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HomeMy WebLinkAboutNo. 1920 amending resolution No. 1904 which authorized the issuance of redevelopment district special taxing district bonds, series 2002I RESOLUTION NO. 1920 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION AMENDING RESOLUTION NO. 1904 WHICH AUTHORIZED THE ISSUANCE OF REDEVELOPMENT DISTRICT SPECIAL TAXING DISTRICT BONDS, SERIES 2002 WHEREAS, the South Bend Redevelopment Commission (the "Commission "), governing body of the Department of Redevelopment and the Redevelopment District (the "Redevelopment District "), exists and operates under the provisions of IC 36 -7 -14, as amended from time to time (the "Act "); and WHEREAS, the Commission has previously adopted Resolution No. 1904 entitled "A Bond Resolution of the South Bend Redevelopment Commission Authorizing the Issuance of the Bonds of the Redevelopment District Tax Increment for the Purpose of Raising Money for Redevelopment and Economic Development in the Sample/Ewing Area" (the "Bond Resolution "); and WHEREAS, the Commission has accepted proposal from Ambac Assurance Corporation to provide bond insurance and a surety bond to fund a debt service reserve for the bonds authorized to be issued in the Bond Resolution and, as a result, the Commission desires to amend the Bond Resolution; NOW, THEREFORE, BE IT RESOLVED, by the South Bend Redevelopment Commission as follows: follows: SBIMAN 1137132v 1 Section 1. Section 4 of the Bond Resolution is hereby amended to read as Section 4. There are hereby created and established in the Allocation Fund a Tax Increment Revenue Account, into which all Tax Increment received and such other revenues available to the Commission (including any Tax Increment on deposit in the Allocation Fund as of the date of delivery of the Bonds) shall be deposited and held in reserve for payment of debt service on the Bonds pursuant to this Resolution and Indiana Code 36- 7- 14 -39, a Bond Principal and Interest Account, a Debt Service Reserve Account (the "Reserve Account "), and a General Account, and there is further hereby continued the Redevelopment Special Taxing District Bond Fund and created in such Bond Fund a 2002 Bond Account, into which all Special Taxes received shall be deposited, each of which accounts the Commission hereby covenants and agrees to cause to be kept and maintained. On July 15, 2003, and each July 15th thereafter (the "Determination Date "), if it is determined that the Tax Increment and other revenues available to the Commission are insufficient on such Determination Date to pay debt service on the Bonds due in the twelve (12) month period beginning on July 1, 2004, and each twelve (12) month period beginning on each July 1, 2004, and each twelve (12) month period beginning on each July 1 thereafter (the "Pledge Period "), the Commission hereby covenants to levy a Special Tax for collection during such Pledge Period upon all of the taxable property of the District in a total amount, together with the Tax Increment and other revenues available to the Commission k_ for such purpose, sufficient to make such debt service payments for the applicable Pledge Period. The Commission acknowledges that any such Special Tax must be included within the budget of the City and further acknowledges and agrees that it will take such action as may be necessary to include the same within the budget of the City. On July 15, 2003, and each July 15th thereafter, all monies in the Tax Increment Revenue Account to the extent of the Tax Increment taken into account pursuant to Indiana Code 36- 7 -14 -27 in determining the amount of the Special Tax to be levied for such calendar year and, to the extent necessary to meet the requirements of the Bond Principal and Interest Account as described below, on June 30, 2004, and each December 30 and June 30 thereafter all moneys in the Redevelopment Special Taxing District Bond Fund shall be set aside in the following accounts within the Allocation Fund, in the following order of priority: a. Bond Principal and Interest Account. There shall be set aside within the Allocation Fund and deposited into the Bond Principal and Interest Account from the Tax Increment Revenue Account, to the extent of the Tax Increment taken into account pursuant to Indiana Code 36- 7 -14 -27 in determining the amount of the Special Tax for the Pledge Period next following. There shall also be deposited into the Bond Principal and Interest Account, to the extent necessary, from the 2002 Bond Account of the Redevelopment Special Taxing District Bond Fund, on each December 30 and June 30 the amount of the Special Tax collected for the payment of principal of and interest on the Bonds for said Pledge SBIMANI 137132vl - 2 - Period. No deposit need be made into the Bond Principal and Interest Account if the amount contained therein is at least equal to the aggregate amount of principal and interest due and payable with respect to the Bonds during the remainder of the Pledge Period. All money in the Bond Principal and Interest Account shall be used and withdrawn solely for the purpose of paying the interest on and the principal of the Bonds as it shall become due and payable to the extent it is required therefor (including accrued interest on any Bonds purchased or redeemed prior to maturity). b. Debt Service Reserve Account. The Commission has determined that it is necessary to maintain a reserve for the Bonds in an amount equal to the maximum principal of and interest on the Bonds due in any eighteen (18) month period (the "Reserve Requirement ") and the Commission has further determined to satisfy the Reserve Requirement by obtaining a Surety Bond (as defined herein) from Ambac Assurance (defined herein). The Commission shall not be required to make any other deposits into the Reserve Account other than to replenish