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HomeMy WebLinkAbout9645-05 Authorizing the city to issue its adjustable rate demand for the Stanley Clark SchoolORDINANCE No. Passed by the Common Council of the Ciry of South Bend, Indiana November 28, 20 05 Attest: Attest: ~~ City Clerk Presented by me to the Mayor of the City of South Bend, Indiana November 29, 05 20 President of Common Council Approved and signed by me ~~ o v e r:i b e r 2 g, 2 p o 5 Ciry Clerk / ~ ~ l~ Q 'G,~l~ ,!~ r~~ ~ ~ Mme' ORDINANCE NO. ~ ~O~ 5 ` ©~ ~. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AUTHORIZING THE CITY OF SOUTH BEND, INDIANA, TO ISSUE ITS ADJUSTABLE RATE DEMAND ECONOMIC DEVELOPMENT REVENUE BONDS FOR THE STANLEY CLARK SCHOOL, INCORPORATED AND APPROVING AND AUTHORIZING OTHER ACTIONS IN RESPECT THERETO STATEMENT OF PURPOSE AND INTENT: Indiana Code Title 36, Article 7, Chapter 11.9 and 12, as amended (the "Act"), declares that the financing of economic development facilities constitutes a public purpose. The Act provides that an issuer may, pursuant to the Act, issue revenue bonds and lend the proceeds thereof to a corporation, partnership, limited liability company or individual for the purpose of financing costs of acquisition or construction of facilities, including real and personal property, for diversification of economic development and promotion of job opportunities in or near such issuer. The Act further provides that such bonds may be secured by a trust indenture between an issuer and a corporate trustee. The Stanley Clark School, Incorporated (the "Borrower"} has proposed that the City of South Bend, Indiana (the "City") issue and sell its economic development revenue bonds under the Act in one (1) or more series in an aggregate principal amount not to exceed Fifteen Million and 00/100 Dollars ($15,000,000.00) (the "Bonds") and that the City lend the proceeds of the Bonds to the Borrower (the "Loan") under the Loan Agreement (as defined herein) in a form substantially similar to that presented to the Common Council of the City (the "Common Council") whereby the proceeds of the Bonds will be utilized for (a)(i) the improvement, expansion, and renovation of the educational facility commonly known as Fannin Hall to include four kindergarten rooms, three preschool rooms, alarge-motor multipurpose room and an atelier; (ii) the improvement, expansion and renovation of the educational and administrative facility commonly known as Martin Hall to provide for, among other improvements, additional classrooms, common rooms and office space; (iii} improvements to roads, walkways, parking lots and other educational facilities on the same site, including site improvements and landscaping; and (iv) water retention improvements (collectively, the "2005 Project"), all of which are to be located on the Borrower's approximately thirty-two (32) acre site at 3123 Miami Street in the City (the "Site"} and (b)(i) the rebuilding of the educational facility on the Site commonly known as the Lower School to provide for up-to-date technology and amenities; (ii) the construction of a fine arts center and an improved media center on the Site which may include an auditorium, additional fine arts and music classrooms and improved media equipment and technology; and (iii) the relocation and construction of athletic fields or facilities on the Site or on an approximately four (4} acre site located on the northeast corner of High Street and Donmoyer Avenue, near and including 744 Donmoyer Avenue and the property across from the Site on High Street (collectively, the "Additional Projects" and with the 2005 Project, the "Projects"). BDDB01 4206748v1 The principal of, premium, if any, and interest on the Bonds shall be secured by a letter of credit obtained by the Borrower and payable solely from payments made by the Borrower under the Borrower's Notes (as defined herein) or from any other collateral pledged by the Borrower for such purpose. The City is to bear no expense in connection with the issuance and sale of said revenue bonds except as provided for herein and all expenses in connection thereto which are incurred by the City shall be reimbursed to the City by the Borrower. The South Bend Economic Development Commission (the "Commission") has rendered its Report regarding the proposed financing of the costs of the Projects. After a duly noticed public hearing conducted on October 21, 2005, the Commission adopted a resolution (the "Resolution"), which Resolution has been previously transmitted to the Clerk of the City, finding that the financing of the Projects, as described in the application submitted by the Borrower to the Commission, complies with the purposes and provisions of the Act, and will be of benefit to the health and welfare of the City and its citizens, and will not have an adverse competitive impact on other facilities of the same or similar kind already construed or operating in the City. Pursuant to the Resolution, the Commission has approved the proposed financing and has approved in substantially final form, subject to subsequent changes by the Mayor of the City (the "Mayor") and the Clerk of the City (the "Clerk"), a Loan Agreement; a form of promissory note to be issued by the Borrower in favor of the City and assigned to the trustee under the Trust Indenture with regard to each series of Bonds issued (the "Borrower's Notes"); a Trust Indenture for the purpose of securing the Bonds (the "Trust Indenture"}; the Bond Purchase Agreement for the purpose of providing for the issuance and sale of the Bonds (the "Bond Purchase Agreement"); and the form of the City of South Bend, Indiana, Adjustable Rate Demand Economic Development Revenue Bonds (The Stanley Clark School Project) to be used for each series of Bonds issued (collectively, the "Financing Documents"). Pursuant to and in accordance with the Act, the Borrower has requested that the City procure funds to finance the Projects by issuing its economic development revenue bonds in one (1) or more series in an aggregate principal amount not to exceed Fifteen Million and 00/100 Dollars ($15,000,000.00), which shall be issued without expense to the City (the "Bonds"). No member of the Common Council has any pecuniary interest in any employment, financing agreement or other contract made under the provisions of Indiana Code § 36-7-11.9 and Indiana Code § 36-7-12 and related to the bonds authorized herein, which pecuniary interest has not been fully disclosed to the Common Council and no such member has voted on any such matter, all in accordance with the provisions of Indiana Code § 36-7-12-16. