HomeMy WebLinkAboutNo. 1260 approving modifications to the lease for the College Football Hall of Fame/Century Center project and approving the execution of an addendum to the leaseRESOLUTION NO. 1260
RESOLUTION OF THE SOUTH BEND REDEVELOPMENT
COMMISSION APPROVING MODIFICATIONS TO
THE LEASE FOR THE COLLEGE FOOTBALL HALL OF FAME/
CENTURY CENTER PROJECT AND APPROVING THE EXECUTION
OF AN ADDENDUM TO THE LEASE
WHEREAS, the South Bend Redevelopment Commission (the
"Commission") previously entered into a Lease between the
Commission and the South Bend Redevelopment Authority (the
"Authority") dated as of November 1, 1993 (the "Lease"), pursuant
to which the Authority will lease certain improvements including
the existing Century Center facility and the College Football Hall
of Fame to be constructed by the Authority (the "Project") to the
Commission; and
WHEREAS, the Authority entered into a purchase contract
with First Chicago Capital Markets, Inc., acting on behalf of
itself and certain other underwriters (collectively, the
"Underwriter"), on May 24, 1994, pursuant to which the Authority
has agreed to sell and the Underwriter has agreed to purchase the
Authority's "South Bend Redevelopment Authority Lease Rental
Revenue Bonds of 1994 (Century Center Project)" (the "Bonds"); and
WHEREAS, the Authority has agreed to sell the Bonds to
the Underwriter at a net interest cost of 6.31% which will permit
the annual lease rental to be paid by the Commission to the
Authority pursuant to the Lease to be reduced; and
WHEREAS, the Commission desires to make certain
modifications to the Lease amending certain of the Lease terms
including reducing the annual lease rental pursuant to Section 4
of the Lease; and
WHEREAS, the Commission desires to approve and execute
an addendum to the Lease (the "Addendum "), a copy of which is
hereby attached as Exhibit A, reflecting such lower annual Lease
payments for the Project and making certain other amendments to the
Lease;
NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND
REDEVELOPMENT COMMISSION, AS FOLLOWS:
1. The Lease shall be amended to reduce the annual
rental payments as set forth in Exhibit A attached hereto. The
Commission hereby approves all other amendments to the Lease set
forth in Exhibit A attached hereto. The President and Secretary
of the Commission are hereby authorized and directed to execute and
attest, respectively, the Addendum substantially in the form
attached hereto, together with such changes as may be approved by
the President and Secretary, said officers' execution and
attestation to be conclusive evidence of their approval of such
changes.
2. All remaining terms, covenants and conditions as set
forth in the Lease shall remain in full force and effect.
3. This resolution shall be in full force and effect
after its adoption by the Commission.
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ADOPTED at a meeting of the South Bend Redevelopment
Commission held on June 3, 1994, at 1308 County -City Building, 227
West Jefferson Boulevard, South Bend, Indiana 46601.
ATTEST:
Theo T. Sharp, Secreta
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SOUTH BEND REDEVELOPMENT COMMISSION
By:-/ ��ti•
Paula N. Auburn, President
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EXHIBIT A
FORM OF ADDENDUM TO LEASE
Addendum to Lease Between
the South Bend Redevelopment Authority, as Lessor,
and the South Bend Redevelopment Commission, as Lessee
(College Football Hall of Fame /Century Center Project)
THIS ADDENDUM, made and entered into as of this day
of June, 1994, by and between the South Bend Redevelopment
Authority, a body corporate and politic organized and existing
under Indiana Code 36 -7 -14.5 (hereinafter with its successors and
assigns referred to as the "Authority "), and the South Bend
Redevelopment Commission, the governing body of the South Bend
Department of Redevelopment and the Redevelopment District of South
Bend, Indiana (hereinafter called the "Lessee "),
WITNESSETH:
In consideration of the mutual covenants herein
contained, it is agreed that the lease previously entered into
between said parties as of the first day of November, 1993 (the
"Lease "), shall be amended as follows:
1. The following definitions in Section 1 of the Lease
are amended to read as follows:
"Bonds" means, collectively, the bonds issued to
finance the Century Center Portion of the Project and the
Hall of Fame Portion of the Project (each as defined
J herein).
"Century Center Lease Resolution" means Resolution
No. 1258 of the Commission passed on May 20, 1994,
! establishing funds for the payment of lease rentals for
the Century Center Portion of the Project, as defined
herein.
"Hall of Fame Lease Resolution" means Resolution No.
of the Commission passed on June _, 1994,
establishing funds for the payment of lease rentals for
the Hall of Fame Portion of the Project, as defined
herein.
