HomeMy WebLinkAbout04-08-13 Agenda & PacketAGENDA
SOUTH BEND COMMON COUNCIL MEETING
MONDAY, APRIL 8, 2013
1. INVOCATION - REV JANICE HALL
2. PLEDGE TO THE FLAG
3. ROLL CALL
4. REPORT FROM THE SUB - COMMITTEE ON MINUTES
5. SPECIAL BUSINESS
ANNOUNCEMENT: REPRESENTING THE CITY
ADMINISTRATION WILL BE MIKE SCHMUHL -CHIEF OF
STAFF
13 -28 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF
SOUTH BEND, INDIANA, RECOGNIZING AND HONORING THE
MANY POSITIVE AND SUSTAINABLE CONTRIBUTIONS MADE
BY PAT & BJ MAGLEY THROUGH THEIR CREATION OF
HEROES CAMP
13 -29 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF
SOUTH BEND, INDIANA, HONORING BOBBIE MAGLEY FOR
HER MANY CONTRIBUTIONS TO THE SOUTH BEND
COMMUNITY AND FOR BEING A RECIPIENT OF THE
TORCHBEARER AWARD BY THE INDIANA COMMISSION FOR
WOMEN
6. REPORTS OF CITY OFFICES
7. RESOLVE INTO THE COMMITTEE OF THE WHOLE TIME:
BILL NO.
13 -13 PUBLIC HEARING ON A BILL TO VACATE THE FOLLOWING
DESCRIBED PROPERTY: THE ALLEY TO BE VACATED IS
THE FIRST NORTH /SOUTH ALLEY EAST OF ST. LOUIS
BLVD. FROM WAYNE STREET NORTH TO THE FIRST
EAST /WEST ALLEY FOR A DISTANCE OF 198 FEET AND A
WIDTH OF 14 FEET. SAID ALLEY IS PART OF
COTTRELL'S ADDITION TO THE CITY OF SOUTH BEND,
PORTAGE TOWNSHIP, ST JOSEPH COUNTY, INDIANA
09 -13 PUBLIC HEARING ON A BILL OF THE COMMON COUNCIL OF
THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER
13 OF THE SOUTH BEND MUNICIPAL CODE BY THE
INCLUSION OF NEW ARTICLE 12 ENTITLED CHRONIC
PROBLEM PROPERTY REGULATIONS
12 -13 PUBLIC HEARING ON A BILL OF THE COMMON COUNCIL OF
THE CITY OF SOUTH BEND, INDIANA, CONCERNING THE
REFUNDING OF OUTSTANDING SEWAGE WORKS REVENUE
BONDS OF 1998 AND SEWAGE WORKS REVENUE BONDS OF
2004, EACH ISSUED TO FINANCE CONSTRUCTION OF
IMPROVEMENTS TO THE MUNICIPAL SEWAGE WORKS OF THE
CITY OF SOUTH BEND, INDIANA; AUTHORIZING THE
ISSUANCE OF REVENUE BONDS FOR SUCH PURPOSE IN THE
PRINCIPAL AMOUNT NOT TO EXCEED FIFTEEN MILLION
SEVENTY -FIVE THOUSAND DOLLARS ($15,075,000);
ADDRESSING OTHER MATTERS CONNECTED THEREWITH,
INCLUDING THE ISSUANCE OF NOTES IN ANTICIPATION
OF BONDS; AND REPEALING ORDINANCES INCONSISTENT
HEREWITH
8. BILLS, THIRD READING TIME:
13 -13 THIRD READING ON A BILL TO VACATE THE FOLLOWING
DESCRIBED PROPERTY: THE ALLEY TO BE VACATED IS
THE FIRST NORTH /SOUTH ALLEY EAST OF ST. LOUIS
BLVD. FROM WAYNE STREET NORTH TO THE FIRST
EAST /WEST ALLEY FOR A DISTANCE OF 198 FEET AND A
WIDTH OF 14 FEET. SAID ALLEY IS PART OF
COTTRELL'S ADDITION TO THE CITY OF SOUTH BEND,
PORTAGE TOWNSHIP, ST JOSEPH COUNTY, INDIANA
09 -13 THIRD READING ON A BILL OF THE COMMON COUNCIL OF
THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER
13 OF THE SOUTH BEND MUNICIPAL CODE BY THE
INCLUSION OF NEW ARTICLE 12 ENTITLED CHRONIC
PROBLEM PROPERTY•REGULATIONS
12 -13 THIRD READING ON A BILL OF THE COMMON COUNCIL OF
THE CITY OF SOUTH BEND, INDIANA, CONCERNING THE
REFUNDING OF OUTSTANDING SEWAGE WORKS REVENUE
BONDS OF 1998 AND SEWAGE WORKS REVENUE BONDS OF
2004, EACH ISSUED TO FINANCE CONSTRUCTION OF
IMPROVEMENTS TO THE MUNICIPAL SEWAGE WORKS OF THE
CITY OF SOUTH BEND, INDIANA; AUTHORIZING THE
ISSUANCE OF REVENUE BONDS FOR SUCH PURPOSE IN THE
PRINCIPAL AMOUNT NOT TO EXCEED FIFTEEN MILLION
SEVENTY -FIVE THOUSAND DOLLARS ($15,075,000);
ADDRESSING OTHER MATTERS CONNECTED THEREWITH,
INCLUDING THE ISSUANCE OF NOTES IN ANTICIPATION
OF BONDS; AND REPEALING ORDINANCES INCONSISTENT
HEREWITH
9. RESOLUTIONS
RTT,T. N()-
13 -24 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF
SOUTH BEND, INDIANA, APPROVING A PETITION OF THE
SOUTH BEND BOARD OF ZONING APPEALS FOR THE
PROPERTY LOCATED AT 1047 LINCOLNWAY EAST
13 -30 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF
SOUTH BEND, INDIANA, REGARDING THE SETTING OF A
PUBLIC HEARING ON A LEASE FOR THE CONSTRUCTION
AND EQUIPPING OF A FIRE STATION AND A FIRE SAFETY
TRAINING FACILITY, AUTHORIZING THE PUBLICATION OF
A NOTICE OF THE SAME, AND REGARDING CERTAIN
RELATED MATTERS
10. BILLS, FIRST READING
lama — fil7o71
15 -13 FIRST READING ON A BILL TO VACATE THE FOLLOWING
DESCRIBED PROPERTY: THE STREET TO BE VACATED IS
ASSUMPTION DRIVE THAT LOOPS FROM LOCUST ROAD,
THIS LOOP STREET IS APPROXIMATELY 1,750 FEET
AROUND FROM LOCUST ROAD TO LOCUST ROAD AND HAS A
WIDTH OF 50 FEET, SAID STREET WAS DEDICATED TO
THE CITY OF SOUTH BEND, PORTAGE TOWNSHIP, ST.
JOSEPH COUNTY, INDIANA
16 -13 FIRST READING ON A. BILL AMENDING THE ZONING
ORDINANCE AND REQUESTING A SPECIAL EXCEPTION FOR
PROPERTY LOCATED AT 3529 AND 3527 WESTERN AVENUE,
SOUTH BEND, INDIANA 46619, COUNCILMANIC DISTRICT
NO. 2 IN THE CITY OF SOUTH BEND, INDIANA
17 -13 FIRST READING OF
COMMON COUNCIL
EXECUTION OF A
EQUIPPING OF A
SAFETY TRAINING
RELATED MATTERS
11. UNFINISHED BUSINESS
12. NEW BUSINESS
13. PRIVILEGE OF THE FLOOR
14. ADJOURNMENT
THE CITY OF SOUTH BEND, INDIANA,
APPROVING AND AUTHORIZING THE
LEASE FOR THE CONSTRUCTION AND
\JEW FIRE STATION AND A NEW FIRE
CENTER AND REGARDING CERTAIN
TIME:
NOTICE FOR HEARING AND SIGHT IMPAIRED PERSONS
Auxiliary Aid or Other Services are Available upon Request at No Charge.
Please give Reasonable Advance Request when Possible.
"4 O
e
RESOLUTION NO. 6-1 t. L-1)0 k 2
A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH
BEND, INDIANA RECOGNIZING AND HONORING THE MANY POSITIVE
AND SUSTAINABLE CONTRIBUTIONS MADE BY PAT & B.J. MAGLEY
THROUGH THEIR CREATION OF HEROES CAMP
C
t
the Common Council of the City of South Bend, Indiana, acknowledges that in 1989, "...a tall
lanky white -guy walked up to a group of South Bend street kids and offered a challenge. If any of them could
beat him in a game of one -on -one, he'd buy them a brand new pair of sneakers of their choosing ... the next
Saturday... more than 60 inner -city youth [were] waiting outside the gym, ready to school this scrub" in the 300
block of West Jefferson Boulevard in South Bend; and
(A/11_k.,,.;, not a single pair of sneakers had to be bought that day by Pat Magley. He took the time to start
meaningful dialogues with these young men that day, where they talked and shared their feelings and ideas
about "identity, leadership, conflict management, hygiene and respect "; and the idea and concept of Heroes
Camp was born; and
24 -years later, Pat Magley, a basketball star at LaSalle High School and West Georgia College,
and his wife BJ, now have four (4) gyms where well over 100,000 youth have enthusiastically participated in
Heroes Camp. Pat has become a father figure to so many who do not have a father in their own lives; and you
will hear him being called "Pops" and "Dad" by the youth participating at Heroes Camp; and
the Common Council notes that Pat & BJ Magley have made positive impacts on a countless
number youth, thanks to with their sincere and enduring dedication; with their passion being recognized by
many - some of which include recognitions in 2013 by Governor Pence when they received the Torchbearer
Award; in 2011 when Governor Mitch Daniels presented them the Dr. Martin Luther King, Jr. Chairman's
Award & the Sam Jones Trailblazer Award; in 2011 when the Heart of the Irish Award was presented to them
by the Notre Dame Women's Basketball Team; and the Drum Major Award presented by former South Bend
Mayor Stephen J. Luecke; and
since 2007, Heroes Camp has operated at 4130 Hickory where they offer food, clothing,
tutoring, counseling, recreation and free haircuts to 50 to 200 youth per day with youth coming from as far
away as Gary, Detroit and Florida, in addition to the many youth from South Bend and the Michiana area;
where they have partnered with Feed the Hungry, Sam's Club and many local restaurants in order to
successfully and compassionately run this "family institution ".
6m A,&.lo,.4 by the Common Council of the City of South Bend, Indiana, as follows:
Section I. On behalf of the citizens of South Bend, Indiana, the Common Council is proud to publicly
recognize, honor and congratulate Pat & BJ Magley for their vision, dedication and passion in creating Heroes
Camp, which is truly making a difference by providing a "fathering ministry" to so many youth and especially
those from fatherless homes.
Section II. The Council wishes Pat & BJ Magley & daughter Kelly continued success with Heroes
Camp, www.heroescamp.com so it will grow in depth and numbers; continue to offer wisdom, and "the tools
youth need to go out and live a life of faith and service ", all of which is "...rooted in spiritual principles and
infused with a key ingredient all -to -often missing in today's society: love ".
Section III . This Resolution shall be in full force and effect from and after its adoption by the Council
and approval by the Mayor.
Tim Scott, I" District
H ry avis, jr., 2" i trict
alerie Schey, 3' District
Dr. Fred Ferlic, 4h District
Dr. David A. Varner, 5t' District
John Voorde, City Clerk
Oliver J. Davis, Vice-Pres. & 6"' District
Derek D. Dieter, President & At Large
Gavin Ferlic, At Large Member
Karen L. White, Com. of Whole Chair & At Large
Kathleen Cekanski - Farrand, Council Attorney
°4 -dy 9' .QO /8
Pete Buttigieg, Mayor of South Bend
�lietxs
��11 13 -z9
RESOLUTION NO.
A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH
BEND, INDIANA HONORING BOBBIE MAGLEY FOR HER MANY
CONTRIBUTIONS TO THE SOUTH BEND COMMUNITY AND FOR
BEING A RECIPIENT OF THE TORCHBEARER AWARD BY THE
INDIANA COMMISSION FOR WOMEN
the Common Council of the City of South Bend, Indiana, notes that in 1996, the Indiana
General Assembly established the Indiana Commission for Women (ICW); and
ICW is charged with "...assessing the needs of Indiana women & their families and with
promoting the full participation of Indiana women in all aspects of society "; and
ICW "...created the concept of the Torchbearer Awards to honor the many Hoosier women
who have overcome or removed barriers to equality or to whose achievements have contributed to making our
state a better place in which to live, work & raise a family "; and
the statue, Victory, which stands atop the Soldiers' and Sailors' Monument in downtown
Indianapolis was the image selected to represent the Torchbearer Award; with "... Victory being symbolic of
the women honored, and the flame she holds represents the light our Torchbearers have brought to our state and
their communities "; and
on March 6, 2013, in the Indiana Government Center North Building's Auditorium in
Indianapolis, Indiana, the 2013 Torchbearer Awards Program was held; and
Bobbie "B.J." Magley, the wife of Pat Magley, who helped created Heroes Camp with her
husband, was one of eleven women awarded this year's Torchbearer Award.
O , -70, 'r "m / u by the Common Council of the City of South Bend, Indiana, as follows:
Section I. On behalf of the citizens of South Bend, Indiana, the Common Council is proud to publicly
congratulate Bobbie "B.J." Magley for her continuing positive contributions to the South Bend community and
for being a recipient of one of the eleven 2013 Torchbearer Awards by the Indiana Commission for Women.