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AS FOLLOWS: SECTION I. It is hereby found that the financing of the Projects approved by the Commission and presented to this Common Council, the issuance and sale of the Bonds in one (1) or more series, and the Loan of the net proceeds of each series thereof to the Borrower for the BDDBOI 4206748v1 - 2 - acquisition, construction, development and equipping of the Projects will be of benefit to the health, prosperity, economic stability, general welfare and public interest of the City and its citizens and complies with the purposes and provisions of the Act. SECTION II. This Common Council hereby further finds, determines, ratifies and confirms that the issuance and sale of revenue bonds of the City under the Act, and the use of the net proceeds derived therefrom to finance the construction of the Projects, will enable the Projects to be constructed and thereby serve the public purposes referred to above in accordance with the Act. SECTION III. The Projects will contribute significantly to the creation of permanent job opportunities in the City. SECTION IV. The evidence submitted by the Borrower regarding the adverse competitive impact of the Projects on similar facilities already constructed or operating in the City, such evidence being embodied in the "Findings of Fact of South Bend Economic Development Commission Regarding The Stanley Clark School Project" attached to the Report of the Commission, establishes that the Projects will not have an adverse competitive impact on similar facilities already constructed or operating in the City. SECTION V. The proposed financing and the form of the Financing Documents approved by the Commission are hereby approved and all such documents shall be incorporated herein by reference and shall be inserted in the minutes of the Common Council and kept on file by the Clerk. SECTION VI. The City shall issue the Bonds in one (1) or more series in an aggregate principal amount not to exceed Fifteen Million and 00/100 Dollars ($15,000,000.00) designated as the "City of South Bend, Indiana, Adjustable Rate Demand Economic Development Revenue Bonds, Series 200_ (The Stanley Clark School Project)" (with such blank to be filled in with the year in which each series of Bonds is issued) (the "Bonds"). The proceeds of the Bonds, net of expenses in connection with or on account of the issuance of the Bonds, shall be loaned to the Borrower pursuant to the Loan Agreement. The Bonds will be secured by a letter of credit obtained by the Borrower and will be payable as to principal, premium, if any, and interest thereon solely from payments made by the Borrower under the Borrower's Notes (as defined herein) or from any other collateral of the Borrower pledged for such purpose. The Bonds shall be issued as fully registered bonds and shall mature, be dated, be subject to redemption and be payable in the medium and at the place or places and in the manner provided in the Financing Documents approved by this Ordinance and incorporated herein by reference. The Mayor is hereby authorized to negotiate, execute and deliver the Bond Purchase Agreement on behalf of the City for each series of Bonds with such changes as may be necessary to distinguish each series of Bonds. The Mayor is authorized and directed to sell the Bonds in one (1) or more series on behalf of the City upon such terms as may be set forth in the Bond Purchase Agreement at a rate of interest on the Bonds which rate may be a variable rate set forth in the Financing Documents and incorporated herein by reference, but in no event shall the interest rate on the Bonds exceed ten percent (10.0%) per annum, and at a price equal to not less BDDBOI 4206748v1 - 3 - than 98% of the principal amount thereof plus accrued interest to the date of delivery of the Bonds, if any. The term of each series of Bonds shall be not longer than thirty-five (35) years from the date of issuance of each series. The Mayor is further authorized to carry out, on behalf of the City, the terms and conditions set forth therein, consistent with the provisions of this Ordinance. SECTION VII. The Mayor is hereby authorized and directed to obtain a legal opinion as to the validity of the Bonds from Baker & Daniels LLP, bond counsel, of South Bend, Indiana, and to furnish such opinion to the purchaser of the Bonds. The cost of said opinion shall be considered as part of the costs incidental to these proceedings and shall be paid out of the proceeds of the Bonds or by the Borrower. SECTION VIII. The Mayor and the Clerk are authorized and directed to execute, attest, deliver, and affix or imprint by any means the City seal to, the Financing Documents and the Bonds approved herein on behalf of the City and, by their execution of such documents, they may approve any changes therein without further approval of the Common Council or the Commission excepting, however, such changes as must be approved pursuant to IC 36-7-12-25 and IC 36-7-12-27. The signatures of the Mayor and the Clerk on the Bonds may be manual or facsimile signatures. SECTION IX. The Bonds shall be sold pursuant to the