"Redevelopment District Bond Fund" means the
Redevelopment District Bond Fund of the Lessee authorized
by Indiana Code 36- 7 -14 -27 and the Century Center Portion
Lease Resolution and the Hall of Fame Portion Lease
Resolution.
"Trust Agreements" means the trust agreements
between the Authority and the Trustee, securing the
Bonds.
"Trustee" means Norwest Bank Indiana, N.A., South
Bend, Indiana, as trustee pursuant to the Trust
Agreements, and any successor trustee.
2. Section 2 of the Lease is amended to read as
follows:
Section 2. Lease of Project. In consideration
of the rentals and other terms and conditions herein
specified the Authority does hereby lease, demise and let
to the Lessee the Project: TO HAVE AND TO HOLD the same
with all rights, privileges, easements and appurtenances
thereunto belonging, unto the Lessee. The term of this
Lease shall not exceed twenty -four (24) years, beginning
with respect to the Century Center Portion on the date
the Century Center Portion is complete and ready for use,
and ending on the day prior to such date at most twenty -
four (24) years thereafter, and beginning with respect
to the Hall of Fame Portion on the date that the Hall of
Fame Portion is complete and ready for use, and ending
on the day prior to such date at most twenty -four (24)
years thereafter. However, the term of this Lease shall
terminate as to either or both of the Hall of Fame
Portion or the Century Center Portion of the Project at
the earlier of (a) the exercise of the option to purchase
by Lessee and payment of the option price, or (b) the
payment or defeasance of all obligations of Lessor
incurred (i) to finance the cost of the leased property,
(ii) to refund such obligations, (iii) to refund such
refunding obligations. The dates that each of the
Century Center Portion and the Hall of Fame Portion are
complete and ready for use shall be endorsed on this
Lease at the end hereof by the parties hereto as soon as
the same can be done after such completion dates and such
endorsements shall be recorded as addenda to this Lease.
The Authority hereby represents that it is possessed of,
or will acquire, a good and indefeasible estate in fee
simple or an insurable right -of -way easement subject only
to Permitted Encumbrances, to the above- described real
estate, and the Authority warrants and will defend the
same against all claims whatsoever not suffered or caused
by the acts or omissions of the Lessee.
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3. Section 3 of the Lease is amended to read as
follows:
Section 3. Rental Payments. (a) During the term
of this Lease, the Lessee agrees to pay rental for said
premises as set forth in Section 4 hereof. Such rental
shall be paid from the Century Center Principal and
Interest Account (in the case of the Century Center
Portion) and from the Hall of Fame Principal and Interest
Account (in the case of the Hall of Fame Portion) of the
Redevelopment District Bond Fund. All rentals payable
under the terms of this Lease shall be paid to the
Trustee or to such other bank or trust company as may
from time to time succeed the Trustee under the Trust
Agreements. All payments so made shall be considered as
payments to the Authority of the rentals payable
hereunder. The Lessee shall receive credit for any Bond
maturing within seven (7) days of the date of the lease
rental payment, at the face value thereof, which the
Lessee acquires and delivers to the Trustee as a part of
its lease rental payment; (b) as additional rental the
Lessee agrees to pay all fees, charges and reimbursement
of expenses of the Trustee under the Trust Agreements
and all prudent charges and expenses of the Authority
incurred in the performance of its obligations hereunder.
follows:
4. Section 4 of the Lease is amended to read as
Section 4. Rental Payment Dates and Amounts.
(a) Century Center Portion. The first semiannual
rental installment for the Century Center Portion in the
amount of Two Hundred Ninety -Seven Thousand and 00 /100
Dollars ($297,000.00) shall be due on the day that the
Century Center Portion is completed and ready for use or
January 28, 1996, whichever is later. If completion is
later than January 28, 1996, the first installment shall
be in an amount which provides for rental at the rate
specified in Exhibit C for the semiannual period in which
the Century Center Portion is completed and ready for
use, prorated from the date of completion until the first
January 28 or July 28 following such date of completion.
Thereafter such rentals for the Century Center Portion
shall be payable in advance in semiannual installments
on January 28 and July 28 of each year as provided for
in the lease payment schedule attached hereto as Exhibit
C.
(b) Hall of Fame Portion. The first semiannual
rental installment for the Hall of Fame Portion in the
amount of Five Hundred Ninety -Two Thousand Fifty and
00 /100 Dollars ($592,050.00) shall be due on the day that
the Hall of Fame Portion is completed and ready for use
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or January 28, 1996, whichever is later. If completion
is later than January 28, 1996, the first installment
shall be in an amount which provides for rental at the
rate specified in Exhibit C for the semiannual period in
which the Hall of Fame Portion is completed and ready for
use, prorated from the date of completion until the first
January 28 or July 28 following such date of completion.