Section II. The Council wishes "B.J." and her husband, Pat, many, many years of continued success as
they dedicate themselves to offering caring help and support to at -risk youths, who have the opportunity to
realize life changing experiences at Heroes Camp.
Section III . This Resolution shall be in full force and effect from and after its adoption by the Council
and approval by the Mayor.
Tim Scott, I" District Oliver J. Davis, Vice-Pres. & 6h District
1HT,ry vis, J , 2 "d Dis
Valerie Schey, 3a District
Dr. Fred Ferlic, 4`" District
Dr. David A. Varner, Su' District
John Voorde, �City Clerk
Derek D. Dieter, President & At Large
Gavin Ferlic, At Large Member
Karen L. White, Com. of Whole Chair & At Large
Kathleen Cekanski - Farrand, Council Attorney
Pete Buttigieg
Mayor of South Bend
ORDINANCE NO.
AN ORDINANCE TO VACATE THE FOLLOWING DESCRIBED PROPERTY:
The alley to be vacated is the first North / South alley East of St Louis Blvd from Wayne
Street North to the first East / West alley for a distance of 198 feet and a width of 14 feet.
Said alley is part of Cottrell's Addition to the City of South Bend, Portage Township,
St Joseph County, Indiana.
STATEMENT OF PURPOSE AND INTENT
Pursuant to Indiana Code Section 36- 7 -3 -12, the Common Council is charged with
the authority to hear all petitions to vacate public ways or public places within the City.
The following Ordinance vacates the above described public property.
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA, as follows:
SECTION 1. The Common Council of the City of South Bend having held a Public
Hearing on the petition to vacate the following property:
The alley to be vacated is the first North / South alley East of St Louis Blvd from Wayne
Street North to the first East / West alley for a distance of 198 feet and a width of 14 feet.
Said alley is part of Cottrell's Addition to the City of South Bend, Portage Township,
St Joseph County, Indiana.
hereby determines that it is desirable to vacate said property.
SECTION 11. The City of South Bend hereby reserves the rights and easements of
all utilities and the Municipal City of South Bend, Indiana, to construct and maintain any
facilities, including, but not limited to, the following. electric, telephone, gas, water, sewer,
surface water control structures and ditches, within the vacated right -of -way, unless such
rights are released by the individual utilities.
SECTION III. The following property may be injuriously or beneficially affected by
such vacating:
018- 6002 -0020, 018- 6002 -0019, 018- 6002 -0018, 018- 6002 - 0018.01, 018- 6002 -0028,
018 - 6002 -0029, 018 - 6002 -0030.
Section IV. The purpose of the vacation of the real property is
to allow for the continued use of the alley as part of
the drive way for church parking and the constuction of
a new building to replace an existing building.
SECTION V. This ordinance shall be in full force and effect from and after its
passage by the Common Council and approval by the Mayor.
, D-Q� A- 4,-Atill ��
Member of the Common Coyllhcil
Attest:
and
Could,'
ac-MI '11L63 ?� A+t3t
City Clerk
Presented by me to the Mayor of the City of South Bend, Indiana on the
day of , 2 , at o'clock . M.
City Clerk
Approved and signed by me on the day of , 2 , at
o'clock . M.
1 st READING _� lLr -l3
PUBLIC NEARING
3,d REAMING
NOT APPROVED
REFERRED
PASSED
Mayor, City of South Bend, Indiana
Flied In M k's Offies
MAR 1.9 ZQ13
JOHN
CITY CLERK, SOUTH BEND, IN
PETITION TO VACATE PUBLIC RIGHTS -OF -WAY
(STREETS /ALLEYS)
TO THE COMMON COUNCIL
OF THE CITY OF SOUTH BEND, INDIANA
DATE: � / %Z
I (WE), THE UNDERSIGNED PROPERTY OWNER(S), PETITION YOU TO VACATE:
A. THE ALLEY DESCRIBED AS:
The first North 1 South alley East of St Louis Blvd from Wayne Street North to the first East /
West alley for a distance of 198 feet and a width of 14 feet. Said alley is part of Cottrell's
Addition to the City of South Bend, Portage Township, St Joseph County, Indiana.
B. THE STREET DESCRIBED AS: N.A.
NAM Ted A ormt )
C-
ADDRESS
715 East Wayne Street
South en , IN 46617
RETURN TO:
OFFICE OF THE CITY CLERK
JOHN VOORDE, CITY CLERK
ROOM 455-COUNTY -CITY BUILDING
SOUTH BEND, IN 46601
574 -235 -9221
CONTACT PERSON (S)
NAME: Chester T Gamble
ADDRESS:
3996 Liberty Street
Bremen, IN 46506
PHONE: 574-27
LOT #
018- 6002 -0020
X602 -0019
018- 6002 -0018
018- 6002 - 0018.01
018- 6002 -0028
018 -6002 -0029
018- 6002 -0030
n Cierk's Office
MAN 19 ZQ 5
JOH14 Vook e ,
CITY CLERK, SOUTH aftD, IN
Zion United Church of Christ
715 East Wayne Street
South Bend, Indiana 46617
3/182013
Common Council
City of South Bend, Indiana
Zion United Church of Christ request's the vacation of the alley that is bounded by properties of
the church property on both sides.
The vacation of the alley will allow for he continued use of the alley as a part of the church
parking lot and will also allow a construction of a new Worship / Fellowship building to
replace an exist4o&by.Mi g that will be removed.
Respectfu
Filed in Clerk's Offlccc
MAR ?�
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CITY CLERK, 60V rh SEMIR, IN
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LEGAL DESCRIPTION: E
MAR 19 Z013;
The alley to be vacated is the first North/South al ` :1 4> �
Blvd from Wayne Street North to the first East/West alley for a
distance of 198 feet and a width of 14 feet. Said alley is a part of
Cottrell's Addition to the City of South Bend, Portage Township, St
Joseph County, Indiana.
1316 COUNTY -CITY BUILDING
2.2.7 W JEFFERSON BOULEVARD
SOUTH BEND, INDIANA 466oI -1830
CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR
BOARD OF PUBLIC WORKS
August 28, 2012
Mr. Chet Gamble
CTG & Associates
510 Lincoln Way East
Mishawaka, Indiana 46544
PHONE 5741 23 5-9251
FAX 574/235-9171
RE: Alley Vacation — The South Half of the North /South Alley between St. Louis Boulevard and
St. Peter Street, North of Wayne Street
(Preliminary Review)
Dear Mr. Gamble:
The Board of Public Works, at its August 28, 2012, meeting, reviewed comments by the
Engineering Division, Area Plan Commission, Economic Development, Fire Department, Police
Department, and the Solid Waste Division. The following comments and recommendations were
submitted:
Area Plan stated that the vacation would not hinder the growth or orderly development ofthe
unit or neighborhood in which it is located or to which it is contiguous. The vacation would not
make access to the lands of the aggrieved person by means of public way difficult or inconvenient.
The vacation would not hinder the public's access to a church, school or other public building or
place. The vacation would not hinder the use of a public right of way by the neighborhood in which
it is located or to which it is contiguous.
The City Engineer stated there should be a dedicated 15' triangular piece on the northwest
corner of the cross -alley for the proper maneuvering of garbage trucks.
Therefore, the Board of Public Works submitted a favorable recommendation for the vacation
of this alley subject to the City Engineer's comment.
August 28, 2012
Gamble, Chet
Page 2 of 2
Please contact Tony Molnar at (574) 235 -9254 prior to picking up your radius map.
You will need a radius map showing properties within 150' of the proposed vacation for your
petition to the Common Council. Once you pick up the radius map, proceed to the City Clerk's
office for your alley vacation packet.
c: Federico Rodriguez, Fire Department
Tony Molnar, Engineering
Janice Talboom, City Clerk's Office
Michael Mecham, Engineering
Zion United Church
Sincer ly,
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Lin a M. Martin, Clerk
Pilau in Cierk,.e, Office
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1865 441 County -City Building • 227 W. Jefferson Blvd
South Bend, Indiana 46601 -1830
Derek D. Dieter April 3, 2013
President
Members of the Common Council
Oliver Davis 4t' Floor County -City Building
Vice-President South Bend, Indiana 46601
(574) 235 -9321
Fax (574) 235 -9173
http://www.southbendin.gov
��111�0, a0. -13
Karen L. White
Chairperson, Committee
Re: Bill No. 09 -13 Chronic Problem Property Regulations
of the Whole
Dear Council Members:
Tim Scott
First District
On behalf of all of the sponsors of Bill No. 09 -13, we would like to have Bill No.
Henry Davis, Jr.
09 -13 continued until the regular Common Council meeting of May 13a'.
Second District
We look forward to providing an update for you at next Monday's Health and
Valerie Schey
Public Safety Committee meeting.
Third District
We are continuing to have discussions with other communities which have
Fred Ferlic
enacted similar legislation. All of those contacted have a similar goal: to decrease
Fourth District
excessive calls for service to problem areas which too often drain our public
David Varner
safety services to other parts of the City.
Fifth District
Discussions with City officials who would be a part of the implementation
Oliver J. Davis
process are also ongoing. We are aiming to have the best possible coordination
Sixth District
between these departments which requires accurate data and the ability to update
such data on a routine and regular basis.
Derek D. Dieter
At Large
We are working to provide you with the best possible city ordinance which will
Gavin Ferlic
become an effective tool to abate chronic problem properties in our City.
At Large
Sincerely,
Karen L. White
At Large
Tim Scott
Is' District Council Member
cc: Mayor Pete Buttigieg
Police Chief Ron Teachman
Aladean DeRose, Interim City Attorney
Shubhada Kambli, Code Enforcement Director
Filed Y*� r :)'five
APR-3Z013
w
CITY CLEFS e, ��:ialo, IN
C�- 3
Bill No. -13
Ordinance No.
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA, AMENDING CHAPTER 13 OF THE SOUTHBEND MUNICIPAL CODE BY
THE INCLUSION OF NEW ARTICLE 12 ENTITLED
CHRONIC PROBLEM PROPERTY REGULATIONS
STATEMENT OF PURPOSE AND INTENT
The South Bend Common Council notes that on January 30, 2013, Ronald Teachman was
sworn in as the 61" Chief of Police of the South Bend Police Department. During his remarks,
Chief Teachman listed the nine (9) basic " Peelian Principles" which have become the basic
foundation of law enforcement and community policing. The first principle provides that "The
basic mission for which the police exist is to prevent crime and disorder ". The third principle
provides that "Police must secure the willing co- operation of the public in voluntary observance
of the law to be able to secure and maintain the respect of the public ".
The Common Council further recognizes that the U.S. Department of Justice Office of
Community Oriented Policy Services (COPS) has developed a wide variety of articles setting
forth research and "best practices" on a variety of police enforcement and crime prevention
strategies. Consistent with the Peelian Principles, COPS research and research from other
communities, the following ordinance has been developed to give another tool for our City. The
ordinance advances legitimate public purposes which are designed to protect the valuable
services provided by the Police Department. Valued police services should not be wasted in
responding repeatedly to problem properties, when other areas of the city are in need of these
vital public safety services.
We also recognize the need for Code Enforcement to inspect many chronic problem
properties within the City. This results in added time and resources being dedicated to repeat
visits to chronic problem properties, which detract from the inspectors responsibilities to other
properties throughout the City.
It is also designed to be a catalyst for the Police Department, Code Enforcement
Department and the Law Department to collaborate more effectively together among themselves
and with the Common Council and the public, when addressing chronic problem properties.
Through the analysis of calls for service, problem locations /properties can be identified.
The data on calls for service include among other things the number of calls by hour and day;
number of calls by beat; calls which required backup; and time spent by police officer(s) on each
call as it is categorized. This ordinance is solutions- oriented so that identified problem areas and
the underlying causes of such problem properties are routinely addressed with the support of the
community. By abating such problem locations, the time of the "beat officer" in particular would
be freed up to provide such needed public safety services in other areas of the City.
Chronic Problem Properties Regulations Ordinance
Page 2
The following ordinance is believed to be in the best interests of the City of South Bend,
Indiana, and provides another mechanism so that actions are taken in a fair and timely manner.
Section I. Chapter 13 of the South Bend Municipal Code is amended by the inclusion of
new Article 12 which shall read in its entirety as follows:
Article 12. Chronic Problem Property Regulations
Sec. 13 -155 Findings of the Council and Purposes of Regulations.
(a) The Common Council finds that excessive calls for service to problem areas, trouble
spots, or high- activity areas, place an undue burden on public safety resources, which may result
in decreased public safety services being provided to other geographic areas of the City of South
Bend, Indiana.
(b) The Council further finds that by utilizing enforcement problem- oriented policing
strategies, that a corresponding reduction in calls for service and crime prevention should result.
(c) The regulations set forth in this Article are designed to protect the overall public
health, safety and welfare of the City. They are further designed to help prevent and assist in
abating repeat calls for service to the same property or location, which may result in diminished
public safety services being provided to other residents and areas of the City. Repeat nuisance
service call fees are authorized to be imposed and collected from the owner of the property
designated as a chronic problem property. Such fees are intended to help cover costs incurred by
the City which are over and above the cost of providing services to properties not so designated.
(d) The regulations set forth in this Article are supplemental to other regulations codified
in the South Bend Municipal Code and are designed to address chronic problem properties.