Official Statement. The Mayor or the Clerk are hereby authorized to approve a form of Official Statement and to deem "final" the Official Statement, as of its date, in accordance with the provisions of Rule 15c2-12 promulgated by the United States Securities and Exchange Commission (the "Rule"), subject to completion as permitted by the Rule. The Common Council hereby authorizes the Mayor to execute the final Official Statement if so requested by the purchaser of the Bonds and further authorizes the distribution of the deemed final Official Statement in such manner, at such times, for such periods and in such number of copies as may be required by the Rule. If requested by the purchaser of the Bonds, the Mayor and the Clerk are hereby authorized, with respect to each series of Bonds, to approve a continuing disclosure agreement and to execute the same on the date the Bonds are issued if so requested by the purchaser of the Bonds. Each of the Mayor and the Clerk are authorized to execute any other documents and take such other action that may be necessary or desirable to consummate the issuance and sale of the Bonds and the loan of the proceeds thereof to the Borrower. The Clerk is authorized to arrange for delivery of the Bonds to the purchaser thereof, payment for which will be made to the Trustee named in the Trust Indenture. SECTION X. The Bonds shall never constitute a general obligation, an indebtedness of, a pledge of the faith and credit of the City, the State of Indiana (the "State") or any political subdivision thereof, or a charge against the general credit of the City, the State or any political subdivision thereof, nor are they payable in any manner from revenues raised by taxation, and the Bonds shall be payable solely from the revenues and security interests pledged to their payment as authorized by the Trust Indenture. SECTION XI. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance. BDDBOI 4206748v1 - 4 - SECTION XII. All resolutions and orders, or parts thereof, in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed, and this Ordinance shall be in immediate effect from and after its adoption. SECTION XIII. If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Ordinance, shall be a legal holiday or a day on which banking institutions in the city in which the Paying Agent is located are typically closed, such payment may be made or act performed or right exercised on the next succeeding day not a legal holiday or a day on which such banking institutions are typically closed, with the same force and effect as if done on the nominal date provided in this Ordinance, and no interest shall accrue for the period after such nominal date. SECTION XIV. No recourse under or upon any obligation, covenant, acceptance or agreement contained in this Ordinance, the Bonds or the Financing Documents, or under any judgment obtained against the City or by the enforcement of any assessment or by any legal or equitable proceeding by virtue of any constitution or statute or otherwise, or under any circumstances, under or independent of the Financing Documents, shall be had against any member of the Common Council, or officer or attorney, as such, past, present or future, of the City either directly or through the City, or otherwise, for the payment for or to the City or any receiver thereof, or to any holder of the Bonds secured thereby, or otherwise, of any sum that may be due and unpaid by the City upon any of such Bonds. Any and all personal liability of every nature, whether at law or in equity, or by statute or by constitution, or otherwise, of any such member of the Common Council, or officer or attorney, as such, to respond by reason of any act or omission on his or her part, or otherwise, for, directly or indirectly, the payment for or to the Common Council or any receiver thereof, or for or to any owner or holder of the Bonds, or otherwise, of any sum that may remain due and unpaid upon the Bonds hereby secured or any of them, shall be expressly waived and released as a condition of an consideration for the execution of an delivery of the Loan Agreements, and the issuance of the Bonds. SECTION XV. The provisions of this Ordinance shall constitute a contract binding between the City and the holders of the Bonds, and after the issuance of said Bonds, this Ordinance shall not be repealed or amended in any respect that would adversely affect the rights of such holders so long as the Bonds or the interest thereon remains unpaid. SECTION XVI. Passage of this Ordinance by this Common Council and the affixing by the Mayor of his signature hereto shall constitute and evidence the approval of the elected legislative body of the issuer of the Bonds authorized herein and the approval of the chief elected executive officer of the issuer of the Bonds authorized herein, respectively, as required by Section 103 of the Internal Revenue Code of 1986, as amended. BDDB01 4206748v1 - 5 - SECTION XVII. This Ordinance shall be in full force and effect from and after compliance with the procedures required by law. ~. Member of the Common Coun 1 ATTEST: 'ty C rk Presented by me to the Mayor of the City of South Bend, Indiana, on the L~-}~ day of ~~;~cw.~,c,,~ , 2005, at Z,'.y~ o'clock ~.m. City Clei< ~~'~ Approved and signed by me on the ~ day of /~~' , 2005, at " : / ~ o'clock --~- m. c/ ..~~r L~-. / cc.r t' Mayor, ity of o ~ Bend, Indiana 1 st READING ~ ~ -~~.pS' PUBLIC HEARING (<' z~ ~~ 3 rd READING ~ ~ -t~, -~ r' NOT APPROVED Q S S cti b 5~~,~u~ ° c~ ~c. S S v..~S~~„ ~'~~~ Fit~d 1~ ~I~~~'~ ~~~:GG' OCT 1 9 2005 C!N CLE~t;'., 5C. E;zt!D, iK REFERRED PASSED l~-z~,_>~ 0. ~ S.r.°~:3~"',-~,-~.~"",-' 9DD$O1 4206748v1 ~ ~~~~ BAKER & DANI~I,S Lz,P EST. 1863 First Bank Building, 205 W. Jefferson Blvd., Suite 250 • South Bend, Indiana 46601 Te(. 