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HomeMy WebLinkAbout9494-04 Authorizing "MulitFamily Housing Revenue Refunding Bond (The Pointe at St. Joseph Apartments Project), Series 2004" not to exceed $14,000,000ORDINANCE No. s Passed by the Common Council of the City of South Bend, Indiana March 22, Attest: Attest: Presented by me to the Mayor of the City of South Bend, Indiana March 23, 20 04 04 20 - City Clerk esident of Common Council City Clerk Approved and signed by me March 24 20 04 Mayor ORDINANCE NO. ~ `~~'~~ AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AUTHORIZING THE ISSUANCE OF ITS "MULTIFAMILY HOUSING REVENUE REFUNDING BONDS (THE POINTE AT ST. JOSEPH APARTMENTS PROJECT), SERIES 2004," IN ONE OR MORE SERIES IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED FOURTEEN MILLION AND 00/100 DOLLARS ($14,000,000) AND APPROVING AND AUTHORIZING OTHER ACTIONS IN RESPECT THERETO STATEMENT OF PURPOSE AND INTENT: Indiana Code Title 36, Article 7, Chapters 11.9 and 12, as amended, and Title 5, Article 1, Chapter 5, as amended (collectively, the "Act") declares that the financing and refinancing 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 or refinancing 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 City of South Bend, Indiana (the "Issuer"), issued its Multifamily Housing Revenue Refunding Bonds (The Pointe at St. Joseph Project) Reissuance of 1999, Series A, Series B, and Series C (the "1999 Bonds") in the aggregate principal amount of $12,823,570 secured by the Trust Indenture among the Issuer and Wachovia Bank, N.A., as successor in interest to Southeast Bank, N.A., as initial trustee, and 1st Source Bank as successor in interest to Irwin Union Bank and Trust Company, as initial co-trustee, dated December 1, 1988, as amended through the Third Supplemental Indenture thereto, dated May 15, 1999, for the purpose of refunding its outstanding Multifamily Housing Revenue Refunding Bonds (The Pointe at St. Joseph Project), Issue of 1994, Series A, Series B, Series C, and Series D (the "1994 Bonds") issued in the aggregate principal amount of $12,920,485 for the purpose of refinancing the Issuer's then outstanding (i) Multifamily Housing Revenue Refunding Bonds (The Pointe at St. Joseph Project) Series A and Series B, dated December 15, 1988 issued in the aggregate principal amount of $11,000,000 and (ii) its Multifamily Revenue Bonds (The Pointe at St. Joseph Project) Series A and Series B, dated January 25, 1989, issued in the aggregate principal amount of $550,000 (collectively, the "Initial Bonds" and with the 1999 Bonds and the 1994 Bonds, the "Prior Bonds"), which were issued in order to procure funds to be loaned to the Can- American South Bend Limited Partnership, a Minnesota limited partnership (the "Company"), pursuant to a loan agreement between the Issuer and the Company (the "Prior Loan") for the acquisition, construction, and equipping of a two hundred two (202) unit multifamily rental SBIMANl 174829v6 housing complex and related amenities located in the City of South Bend, Indiana, and known as The Pointe at St. Joseph Apartments (the "Project"). The South Bend Economic Development Commission (the "Commission") adopted a Resolution on March 19, 2004, which Resolution has been previously transmitted hereto, finding that the financing and refinancing of the Project complies with the purposes and provisions of the Act and that such financing will be of benefit to the health and welfare of the Issuer and its citizens. The Commission has approved the substantially final forms of the Loan Agreement, and the Trust Indenture (as such terms are defined in said Resolution) (collectively, the "Financing Documents"). The current owner of one hundred percent (100%) of the outstanding Prior Bonds is willing to consent to the refinancing of the Prior Bonds. Pursuant to and in accordance with the Act, the Issuer desires to provide funds to refinance the Project by issuing its economic development revenue bonds in one (1) or more series in an aggregate principal amount not to exceed Fourteen Million and 00/100 Dollars ($14,000,000.00) (the "Bonds"). No member of the 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 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 1. It is hereby found that the financing and refinancing of the economic development facilities referred to in the Financing Documents as the Project, consisting of the issuance and sale of the Bonds, the loan of the net proceeds thereof to the Company for the purposes of refinancing the Project, and the repayment of said loan by the Company will be of benefit to the health or general welfare of the Issuer and its citizens and does comply with the purposes and provisions of the Act. Section 2. The proposed financing and the forms of