Sec. 13 -156 Definitions.
As used in this Article:
(a) Abate shall mean to remedy a condition which constitutes a violation of this Article
which is necessary and in the interest of the general health, safety and welfare of the
City.
(b) Chronic Problem Property is a property which meets the following criteria:
Chronic Problem Properties Regulations Ordinance
Page 3
1. Has had not less than five (5) valid complaints in sixty (60) calendar days
for any criminal offense governed in Title 35 of the Indiana Code, and /or
ordinance citations being issued for a violation of the South Bend
Municipal Code which occurred on the property and resulted in a police
response and police documented call for service; or
2. Has had not less than five (5) letters issued by the Code Enforcement
Department in sixty (60) calendar days which sought compliance by the
property owner with section(s) of the South Bend Municipal Code; or
3. A combination of valid complaints and /or ordinance citations issued by a
sworn member of the Police Department as further addressed in ¶ 1 herein,
and /or has been issued letters by the Code Enforcement Department as
further addressed in ¶ 2 herein, which together total not less than five (5)
in number issued in a sixty (60) calendar day period.
In designating a specific property as a chronic problem property, the Law Department, shall
review:
(i) The number of police documented calls for service, the
number of valid complaints and ordinance citations issued
by the Police Department to a location in a sixty (60) day
period; and
(ii) The number of compliance letters sent by the Code
Enforcement Department to a location in a sixty (60) day
period.
Once designated as a chronic problem property by the Law Department, said property shall
remain so designated and tracked on a computerized matrix for compliance /enforcement
purposes for one (1) year from the date of designation. Said matrix shall be regularly updated
and prominently posted on the City's website. Said designation shall only be removed upon
action by the Law Department after reviewing documentation from the Police Department and
Code Enforcement Department confirming that the subject property has not been the subject of a
valid complaint or code violation for a period of not less than three hundred sixty -five (365)
continuous days, and that any and all fines and repeat nuisance service call fees associated with
the designated chronic problem property have been paid in full.
Chronic Problem Properties Regulations Ordinance
Page 4
(d) Citation shall mean an act which is prohibited or an offense which is punishable
under the South Bend Municipal Code for which a written ordinance violation citation was issued
by the Police Department requiring payment of a fine to the Ordinance Violations Bureau.
(e) City means the City of South Bend, Indiana.
(f) Police documented call for service shall mean when a sworn member of the Police
Department is dispatched or deployed to respond to an incident at a specific location as a police
response.
(g) Police response shall mean any and all police action needed to protect the health,
safety and welfare of inhabitants of a property or location where valid complaint(s) have been
documented, with such police response being subject to the governing rules and regulations of
the Police Department.
(h) Valid complaint shall refer to a police documented call for service that a incident
took place at a specific property requiring sworn police personnel to be dispatched or caused to
respond. The term does not include incidents involving an occupant of the premises as the
victim of the crime.
Sec. 13 -157 Notification of Being Designated by the City as a Chronic Problem Property.'
(a) The Law Department shall notify in writing to the property owner that his/her
property has been designated as a chronic problem property. Said notification shall be delivered
in person by an individual designated by the City by leaving a copy of the notification personally
to the person to be notified, by leaving a copy of the notification as set forth below, with such
notification being documented by the City in their records; or by sending the notice to the
property owner by priority mail which is tracked on line with the City tracking the date said
notification was delivered. The notification shall be sent to the property owner's residence or
usual place of business which is on record in the assessor's office. This notification shall
identify:
1. The property owner and list the specific address that has been designated as a
chronic problem property;
1 Indiana Code § 36 -1 -1 through Indiana Code § 36 -1 -10 set forth the governing state law provisions for the
enforcement of municipal ordinances. Section 2 -13 of the South Bend Municipal Code identifies the City's nine (9)
executive departments and specifically lists the Law Department, Police Department and Code Enforcement
Department.
Chronic Problem Properties Regulations Ordinance
Page 5
2. The number of police documented calls for service involving valid
complaints, the number of citations issued, the number of letters issued by the
Code Enforcement Department, or any combination thereof which have
occurred on said property in the past sixty (60) calendar days ;
3. The cost incurred by the City for the police documented calls of service to the
property;
4. The cost incurred by the City for the background investigation and issuance
of letters by the Code Enforcement Department;
5. The individual and his/her city contact information including the name,
position, mailing address, telephone & fax numbers and email address to
whom the property owner of the property designated as a chronic problem
property may contact if he /she has questions regarding the notification;
6. The time period which the designation as a chronic problem property will last
and the terms and conditions which must be met for the removal of such
designation; and
7. Notice that the costs of future police documented calls for service involving
valid complaints, as well as future costs incurred by the Code Enforcement
Department for any background investigation and issuance of letters which it
may be required to issue which seek compliance of items found in violation
on the subject property, which may be assessed against the property owner.
(b) Copies of the written notice sent by the Law Department on each property
designated as a chronic problem property shall be simultaneously sent electronically to the South
Bend Police Department, Code Enforcement Department, Office of the City Clerk and District
Council Member who represents the District where the subject property is located.
(c) The City deems the owner of the property and the occupants of the property
responsible for any and all prohibited conduct occurring upon the premises after receipt of the
written notice designating the property as a chronic problem property.2
2 The wording in this paragraph is similar to that set forth in Section 13 -75.5 of the South Bend Municipal Code
addressing disorderly house regulations.
Chronic Problem Properties Regulations Ordinance
Page 6
Sec. 13 -158 Repeat Nuisance Service Call Fees for Chronic Problem Properties, Notice.3
(a) The South Bend Police Department and the Code Enforcement Department shall file
semi - annually with the Law Department and the Office of the City Clerk, a record of the cost to
respond to a call for service based on the type of call for service, type of property, type of
personnel and equipment. The first filing of said records shall be made on or before May 1, 2013,
with all filings thereafter being made on or before the first Monday in January and the first
Monday in July. Each department shall use a reasonable and uniform criteria in developing
such data and fees for such services.
(b) No repeat nuisance service call fee may be imposed against the property owner of a
property designated by the Law Department as a chronic problem property without first
providing written notice of that designation and the list of fees due to the City. All fees are due
and payable within thirty (30) days of the date of such notice.
Sec. 13 -159 Penalties; Civil Action by Law Department/ Dedication of Portion of
Fees /Fines to the Law Enforcement Continuing Education Fund (Fund # 220)4
(a) Anyone violating the provisions of this Article shall be subject to the following
penalties:
1. Collection of Repeat Nuisance Service Call Fees: In addition to the collection of
fines resulting from the issuance of citation(s), the Law Department is authorized
to bring civil action against any alleged violator of this Article for all unpaid
repeat nuisance service call fees.
2. Citations: After a property has been designated as a chronic problem property,
the next citation issued shall impose a fine of two hundred fifty dollars ($250.00)
and for every citation issued thereafter which shall be _payable through the Office
of the City Clerk.
(b) Each violation of this Article shall be deemed a separate offense.
(c) Dedication of Fines/Fees Collection: Fifty percent (50 %) of all fines and fees
collected for any violation of this Article shall be deposited into the Law Enforcement
Continuing Education Fund (Fund # 220).
3 Indiana Code § 36 -1 -3 -8 requires fees to be related to the cost of the service so that they are "reasonable and just'.
4 Indiana Code § 36- 1 -4 -17 authorizes the City to collect any money that is owed the City, including reasonable attorney fees.
Chronic Problem Properties Regulations Ordinance
Page 7
(d) Data addressed in this Section shall be summarized on the matrix required in Section
13 -156 (c) which is to be placed and maintained on the City's website.
Sec. 13 -160 Through Sec. 13 -164 Reserved for Future Regulations.
Section II. If any part, subsection, sentence, clause or phrase of this ordinance is for any
reason declared to be unconstitutional or otherwise invalid by a Court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this ordinance.
Section III. This ordinance shall be in full force and effect from and after its passage by
the Common Council, approval by the Mayor and legal publication, and become effective on
May 1, 2013.
Tim Scott, I' District Council Member
South Bend Common Council
G
K en L. White, Council M6mber
at Large
outh BenKCoon ou ncil
erek D. Dieter, Council Mem
er at Large
South Bend Common Council
John Voorde, City Clerk
Chronic Problem Properties Regulations Ordinance
Page 8
OArekw&d by me to Pete Buttigieg, the Mayor of the City of South Bend, Indiana, on the
day of , 2013, at o'clock —. m.
Janice Talboom, Deputy Clerk
,*meted and &'r and by me on the day of 2013, at
o'clock —.m.
1 V, PEADNG -3—((-(J
PUBLIC HEANING
3 rd READING
t,toT APPROVED
REFERRED
PASSEQ
Pete Buttigieg
Mayor of the City of South Bend, Indiana
Filed Fn
[MAR - (6 0
CrrY,CLxRP,.
6613 T11
�! City of South Bend
U \ SCE i d
Common Council
1865 441 County -City Building . 227W. Jefferson Blvd
South Bend, Indiana 46601 -1830
Derek D. Dieter
President
Oliver J. Davis
Vice - President March 4, 2013
Karen L. White Members of the Common Council
Chairperson, Committee 4' Floor County -City Building
of the Whole South Bend, Indiana 46601
Tim Scott
First District Re: Chronic Problem Property Ordinance
(574) 235 -9321
Fax (574) 235 -9173
http://www.southbendin.gov
Henry Davis, Jr.
Dear Council Members:
Second District
The short and long term impact of chronic problem properties in the City of South
Valerie Schey
Bend jeopardizes needed public services to other parts of the city.
Third District
Fred Ferlic
The City has attempted to work closely with the property owners. Despite such
Fourth District
efforts, there remain properties which continue to have been repeated number of
police documented calls for service, as well as repeated requests for compliance
David Varner
by the Code Enforcement Department and the Law Department. The result has
Fifth District
been an ongoing and increasing financial drain to our taxpayers, and a resulting
decrease of such public services to others.
Oliver J. Davis
Sixth District
The attached ordinance would provide another tool to address chronic problem
Derek D. Dieter
properties. The ordinance is intended to be supplemental to other regulations
At Large
currently in place.
Gavin Ferlic Several regulations were reviewed in developing the attached ordinance. For
At Large example, in Boston "problem properties" are approached in a coordinated multi -
department approach. Problem properties are listed on the Boston government
Karen L. White website where a chart sets forth the name of the property owner, street address,
At Large neighborhood and a summary of reported incidents. Each year an Annual Report
is filed summarizing all problem properties. Additional regulations from
Owatonna, Minnesota; New Bedford, Massachusetts; Minneapolis, Minnesota;
and several cities in the State of Washington were also studied. The "best
practices" were selected and incorporated into an ordinance which meets the
needs of the City of South Bend.
Chronic Problem Property Ordinance Cover Letter
March 4, 2013
Page 2
In summary, the proposed ordinance:
• Would seek coordination and collaboration among the Police Department, Code
Enforcement Department and Legal Department as well as with the Common Council
and the public in the implementation of these regulations
• Would serve as an educational tool which not only seeks compliance but raises awareness
throughout the entire city that there are consequences to actions or non - actions of
property owners
• Would regularly provide a summary of all chronic problem properties on the City of
South Bend's website, similar in format to the one utilized in the City of Boston.
• Would provide regular updates to the District Council Member where a chronic problem
property is located
• Would provide a mechanism which is fair and which would become effective May 1,
2013.
Newly appointed Chief of Police Ronald Teachman, as well as representatives of the Code
Enforcement Department and the Law Department have had the opportunity to provide input into
the proposed ordinance.
We ask that the proposed ordinance be sent to the Health and Public Safety Committee and the
Residential Neighborhoods Committee so that a joint committee meeting can be held. We urge
you to support this needed legislation. Thank you.
Most sin
._ ....
ott,
Reside tial Neighborhoods C mmittee Chairperson
Y Karen L. te, Council Member at Large
Health Pu is Safety mmittee Chairperson
Derek D. Dieter
Council President
a , 0--U
ORDINANCE NO.
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA CONCERNING THE REFUNDING OF OUTSTANDING SEWAGE WORKS
REVENUE BONDS OF 1998 AND SEWAGE WORKS REVENUE BONDS OF 20049
EACH ISSUED TO FINANCE CONSTRUCTION OF IMPROVEMENTS TO THE
MUNICIPAL SEWAGE WORKS OF THE CITY OF SOUTH BEND, INDIANA;
AUTHORIZING THE ISSUANCE OF REVENUE BONDS FOR SUCH PURPOSE IN
THE PRINCIPAL AMOUNT NOT TO EXCEED FIFTEEN MILLION SEVENTY -FIVE
THOUSAND DOLLARS ($15,075,000); ADDRESSING OTHER MATTERS
CONNECTED THEREWITH, INCLUDING THE ISSUANCE OF NOTES IN
ANTICIPATION OF BONDS; AND REPEALING ORDINANCES INCONSISTENT
HEREWITH
STATEMENT OF PURPOSE AND INTENT
The City of South Bend, Indiana (the "City "), presently owns and operates a sewage
works by and through its Board of Public Works (the "Board ") for the collection and treatment
of sewage and other wastes (the "Sewage Works," "Works" or "works "), pursuant to the
provisions of Indiana Code 36 -9 -23, as amended (the "Act ").