574.234.4149 • Fax 574.239.1900 www.bakerdaniels.com RANDOLPH R. ROMPOI.A INDIANA Attorney at Law WASHINGTON, D.C. Direct 574.239.1926 randolph.rompola@bakerd.com CHINA October 24, 2005 Ms. Charlotte Pfeifer Common Council City of South Bend County-City Building, 4th Floor South Bend, Indiana 46601 via Hand Delivery Re: Ordinance for Consideration by the Common Council Authorizing the Issuance of Adjustable Rate Demand Economic Development Revenue Bonds for The Stanley Clark School, Incorporated Dear Ms. Pfeifer: The Stanley Clark School, Incorporated (the "Borrower"), respectfully requests that the above-referenced Ordinance filed on its behalf and scheduled to be considered by the Common Council in committee today and at its meeting this evening be tabled until November 28, 2005. Should you have any questions regarding this request, please do not hesitate to give us a call. cc. Kenneth P. Fedder, Esq. Aladean M. DeRose, Esq. Sincerely, BAKER & DANIELS LLP l., ~~ Randolph R. Rompola 5 Q~~1G® ~i1ed In C`etk BDDB01 4210590v1 ~AaE ~~ Ct,EpK. TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 75-05 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AUTHORIZING THE CITY OF SOUTH BEND, INDIANA, TO ISSUE ITS ADJUSTABLE RATE DEMAND ECONOMIC DEVELOPMENT REVENUE BONDS FOR THE STANLEY CLARK SCHOOL, INCORPORATED AND APPROVING AND AUTHORIZING OTHER ACTIONS IN RESPECT THERETO Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation. Roland Kelly Chairman S REPORT OF THE SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION CONCERNING PROPOSED FINANCING OF AN ECONOMIC DEVELOPMENT FACILITY FOR THE STANLEY CLARK SCHOOL, INCORPORATED The South Bend Economic Development Commission (the "Commission") proposes to recommend to the Common Council of the City of South Bend, Indiana (the "City"), that it loan to The Stanley Clark School, Incorporated, an Indiana nonprofit corporation (the "Borrower"}, the proceeds of an economic development revenue bond financing in an amount not to exceed Fifteen Million Dollars ($15,000,000) to pay the costs related to (a)(i) the improvement, expansion, and renovation of the educational facility commonly known as Fannin Hall to include four kindergarten rooms, three preschool rooms, alarge-motor multipurpose room and an atelier; (ii) the improvement, expansion and renovation of the educational and administrative facility commonly known as Martin Hall to provide for, among other improvements, additional classrooms, common rooms and office space; (iii) improvements to roads, walkways, parking lots and other educational facilities on the same site, including site improvements and landscaping; and (iv) water retention improvements (collectively, the "2005 Project"), all of which are to be located on the Borrower's approximately thirty-two (32) acre site at 3123 Miami Street in the City (the "Site"} and (b)(i) the rebuilding of the educational facility on the Site commonly known as the Lower School to provide for up-to-date technology and amenities; (ii) the construction of a fine arts center and an improved media center on the Site which may include an auditorium, additional fine arts and music classrooms and improved media equipment and technology; and (iii) the relocation and construction of athletic fields or facilities on the Site or on an approximately four (4) acre site located on the northeast corner of High Street and Donmoyer Avenue, near and including 744 Donmoyer Avenue and the property BDDBOI 4177119v1 t across from the Site on High Street (collectively, the "Additional Projects" and with the 2005 Project, the "Projects"). The total cost for the Projects is presently estimated to be approximately Fifteen Million Dollars ($15,000,000) with the cost of the 2005 Project presently estimated to be approximately Five Million Dollars ($5,000,000). The proposed loan is to be made from funds obtained by the issuance of economic development revenue bonds by the City pursuant to Indiana Code, Title 36, Article 7, Chapters 11.9 and 12, and applicable provisions of the Internal Revenue Code, and the proposed bonds will be issued as Qualified 501(c)(3) Bonds within the meaning of the Internal Revenue Code. No public works or services not already existing or available, or for which provision has not been made, will be made necessary or desirable on account of the Projects as such facilities will be provided either by the Borrower, private utilities, or existing public facilities, or pursuant to an agreement with respect to such public facilities with the City. As set out in the attached "Findings of Fact of the South Bend Economic Development Commission Regarding The Stanley Clark School Project," which findings of fact are incorporated herein, the Commission, based on a careful consideration of the evidence and testimony submitted to it, has concluded that the proposed Projects will not have an adverse competitive effect on other facilities already constructed or operating in the City. The Borrower proposes to construct the Projects for its own use and benefit. In addition to the jobs that will be retained or created as a result of the construction of the Projects, the operation of the Projects is anticipated to create 3-5 permanent jobs on a full-time or part-time basis, with a combined average annual payroll of $100,000 per year. BDDBOI 4177119v1 ' 2 - The proposed financing of the Projects will be of benefit to the health and general welfare of the citizens of the City. Adopted this day of , 2005. SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION ATTEST: `~_-. ~. , Secretary ~ ~~ (/~''>E" Pr si n BDDBOI 4177119v1 ' 3 " EXHIBIT A FINDINGS OF FACT OF THE SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION REGARDING THE STANLEY CLARK SCHOOL PROJECT Comes now the South Bend Economic Development Commission and upon evidence presented and substantive testimony received makes the following findings of fact regarding The Stanley Clark School Project to be