amount of interest and penalties paid by such Bondholder or prior Bondholders.
During the continuance of an event of default as defined in Section
7.01 of the Bond Purchase Agreement, the interest rate on the Bond shall
automatically be increased to a rate equal to two percentum (2%) per annum
over the Prime Rate.
In the event of a transfer of the Bond, at the request of the Lender
and upon surrender of the Bond to the Issuer, the Issuer shall execute and
deliver to the transferee a new Bond, without coupons, payable to the order of
the transferee, in the principal amount equal to the outstanding principal
amount of the Bond surrendered and dated as of the date to which interest has
been paid on the Bond surrendered. The Bond shall not be transferred by any
Bondholder to other than a Financial Institution, and any purported transfer
to other than a Financial Institution shall be void and of no effect. Any
permitted transfer of the Bond shall be made in compliance with applicable
state and federal securities laws.
After a Determination of Taxability, the Bond shall be subject to
redemption in whole at any time or in part in inverse order of maturing
principal installments on any interest payment date at a redemption price of
100% of the principal amount redeemed plus accrued interest to the redemption
date, in the event of exercise by the Company of its option to prepay all or a
portion of the Loan Payments. Notice of the call for redemption of the Bond
or a portion thereof shall be deemed given upon the Company's giving the
Bondholder at least ten days advance notice of such redemption, which notice
shall specify the principal amount of Bond to be redeemed and the date fixed
for redemption.
The Bond also shall be subject to redemption in whole at any time at
a redemption price of 100% of the outstanding principal amount thereof plus
accrued interest to the redemption date at the option of the Bondholder if and
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when the Loan Agreement shall have become void or unenforceable or impossible
of performance in accordance with the intent and purpose of the parties as
expressed in the Loan Agreement by reason of any changes in the Constitution
of Ohio or the Constitution of the United States of America or by reason of
legislative or administrative action (whether state or federal) or any final
decree, judgment or order of any court or administrative body (whether state
or federal) entered after an opportunity for the contest thereof by the Issuer
or the Company in good faith to such extent that the Loan Agreement and the
obligations evidenced thereby are no longer enforceable by the holder
thereof. Such redemption shall be made on a date selected by the Bondholder
but not more than ninety (90) days following the date the Bondholder has
received notice of any such constitutional amendment, legislation,
administrative action, or final decree, judgment or order. The Bondholder
shall give the Company written notice of the redemption date selected by the
Bondholder at least forty-five (45) days before such redemption date.
The Bond also shall be subject to mandatory redemption in part in
inverse order of maturing principal installments on any interest payment date
at a redemption price of 100% of the principal amount redeemed, if and to the
extent that the Lender is holding any moneys for application in accordance
with Section 10.3 of the Loan Agreement.
Principal of and interest on the Bond shall be payable at the
principal office of the Lender.
The Bond shall be executed by the City Manager and the Director of
Finance of the Issuer, provided that either, but not both, of such signatures
may be facsimiles.
SECTION 4. Additional Terms of the Bond. The Bond shall be payable
as to principal and interest in lawful money of the United States, shall be a
negotiable instrument and shall express on its face the purpose for which it
is issued and such other statements or legends as may be required by law.
In case any officer whose signature or a facsimile of whose signature
shall appear on the Bond shall cease to be such officer before the issuance or
delivery of the Bond such signature or such facsimile shall nevertheless be
valid and sufficient for all purposes, the same as if he had remained in
office until that time.
As provided herein, the Bond shall be payable from the Loan Payments
and secured by a pledge of and lien on any account established pursuant to the
Loan Agreement and assignment of the revenues and other income, charges and
moneys derived from the Loan Agreement payable to the Lender as herein
provided, and further secured by the Bond Purchase Agreement, the assignment
of the Note by the Issuer to the Lender, the Mortgage and the Guaranty
Agreement; and anything in the Bond Legislation, the Bond or the Bond Purchase
Agreement to the contrary notwithstanding, neither the Bond Legislation, the
Bond, nor the Bond Purchase Agreement shall constitute a debt or a pledge of
the faith and credit of the Issuer, and the Bond shall contain on the face
thereof a statement to the effect that the Bond is payable solely from the
aforesaid sources pledged to its payment; provided, however, that nothing
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herein shall be deemed to prohibit the Issuer, of its own volition, from using
to the extent it is lawfully authorized to do so any other resources or
revenues for the fulfillment of any of the terms, conditions or obligations of
the Bond Purchase Agreement, the Bond Legislation or the Bond.