The Common Council of the City (the "Common Council" or "Council ") previously
found in its Ordinance No. 8919 -98 adopted by the Council on June 22, 1998 (the "1998
Ordinance "), that certain improvements to said works were necessary; and that plans,
specifications and estimates had been prepared and filed by the engineers employed by the City
for the acquisition and construction of said improvements (as described more fully in the 1998
Ordinance) (the "1998 Project "), which plans and specifications or other pertinent information
were in a timely fashion submitted to all government authorities having jurisdiction thereover,
particularly the Indiana Department of Environmental Management ( "IDEM "), and were
approved by the aforesaid government authorities.
Pursuant to the 1998 Ordinance, the City issued its "Sewage Works Refunding Revenue
Bonds of 1998" (the "1998 Bonds "), now outstanding in the amount of $9,445,000, and having a
final maturity of December 1, 2018.
The Council has determined, after being duly advised, (i) that the 1998 Bonds should be
refunded to obtain a reduction in interest payments and effect a savings to the City (the "1998
Refunding "); (ii) that the 1998 Refunding of the 1998 Bonds and accrued interest thereon and
including all costs related to such refunding, cannot be provided for out of funds of the Sewage
Works now on hand, and (iii) that the 1998 Refunding should be accomplished by the issuance
of Sewage Works revenue bonds of the City.
The Council previously found in its Ordinance No. 9523 -04 adopted by the Council on
August 10, 2004 (the "2004 Ordinance "), that certain improvements to said works were
necessary; and that plans, specifications and estimates had been prepared and filed by the
engineers employed by the City for the acquisition and construction of said improvements (as
described more fully in the 2004 Ordinance) (the "2004 Project "), which plans and specifications
or other pertinent information were in a timely fashion submitted to all government authorities
having jurisdiction thereover, particularly IDEM, and were approved by the aforesaid
government authorities.
Pursuant to the 2004 Ordinance, the City issued its "Sewage Works Revenue Bonds of
2004" (the "2004 Bonds "), now outstanding in the amount of $7,980,000, and having a final
maturity of December 1, 2024.
The Council has determined, after being duly advised, (i) that the 2004 Bonds should be
refunded to obtain a reduction in interest payments and effect a savings to the City (the "2004
Refunding" and together with the 1998 Refunding, the "Refunding "); (ii) that the 2004
Refunding of the 2004 Bonds and accrued interest thereon and including all costs related to such
refunding, cannot be provided for out of funds of the Sewage Works now on hand, and (iii) that
the 2004 Refunding should be accomplished by the issuance of Sewage Works revenue bonds of
the City.
The Council has determined, after being duly advised, that it is beneficial to refund each
of the 1998 Bonds and the 2004 Bonds to enable the City to obtain a reduction in interest
payments and effect a savings to the City and hereby authorizes the same by issuance of the
2013A Bonds (described herein) under the provisions of the Act.
The Council finds that there are also now outstanding bonds issued on account of the
Works and payable out of the revenues therefrom designated as the "Sewage Works Revenue
Bonds of 2006" (the "2006 Bonds "), authorized by Ordinance No. 9672 -06 adopted by the
Council on April 11, 2006, as amended by Ordinance No. 9767 -07 adopted by the Council on
June 25, 2007 (collectively, the "2006 Ordinance "), which are now outstanding in the amount of
$6,425,000, and mature on December 1, 2026.
The Council finds that there are also now outstanding bonds issued on account of the
Works and payable out of the revenues therefrom designated as the (i) "Sewage Works Revenue
Bonds of 2007" (the "2007 Bonds "), authorized by the 2006 Ordinance, which are now
outstanding in the amount of $13,670,000, and mature on December 1, 2027; and (ii) Sewage
Works Revenue Bonds of 2007B" (the "2007B Bonds "), authorized by the 2006 Ordinance,
which are now outstanding in the amount of $13,615,000, and mature on December 1, 2027.
The Council finds that there are now outstanding bonds issued on account of the Works
and payable out of the revenues therefrom designated as the "Sewage Works Revenue Bonds of
2009" (the "2009 Bonds "), authorized by Ordinance No. 9951 -09 adopted by the Council on
August 10, 2009, as amended by Ordinance No. 9971 -09 adopted by the Council on October 26,
2009 (collectively, the "2009 Ordinance "), which are now outstanding in the amount of
$2,887,761, and mature on December 1, 2028.
-2-
The Council finds that there are now outstanding bonds issued on account of the Works
and payable out of the revenues therefrom designated as the "Sewage Works Revenue Bonds of
2010" (the "2010 Bonds "), authorized by Ordinance No. 10052 -10 adopted by the Council on
November 8, 2010 (the "2010 Ordinance "), which are now outstanding in the amount of
$8,630,000, and mature on December 1, 2030.
The Council finds that there are now outstanding bonds issued on account of the Works
and payable out of the revenues therefrom designated as the "Sewage Works Revenue Bonds of
2011" (the "2011 Bonds "), authorized by Ordinance No. 10118 -11 adopted by the Council on
September 12, 2011 (the "2011 Ordinance "), which are now outstanding in the amount of
$20,740,000, and mature on December 1, 2031.
The Council finds that there are now outstanding bonds issued on account of the Works
and payable out of the revenues therefrom designated as the "Sewage Works Revenue Bonds of
2012" (the "2012 Bonds" and with the 1998 Bonds, 2004 Bonds, 2006 Bonds, 2007 Bonds,
2007B Bonds, 2009 Bonds, 2010 Bonds and the 2011 Bonds, the "Prior Bonds "), authorized by
Ordinance No. 10189 -12 adopted by the Council on October 8, 2012 (the "2012 Ordinance" and
with the 1998 Ordinance, the 2004 Ordinance, the 2006 Ordinance, the 2009 Ordinance, the
2010 Ordinance and the 2011 Ordinance, the "Prior Ordinances "), which are now outstanding in
the amount of $25,000,000, and mature on December 1, 2032.
The Prior Bonds constitute a first charge upon the Net Revenues (as hereinafter defined).
The Prior Ordinances permit the issuance of additional revenue bonds ranking on a
parity basis with the Prior Bonds for the purpose of financing the complete or partial
refunding of any of the Prior Bonds, so long as certain conditions are met. Crowe Horwath
LLP, Financial Advisor to the City (the "Financial Advisor "), has been employed by the Board
for the purpose of analyzing the records and finances of the Sewage Works, and has
submitted preliminary evidence and findings demonstrating compliance with the conditions
set forth in the Prior Ordinances for the issuance of additional revenue bonds payable out of the
revenues of the Sewage Works and ranking on a parity with the Prior Bonds.
The City desires to authorize the issuance of a bond anticipation note or notes hereunder,
if necessary, payable from the proceeds of the revenue bonds authorized herein (the `BANS "),
and to authorize the refunding of said BANs, if issued.
The Council now finds that all conditions precedent to the adoption of an ordinance
authorizing the issuance of revenue bonds and BANs have been complied with in accordance
with the applicable provisions of the Act.
NOW THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA, AS FOLLOWS:
SECTION 1. Refunding the 1998 Bonds and 2004 Bonds. The Council hereby
determines, after being duly advised, that it is beneficial to refund the 1998 Bonds and the 2004
Bonds to enable the City to obtain a reduction in interest payments and effect a savings to the
City. The City may proceed with the refunding of the 1998 Bonds and the 2004 Bonds, the costs
of which are not expected to exceed $15,075,000, without further authorization from the
-3-
Council. The terms "works" and "utility" and other like terms where used in this Ordinance
shall be construed to mean and include all structures and property of the City's sewage works
utility. The 1998 Project and 2004 Project have been constructed in accordance with the plans
and specifications heretofore mentioned, which plans and specifications have previously been
approved. All or a portion of the cost. of the Refunding will be paid with the proceeds of the
2013A Bonds to be issued pursuant to the provisions of this Ordinance and the Act. The City
may also use other legally available funds on hand to pay for the remainder of the cost of the
Refunding.
SECTION 2. Authorization of Obligations.
(a) The City shall issue its "Sewage Works Refunding Revenue Bonds of
2013A" or such other designation as the Executive (as defined below) or the Fiscal Officer (as
defined below) shall determine at the time of issuance of any series of bonds (the "2013A
Bonds "), in one or more series (as designated by the City, a "Series "), in an original principal
amount not to exceed Fifteen Million Seventy -Five Thousand Dollars ($15,075,000) (the
"Authorized Amount "), as negotiable, fully registered bonds, for the purpose of procuring funds
to be applied to the costs of the Refunding, and all incidental expenses incurred in connection
therewith (all of which are deemed to be a part of the Refunding), and the costs of selling and
issuing the 2013A Bonds. The City reasonably expects to reimburse expenditures for the
Refunding with the proceeds of the 2013A Bonds and this constitutes a declaration of official
intent to reimburse expenditures under Treas. Reg. 1.150 -2(e) and Indiana Code 5- 1- 14 -6(c).
The 2013A Bonds shall rank on parity for all purposes with the Prior Bonds.
The 2013A Bonds shall be issued in denominations of Five Thousand Dollars
($5,000) or any integral multiple thereof, numbered consecutively from 1 upward, and dated the
date of delivery. The 2013A Bonds shall bear interest at a rate or rates not exceeding five
percent (5 %) per annum, and interest shall be payable semiannually on June 1 and December 1
in each year, with the beginning date of interest payments being finally determined by the Mayor
as the executive of the City (the "Executive ") and the Controller as the fiscal officer of the City,
or any acting, assistant or deputy controller of the City (the "Fiscal Officer "), with the advice of
the City's financial advisor, as evidenced by delivery of the executed initial issue of the 2013A
Bonds to the Registrar for authentication. Interest on the BANS and the 2013A Bonds shall be
calculated according to a 360 -day calendar year containing twelve 30 -day months. The 2013A
Bonds shall mature on December 1 of each year beginning in the year and in such amounts as is
deemed appropriate by the Executive and the Fiscal Officer, with the advice of the City's
financial advisor, as evidenced by delivery of the executed initial issue of the 2013A Bonds to
the Registrar for authentication, and over a period ending not later than December 1, 2024.
All or a portion of the 2013A Bonds may be aggregated into and issued as one or
more term bonds. The term bonds will be subject to mandatory sinking fund redemption with
sinking fund payments and final maturities corresponding to the serial maturities described
above. Sinking fund payments shall be applied to retire a portion of the term bonds as though it
were a redemption of serial bonds and, if more than one term bond of any maturity is
outstanding, redemption of such maturity shall be made by lot. Sinking fund redemption
payments shall be made in a principal amount equal to such serial maturities, plus accrued
interest to the redemption date, but without premium or penalty. For all purposes of this
-4-
Ordinance, such mandatory sinking fund redemption payments shall be deemed to be required
payments of principal which mature on the date of such sinking fund payments. Appropriate
changes shall be made in the definitive form of 2013A Bonds, relative to the form of 2013A
Bonds contained in this Ordinance, to reflect any mandatory sinking fund redemption terms.
(b) The City shall issue, if necessary, BANS for the purpose of procuring
interim financing for the Refunding. Any such issuance shall be in accord with the provisions of
Section 25 of this Ordinance.
SECTION 3. Pledge of Net Revenues; Payment of Principal and Interest. The
2013A Bonds and any bonds ranking on a parity therewith, as to principal, premium and interest,
shall be payable from and are hereby secured by an irrevocable pledge of and shall constitute a
charge upon all the Net Revenues, herein defined as the gross revenues of the Sewage Works
after deduction only for payment of the reasonable expenses of operation, repair and
maintenance but not including depreciation and payments in lieu of taxes (the "Net Revenues ")
of the Sewage Works of the City, which bonds constitute a first charge on said Net Revenues.
The City shall not be obligated to pay said bonds or the interest or premium, if any, thereon
except from the Net Revenues of the Works, and said bonds shall not constitute an indebtedness
of the City within the meaning of the provisions and limitations of the constitution of the State of
Indiana.
All payments of interest on the 2013A Bonds shall be paid by check mailed one business
day prior to the interest payment date to the registered owners thereof as of the fifteenth (15th)
day of the month preceding the interest payment date (the "Record Date ") at the addresses as
they appear on the registration and transfer books of the City kept for that purpose by the
Registrar (the "Registration Record ") or at such other address as is provided to the Paying Agent
in writing by such registered owner. Each registered owner of $1,000,000 or more in principal
amount of 2013A Bonds shall be entitled to receive interest payments by wire transfer by
providing written wire instructions to the Paying Agent before the Record Date for any payment.
All principal payments and premium payments, if any, on the 2013A Bonds shall be made upon
surrender thereof at the principal office of the Paying Agent, in any U.S. coin or currency which
on the date of such payment shall be legal tender for the payment of public and private debts, or
in the case of a registered owner of $1,000,000 or more in principal amount of 2013A Bonds, by
wire transfer on the due date upon written direction of such owner provided at least fifteen (15)
days prior to the maturity date or redemption date.
Interest on 2013A Bonds shall be payable from the interest payment date to which
interest has been paid next preceding the authentication date thereof unless such 2013A Bonds
are authenticated after the Record Date for an interest payment date and on or before such
interest payment date in which case they shall bear interest from such interest payment date, or
unless authenticated on or before the Record Date for the first interest payment date, in which
case they shall bear interest from the original date, until the principal shall be fully paid.