located in the City of South Bend, Indiana (the "City"): The proposed economic development projects for The Stanley Clark School, Incorporated, an Indiana nonprofit corporation (the "Applicant"}, consists of (a)(i) the improvement, expansion, and renovation of the educational facility commonly known as Fannin Hall to include four kindergarten rooms, three preschool rooms, a large-motor multipurpose room and an atelier; (ii) the improvement, expansion and renovation of the educational and administrative facility commonly known as Martin Hall to provide for, among other improvements, additional classrooms, common rooms and office space; (iii) improvements to roads, walkways, parking lots and other educational facilities on the same site, including site improvements and landscaping; and (iv} water retention improvements (collectively, the "2005 Project"), all of which are to be located on the Applicant's approximately thirty- two (32) acre site at 3123 Miami Street in the City (the "Site") and (b)(i) the rebuilding of the educational facility on the Site commonly known as the Lower School to provide for up-to-date technology and amenities; (ii) the construction of a fine arts center and an improved media center on the Site which may include an auditorium, additional fine arts and music classrooms and improved media equipment and technology; and (iii) the relocation and construction of athletic fields or facilities on the Site or on an approximately four (4) acre site located on the northeast corner of High Street and Donmoyer Avenue, near and including 744 Donmoyer Avenue and the property across from the Site on High Street (collectively, the "Additional Projects" and with the 2005 Project, the "Projects"). The Projects will be owned and operated by the Applicant. The estimated cost of the Projects is $15,000,000, and the Applicant has request that a portion, if not all, of said cost be financed through the issuance of economic development revenue bonds by the City under the provisions of I.C. § 36-7-11.9 and 12, as supplemented and amended. 2. The Applicant has entered or will enter into agreements with such persons as they deem necessary and appropriate for the payment and provision of public works or services necessary for the operation of the Projects. Accordingly, no public works or services not already existing or available, or contemplated by the City, will be necessary or desirable due to the economic development facilities proposed by the Applicant. BDDBO] 4177119v1 A-1 3. In addition to the jobs that will be created or retained as a result of the construction of the Projects, the Applicant estimates that approximately 3-5 permanent jobs will be created. The estimated annual payroll at the proposed facility, including benefits, is $100,000 per year. 4. The Projects will not have an adverse competitive effect on facilities offering comparable services within the geographic limits of the City because a need exists for additional private elementary and secondary educational facilities in the vicinity of the Site. **** BDDBO] 41771 ]9v1 A-2 Applicant hereby acknowledges and represents that the above statements of fact are true and accurate to the best of their knowledge and belief. THE STANLEY CLARK SCHOOL, INCORPORATED Robert G. Douglas , ea rras~er ADOPTED this day of , 2005. SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION ,~. l/'c"-L ' P 1 n ATTEST: Secretary BDDB01 4 t 77119v1 RESOLUTION NO. ~' ~ ~ ~~- -~ A RESOLUTION OF THE SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION APPROVING OF THE ISSUANCE OF BONDS FOR THE PURPOSE OF FINANCING ECONOMIC DEVELOPMENT PROJECTS TO BE COMPLETED BY THE STANLEY CLARK SCHOOL, INCORPORATED, MAKING CERTAIN FINDINGS RELATING TO THE FINANCING OF SUCH ECONOMIC DEVELOPMENT PROJECTS, AND APPROVING SUCH FINANCING AND THE FORMS OF THE DOCUMENTS RELATED THERETO WHEREAS, the South Bend Economic Development Commission ("Commission") is a commission operating and existing under and pursuant to the authority of Indiana Code § 36-7-11.9 and Indiana Code § 36-7-12 (collectively, the "Act"); and WHEREAS, the Commission is authorized by the Act (i) to investigate, study and survey the need for job opportunities, industrial diversification, water services and pollution control facilities in the City of South Bend, Indiana (the "City"); (ii) to recommend action to improve or promote job opportunities, industrial diversification, water services and the availability of pollution control facilities in the City; and (iii} to issue revenue bonds for the financing of economic development facilities, the funds from said financing to be used for the acquisition, development, construction, and equipping of said facilities, and said facilities to be either sold, leased to, or directly owned by another person; and WHEREAS, The Stanley Clark School, Incorporated, an Indiana nonprofit corporation (the "Borrower"), has proposed undertaking (a)(i) the improvement, expansion, and renovation of the educational facility commonly known as Fannin Hall to include four kindergarten rooms, three preschool rooms, alarge-motor multipurpose room and an atelier; (ii) the improvement, expansion and renovation of the educational and administrative facility BDDBOI 4 ] 76671 v2 commonly known as Martin Hall to provide for, among other improvements, additional classrooms, common rooms and office space; (iii) improvements to roads, walkways, parking lots and other educational facilities on the same site, including site improvements and landscaping; and (iv) water retention improvements (collectively, the "2005 Project"), all of which are to be located on the Borrower's approximately thirty-two (32) acre site at 3123 Miami Street in the City (the "Site") and (b}(i) the rebuilding of the educational facility on the Site commonly known as the Lower School to provide for up-to-date technology and