Thereafter such rentals for the Hall of Fame Portion
shall be payable in advance in semiannual installments
on January 28 and July 28 of each year as provided for
in the lease payment schedule attached hereto as Exhibit
C.
The rental to be paid in semiannual
installments by the Lessee for the Century Center Portion
and the Hall of Fame Portion and the combined rental to
be paid in semiannual installments for the Project are
set forth on Exhibit C attached hereto. The last
semiannual rental payments due before the expiration of
this Lease shall be adjusted to provide for rental at the
amount specified for the Project set forth on Exhibit C
for the applicable semiannual period prorated from the
date such installment is due to the date of the
expiration of this Lease (without taking into account any
subsequent early termination of this Lease pursuant to
Section 2 hereof).
After the sale of the Bonds issued by the
Authority to pay the cost of the completion of the
Project and other expenses incidental thereto, the first
semiannual lease payment and the sum of the second and
third semiannual rental installments and the sum of the
fourth and fifth semiannual rental installments, and so
on, for the Century Center Portion and the Hall of Fame
Portion shall each be reduced to an amount equal to the
multiple of One Thousand and 00 /100 Dollars ($1,000.00)
next highest to the highest sum of principal and interest
due in any year ending on a Bond maturity date on such
Bonds plus Three Thousand and 00 /100 Dollars ($3,000.00),
payable in equal semiannual installments. Such amount
of reduced annual rental shall be endorsed on this Lease
at the end hereof by the parties hereto as soon as the
same can be done after the sale of said Bonds, and such
endorsement shall be recorded as an addendum to this
Lease.
The Lessee will not take any action or fail to
take any action that would result in the loss of the
exclusion from gross income for federal tax purposes of
interest on the Bonds pursuant to Section 103(a) of the
Internal Revenue Code of 1986, as amended (the "Code "),
as in effect on the date of delivery of the Bonds, nor
will the Lessee act in any manner which would adversely
affect such exclusion. The Lessee further covenants that
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it will not make any investment or do any other act or
thing during the period that any Bond is outstanding
hereunder which would cause any Bond to be an "arbitrage
bond" within the meaning of Section 148 of the Code and
the regulations thereunder as in effect on the date of
delivery of the Bonds. All officers, members, employees
and agents of the Lessee are authorized and directed to
provide certifications of facts and estimates that are
material to the reasonable expectations of the Lessee as
of the date the Bonds are issued and to enter into
covenants on behalf of the Lessee evidencing the Lessee's
commitments made herein.
5. Section 9 of the Lease is amended to read as
follows:
Section 9. Insurance. The Lessee, at its own
expense, will, during the full term of the Lease, keep
the Century Center Portion and the Hall of Fame Portion
of the Project insured against physical loss or damage,
however caused, with such exceptions as are ordinarily
required by insurers of properties of a similar type, in
good and responsible insurance companies acceptable to
the Authority. Such insurance shall be in an amount at
least equal to the greater of (i) the option to purchase
price or (ii) one hundred percent (100 %) of the full
replacement cost of each of the Century Center Portion
and the Hall of Fame Portion of such Project as certified
by a registered architect, a registered engineer, or
professional appraisal engineer, selected by the
Authority with the approval of the Trustee, on the
effective date of this Lease and on or before the first
day of April of each year thereafter; provided that such
certification shall not be required so long as the amount
of such insurance shall be in an amount at least equal
to the option to purchase price. Such appraisal may be
based upon a recognized index of conversion factors. In
no event shall the insurance be in an amount which causes
the Lessee to be a co- insurer for the Project. Such
insurance may contain a provision for a deductible in an
amount not exceeding $25,000. Lessee agrees to pay the
deductible amount of any loss to the Authority. A
blanket public institutional property insurance form may
be used if:
(a) the insurance on the Project is not less than the amount
required by this Section,
(b) the Lessee subordinates its
destruction to other buildings oz
for damage or destruction of the
claim for damage or
improvements to claims
Project, and
(c) the insurance proceeds related to damage to or
destruction of the Project are payable to the Trustee.
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During the full term of this Lease, the Lessee will also,
at its own expense, maintain rental or rental value
insurance in an amount at least equal to the full rental
specified in Section 4 for the Century Center Portion
and the Hall of Fame Portion for a period of two (2)
years against physical loss or damage of the type insured
against pursuant to the preceding requirements of this
Section. Such policies shall be for the benefit of and
shall be made payable to the Trustee.