SECTION 4. Transfer and Exchange of Bonds. Each 2013A Bond shall be
transferable or exchangeable only upon the Registration Record, by the registered owner thereof
in writing, or by the registered owner's attorney duly authorized in writing, upon surrender of
such 2013A Bond together with a written instrument of transfer or exchange satisfactory to the
-5-
Registrar duly executed by the registered owner or such attorney, and thereupon a new fully
registered 2013A Bond or Bonds in the same aggregate principal amount, and of the same
maturity, shall be executed and delivered in the names of the transferee or transferees or the
registered owner, as the case may be, in exchange therefor. The costs of such transfer or
exchange shall be borne by the City except for any tax or governmental charge required to be
paid with respect to the transfer or exchange, which taxes or governmental charges are payable
by the person requesting such transfer or exchange. The City, the Registrar and the Paying
Agent may treat and consider the persons in whose names such 2013A Bonds are registered as
the absolute owners thereof for all purposes including for the purpose of receiving payment of, or
on account of, the principal thereof and interest and premium, if any, due thereon.
In the event any 2013A Bond is mutilated, lost, stolen or destroyed, the City may execute
and the Registrar may authenticate a new bond of like date, maturity and denomination as that
mutilated, lost, stolen or destroyed, which new bond shall be marked in a manner to distinguish it
from the bond for which it was issued, provided that, in the case of any mutilated bond, such
mutilated bond shall first be surrendered to the Registrar, and in the case of any lost, stolen or
destroyed bond there shall be first furnished to the Registrar evidence of such loss, theft or
destruction satisfactory to the Fiscal Officer and the Registrar, together with indemnity
satisfactory to them. In the event any such bond shall have matured, instead of issuing a
duplicate bond, the City and the Registrar may, upon receiving indemnity satisfactory to them,
pay the same without surrender thereof. The City and the Registrar may charge the owner of
such 2013A Bond with their reasonable fees and expenses in this connection. Any 2013A Bond
issued pursuant to this paragraph shall be deemed an original, substitute contractual obligation of
the City, whether or not the lost, stolen or destroyed 2013A Bond shall be found at any time, and
shall be entitled to all the benefits of this Ordinance, equally and proportionately with any and all
other 2013A Bonds issued hereunder.
SECTION 5. Registrar and Paving Agent. The Fiscal Officer is hereby authorized to
appoint a qualified financial institution to serve as Registrar and Paying Agent for the 2013A
Bonds (together with any successor, the "Registrar" or "Paying Agent "). The Registrar is hereby
charged with the responsibility of authenticating the 2013A Bonds, and shall keep and maintain
the Registration Record at its office. The Fiscal Officer is hereby authorized to enter into such
agreements or understandings with such institution as will enable the institution to perform the
services required of a Registrar and Paying Agent. The Fiscal Officer is further authorized to
pay such fees and the institution may charge for the services its provides as Registrar and Paying
Agent and such fees may be paid from the Sinking Fund established to pay the principal of and
interest on the 2013A Bonds as fiscal agency charges.
The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent by
giving thirty (30) days written notice to the City and by first -class mail to each registered owner
of the 2013A Bonds then outstanding, and such resignation will take effect at the end of such
thirty (30) days or upon the earlier appointment of a successor Registrar and Paying Agent by the .
City. Such notice to the City may be served personally or sent by first -class or registered mail.
The Registrar and Paying Agent may be removed at any time as Registrar and Paying Agent by
the City, in which event the City may appoint a successor Registrar and Paying Agent. The City
shall notify each registered owner of the 2013A Bonds then outstanding by first -class mail of the
removal of the Registrar and Paying Agent. Notices to the registered owners of the 2013A
Bonds shall be deemed to be given when mailed by first -class mail to the addresses of such
registered owners as they appear on the Registration Record. Any predecessor Registrar and
Paying Agent shall deliver all the 2013A Bonds, cash or investments related thereto in its
possession and the Registration Record to the successor Registrar and Paying Agent.
As to the BANs, the Fiscal Officer shall serve as Registrar and Paying Agent and is
hereby charged with the duties of Registrar and Paying Agent.
SECTION 6. Terms of Redemption. The 2013A Bonds may be made redeemable at
the option of the City on thirty (30) days' notice, in whole or in part, in any order of maturities
selected by the City and by lot within a maturity, on dates and with premiums and other terms, as
finally determined by the Executive with the advice of the City's financial advisor, as evidenced
by delivery of the executed initial issue of the 2013A Bonds to the Registrar for authentication.
Notice of redemption shall be mailed by first -class mail to the address of each registered
owner of a 2013A Bond to be redeemed as shown on the Registration Record not more than sixty
(60) days and not less than thirty (30) days prior to the date fixed for redemption except to the
extent such redemption notice is waived by owners of 2013A Bonds redeemed, provided,
however, that failure to give such notice by mailing, or any defect therein, with respect to any
2013A Bond shall not affect the validity of any proceedings for the redemption of any other
2013A Bonds. The notice shall specify the date and place of redemption, the redemption price
and the CUSIP numbers of the 2013A Bonds called for redemption. The place of redemption
may be determined by the City. Interest on the 2013A Bonds so called for redemption shall
cease on the redemption date fixed in such notice if sufficient funds are available at the place of
redemption to pay the redemption price on the date so named, and thereafter, such 2013A Bonds
shall no longer be protected by this Ordinance and shall not be deemed to be outstanding
hereunder, and the holders thereof shall have the right only to receive the redemption price.
All 2013A Bonds which have been redeemed shall be canceled and shall not be reissued;
provided, however, that one or more new registered bonds shall be issued for the unredeemed
portion of any 2013A Bond without charge to the holder thereof.
No later than the date fixed for redemption, funds shall be deposited with the Paying
Agent or another paying agent to pay, and such agent is hereby authorized and directed to apply
such funds to the payment of, the 2013A Bonds or portions thereof called for redemption,
including accrued interest thereon to the redemption date. No payment shall be made upon any
2013A Bond or portion thereof called for redemption until such 2013A Bond shall have been
delivered for payment or cancellation or the Registrar shall have received the items required by
this Ordinance with respect to any mutilated, lost, stolen or destroyed bond.
The BANs are prepayable by the City, in whole or in part, at any time upon seven (7)
days' notice to the owner of the BANs, without any premium.
SECTION 7. Execution and Negotiability. The 2013A Bonds shall be signed in the
name of the City by the manual or facsimile signature of the Executive and attested by the
manual or facsimile signature of the City Clerk, who also shall affix the seal of the City manually
or shall have the seal imprinted or impressed thereon by facsimile or other means. In case any
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officer whose signature or facsimile signature appears thereon shall cease to be such officer
before the delivery of the 2013A Bonds, such signature shall nevertheless be valid and sufficient
for all purposes as if such officer had remained in office until such delivery.
The 2013A Bonds shall also be authenticated by the manual signature of the Registrar,
and no 2013A Bond shall be valid or become obligatory for any purpose until the certificate of
authentication thereon has been so executed.
The 2013A Bonds shall have all of the qualities and incidents of negotiable instruments
under the laws of the State of Indiana, subject to the provisions for registration herein.
SECTION 8. Authorization for Book -Entry System. The 2013A Bonds may, in
compliance with all applicable laws, initially be issued and held in book -entry form on the books
of the central depository system, The Depository Trust Company, its successors, or any
successor central depository system appointed by the City from time to time (the "Clearing
Agency "), without physical distribution of bonds to the purchasers. The following provisions of
this Section apply in such event.
One definitive 2013A Bond of each maturity shall be delivered to the Clearing Agency
(or its agent) and held in its custody. The City and Registrar may, in connection herewith, do or
perform or cause to be done or performed any acts or things not adverse to the rights of the
holders of the 2013A Bonds as are necessary or appropriate to accomplish or recognize such
book -entry form 2013A Bonds.
During any time that the 2013A Bonds are held in book -entry form on the books of a
Clearing Agency, (1) any such 2013A Bond may be registered upon Registration Record in the
name of such Clearing Agency, or any nominee thereof, including Cede & Co.; (2) the Clearing
Agency in whose name such 2013A Bond is so registered shall be, and the City and the Registrar
and Paying Agent may deem and treat such Clearing Agency as, the absolute owner and holder
of such 2013A Bond for all purposes of this Ordinance, including, without limitation, the
receiving of payment of the principal of and interest and premium, if any, on such 2013A Bond,
the receiving of notice and the giving of consent; (3) neither the City nor the Registrar or Paying
Agent shall have any responsibility or obligation hereunder to any direct or indirect participant,
within the meaning of Section 17A of the Securities Exchange Act of 1934, as amended, of such
Clearing Agency, or any person on behalf of which, or otherwise in respect of which, any such
participant holds any interest in any 2013A Bond, including, without limitation, any
responsibility or obligation hereunder to maintain accurate records of any interest in any 2013A
Bond or any responsibility or obligation hereunder with respect to the receiving of payment of
principal of or interest or premium, if any, on any 2013A Bond, the receiving of notice or the
giving of consent; and (4) the Clearing Agency is not required to present any 2013A Bond called
for partial redemption, if any, prior to receiving payment so long as the Registrar and Paying
Agent and the Clearing Agency have agreed to the method for noting such partial redemption.
If either the City receives notice from the Clearing Agency which is currently the
registered owner of the 2013A Bonds to the effect that such Clearing Agency is unable or
unwilling to discharge its responsibility as a Clearing Agency for the 2013A Bonds, or the City
elects to discontinue its use of such Clearing Agency as a Clearing Agency for the 2013A Bonds,
then the City and the Registrar and Paying Agent each shall do or perform or cause to be done or
performed all acts or things, not adverse to the rights of the holders of the 2013A Bonds, as are
necessary or appropriate to discontinue use of such Clearing Agency as a Clearing Agency for
the 2013A Bonds and to transfer the ownership of each of the 2013A Bonds to such person or
persons, including any other Clearing Agency, as the holder of the 2013A Bonds may direct in
accordance with this Ordinance. Any expenses of such discontinuance and transfer, including
expenses of printing new certificates to evidence the 2013A Bonds, shall be paid by the City.
During any time that the 2013A Bonds are held in book -entry form on the books of a
Clearing Agency, the Registrar shall be entitled to request and rely upon a certificate or other
written representation from the Clearing Agency or any participant or indirect participant with
respect to the identity of any beneficial owner of the 2013A Bonds as of a record date selected by
the Registrar. For purposes of determining whether the consent, advice, direction or demand of a
registered owner of a 2013A Bond has been obtained, the Registrar shall be entitled to treat the
beneficial owners of the 2013A Bonds as the bondholders and any consent, request, direction,
approval, objection or other instrument of such beneficial owner may be obtained in the fashion
described in this Ordinance.
During any time that the 2013A Bonds are held in book -entry form on the books of a
Clearing Agency, the Executive, the Fiscal Officer and/or the Registrar are authorized to execute
and deliver a Letter of Representations agreement with the Clearing Agency, or a Blanket Issuer
Letter of Representations, and the provisions of any such Letter of Representations or any
successor agreement shall control on the matters set forth therein. The Registrar, by accepting
the duties of Registrar under this Ordinance, agrees that it will (i) undertake the duties of agent
required thereby and that those duties to be undertaken by either the agent or the issuer shall be
the responsibility of the Registrar, and (ii) comply with all requirements of the Clearing Agency,
including without limitation same day funds settlement payment procedures. Further, during any
time that the 2013A Bonds are held in book -entry form, the provisions of Section 8 of this
Ordinance shall control over conflicting provisions in any other section of this Ordinance.
SECTION 9. Form of 2013A Bonds. The form and tenor of the 2013A Bonds shall be
substantially as set forth in Appendix A hereto, all blanks to be filled in properly and all
necessary additions and deletions to be made prior to delivery thereof.
SECTION 10. Sale of Bonds.
(a) The Fiscal Officer is authorized to negotiate the sale of the 2013A Bonds
at an interest rate or rates not exceeding five percent (5 %) per annum. The Executive and the
Fiscal Officer are hereby authorized to (i) execute a purchase agreement with the purchaser, and
(ii) sell such 2013A Bonds upon such terms as are acceptable to the Executive and the Fiscal
Officer consistent with the terms of this Ordinance. The final form of the purchase contract shall
be determined by the Executive and Fiscal Officer, upon advice of the City's Bond Counsel and
Financial Advisor and the Executive and Fiscal Officer are hereby authorized and directed to
complete, execute and attest the same on behalf of the City so long as its provisions are
consistent with this Ordinance.
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(b) The Fiscal Officer is hereby authorized to appoint one or more financial
institutions to serve as Escrow Trustee (each an "Escrow Trustee ") for each of the 1998 Bonds
and the 2004 Bonds in accordance with the terms of one or more escrow agreements to be
entered into between the City and the Escrow Trustee (collectively, the "Escrow Agreement ").
The Executive and the Fiscal Officer are hereby authorized and directed to complete, execute
and attest the same on behalf of the City so long as its provisions are consistent with this
Ordinance.
(c) The execution, by either the Executive, Fiscal Officer, or the purchaser, of
a subscription for investments of proceeds of the 2013A Bonds to be held under the Escrow
Agreement in a manner consistent with this Ordinance is hereby approved.
(d) Distribution of an Official Statement (Preliminary and Final), if necessary,
when and if prepared by the Financial Advisor, on behalf of the City, is hereby authorized and
approved, and the Executive is authorized and directed to execute the Official Statement on
behalf of the City in a form consistent with this Ordinance. The Executive or the Fiscal Officer is
authorized to deem the Preliminary Official Statement as "final" for purposes of Rule 15c2 -12
promulgated by the Securities and Exchange Commission.