SECTION 5. Sale of the Bond. The Bond is hereby offered for sale to
the Lender at' a price of 100% of the principal amount thereof, in accordance
with the terms and provisions of the Bond Purchase Agreement. The City
Manager and the Director of Finance of the Issuer, and either of them, are
hereby authorized to make the necessary arrangements on behalf of the Issuer
with the Lender to establish the date, location, procedure and conditions for
the delivery of the Bond to the Lender and to take all steps necessary to
effect delivery and security of the Bond under the terms of this Bond
Legislation and the Bond Purchase Agreement and it is hereby determined that
the price and the interest rate for the Bond and the manner of sale, as
provided in this Bond Legislation, are in the best interest of the Issuer and
consistent with all legal requirements.
SECTION 6. Disbursement,of Bond Proceeds. The Lender shall pay the
purchase price of the Bond by disbursing Bond proceeds in accordance with the
provisions of the Loan Agreement, and the Lender is hereby authorized and
directed to make such disbursements. The date and amount of each such
disbursement shall be recorded, by the Lender, on the Disbursement Schedule
attached to the Bond. The aggregate of all such disbursements shall not
exceed $1,568,000, and the Lender shall not be required to make any such
disbursement after April 30, 1986.
SECTION 7. Source of Payment. The Project is to be financed
pursuant to the provisions of the Loan Agreement, which Loan Agreement
provides that the Company shall remit Loan Payments directly to the Lender for
the account of the Issuer, which Loan Payments shall be applied to payment of
amounts payable with respect to the principal of and interest on the Bond.
The Loan Payments are required to be sufficient in amount to pay the principal
of and interest on the Bond and the entire amount of the Loan Payments is
pledged to the payment of the principal of and interest on the Bond. Under
the terms of the Loan Agreement, the Company additionally has agreed to assume
and pay all necessary expenses which the Issuer is required to incur for the
Project and the fees and expenses of the Lender incurred in connection with
the purchase of the Bond or charged in connection with the collection and
distribution of payments of principal of or interest on the Bond.
The Issuer hereby covenants and agrees that so long as the Bond is
outstanding it will pay, or cause to be paid, to the Lender sufficient sums of
Loan Payments or other income, charges and moneys derived from the Loan
Agreement promptly to meet and pay the principal of and interest on the Bond
as the same becomes due and payable, and that should there be a default under
the Loan Agreement, the Issuer shall fully cooperate with the Lender to the
end of fully protecting the rights and security of the Lender.
SECTION 8. Covenants of Issuer. In addition to the other covenants
of the Issuer in this Bond Legislation and the Bond Purchase Agreement
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contained, the Issuer further covenants with the Bondholder and the Lender as
follows:
(a) Payment of Principal and Interest. The Issuer will, solely from
the sources herein provided, pay the principal of and interest on the Bond on
the dates and at the places and in the manner mentioned in the Bond, according
to the true intent and meaning thereof.
(b) Performance of Covenants, Authority and Actions. The Issuer
covenants that it will faithfully observe and perform at all times all
agreements, covenants, undertakings, stipulations and provisions contained in
the Bond Legislation, the Bond Purchase Agreement, the Loan Agreement and in
the Bond and in all proceedings of its Legislative Authority pertaining to the
Bond or the Loan Agreement. The Issuer covenants that it is duly authorized
by the Constitution of Ohio and the laws of the State, particularly and
without limitation Section 13 of Article VIII of the Constitution of Ohio and
Chapter 165, Ohio Revised Code, to execute and deliver the Loan Agreement, to
endorse and deliver the Note, to issue the Bond authorized hereby and to
execute and deliver the Bond Purchase Agreement, and to pledge the Loan
Payments in the manner and to the extent herein and in the Bond Purchase
Agreement set forth; that all actions on its part for the issuance of the Bond
and execution and delivery of the Loan Agreement and the Bond Purchase
Agreement and endorsement and delivery of the Note have been duly and
effectively taken, and that the Bond in the hands of the Bondholder is and
will be a valid and binding special obligation of the Issuer enforceable
according to the terms thereof except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws in effect from
time to time affecting the rights of creditors generally and the availability
of equitable remedies. All of the obligations and duties of the Issuer and
its officers and members of the Legislative Authority in its behalf, under the
Loan Agreement, Bond Legislation and the Bond Purchase Agreement are hereby
established as duties specifically enjoined by law and resulting from an
office, trust or station of the Issuer and its officers and members of the
Legislative Authority within the meaning of Section 2731.01, Ohio Revised Code.
(c) Maintenance of Lien. Except as otherwise provided in this Bond
Legislation, the Bond Purchase Agreement and the Loan Agreement, the Issuer
will not make any pledge or assignment of or create any lien or encumbrance
upon the Loan Payments other than the pledge and assignment thereof under this
Bond Legislation and the Bond Purchase Agreement.