amenities; (ii) the construction of a fine arts center and an improved media center on the Site which may include an auditorium, additional fine arts and music classrooms and improved media equipment and technology; and (iii) the relocation and construction of athletic fields or facilities on the Site or on an approximately four (4) acre site located on the northeast corner of High Street and Donmoyer Avenue, near and including 744 Donmoyer Avenue and the property across from the Site on High Street (collectively, the "Additional Projects" and with the 2005 Project, the "Projects"); and WHEREAS, the Projects are expected to cost approximately Fifteen Million Dollars ($15,000,000), with the 2005 Project expecting to cost approximately Five Million Dollars ($5,000,000); and WHEREAS, the Borrower has completed and submitted to the Commission an application requesting the use of economic development revenue bond financing, which the Commission has received and reviewed; and WHEREAS, the Borrower has proposed that the City issue and sell its economic development revenue bonds in one (1) or more series in a combined aggregate principal amount BDDBOI 4176671 v2 - 2 - not to exceed Fifteen Million and 00/100 Dollars ($15,000,000.00} (the "Bonds") and lend the proceeds of the Bonds to the Borrower to finance a portion of the cost of the Projects; and WHEREAS, the Commission anticipates that the principal of and interest on the Bonds will be secured by a letter of credit obtained by the Borrower and payable solely from payments made by the Borrower under the Borrower's Notes (as defined herein) or from any another collateral of the Borrower pledged for such purpose; and WHEREAS, the Commission has studied the Projects, the proposed financing of the Projects, and their effect on the health, prosperity, economic stability and general welfare of the City and its citizens; and WHEREAS, the Commission has held a public hearing, duly noticed, in connection with the financing of the Projects by the Borrower; and WHEREAS, subject to all required approvals under the Act, it appears that the proposed financing of the Projects will be of benefit to the health, prosperity, economic stability and general welfare of the City and its citizens; and WHEREAS, as evidenced by the "Findings of Fact of South Bend Economic Development Commission Regarding The Stanley Clark School Project" (the "Findings") attached to the Report with respect to the Projects (the "Report"), the construction of the Projects will not have an adverse competitive effect on any similar facilities already constructed or operating in the City; and WHEREAS, there have been prepared and submitted to the Commission, and the Commission now desires to approve in substantially final form, a Loan Agreement between the City and the Borrower for the purpose of lending the proceeds of the Bonds to the Borrower to finance a portion of the costs of the Projects (the "Loan Agreement"); a form of promissory note to be issued by the Borrower in favor of the City and assigned to the Trustee with regard to each BDDBOI 4176671v2 - 3 - series of Bonds issued (the "Borrower's Notes"); a Trust Indenture to secure the Bonds (the "Trust Indenture"); a Bond Purchase Agreement (the "Bond Purchase Agreement"); and a form of the City of South Bend, Indiana, Economic Development Revenue Bonds (The Stanley Clark Project) to be used for each series of Bands issued (collectively, the "Financing Documents"); and WHEREAS, the Commission desires to authorize the Mayor and the Clerk of the City to approve, execute and deliver an offering document and any other agreement, certificate or documents necessary to provide for the issuance and sale of the Bonds; and WHEREAS, there has been prepared and submitted a form of ordinance with respect to the Projects (the "Bond Ordinance"} to be considered by the Common Council of the City, and the Commission desires to approve the Bond Ordinance and recommend its adoption by the Common Council; NOW, THEREFORE, BE IT RESOLVED by the South Bend Economic Development Commission, as follows: SECTION 1. The creation of opportunities for gainful employment and of additional payroll in the City and the creation of business opportunities to be achieved by the Projects in the City will be of benefit to the health and general welfare of the citizens of the City, and it is in the public interest that this Commission take such action as it lawfully may to encourage economic development, diversification of industry and promotion of job opportunities in and near said City. SECTION 2. The issuance and sale of economic development revenue bonds of the City in one (1) or more series with the Bonds being issued in an aggregate principal amount not to exceed Fifteen Million and 00!100 Dollars ($15,000,000.00) for the Projects and the loan BDDBOI 4176b71v2 ' 4 of the proceeds of the Bonds to the Borrower will serve the public purposes referred to above, in accordance with the Act. SECTION 3. The Report and the Findings issued with respect the Projects are hereby approved in the form attached hereto as Exhibit A. SECTION 4. The Commission held a duly noticed hearing open to the public and has subsequently considered whether the Projects will have an adverse effect on any similar facilities already constructed and operating in or about the City, and makes the following special findings of fact based upon the evidence presented: (1) No member of the public or competitor has presented any evidence of any kind establishing that the Projects would have any adverse competitive effect in any respect. (2) The benefits to the public clearly indicate that the Projects should be supported by the issuance of the Bonds. SECTION 5. All costs of the Projects incurred for planning, engineering, interest paid during construction, consulting and underwriting expenses, attorney and bond counsel fees, and