(e) After the 2013A Bonds have been properly sold and executed, the Fiscal
Officer shall receive from the purchasers payment for the 2013A Bonds and shall provide for
delivery of the 2013A Bonds to the purchasers.
(f) The 2013A Bonds, as and to the extent paid for and delivered to the
purchaser shall be the binding special revenue obligations of the City, payable out of the Net
Revenues. The proper officers of the City are hereby directed to sell the 2013A Bonds to the
purchaser, to draw all proper and necessary warrants, and to do whatever acts and things which
may be necessary to carry out the provisions of this Ordinance.
(g) The Executive and the Fiscal Officer each are hereby authorized to deem
final an official statement with respect to the 2013A Bonds, as of its date, in accordance with the
provisions of Rule 15c2 -12 of the U.S. Securities and Exchange Commission, as amended (the
"SEC Rule "), subject to completion as permitted by the SEC Rule, and the City further
authorizes the distribution of the deemed final official statement, and the execution, delivery and
distribution of such document as further modified and amended with the approval of the
Executive or the Fiscal Officer in the form of a final official statement.
(h) In order to assist any underwriter of the 2013A Bonds in complying with
paragraph (b)(5) of the SEC Rule by undertaking to make available appropriate disclosure about
the City and the 2013A Bonds to participants in the municipal securities market, the City hereby
covenants, agrees and undertakes, in accordance with the SEC Rule, unless excluded from the
applicability of the SEC Rule or otherwise exempted from the provisions of paragraph (b)(5) of
the SEC Rule, that it will comply with and carry out all of the provisions of the continuing
disclosure contract. "Continuing disclosure contract" shall mean that certain continuing
disclosure contract executed by the City and dated the date of issuance of the 2013A Bonds, as
originally executed and as it may be amended from time to time in accordance with the terms
thereof. The execution and delivery by the City of the continuing disclosure contract, and the
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performance by the City of its obligations thereunder by or through any employee or agent of the
City, are hereby approved, and the City shall comply with and carry out the terms thereof.
(i) The Fiscal Officer is hereby authorized and directed to obtain a legal
opinion as to the validity of the 2013A Bonds from Barnes & Thornburg LLP, and to furnish
such opinion to the purchasers of the 2013A Bonds or to cause a copy of said legal opinion to be
printed on each 2013A Bond. The cost of such opinion shall be paid out of the proceeds of the
2013A Bonds.
0) In connection with the sale of the 2013A Bonds, the Executive and the
Fiscal Officer each are authorized to take such actions and to execute and deliver such
agreements and instruments as they deem advisable to obtain a rating and /or to obtain bond
insurance for the 2013A Bonds, and the taking of such actions and the execution and delivery of
such agreements and instruments are hereby approved.
SECTION 11. Use of Proceeds. The accrued interest received at the time of delivery of
the 2013A Bonds, if any, and premium, if any, shall be deposited in the Bond and Interest
Account of the Sinking Fund (as hereafter defined) and applied to payments on the 2013A Bonds
on the first interest payment date. An amount of proceeds from the sale of the 2013A Bonds
may be deposited to the 2013A Subaccount, if any, of the Reserve Account, for the 2013A
Bonds and applied as described below as determined by the Fiscal Officer. An amount of
proceeds from the sale of the 2013A Bonds equal to the estimated costs of issuance of the 2013A
Bonds and other fees and charges associated with the issuance of the 2013A Bonds, including the
premium for any bond insurance obtained for the 2013A Bonds, shall be deposited into a fund of
the utility hereby created and designated as "City of South Bend, Indiana Sewage Works 2013A
Costs of Issuance Fund" (the "Costs of Issuance Fund "). The proceeds deposited in the Costs of
Issuance Fund, together with all investment earnings thereon, shall be expended only for the
purpose of paying the costs of issuance of the 2013A Bonds and other fees and charges
associated with the issuance of the 2013A Bonds, including the premium for any bond insurance
obtained for the 2013A Bonds. The remaining proceeds from the sale of the 2013A Bonds shall
be deposited into a fund of the utility hereby created and designated as "City of South Bend,
Indiana Sewage Works 2013A Refunding Fund" (the "Refunding Fund "). The proceeds
deposited in the Refunding Fund, together with all investment earnings thereon, shall be
expended only for the purpose of paying the costs of the Refunding.
SECTION 12. Revenue Fund. All revenues derived from the operation of the Sewage
Works and from the collection of sewage rates and charges shall be deposited in the Sewage
Works Revenue Fund (the "Revenue Fund "), as set forth in the Prior Ordinances and continued
hereby, and such revenues shall be segregated and kept separate and apart from all other funds
and bank accounts of the City. Out of said revenues the proper and reasonable expenses of
operation, repair and maintenance of the Sewage Works shall be paid, the principal and interest
of all bonds and fiscal agency charges of bank paying agents shall be paid, and the costs of
replacements, extensions, additions and improvements shall be paid as hereinafter provided.
SECTION 13. Operation and Maintenance Fund. On the last day of each calendar
month there shall be credited from the Revenue Fund to the Sewage Works Operations and
Maintenance Fund (the "Operations Fund "), as set forth in the Prior Ordinances and continued
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hereby, a sufficient amount of the revenues of the Sewage Works so that the balance in said fund
shall be sufficient to pay the expenses of operation, repair and maintenance for the then next
succeeding two calendar months. The moneys credited to this fund shall be used for the payment
of the reasonable and proper operation, repair and maintenance expenses of the Sewage Works
on a day -to -day basis, but none of such moneys in such fund shall be used for deprecation,
replacements, improvements, extensions or additions. Any balance in the Operations Fund in
excess of the expected expenses of operation, repair and maintenance for the then next
succeeding month may be transferred to the Sinking Fund referred to below if necessary to
prevent a default in payment of principal or interest on outstanding bonds.
SECTION 14. Sewage Works Sinking Fund.
(a) There shall be deposited from the Revenue Fund into the Sewage Works
Sinking Fund (the "Sinking Fund ") previously established and continued hereby for the payment
of the interest on and principal of revenue bonds which by their terms are payable from the Net
Revenues of the Sewage Works, and the payment of any fiscal agency charges in connection
with the payment of such bonds and interest thereon, a sufficient amount of the Net Revenues of
said Sewage Works to meet the requirements of the Bond and Interest Account (the "Bond and
Interest Account ") and the Reserve Account (the "Reserve Account ") previously established and
continued hereby in said Sinking Fund. Such payments shall continue until the balance in the
Bond and Interest Account, plus the balance in the Reserve Account, equals the principal of and
interest on all of the then outstanding bonds of the Sewage Works to the final maturity thereof.
(b) Bond and Interest Account. There shall be transferred, on or before the
last day of each calendar month, from the Revenue Fund and credited to the Bond and Interest
Account, an amount equal to the sum of one -sixth (1/6) of the interest on all then outstanding
bonds of the Sewage Works payable on the then next succeeding Interest Payment Date, and
one - twelfth (1/12) of the amount of principal payable on all then outstanding bonds of the
Sewage Works payable on the then next succeeding principal payment date, until the amount of
interest and principal payable on the next succeeding respective interest and principal payment
dates shall have been so credited; provided that such fractional amounts shall be appropriately
increased, if necessary, to provide for the first interest and first principal payments on the 2013A
Bonds. There shall similarly be credited to the Bond and Interest Account any amount necessary
to pay the bank fiscal agency charges, if any, for paying the principal of and interest on
outstanding bonds of the Sewage Works as the same become payable. The City shall, from the
sums deposited in the Sinking Fund and credited to the Bond and Interest Account, remit
promptly to the registered owners of the outstanding bonds of the Sewage Works or to the bank
fiscal agency sufficient moneys to pay the principal and interest on the due dates thereof together
with the amount of any bank fiscal agency charges.
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(c) Reserve Account.
(i) For purposes of this Section 14(c), the term "Bonds" means the
2013A Bonds issued hereunder and any and all bonds ranking on a parity with the 2013A
Bonds issued hereunder (including the Prior Bonds) which are (i) now outstanding or
issued in the future by the City and (ii) which are payable from the Net Revenues of the
Sewage Works.
(ii) The Reserve Account (excluding any subaccounts established for
any of the Bonds (each, a "Subaccount ", and collectively, the "Subaccounts ")) shall
constitute the margin for safety and as protection against default in the payment of
principal of and interest on the Bonds (excluding any Bonds for which a Subaccount was
established), and the moneys in the Reserve Account (excluding any Subaccounts) shall
be used to pay current principal and interest on the Bonds (excluding any Bonds for
which a Subaccount was established) to the extent that moneys in the Bond and Interest
Account are insufficient for that purpose.
(iii) The City may, upon the issuance of the 2013A Bonds, establish
within the Reserve Account a subaccount for the 2013A Bonds ( "2013A Subaccount").
The 2013A Subaccount shall constitute the margin for safety and as protection against
default in the payment of principal of and interest on the 2013A Bonds, and the moneys
in such 2013A Subaccount shall be used to pay current principal and interest on the
2013A Bonds to the extent that moneys in the Bond and Interest Account are insufficient
for that purpose.
(iv) No amounts in the 2013A Subaccount shall be available to pay any
principal of or interest or redemption premium, if any, on any Bonds, except the 2013A
Bonds.
(v) The balance to be maintained in the 2013A Subaccount shall equal
but not exceed an amount (the "Reserve Requirement ") equal to the least of (i) the
maximum annual debt service on the 2013A Bonds, (ii) one hundred twenty -five percent
(125 %) of average annual debt service on the 2013A Bonds, or (iii) ten percent (10 %) of
the proceeds of the 2013A Bonds.
(vi) If the 2013A Subaccount is established, and the initial deposit into
the 2013A Subaccount does not equal the Reserve Requirement, or if no deposit is made,
the City shall deposit a sum of Net Revenues into the 2013A Subaccount on the last day
of each calendar month until the balance equals the Reserve Requirement. The monthly
deposits shall be equal in amount and sufficient to accumulate the Reserve Requirement
within five (5) years of the date of delivery of the 2013A Bonds.
(vii) Any deficiency in the balance maintained in the 2013A
Subaccount shall be made up from the next available Net Revenues remaining after
credits into the Bond and Interest Account. Any moneys in the 2013A Subaccount in
excess of the Reserve Requirement shall either be transferred to the Sewage Works
Improvement Fund (as described herein) or be used for the purchase of outstanding bonds
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or installments of principal of fully registered bonds at a price not exceeding par and
accrued interest, and redemption premium, if any.
(viii) As an alternative to holding cash funds in the 2013A Subaccount,
the City, with the advice of the Financial Advisor and the City's bond counsel, may
satisfy all or any part of its obligation to maintain any amount in the 2013A Subaccount
by depositing a Credit Facility (as defined below) therein, provided that such deposit does
not adversely affect any then existing rating on the 2013A Bonds. A "Credit Facility" is
hereby defined as a letter of credit, liquidity facility, insurance policy or comparable
instrument furnished by a bank, insurance company, financial institution or other entity
pursuant to a reimbursement agreement or similar instrument between such entity and the
City. As long as any such Credit Facility is in full force and effect, any valuation of the
2013A Subaccount shall treat the maximum amount available under such Credit Facility
as its value. To the extent that any 2013A Bonds are insured, and the Credit Facility is
not being provided by the insurer of such 2013A Bonds, such insurance policy shall be
subject to the insurer's prior written consent. The Mayor and the Controller are hereby
authorized to obtain such a Credit Facility for each series of 2013A Bonds being sold,
and are authorized to enter into any agreements with such Credit Facility provider that
they deem necessary with the advice of the Financial Advisor.
(ix) Prior to applying any funds held in any debt service reserve
accounts securing any obligations payable out of the revenues of the sewage works of the
City to the payment of such obligation, the City shall cause all funds held in the Sinking
Fund (or any like fund or account from which debt service has been structured to be paid)
to be applied in full before any such reserve accounts are so applied.
SECTION 15. Sewage Works Improvement Fund. On the first day of each calendar
month after the 2013A Bonds are issued, after meeting the requirements for operation, repair,
and maintenance and the Sinking Fund, all available net revenues shall be credited to the Sewage
Works Improvement Fund as set forth in the Prior Ordinances and continued hereby. Said fund
shall be used for improvements, replacements, additions and extensions of the Sewage Works.
Moneys in the Sewage Works Improvement Fund shall be transferred to the Sinking Fund if
necessary to prevent a default in the payment of principal of and interest on the then outstanding
bonds or if necessary to eliminate any deficiencies in credits to or minimum balance in the
Reserve Account of the Sinking Fund.
SECTION 16. Investment of Funds. The moneys in any of such funds or accounts shall
be invested in accordance with the laws of the State of Indiana relating to the depositing,
holding, securing or investing of public funds, and in accordance with the arbitrage certificate
delivered at the time of delivery of any bonds payable from such funds and accounts.
All revenues derived from the operation of the Sewage Works and from the collection of
sewage rates and charges and from the investment of moneys in the funds herein created shall be
segregated and kept separate and apart from all other funds and accounts of the City. No moneys
derived from the revenues of the Sewage Works (including investment income) shall be
transferred to the general fund of the City or be used for any purpose not connected with the
Sewage Works if such transfer or use would interfere with the flow of funds set forth herein.