6. Section 10 of the Lease is amended to read as
follows:
Section 10. Use of Insurance and Condemnation
Proceeds. Proceeds of insurance against damage to or
destruction of the Project or any portion thereof or
proceeds of any condemnation of the Project or any
portion thereof shall be paid to and held by the Trustee
and used to pay for reconstruction or replacement of the
Project in accordance with plans approved by the
Authority and the Lessee, unless the Lessee elects to
exercise its option to purchase.
7. Section 14 of the Lease is amended to read as
follows:
Section 14. Option to Purchase. The Authority
hereby grants Lessee the right and option, on any rental
payment date, upon thirty days' written notice to the
Authority, to purchase either or both of the Century
Center Portion or the Hall of Fame Portion of the Project
in whole or in part at a price equal to the amount
required to enable the Authority to provide for the
redemption of in whole or in part the outstanding Bonds,
all premiums payable on the redemption thereof, and
accrued and unpaid interest, and to pay the cost of
redeeming the Bonds and liquidating the Authority if it
is to be liquidated.
Upon request of the Lessee, the Authority agrees to
furnish an itemized statement setting forth the amounts
required to be paid by the Lessee on the next rental
payment date in order to purchase either or both portions
of the Project in accordance with the preceding
paragraph.
If the Lessee exercises its option to purchase, the
Lessee shall pay to the Trustee that portion of the
purchase price which is required to provide for the
payment of a part of or all of the Bonds, including all
premiums payable on the redemption thereof, accrued and
unpaid interest thereon and the costs of redemption
thereof. Such payment shall not be made until the
Trustee gives to the Lessee a written statement that such
amount will be sufficient to retire all or a part of the
Bonds including all premiums payable on the redemption
thereof and accrued and unpaid interest.
The remainder of such purchase price, if any, shall
be paid by the Lessee to the Authority. Nothing herein
contained shall be construed to provide that the Lessee
shall be under any obligation to purchase the Project or
any portion thereof, or under any obligation with respect
to any creditors or bondholders of the Authority.
If the Lessee has not exercised its option to
purchase the Project or any portion thereof at the
expiration of the term of the Lease and upon the full
discharge and performance by the Lessee of its
obligations under this Lease, the Authority shall execute
a deed of the Project to the Lessee conveying good and
merchantable title thereto, subject only to Permitted
Encumbrances.
follows:
8. Exhibit C of the Lease is amended to read as
EXHIBIT C
LEASE PAYMENT SCHEDULE
I. Semiannual rental payments due on January 28 and
July 28 beginning on July 28, 1996, through and including
January 28, 2005, will be as follows:
Century Center Portion Hall of Fame Portion Combined Rental
$ 297,000 $ 660,000 $ 957,000
II. Semiannual rental payments due on January 28 and
July 28 beginning on July 28, 2005, through and including
January 28, 2019, will be as follows:
Century Center Portion Hall of Fame Portion Combined Rental
$ 297,000 $ 1,600,000 $ 1,897,000
9. The parties hereto acknowledge that all remaining
terms, covenants and conditions as set forth in the Lease between
the parties hereto and executed as of the first day of November,
1993, shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Addendum to Lease to be executed for and on their behalf on the day
and year first hereinabove written.
SOUTH BEND REDEVELOPMENT AUTHORITY
ATTEST:
Mary O. Ferlic,
Secretary- Treasurer
ATTEST:
Theo F. Sharp, Secretary
By:
Joseph W. Wroblewski, President
SOUTH BEND REDEVELOPMENT COMMISSION
By:
Paula N. Auburn, President
STATE OF INDIANA )
SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for
said State, personally appeared Joseph W. Wroblewski and Mary O.
Ferlic, personally known by me to be the President and Secretary -
Treasurer, respectively, of the South Bend Redevelopment Authority,
and acknowledged the execution of the foregoing Addendum to Lease
for and on behalf of said Authority.
WITNESS my hand and Notarial Seal this day of June,
1994.
( SEAL)
My commission expires:
I am a resident of
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
(Written Signature)
(Printed Signature)
County, Indiana.
Before me, the undersigned, a Notary Public in and for
said State, personally appeared Paula N. Auburn and Theo F. Sharp,
personally known by me to be the President and Secretary,
respectively, of the South Bend Redevelopment Commission, and
acknowledged the execution of the foregoing Addendum to Lease for
and on behalf of said Commission.
WITNESS my hand and Notarial Seal this day of June,
1994.
( SEAL)
My commission expires:
(Written Signature)
(Printed Signature)
I am a resident of County, Indiana.
This instrument prepared by Randolph R. Rompola, BAKER & DANIELS,
205 West Jefferson Boulevard, South Bend, Indiana 46601
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