the Surety Bond as provided herein in the event that it is necessary for there to be a draw on the Surety Bond to make a payment of principal and interest on the Bonds when due. As long as the Surety Bond shall be in full force and effect, the Commission agrees to comply with the following provisions: (a) In the event and to the extent that moneys on deposit in the Bond Principal and Interest Account are insufficient to pay the amount of principal and interest coming due on the Bonds, then upon the later of: (i) one (1) day after receipt by the General Counsel of Ambac Assurance of a demand for payment in the form attached to the Surety Bond as Attachment 1 (the "Demand for Payment "), duly executed by the Paying Agent certifying that payment due under this Resolution has not been made to the Paying Agent; or (ii) the payment date of the Bonds as specified in the Demand for Payment presented by the Paying Agent to the General Counsel of Ambac Assurance, Ambac Assurance will make a deposit of funds in an account with the Paying Agent or its successor, in New York, New York, sufficient for the payment to the Paying Agent, of amounts which are then due to the Paying Agent under this Resolution (as specified in the Demand for Payment) up to but not in excess of the Surety Bond Coverage, as defined in the Surety Bond. (b) The Paying Agent shall, after submitting to Ambac Assurance the Demand for Payment as provided in (a) above, make available to Ambac Assurance all records relating to the Funds and Accounts maintained under this Resolution. SBIMANI 137132v1 - 3 - (c) The Paying Agent shall, upon receipt of moneys received from the draw on the Surety Bond, as specified in the Demand for Payment, credit the Bond Principal and Interest Account to the extent of moneys received pursuant to such Demand. (d) The Reserve Account shall be replenished so that principal and interest on the Surety Bond shall be paid from first available revenues then legally available to the Commission, including, but not limited to, Tax Increment. C. General Account. Any amounts remaining in the Tax Increment Revenue Account in excess of the amount of Tax Increment held in reserve for payment of debt service on the Bonds to be taken into account pursuant to Indiana Code 36- 7 -14 -27 in determining the amount of the Special Tax for the next following calendar year shall be deposited into the General Account of the Allocation Fund and available only to do one (1) or more of the following: i. pay the principal of and interest on any obligations (including the Bonds) payable solely from allocated tax proceeds which are incurred by the Redevelopment District for the purpose of financing or IL refinancing the redevelopment of the Area; ii. establish, augment, or restore the debt service reserve for bonds (including the Bonds) payable solely or in part from allocated tax proceeds in the Area; iii. pay the principal of and interest on bonds payable from allocated tax proceeds in the Area; iv. pay the principal of and interest on bonds issued by the City to pay for local public improvements in or serving the Area; V. pay premiums on the redemption before maturity of bonds payable solely or in part from allocated tax proceeds in the Area; vi. make payments on leases payable from allocated tax proceeds in the Area under Section 25.2 of the Act; co vii. reimburse the City for expenditures made by the City for local public improvements (which include buildings, parking facilities, and other items described in Section 25.1(a) of the Act) within or serving the Area; viii. reimburse the City for rentals paid by the City for a building or parking facility within or serving the Area under any lease entered into under Indiana Code 36 -1 -10; SBIMANI 137132v1 - 4 - ix. pay all or a portion of a property tax replacement credit to taxpayers in the Area as determined by the Commission pursuant to Section 39 of the Act; X. pay expenses incurred by the Commission for local public improvements that are in the Area or serving the Area. Public improvements include buildings, parking facilities, and other items described in Section 25.1(a) of the Act; or xi. reimburse public and private entities for expenses incurred in training employees of industrial facilities that qualify under the Act; provided however, that if further uses of property tax proceeds allocated to the Allocation Fund are authorized or permitted by amendment to the Act, including Section 39 of the Act, those uses shall also be authorized or permitted for property tax proceeds allocated to the Allocation Fund. d. When the money in the Allocation Fund is sufficient to pay when due all principal and interest payments for that year on bonds (including the Bonds) described in subsection(b), and is not needed for that year for the other purposes described in subsection (b) (including without limitation the maintaining of property taxes collected in a given year in the Allocation Fund as a reserve to pay principal and interest on the Bonds payable in the year following such year of collection in the manner and at the times specified herein), money in the Allocation Fund in excess of that amount (the "Excess Funds ") shall be paid to the Controller who shall, during the time a part of the Area is located in an enterprise zone created under Indiana Code 4- 4 -6.1, deposit such Excess Funds in a special fund created for the enterprise zone and used as required by law; provided, however, to the extent portions of the Area are not within the enterprise zone, the Excess Funds deposited into the special fund shall be reduced on a pro rata basis based on the percentage of the enterprise zone contained in the Area as provided in Section 39(g) of the Act. When no part of the Area is located in an enterprise zone then the Excess Funds shall be deposited as provided in subsection (d). e. Except