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Investment income from such funds and accounts shall, except as otherwise provided
herein, be treated as revenues of the Sewage Works, and shall be used as provided in this
Ordinance.
SECTION 17. Financial Records and Accounts. The City shall keep proper records
and books of account, separate from all of its other records and accounts, in which complete and
correct entries shall be made showing all revenues received on account of the operation of the
utility and all disbursements made therefrom and all transactions relating to the utility. The City
shall maintain on file the audited financial statements of the utility prepared by the State Board
of Accounts. There shall be furnished, upon written request, to any owner of the 2013A Bonds,
the most recent copy of the audited financial statements of the utility prepared by the State Board
of Accounts. Copies of all such statements and reports shall be kept on file in the office of the
Fiscal Officer.
SECTION 18. Rate Covenant. The City shall, to the fullest extent permitted by law,
establish, maintain and collect just and equitable rates and charges for the use of and the services
rendered by said Sewage Works, to be paid by the owner of each and every lot, parcel of real
estate or building that is connected with and uses said Sewage Works by or through any part of
the sewage system of the City, or that in any way uses or is served by such Works. Such rates or
charges shall be sufficient in each year for the payment of the proper and reasonable expenses of
operation, repair and maintenance of the Works, for depreciation and improvement, and for the
payment of the sums required to be paid into the Sinking Fund. Such rates or charges shall, if
necessary, be changed and readjusted from time to time so that the revenues therefrom shall
always be sufficient to meet the expenses of operation, repair and maintenance, depreciation and
improvement, and the requirements of the Sinking Fund; and such rates or charges shall be in an
amount sufficient in each year to produce Net Revenues at least equal to 1.1 times the greater of
the average annual debt service on the Prior Bonds, the 2013A Bonds and all bonds on a parity
therewith or the debt service payable during the next succeeding twelve calendar months on the
Prior Bonds, the 2013A Bonds and all bonds on a parity therewith. For these purposes, the
interest rate on variable rate debt shall be assumed to be the average interest rate thereon in the
preceding calendar year.
SECTION 19. Defeasance. If, when the 2013A Bonds or a portion thereof shall have
become due and payable in accordance with their terms or shall have been duly called for
redemption or irrevocable instructions to call the 2013A Bonds or a portion thereof for
redemption shall have been given, and the whole amount of the principal, premium, if any, and
the interest so due and payable upon such 2013A Bonds or any portion thereof then outstanding
shall be paid, or (i) cash, (ii) direct non - callable obligations of (including obligations issued or
held in book -entry form on the books of) the U.S. Department of the Treasury, the principal of
and the interest on which when due without reinvestment will provide sufficient money, or (iii)
any combination of the foregoing, shall be held irrevocably in trust for such purpose, and
provision shall also be made for paying all fees and expenses for the payment, then and in that
case the 2013A Bonds or such designated portion thereof shall no longer be deemed outstanding
or secured by this Ordinance or entitled to the pledge of the Net Revenues.
SECTION 20. Additional Bonds. The City reserves the right to authorize and issue
additional bonds, payable out of the revenue of its Sewage Works, ranking on a parity with the
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2013A Bonds for the purpose of financing the cost of future additions, extensions and
improvements to the Sewage Works or to provide for a complete or partial refunding of the
2013A Bonds or other bonds payable out of the revenues of the Sewage Works, subject to the
following conditions:
(a) The interest on and principal of all bonds payable from the revenues of the
Sewage Works shall have been paid to date in accordance with the terms thereof, provided, this
condition shall be deemed satisfied if any required amount is to be provided from the proceeds of
the parity bonds or other funds of the City.
(b) All required deposits to the Sinking Fund shall have been made in
accordance with the provisions of this Ordinance.
(c) The Net Revenues of the Sewage Works in the fiscal year immediately
preceding the issuance of any such bonds ranking on a parity with the 2013A Bonds shall be not
less than one hundred twenty -five percent (125 %) of the maximum annual interest and principal
requirements of the then outstanding 2013A Bonds, any then outstanding parity bonds and the
additional parity bonds proposed to be issued; or, prior to the issuance of said parity bonds, the
sewage rates and charges shall be increased sufficiently so that said increased rates and charges
applied to the previous fiscal year's operations would have produced Net Revenues for said year
equal to not less than one hundred twenty -five percent (125 %) of the maximum annual interest
and principal requirements of the then outstanding 2013A Bonds, any then outstanding parity
bonds and the additional parity bonds proposed to be issued. For purposes of this subsection, the
records of the Sewage Works shall be analyzed and all showings shall be prepared by a certified
public accountant or independent financial advisor employed by the City for that purpose.
(d) The principal of the additional parity bonds shall be payable annually on
December 1 and the interest shall be payable semiannually on June 1 and December 1 during the
periods in which principal and interest are payable.
SECTION 21. Further Covenants of the City. For the purpose of further safeguarding
the interests of the holders of the 2013A Bonds, it is specifically provided as follows:
(a) The City shall at all times maintain its Sewage Works in good condition
and operate the same in an efficient manner and at a reasonable cost.
(b) So long as any of the 2013A Bonds are outstanding, the City shall
maintain insurance on the insurable parts of the Works of a kind and in an amount such as would
normally be carried by private companies engaged in a similar type of business. All insurance
shall be placed with responsible insurance companies qualified to do business under the laws of
the State of Indiana. In addition to or in lieu of the foregoing, the City may provide for coverage
on all or part of the Works comparable to that described above through a self - insurance program.
Insurance proceeds shall be used in replacing or repairing the property destroyed or damaged; or
if not used for that purpose shall be treated and applied as Net Revenues of the Works.
(c) So long as any of the 2013A Bonds are outstanding, the City shall not
mortgage, pledge or otherwise encumber such Works, or any part thereof, nor shall it sell, lease
or otherwise dispose of any portion thereof except replace equipment which may become worn
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out or obsolete or other property not required for proper operation and maintenance of the
Works.
(d) So long as any Prior Bonds are held by the Indiana Finance Authority (the
"Authority ") and remain outstanding: (i) the City shall not mortgage, pledge or otherwise
encumber such Works, or any part thereof, nor shall it sell, lease or otherwise dispose of any
portion thereof except replace equipment which may become worn out or obsolete or other
property not required for proper operation and maintenance of the Works, without the prior
written consent of the Authority, and (ii) the City shall not borrow any money, enter into any
contract or agreement or incur any other liabilities in connection with the Sewage Works, other
than for normal operating expenditures, without the prior written consent of the Authority if such
undertaking would involve, commit, or use the revenues of the Sewage Works.
(e) Except as provided in Section 20 hereof, so long as any of the 2013A
Bonds are outstanding, no additional bonds or other obligations pledging any portion of the
revenues of the Sewage Works shall be authorized, executed, or issued by the City except such
as shall be made subordinate and junior in all respects to the 2013A Bonds, unless all of the
2013A Bonds are redeemed, retired, or defeased coincidentally with the delivery of such
additional bonds or other obligations.
(f) The City shall take all action or proceedings necessary and proper to
require connection of all property where liquid and solid waste, sewage, night soil, or industrial
waste is produced with available sanitary sewers. The City shall, insofar as possible, cause all
such sanitary sewers to be connected with the Sewage Works.
(g) This Ordinance shall not be repealed or amended in any respect which will
adversely affect the rights of the owners of any 2013A Bonds, nor shall the Common Council
adopt any law, ordinance or resolution which in any way adversely affects the rights of such
owners so long as any of said bonds or the interest thereon remains unpaid.
(h) The provisions of this Ordinance shall be construed to create a trust in the
proceeds of the sale of the 2013A Bonds for the uses and purposes herein set forth. The
provisions of this Ordinance shall also be construed to create a trust in the portion of the Net
Revenues herein directed to be set apart and paid into the Sinking Fund and for the uses and
purposes of said Fund as set forth in this Ordinance. The owners of the 2013A Bonds shall have
all of the rights, remedies and privileges set forth under the Act in the event of default in the
payment of the principal of or interest on any of the 2013A Bonds or in the event of default with
respect to any of the provisions of this Ordinance or the Act.
SECTION 22. Amendments With Consent of Bondholders. Subject to the terms and
provisions contained in this section, and not otherwise, the owners of not less than sixty -six and
two- thirds percent (66 -2/3 %) in aggregate principal amount of the 2013A Bonds then
outstanding shall have the right, from time to time, anything contained in this Ordinance to the
contrary notwithstanding, to consent to and approve the adoption by the City of such ordinance
or ordinances supplemental hereto as shall be deemed necessary or desirable by the City for the
purpose of modifying, altering, amending, adding to or rescinding in any particular any of the
-17-
terms or provisions contained in this Ordinance, or in any supplemental ordinance; provided,
however, that nothing herein contained shall permit or be construed as permitting:
(a) An extension of the maturity of the principal of or interest or premium, if
any, on any 2013A Bond or an advancement of the earliest redemption date on any 2013A Bond;
or
(b) A reduction in the principal amount of any 2013A Bond or the redemption
premium or the rate of interest thereon, or a change in the monetary medium in which such
amounts are payable; or
(c) The creation of a lien upon or a pledge of the revenues of the Sewage
Works ranking prior to the pledge thereof created by this Ordinance; or
(d) A preference or priority of any 2013A Bond or 2013A Bonds over any
other 2013A Bond or 2013A Bonds; or
(e) A reduction in the aggregate principal amount of the 2013A Bonds
required for consent to such supplemental ordinance.
If the City shall desire to obtain any such consent, it shall cause the Registrar to mail a
notice, postage prepaid, to the addresses appearing on the registration books held by the
Registrar. Such notice shall briefly set forth the nature of the proposed supplemental ordinance
and shall state that a copy thereof is on file at the office of the Registrar for inspection by all
owners of the 2013A Bonds. The Registrar shall not, however, be subject to any liability to any
owners of the 2013A Bonds by reason of its failure to mail such notice, and any such failure
shall not affect the validity of such supplemental ordinance when consented to and approved as
herein provided.
Whenever at any time within one year after the date of the mailing of such notice, the
City shall receive any instrument or instruments purporting to be executed by the owners of the
2013A Bonds of not less than sixty -six and two- thirds per cent (66 -2/3 %) in aggregate principal
amount of the 2013A Bonds then outstanding, which instrument or instruments shall refer to the
proposed supplemental ordinance described in such notice, and shall specifically consent to and
approve the adoption thereof in substantially the form of the copy thereof referred to in such
notice as on file with the Registrar, thereupon, but not otherwise, the City may adopt such
supplemental ordinance in substantially such form, without liability or responsibility to any
owners of the 2013A Bonds, whether or not such owners shall have consented thereto.
No owner of any 2013A Bond shall have any right to object to the adoption of such
supplemental ordinance or to object to any of the terms and provisions contained therein or the
operation thereof, or in any manner to question the propriety of the adoption thereof, or to enjoin
or restrain the City or its officers from adopting the same, or from taking any action pursuant to
the provisions thereof. Upon the adoption of any supplemental ordinance pursuant to the
provisions of this section, this Ordinance shall be, and shall be deemed, modified and amended
in accordance therewith, and the respective rights, duties and obligations under this Ordinance of
the City and all owners of 2013A Bonds then outstanding, shall thereafter be determined
exercised and enforced in accordance with this Ordinance, subject in all respects to such
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modifications and amendments. Notwithstanding anything contained in the foregoing provisions
of this Ordinance, the rights and obligations of the City and of the owners of the 2013A Bonds,
and the terms and provisions of the 2013A Bonds and this Ordinance, or any supplemental
ordinance, may be modified or altered in any respect with the consent of the City and the consent
of the owners of all the 2013A Bonds then outstanding.
SECTION 23. Amendments Without Consent of Bondholders. Without notice to or
consent of the owners of the 2013A Bonds, the City may, from time to time and at any time,
adopt such ordinances supplemental hereto as shall not be inconsistent with the terms and
provisions hereof (which supplemental ordinances shall thereafter form a part hereof),
(a) to cure any ambiguity or formal defect or omission in this Ordinance or in
any supplemental ordinance; or
(b) to grant to or confer upon the owners of the 2013A Bonds any additional
rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon
the owners of the 2013A Bonds; or
(c) to procure a rating on the 2013A Bonds from a nationally recognized
securities rating agency designated in such supplemental ordinance, if such supplemental
ordinance will not adversely affect the owners of the 2013A Bonds; or
(d) to make any other change which is not to the prejudice of the owners of
the 2013A Bonds; or
(e) to provide for the refunding or advance refunding of the 2013A Bonds.
SECTION 24. Tax Matters. In order to preserve the exclusion of interest on the 2013A
Bonds from gross income for federal income tax purposes and as an inducement to purchasers of
the 2013A Bonds, the City represents, covenants and agrees that:
(a) No person or entity, other than the City or another state or local
governmental unit, will use proceeds of the 2013A Bonds or property financed by the 2013A
Bond proceeds other than as a member of the general public. No person or entity other than the
City or another state or local governmental unit will own property financed by 2013A Bond
proceeds or will have actual or beneficial use of such property pursuant to a lease, a management
or incentive payment contract, an arrangement such as take -or -pay or output contract, or any
other type of arrangement that differentiates that person's or entity's use of such property from
the use by the public at large.
(b) No 2013A Bond proceeds will be loaned to any entity or person other than
a state or local governmental unit. No 2013A Bond proceeds will be transferred, directly or
indirectly, or deemed transferred to a non - governmental person in any manner that would in
substance constitute a loan of the 2013A Bond proceeds.