the Financing Documents approved by the Commission are hereby approved and all such documents are incorporated herein by reference and shall be inserted in the minutes of the Council and kept on file by the Clerk of the City (the "Clerk"), and two (2) copies of the Financing Documents are on file in the office of the Clerk of the Council for public inspection in accordance with Indiana Code 36- 1-5-4. Section 3. The Issuer shall issue the Bonds in one (1) or more series in a total aggregate principal amount not to exceed Fourteen Million and 00/100 Dollars ($14,000,000.00) designated as the "City of South Bend, Indiana, Multifamily Housing Revenue Refunding Bonds (The Pointe at St. Joseph Apartments Project), Series 2004" (if such bonds are issued in more than one (1) series each such series shall be designated by a letter beginning with "A" (e.g., "Series 2004 A")), the proceeds of which will be used to make a loan to the Company pursuant -2- SBIMANI 174829v6 to the Loan Agreement to pay the costs of refinancing the Project and possibly pay some portion of the costs of issuing the Bonds, which Bonds will be payable as to principal and interest solely from the payments made by the Company pursuant to the Loan and Financing Agreement and as otherwise provided for in the above-described Financing Documents. Section 4. The Mayor and the Clerk are authorized and directed to sell such Bonds upon the terms and conditions described in the Trust Indenture and the Bonds. The Bonds shall be issued as fully registered Bonds, without coupons, in the denominations set forth in the Trust Indenture, numbered consecutively as set forth in the Trust Indenture, and shall be payable and mature as provided in the Trust Indenture. The Bonds shall bear interest at a rate not to exceed nine percent (9.0%) per annum from the date of their closing through April 7, 2007 and at a rate to be determined as set forth in the Trust Indenture during any extension period. The Bonds shall be subject to mandatory and optional redemption or tender as provided in the Trust Indenture and the Bonds. Section 5. The Mayor and Clerk are authorized and directed to execute those Financing Documents approved herein which require the signature of the Mayor and Clerk and any other document which may be necessary or desirable to consummate the transaction including, without limitation, a new regulatory agreement or an amendment to the existing regulatory agreement relating to continued compliance by the owner of the Project with respect to Federal tax rules governing the Project, and their execution is hereby confirmed on behalf of the Issuer. The signatures of the Mayor and the Clerk on the Bonds may be facsimile signatures. The Clerk and the Controller are authorized to arrange for the delivery of such Bonds to the purchaser, payment for which will be made in the manner set forth in the Financing Documents. The Mayor and the Clerk may, by their execution of the Financing Documents requiring their signatures and/or imprinting of their facsimile signatures thereon, approve changes therein and also in those Financing Documents which do not require the signature of the Mayor and/or the Clerk without further approval of this Common Council or the Commission if such changes do not affect terms set forth in Indiana Code 36-7-12-27(a)(1) through (a)(10). In case any officer whose signature or a facsimile thereof shall appear on the Bonds shall cease to be such officer before the issuance or delivery of the Bonds, such signature or facsimile thereof shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until after that time. Section 6. The Bonds shall not constitute a debt or pledge of the faith and credit of the City, the State of Indiana (the "State") or any political subdivision thereof, and the holders, or owners thereof shall have no right to have taxes levied by the City, the State or of any political subdivision, for the payment of the principal thereof or interest thereon. Moneys raised by taxation shall not be obligated or pledged for the payment of principal of or interest on the Bonds, and the Bonds shall be payable solely from the revenues and security interests pledged for their payment as authorized by the Trust Indenture. Section 7. The provisions of this Ordinance and the Financing Documents shall constitute a contract binding between the Issuer and the holder or holders of the Bonds and after the issuance of said Bonds, this special ordinance shall not be repealed or amended in any -3- SBIMANI 174829v6 respect which would adversely affect the right of such holder or holders so long as said Bonds or the interest thereon remains unpaid. Section 8. No recourse under or upon any obligation, covenant, acceptance or agreement contained in this Bond Ordinance, or in the Bonds, the