as provided in subsection (c), before July 1 of each year, the Commission shall (1) determine the amount, if any, of Excess Funds in the following year; and (2) notify the Auditor of St. Joseph County of the amount, if any, of the Excess Funds that the Commission has determined may be paid to the respective taxing units entitled thereto, provided that the Commission may not authorize a payment to the respective taxing units under this subsection if to do so would endanger the interests of the holders of the bonds (including the Bonds) described in subsection (b) of this Section 4. f. The Tax Increment and the Special Tax, other than the Excess Funds shall be irrevocably pledged for the purpose set forth in this Section 4. SBIMANI 137132v1 - 5 - g. All money in each of the accounts in the Allocation Fund shall be held in trust for the benefit of the holders of the Bonds and shall be applied, used and withdrawn only for the purposes authorized in this Section 4. The proceeds of the Allocation Fund shall be deposited with a legally qualified depository or depositories for funds of the City as now provided by law and shall be segregated and kept separate and apart from all other funds of the City and may be invested as permitted by law. Interest earned in each account or fund established under this Resolution shall be credited thereto. Section 2. The Resolution is further hereby amended to add the following as Section 22 thereof: Section 22. Resolution: (a) The following definitions shall apply throughout this "Ambac Assurance" shall mean Ambac Assurance Corporation, a Wisconsin domiciled stock insurance company. IL "Financial Guaranty Insurance Policy" shall mean the financial guaranty insurance policy issued by Ambac Assurance insuring the payment when due of the principal and interest on the Bonds as provided therein. "Surety Bond" shall mean the surety bond issued by Ambac Assurance guaranteeing certain payments into the Reserve Account with respect to the Obligations as provided therein and subject to the limitations set forth therein. (b) Consent of Ambac Assurance. Any provision of this Resolution expressly recognizing or granting rights in or to Ambac Assurance may not be amended in any manner which affects the rights of Ambac Assurance hereunder without the prior written consent of Ambac Assurance. (c) Consent of Ambac Assurance in Addition to Holder Consent. Unless otherwise provided in this Section, Ambac Assurance's consent shall be required in addition to Holder consent, when required, for the following purposes: (i) execution and delivery of any supplemental Resolution; (ii) removal of the Paying Agent or selection and appointment of any successor paying agent; and (iii) initiation or approval of any action not described in (i) or (ii) above which requires Holder consent. SBIMANI 137132v1 - 6 - (d) Notices to be sent to the attention of the SURVEILLANCE DEPARTMENT: While the Surety Bond is in effect, the Commission shall furnish to Ambac Assurance: (A) as soon as practicable after the filing thereof, a copy of any financial statement of the Commission and/or the City and a copy of any audit and annual report of the Commission and/or the City; (B) such additional information it may reasonably request. 2. A copy of any notice to be given to the registered owners of the Bonds, including, without limitation, notice of any redemption of or defeasance of Bonds, and any certificate rendered pursuant to this Resolution relating to the security of the Bonds. 3. To the extent that the Commission has entered into a continuing disclosure agreement with respect to the Bonds, Ambac Assurance shall be included as a party to be notified. (e) Notices to be sent to the attention of the GENERAL COUNSEL OFFICE: 1. The Commission shall notify Ambac Assurance of any failure of the Commission to provide relevant notices, certificates, etc. 2. Notwithstanding any other provision of this Resolution, the Commission immediately notify Ambac Assurance if at anytime there are insufficient moneys to make any payments of principal and interest as required and immediately upon the occurrence of (i) any event of default hereunder or (ii) any payment default under any related security agreement. (f) The Commission will permit Ambac Assurance to discuss the affairs, finances and accounts of the Commission or any information Ambac Assurance may reasonably request regarding the security for the Bonds with appropriate officers of the Commission. The Commission, as appropriate, will permit Ambac Assurance to have access to and to make copies of all books and records relating to the Bonds at any reasonable time. (g) Anything in this Resolution to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, Ambac Assurance shall be entitled to control and direct the enforcement of all rights and remedies granted to the Holders for the benefit of the Holders under this Resolution. SBIMANI 137132v1 - % - LI Section 3. The Commission hereby approves of the form of the Guaranty Agreement to be entered into by the District and Ambac Assurance which Ambac Assurance requires to be executed in order for Ambac Assurance to issue the Surety Bond. The Commission authorizes the President or Vice President and Secretary to approve of any changes to the Guaranty Agreement and to execute and attest the Guaranty Agreement in conjunction with the issuance of the Bonds. Section 4. The Commission hereby acknowledges that the remaining terms and provisions of the Bond Resolution remain in full force and effect. Section 5. This Resolution shall be in full force and effect after its adoption by the Commission. SBIMANI 137132v1 - 8 - ADOPTED at a meeting of the South Bend Redevelopment Commission held on the 1" day of November, 2002. SOUTH BEND REDEVELOPMENT COMMISSION President ATTEST: W126 4". N.W. d � I Secretary SBIMANI 137132vl - 9 -