(d) Payment of Taxes, Charges, Etc. Pursuant to and subject to the
provisions of Section 5.3 of the Loan Agreement, the Company has agreed to pay
all lawful taxes, assessments and charges at any time lawfully levied or
assessed upon or against the Project, or any part thereof; provided, however,
that nothing contained in this Section shall require the payment of any such
taxes, assessments or charges if the same are not required to be paid under
the provisions of Section 5.3 of the Loan Agreement.
(e) Maintenance and Repair. Pursuant to and subject to the
provisions of Section 5.1 of the Loan Agreement, the Company has agreed at its
own expense to cause the Project to be kept in good repair and good operating
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condition, and the Company may, at its own expense, from time to time
undertake additions, remodeling, modifications and improvements to the Project
under the terms and conditions set forth in Sections 5.1 and 5.2 of the Loan
Agreement.
(f) Public Records. The Issuer covenants that it will cause
necessary financing statements, amendments thereto, continuation statements
and instruments of similar character relating to the pledges made by it to
secure the Bond, to be recorded and filed in such manner and in such places as
may be required by law in order to fully preserve and protect the security of
the Lender.
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(g) Inspection of Project Books. The Issuer covenants and agrees
that all books and documents in its possession or control relating to the
Project and the revenues derived from the Project shall at all times be open
to inspection by such accountants or other agents as the Lender may from time
to time designate.
(h) Rights under the Loan Agreement. The Loan Agreement, duly
executed counterparts of which upon delivery of the Bond will have been filed
with the Lender, sets forth the covenants and obligations of the Issuer and
the Company, including a provision in Section 11.5 thereof that subsequent to
the issuance of the Bond and prior to payment of the Bond in full, the Loan
Agreement may not be effectively amended, changed, modified, altered, or
terminated (other than as provided therein or herein) without the prior
written consent of the Lender, and reference is hereby made to the Loan
Agreement for a detailed statement of said covenants and obligations of the
Company under the Loan Agreement, and the Issuer agrees that the Lender in its
name or in the name of the Issuer may enforce all rights of the Issuer and all
obligations of the Company under and pursuant to the Loan Agreement for and on
behalf of the Bondholders, whether or not the Issuer is in default of the
enforcement of such rights and obligations.
(i) Maintenance of the Loan Agreement. The Issuer covenants that it
shall do all things on its part necessary to maintain the Loan Agreement in
effect in accordance with the terms thereof and will take all actions
necessary to enforce and protect the rights of the Issuer under the Loan
Agreement, including actions at law and in equity, as may be appropriate.
(j) Investment of Moneys. Any moneys held as a part of any account
held by the Lender pursuant to the Bond Purchase Agreement or the Loan
Agreement shall, at the written request, or oral request confirmed in writing,
of the Authorized Company Representative, be invested or reinvested by the
Lender in: (i) obligations issued by the United States of America or by any
Person controlled or supervised by and acting as an instrumentality of the
United States of America pursuant to authority granted by Congress, (ii)
certificates of deposit issued by, or deposits at, banks, trust companies or
savings and loan associations, including the Lender or affiliates of the
Lender, organized under the laws of the United States of America or any state
thereof, which have an aggregate of capital, paid in surplus and retained
earnings of at least $10,000,000, or issued by or drawn on or deposited at any
branch of such a bank, trust company or savings and loan association, whether
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within or without the United States of America, (iii) commercial paper rated
"P-l" or "A-I" or their equivalents by Moody's Investors Service, Inc. or
Standard & Poor's Corporation or any successor of either, including variable
rate notes of obligors whose commercial paper is so rated, and (iv) any
repurchase agreement or variable amount master demand note including those of
the Lender or affiliates of the Lender, fully secured by obligations described
in (i) of this paragraph. The type, amount and maturity (which shall be such
so that the moneys invested will be available to make payments from the
account in accordance with the provisions of the Bond Legislation and the Loan
Agreement) of such investments shall be as specified by the Authorized Company
Representative. Any such investment made by the Lender may be purchased from
or through, or sold to, the Lender, or any affiliate of the Lender, and such
investments shall be held by or under the control of the Lender and shall be
deemed at all times a part of the account, and the interest accruing thereon
and any profit realized therefrom shall be credited to the account and any
loss resulting from such investments shall be charged to the account.