Loan and Financing Agreement, the Trust Indenture, any regulatory agreement or amendment thereto or under any judgment obtained against the Issuer 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 Loan and Financing Agreement, shall be had against any member, director, or officer or attorney, as such, past, present, or future, of the Issuer, either directly or through the Issuer, or otherwise, for the payment for or to the Issuer or any receiver thereof, or for or to any holder of the Bonds secured thereby, or otherwise, of any sum that may be due and unpaid by the Issuer upon any of such Bonds. Any and all personal liability of every nature, whether at common law or in equity, or by statute or by constitution or otherwise, of any such member, director, 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 Issuer 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 and consideration for the execution and delivery of the Loan and Financing Agreement and the Trust Indenture and the issuance of the Bonds. Section 9. This Ordinance shall be in full force and effect from and after passage by the Common Council and its approval by the Mayor of the City. COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA r By: C Member of the Common uncil t st READING 3 ~8' ~ l PUBLIC HEARING 3-L?r~y 3rd READWG 3 _LL_O`~ NOT APPROVED Qs s~~s~~~ a g s ~i~ s -i-~~ ~~ -4- Filed In Clerk's Office c!na ~ 7 coo JOMN VOORDE CITY CLERK, S0. BEND, IN. REFERRED PASSED 3' LZ ` O"`~ Gl>~ S u~ ~~ "~'~`"'~' . ` SBIMANI 174829v6 TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 15-04 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AUTHORIZING THE ISSUANCE OF ITS "MULTIFAMILY HOUSING REVENUE REFUNDING BONDS (THE POINTE AT ST. JOSEPH APARTMENTS PROJECT), SERIES 2004," IN ONE OR MORE SERIES IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED FOURTEEN MILLION AND 00/100 DOLLARS ($14,000,000) 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 as substituted. Sean Coleman Chairman BAI~ERe~DANIELS Est. 1863 First Bank Building, 205 W.lefferson Blvd., Suite 250 South Bend, Indiana 46601 574234.4149 Fax 574.2391900 www.bakerdaniels.com RANDOLPH R. ROMPOLA 574.239.1926 randolph. rompola Co3 bakerd.com March 17, 2004 VIA HAND DELIVERY John Voorde Clerk, City of South Bend County-City Building, 4`h Floor South Bend, IN 46601 Indiana Washington, D.C. China Re: Substitute Ordinance for Consideration by the Common Council Authorizing the Issuance of Multi-Family Housing Revenue Refunding Bonds for The Pointe at St. Joseph Apartments Dear Mr. Voorde: Enclosed with this letter is a substitute form of ordinance for consideration by the Common Council in place of the form of ordinance previously filed with your office on March 3, 2004. We have also enclosed substantially final forms of the Trust Indenture, including a form of bond, and the Loan Agreement, including a form of promissory note. These documents are approved by the ordinance. Ken Fedder, counsel for the Economic Development Commission, had asked us to assist with the filing of these documents with your office. With regards to the enclosed substitute ordinance, the only substantive change from the originally filed ordinance is that the attached form of ordinance provides the bondholder the option to extend the term of the bonds for two additional years at an interest rate to be determined by a formula as set forth in the Trust Indenture. As the substitute ordinance indicates, the principal amount of the bonds will not exceed $14 million and the initial interest rate may not exceed 9%. Mr. Fedder and I will be present at the Committee meeting on March 22 to answer any questions that may arise regarding the enclosed documents. Mr. Fedder will also be present at the Common Council's meeting on March 22. The ordinance continues to provide that the City will bear no responsibility, financial or otherwise, with respect to the payment of the principal of and interest on the bonds or any other expenses associated with the bond issuance. Adoption of the ordinance by the Council at its meeting on March 22 will allow for the refunding to be timely completed. The Economic Development Commission is scheduled to meet on March 19th to consider the refunding. SB [MAN 1 176759v 1 John Voorde - 2 - March 17, 2004 Should you have any questions regarding the enclosed documents or any of the above, please do not hesitate to call. Sincerely, BAKER & DANIELS __..~ /~ \ Randolp~ R. Rompol~ ~ `~- RRR/ck~ay,~~ Enclosures cc: Kenneth P. Fedder, Esq. Robert York, Esq. James K. Lowe Anna Parks Michael J. Henigan, Esq. Matthew L. Pirnot, Esq. Lynn Carlson Schell 1st READING PUBLIC HEARING 3 rd P.EADING NOT APPROVED REFERRED PASSEp SB IMAN 1 17G759v 1 Filed In Clerk's Office PEAR 1 7 2001 JOHN YOORDE CITY CLERK, S0. BEND, ill.