acquisition, installation and equipping of the Projects will be permitted to be included as part of the costs of the Projects to be financed out of the loan of the proceeds from the sale of the Bonds to the extent permitted by the Act. SECTION 6. All action taken and approvals given by the Commission with regard to the Borrower, are based upon the evidence submitted and representations made by the Borrower, its agents or counsel. No independent examination, appraisal or inspection of the Projects was made, requested, or is contemplated by the Commission or the City. BDDBOI 4176671v2 - 5 - SECTION 7. The Commission does not, by this or any other approval or finding, guarantee, warrant or even suggest that (i) the Bonds, coupons or series thereof will be a reasonable investment for any person, firm or corporation or (ii) interest to be paid to or income received by the holders of the Bonds is exempt from taxation by local, state or federal government. SECTION S. The Commission shall not be obligated, directly or indirectly, to see to the application or use of the proceeds from the sale of the Bonds or to see that the contemplated improvements, if any, are constructed. The Commission is in no way responsible to the holders of any Bonds for any payment obligation created by the Bonds. SECTION 9. The principal of and interest on the Bonds will be secured by a letter of credit obtained by the Borrower and payable solely from payments made by the Borrower under the Borrower's Notes or from any another collateral of the Borrower pledged for such purpose. Neither the City nor the Commission shall have any obligation with respect to the payment of principal of or interest on the Bonds. SECTION 10. The Commission finds that the proposed financing of the Projects referred to in the forms of Financing Documents presented to this meeting complies with the purposes and provisions of the Act and will be of benefit to the health, prosperity, economic stability and general welfare of the City and its citizens. SECTION 11. The proposed financing of the Projects for the Borrower, the substantially final forms of the Financing Documents relating to the issuance and sale of the Bonds for such financing, and the form of the Ordinance, alI as presented to this meeting, are hereby approved. BDDBOI 4176671v2 - 6 - SECTION 12. The Mayor of the City (the "Mayor") and the Clerk of the City (the "Clerk) are hereby authorized to make such changes in the Financing Documents without the subsequent approval of this Commission as are necessary or appropriate to effect the intent of this Resolution and as are permissible under the Act, all to be evidenced by the execution of the Financing Documents by the Mayor. SECTION 13. The Mayor and the Clerk are hereby authorized to approve, execute and deliver, on behalf of the Commission, an offering document and any other agreement, certificate or document necessary to provide for the issuance and sale of the Bonds. SECTION 14. The Secretary of the Commission shall initial and then insert a copy of the forms of Bond Ordinance and the Financing Documents approved by this Resolution in the minute book of this Commission. SECTION 15. The filing of the Bond Ordinance with the Common Council is hereby ratified and approved, and a copy of this Resolution and the other documents approved by this Resolution shall be transmitted to the Common Council with the recommendation that the Common Council adopt the Bond Ordinance approving the Projects and the Bonds and approving the Financing Documents in their substantially final forms. *~*** BDDB01 4176671v2 " 7 " .1~avQ:n.~~ ADOPTED this ~ ~ day of~9s~e~e~; 2005. SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION /~" Member Member ~\ Member Member Member BDDBOI 4176671v2 ~ ' g ' EXHIBIT A REPORT AND FINDINGS OF FACTS (See attached) BDDB01 4176671x2 t REPORT OF THE SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION CONCERNING PROPOSED FINANCING OF AN ECONOMIC DEVELOPMENT FACILITY FOR THE STANLEY CLARK SCHOOL, INCORPORATED The South Bend Economic Development Commission (the "Commission") proposes to recommend to the Common Council of the City of South Bend, Indiana (the "City"), that it loan to The Stanley Clark School, Incorporated, an Indiana nonprofit corporation (the "Borrower"), the proceeds of an economic development revenue bond financing in an amount not to exceed Fifteen Million Dollars ($15,000,000) to pay the costs related to (a)(i} the improvement, expansion, and renovation of the educational facility commonly kno~m as Fannin Hall to include four kindergarten rooms, three preschool rooms, alarge-motor multipurpose room and an atelier; (ii) the improvement, expansion and renovation of the educational and administrative facility commonly known as Martin Hall to provide for, among other improvements, additional classrooms, common rooms and office space; (iii) improvements to roads, walkways, parking lots and other educational facilities on the same site, including site improvements and landscaping; and (iv) water retention improvements (collectively, the "2005 Project"), all of which are to be located on the Borrower's approximately thirty-two (32) acre site at 3123 Miami Street in the City (the "Site") and {b)(i) the rebuilding of the educational facility on the Site commonly known as the Lower School to provide for up-to-date technology and amenities; (ii) the construction of a fine arts center and an improved media center on the Site which may include an auditorium, additional fine arts and music classrooms and improved media equipment and technology; and (iii) the relocation and construction of athletic fields or facilities on the Site or on an approximately four (4) acre site located on the northeast corner of High Street and Donmoyer Avenue, near and including 744 Donmoyer Avenue and the property BDDBOi 4177119v1 across from the