SECTION 9. Bond Purchase Agreement and Loan Agreement. In order to
better secure the payment of the principal of and interest on the Bond, the
City Manager and. the Director of Finance of the Issuer, and either of them,
are authorized and directed to execute, acknowledge and deliver, as may be
appropriate, in the name and on behalf of the Issuer, a Bond Purchase
Agreement, herein identified as and called the Bond Purchase Agreement, and
the Loan Agreement, each in substantially the form submitted to this
Legislative Authority, and to endorse upon the Note the assignment to the
Lender, which instruments are hereby approved in all respects with such
changes therein not inconsistent with this Bond Legislation and not
substantially adverse to the Issuer as may be permitted by law and approved by
the officers executing the same. The approval of such changes by such
officer, and that they are not substantially adverse to the Issuer, shall be
conclusively evidenced by the execution of the Bond Purchase Agreement and the
Loan Agreement and the endorsement of the Note, respectively, by such
officer. The Clerk of this Legislative Authority is hereby directed to insert
copies thereof, in the forms submitted to this meeting and approved hereby, in
the record of proceedings of this Legislative Authority with the minutes of
this meeting and to certify thereon that the same are in the form of the
instruments so submitted to this Legislative Authority and approved by this
Bond Legislation and identified herein as the Bond Purchase Agreement, the
Loan Agreement and the Note. Said Bond Purchase Agreement, Loan Agreement and
Note contain provisions authorized and permitted by Chapter 165 of the Ohio
Revised Code. This Bond Legislation shall constitute a part of the Bond
Purchase Agreement, as therein provided and for all purposes including the
provisions thereof relating to amendment thereto and to the separability of
provisions of the Bond Purchase Agreement. The City Manager or the Director
of Finance of the Issuer shall execute and deliver such financing statements
and continuation statements as may be necessary to evidence the liens
applicable to the Loan Payments, proceeds of the Bond and other revenues to be
derived therefrom.
SECTION 10. Arbitrage. The Issuer hereby covenants that it will
restrict the use of the proceeds of the Bond in such manner and to such extent
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as may be necessary, in view of reasonable expectations at the time of
issuance of the Bond, so that the Bond will not constitute an "arbitrage bond"
under Section 103(c) of the Code and regulations prescribed under such
Section. The Issuer will submit or cause to be submitted an Information
Return for Private Activity Bond Issuer, IRS Form 8038, to the Internal
Revenue Service, setting forth the information required by Section 103(1) of
the Code. The City Manager or the Director of Finance of the Issuer or any
other officer of the Issuer having responsibility with respect to issuance of
the Bond is hereby authorized and directed to (i) give an appropriate
certificate for inclusion in the transcript of proceedings with respect to the
Bond, upon receipt of appropriate assurances in writing from the Company,
setting forth the facts, estimates and reasonable expectations pertinent under
said Section 103(c) and regulations prescribed under such Section, and (ii)
submit or cause to be submitted the information return described in the
preceding sentence which shall be based on the relevant information provided
by the Company.
SECTION ll. Sunshine Law. This Legislative Authority hereby finds
and determines that all formal actions taken relative to the adoption of this
ordinance were taken in an open meeting of this Legislative Authority, and
that all deliberations of this Legislative Authority and of its committees
that resulted in such formal actions were in meetings open to the public, in
full compliance with applicable legal requirements, including Section 121.22
of the Ohio Revised Code.
SECTION 12. Prevailing Rates of Wages; Prevailing Wage Coordinator.
All wages paid to laborers and mechanics employed on the Project shall be paid
at the prevailing rates of wages of laborers and mechanics for the class of
work called for by the Project, which wages shall be determined in accordance
with the requirements of Chapter 4115, Ohio Revised Code, for determination of
prevailing wage rates; provided, that if the Company or other nonpublic user
beneficiary undertakes, as a part of the Project, construction to be performed
by its regular bargaining unit employees who are covered under a collective
bargaining agreement which was in existence prior to May 13, 1985, the rate of
pay provided under the applicable collective bargaining agreement may be paid
to such employees.
SECTION 13. Emergency Effective Date. This ordinance is hereby
determined to be an emergency measure, the immediate passage of which is
necessary for the preservation of the public peace, health, safety or welfare
and for the further reason that the ordinance must be immediately effective so
that completion of the acquisition, construction and equipping of the Project
can be effective as soon as possible in order that the Issuer and its
residents may enjoy the benefits of the additional employment opportunities at
the earliest time; wherefore, this ordinance s be in full force and effect
immediately after its passage.
Passed: November 4, 1985
Attest.:-&.A~ ~ ~
1erk of C nei
, hereby certitt that copies of thi~ O~dinance/Resoluti~~
t d in the Village of Dublin In accordance WI
were pos e .
Section 131.25 of the C:lia RC\Jlsed Code.
~///1l~LO Y7J' ~ -13-
Clerk cf Council