Site on High Street (collectively, the "Additional Projects" and with the 2005 Project, the "Projects"). The total cost for the Projects is presently estimated to be approximately Fifteen Million Dollars ($15,000,000) with the cost of the 2005 Project presently estimated to be approximately Five Million Dollars ($5,000,000). The proposed loan is to be made from funds obtained by the issuance of economic development revenue bonds by the City pursuant to Indiana Code, Title 36, Article 7, Chapters 11.9 and 12, and applicable provisions of the Internal Revenue Code, and the proposed bonds will be issued as Qualified 501(c)(3) Bonds within the meaning of the Internal Revenue Code. No public works or services not already existing or available, or for which provision has not been made, will be made necessary or desirable on account of the Projects as such facilities will be provided either by the Borrower, private utilities, or existing public facilities, or pursuant to an agreement with respect to such public facilities with the City. As set out in the attached "Findings of Fact of the South Bend Economic Development Commission Regarding The Stanley Clark School Project," which f ndings of fact are incorporated herein, the Commission, based on a careful consideration of the evidence and testimony submitted to it, has concluded that the proposed Projects will not have an adverse competitive effect on other facilities already constructed or operating in the City. The Borrower proposes to construct the Projects for its own use and benefit. In addition to the jobs that will be retained or created as a result of the construction of the Projects, the operation of the Projects is anticipated to create 3-5 permanent jobs on a full-time or part-time basis, with a combined average annual payroll of $100,000 per year. BDDBOI 4177119v1 - 2 - The proposed financing of the Projects will be of benefit to the health and general welfare of the citizens of the City. Adopted this ~~ day of N bJ~j.~, 2005. SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION ~~ ~ President ATTEST: ii Secretary BDDB01 4177119vi - 3 - EXHIBIT A FINDINGS OF FACT OF THE SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION REGARDING THE STANLEY CLARK SCHOOL PROJECT Comes now the South Bend Economic Development Commission and upon evidence presented and substantive testimony received makes the following findings of fact regarding The Stanley Clark School Project to be located in the City of South Bend, Indiana (the "City"): 1. The proposed economic development projects for The Stanley Clark School, Incorporated, an Indiana nonprofit corporation (the "Applicant"), consists of (a)(i) the improvement, expansion, and renovation of the educational facility commonly known as Fannin Hall to include four kindergarten rooms, three preschool rooms, a large-motor multipurpose room and an atelier; (ii) the improvement, expansion and renovation of the educational and administrative facility commonly known as Martin Hall to provide for, among other improvements, additional classrooms, common rooms and office space; (iii) improvements to roads, walkways, parking lots and other educational facilities on the same site, including site improvements and landscaping; and (iv) water retention improvements {collectively, the "2005 Project"), all of which are to be located on the Applicant's approximately thirty- two (32) acre site at 3123 Miami Street in the City (the "Site") and (b)(i} the rebuilding of the educational facility on the Site commonly known as the Lower School to provide for up-to-date technology and amenities; (ii) the construction of a fine arts center and an improved media center on the Site which may include an auditorium, additional fine arts and music classrooms and improved media equipment and technology; and (iii) the relocation and construction of athletic fields or facilities on the Site or on an approximately four (4) acre site located on the northeast corner of High Street and Donmoyer Avenue, near and including 744 Donmoyer Avenue and the property across from the Site on High Street (collectively, the "Additional Projects" and with the 2005 Project, the "Projects") The Projects will be owned and operated by the Applicant. The estimated cost of the Projects is $15,000,000, and the Applicant has request that a portion, if not all, of said cost be financed through the issuance of economic development revenue bonds by the City under the provisions of I.C. § 36-7-11.9 and 12, as supplemented and amended. 2. The Applicant has entered or will enter into agreements with such persons as they deem necessary and appropriate for the payment and provision of public works or services necessary for the operation of the Projects. Accordingly, no public works or services not already existing or available, or contemplated by the City, will be necessary or desirable due to the economic development facilities proposed by the Applicant. BDDBO 1 4177119v 1 A-1 3. In addition to the jobs that will be created or retained as a result of the construction of the Projects, the Applicant estimates that approximately 3-5 permanent jobs will be created. The estimated annual payroll at the proposed facility, including benefits, is $100,000 per year. 4. The Projects will not have an adverse competitive effect on facilities offering comparable services within the geographic limits of the City because a need exists for additional private elementary and secondary educational facilities in the vicinity of the Site. **** BDDBOI 41771 ] 9v I A-2 Applicant hereby acknowledges and represents that the above statements of fact are true and accurate to the best of their knowledge and belief. THE STANLEY CLARK SCHOOL, INCORPORATED Robert G. Dougla , e aster ADOPTED this ~G day of ~~~ , 2005. SOUTH BEND ECONOMIC DEVELOPMENT COMMISSION President ATTEST: Secretary B DDBO 1 4177119v 1