(c) The City will not take any action or fail to take any action with respect to
the 2013A Bonds that would result in the loss of the exclusion from gross income for federal
income tax purposes of interest on the 2013A Bonds pursuant to Section 103 of the Code, and
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the regulations thereunder as applicable to the 2013A Bonds, including, without limitation, the
taking of such action as is necessary to rebate or cause to be rebated arbitrage profits on 2013A
Bond proceeds or other monies treated as 2013A Bond proceeds to the federal government as
provided in Section 148 of the Code, and will set aside such monies, which may be paid from
investment income on funds and accounts notwithstanding anything else to the contrary herein,
in trust for such purposes.
(d) The City will file an information report on Form 8038 -G with the Internal
Revenue Service as required by Section 149 of the Code.
(e)' The City will not make any investment or do any other act or thing during
the period that any 2013A Bond is outstanding hereunder which would cause any 2013A Bond to
be an "arbitrage bond" within the meaning of Section 148 of the Code and the regulations
thereunder as applicable to the 2013A Bonds.
Notwithstanding any other provisions of this Ordinance, the foregoing covenants and
authorizations (the "Tax Sections ") which are designed to preserve the exclusion of interest on
the 2013A Bonds from gross income under federal law (the "Tax Exemption ") need not be
complied with to the extent the City receives an opinion of nationally recognized bond counsel
that compliance with such Tax Section is unnecessary to preserve the Tax Exemption.
SECTION 25. Issuance of BANS; Other Actions.
(a) The City, having satisfied all the statutory requirements for the issuance of
the 2013A Bonds, has the authority to elect to issue a bond anticipation note or notes, repayable
from the proceeds received from the sale of the 2013A Bonds (defined herein as the "BANs ").
This Council hereby authorizes the issuance and sale of the BANs pursuant to I.C. §5- 1 -14 -5 in
one or more series, ranking on a parity with each other, in original aggregate principal amount
not to exceed Fourteen Million Nine Hundred Thousand Dollars ($14,900,000) to provide
interim financing until permanent financing becomes available and to pay for costs of issuing the
BANs, and the BANs also may fund capitalized interest thereon. The designation of the BANs
shall be "City of South Bend, Indiana Sewage Works Bond Anticipation Note of 20 — The
BANs shall be issued in fully registered form in denominations of Five Thousand Dollars
($5,000), or integral multiples thereof, shall be originally dated the date of delivery, shall be
numbered consecutively from 1 upward, shall mature not more than five (5) years from the date
of issuance, may be renewed or extended from time to time, over a period not exceeding five (5)
years from the date of the original issuance of the BANs, in accord with I.C. §5- 1.1 -5, shall be
prepayable on twenty -one (21) days' notice in whole or in part in any authorized denomination
without premium or penalty, shall bear interest at a rate not exceeding five percent (5 %) per
annum, and shall be sold at a discount not exceeding ninety -nine percent (99 %) of the principal
amount thereof. Interest on the BANs shall be payable at maturity. It shall not be necessary for
the City to repeat the procedures for the issuance of the 2013A Bonds as the procedures followed
before the issuance of the BANs are for all purposes sufficient to authorize the issuance of the
2013A Bonds and to use proceeds thereof to repay the BANs.
The principal of the BANs herein authorized is payable solely from proceeds received
from the sale of the 2013A Bonds, and the interest thereon may be paid from such proceeds or
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from the Net Revenues or a combination thereof, and the proceeds received by the City from the
sale of the 2013A Bonds and such Net Revenues are hereby irrevocably pledged to the payment
of the principal of and interest on the BANs. The Executive is hereby authorized to determine
the form of the BANs and to execute the BANs, the Fiscal Officer is hereby authorized to have
the BANs prepared, and to attest to the BANs and affix the seal the City or cause a facsimile of
the seal of the City to be imprinted or impressed on the BANs. The Fiscal Officer is hereby
authorized and directed to obtain the legal opinion as to the validity of the BANs from Barnes &
Thornburg LLP. After the BANs shall have been properly executed, the Fiscal Officer shall be
authorized to receive from the purchaser thereof payment for the BANs and to provide for
delivery of the BANs to the purchaser. The City may receive payment for the BANs in
installments. Proceeds received from the sale of the BANs shall be deposited in the funds set
forth in Section 11 of this Ordinance. The Fiscal Officer is authorized to sell the BANs to any
investor, and to work with the investor to facilitate the sale of the BANs. In any case any officer
whose signature or a facsimile signature appears on the BANs shall cease to be such officer
before delivery of the BANs, such signature shall nevertheless be valid and sufficient for all
purposes as if such officer had remained in office until delivery of the BANs.
Upon execution of the BANs by the Executive and attestation thereof by the City Clerk,
the BANs shall constitute the legal, valid and binding obligations of the City.
No action shall be taken that would impair the exclusion from gross income of interest on
the BANs provided by the Code. In furtherance of the foregoing, the provisions of Section 24 of
this Ordinance shall apply to the BANs in the same manner as they apply to the 2013A Bonds.
The BANs shall be subject to transfer or exchange in the same manner as the 2013A
Bonds, as described in Section 4 of this Ordinance, and to amendment in the same manner as the
2013A Bonds, as described in Sections 22 and 23 of this Ordinance.
The Executive and the Fiscal Officer each are authorized and directed to execute a
purchase agreement with respect to the BANs in such form or substance as they shall approve.
As an alternative to any terms of the BANs set forth above and to the method of sale referred to
above, the Fiscal Officer may negotiate the sale to the Indiana Finance Authority or the Indiana
Bond Bank upon such terms as are acceptable to the Executive and the Fiscal Officer ,and as are
authorized by law for such sale, and the Executive and the Fiscal Officer each are authorized to
execute a purchase agreement with the Indiana Finance Authority or the Indiana Bond Bank
reflecting such terms.
(b) The Executive and the Fiscal Officer may take such other actions or
deliver such other certificates and documents needed for the Refunding or the financing as they
deem necessary or desirable in connection therewith.
SECTION 26. Rate Ordinance. The rates and charges of the Works are set forth or
described in Ordinance No. 10019 -10 adopted by the Council on June 28, 2010. Such ordinance
is hereby incorporated by reference as if set forth in full at this place, two copies of which are on
file and available for public inspection in the office of the City Clerk pursuant to I.C. §36- 1 -5 -4.
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SECTION 27. Non - Business Days. If the date of 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 or the jurisdiction in which the
Registrar or 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 28. No Conflict. The Council hereby finds and determines that the adoption
of this Ordinance and the issuance of the 2013A Bonds are in compliance with the Prior
Ordinances. The Prior Ordinances shall remain in full force and effect. All ordinances and
resolutions and parts thereof in conflict herewith, except the Prior Ordinances, are to the extent
of such conflict hereby repealed. None of the provisions of this Ordinance shall be construed to
adversely affect the rights of the owners of any bonds ranking on parity with the 2013A Bonds.
SECTION 29. Severability. 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.
SECTION 30. Interpretation. Unless the context or laws clearly require otherwise,
references herein to statutes or other laws include the same as modified, supplemented or
superseded from time to time.
SECTION 31. Effectiveness. This Ordinance shall be in full force and effect from and
after its passage and compliance with the procedures required by law.
SECTION 32. Credit Facility. The Executive and the Fiscal Officer, on behalf of the
City, are hereby authorized to obtain a Credit Facility as set forth in Section 14 herein. The
Executive and the Fiscal Officer, on behalf of the City, are also authorized to enter into an
agreement with the Credit Facility Issuer for the Credit Facility (the "Credit Facility
Agreement ") and negotiate the terms of the Credit Facility Agreement, with the advice of the
City's financial advisor and nationally recognized bond counsel. The Executive and the Fiscal
Officer, on behalf of the City, are also authorized to execute any and all other documents
required to obtain the Credit Facility. The City hereby agrees that:
(a) If the sewage works fails to pay any Credit Facility Costs in accordance
with the requirements set forth above, the Credit Facility Issuer shall be entitled to exercise any
and all remedies available at law or under the authorized documents other than (i) acceleration of
the maturity of the 2013A Bonds or (ii) remedies which would adversely affect the owners of the
2013A Bonds.
(b) This Ordinance shall not be discharged and the 2013A Bonds defeased
until all Credit Facility Costs owing to the Credit Facility Issuer shall have been paid in full.
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(c) The Credit Facility Issuer is granted a security interest (subordinate to that
of the owners of the 2013A Bonds) in all revenues and collateral pledged as security for the
2013A Bonds, for the repayment of the Credit Facility Costs.
(d) No additional bonds payable from the Net Revenues will be issued
without the Credit Facility Issuer's prior written consent as long as Credit Facility Costs are past
due and still owing to the Credit Facility Issuer.
(e) This Ordinance shall not be modified or amended, except as provided in
Section 23 herein, without the prior written consent of the Credit Facility Issuer.
The Credit Facility Issuer shall be provided with written notice of the resignation or removal of
the Registrar and Paying Agent and the appointment of a successor thereto and of the issuance of
additional indebtedness of the City's sewage works at such address as may be specified, from
time to time, by the Credit Facility Issuer.
SECTION 33. Payment on Bonds in the Event of Default. In the event available
moneys are insufficient to pay debt service on the 2013A Bonds and bonds ranking on parity
with the 2013A Bonds when due, available moneys shall be applied, after payment of all costs
and expenses associated therewith, to the 2013A Bonds and any such parity bonds as follows: to
the payment to the persons entitled thereto of all unpaid installments of interest then due on, and
the unpaid principal of, the 2013A Bonds and any such parity bonds, including interest on any
past due principal of any 2013A Bond or such parity bonds at the rate borne by such 2013A
Bond or such parity bonds, in the order of the maturity of the installments of such interest and
the due dates of such principal and, if the amount available shall not be sufficient to pay in full
any particular installment of interest or maturity of principal, then to such payment ratably,
according to the amounts so due, to the persons entitled thereto, without any discrimination or
privilege or any preference of or priority of interest over principal or principal over interest.
During the continuance of any default in the payment of either principal of or interest or
premium on any 2013A Bonds or bonds ranking on parity with the 2013A Bonds, no payment
shall be made with respect to any subordinate obligations issued pursuant to Section 21(e).
Moneys available for payment to holders of such subordinate obligations shall, in the event of an
insufficient amount being available to pay all debt service with respect to the subordinate
obligations when due, be applied to the subordinate obligations in accordance with the sequence
and other terms set forth above with respect to payments regarding 2013A Bonds and such parity
bonds unless otherwise provided in the ordinance authorizing the subordinate obligations.
SECTION 34. Actions and Agreements. Each of the Executive, the Fiscal Officer and
any other officer or employee of the City is hereby authorized and directed to execute any
instruments or agreements or take any other actions necessary or desirable to effect the
transactions contemplated by this Ordinance, such necessity or desirability to be conclusively
evidenced by the execution of such instruments or agreements or the taking of such action.
11PAIE
SECTION 35. This Ordinance shall be in full force and effect from and after its passage
by the Common Council and approval by the Mayor.
Member of the Common Council
Attest:
PU
In
and
Coullci', aaoij ovj
�40 1, * 'Oun.
W"
City Clerk
Presented by me to the Mayor of the City of South Bend, Indiana on the day of
-, 2-, at o'clock . In.
City Clerk
Approved and signed by me on the day of
.m.
g. 1-`� ' HEARING
3 rd READ;NG
NOT APPROVED
MEOW
PASSED
2_, at o'clock
Mayor, City of South Bend, Indiana
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Filed in Cie rk't�
OR,
Cj'TTY CLERK, S!0:�"� END'IN
APPENDIX A
FORM OF 2013A BOND
IM
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF ST. JOSEPH
CITY OF SOUTH BEND, INDIANA
SEWAGE WORKS REVENUE REFUNDING BOND OF 20[ ]
Interest Maturity Original Authentication
Rate Date Date Date CUSIP No.
REGISTERED OWNER:
PRINCIPAL SUM:
,20_ , 2013
Dollars ($�
, 2013
The City of South Bend, in St. Joseph, County, State of Indiana (the "City "), for value
received, hereby promises to pay to the Registered Owner set forth above, solely out of the
special revenue fund hereinafter referred to, the Principal Sum set forth above on the Maturity
Date set forth above (unless this bond be subject to and be called for redemption prior to
maturity as hereafter provided), and to pay interest thereon until the Principal Sum shall be fully
paid at the Interest Rate per annum specified above from the interest payment date to which
interest has been paid next preceding the Authentication Date of this bond unless this bond is
authenticated after the fifteenth day of the month preceding the interest payment date (the
"Record Date ") and on or before such interest payment date in which case it shall bear interest
from such interest payment date, or unless this bond is authenticated on or before
, 20_, in which case it shall bear interest from the Original Date, which interest
is payable semiannually on June 1 and December 1 of each year, beginning on 1,
20_. Interest shall be calculated on the basis of a 360 -day year comprised of twelve 30 -day
months.
[The principal of and premium, if any, on this bond are payable at the principal office of
(the "Registrar" or "Paying Agent "), in , Indiana.] All
payments of interest on this bond shall be paid by check mailed one business day prior to the
interest payment date to the Registered Owner as of the Record Date at the address as it appears
on the registration books kept by the Registrar or at such other address as is provided to the
Paying Agent in writing by the Registered Owner. Each Registered Owner of $1,000,000 or
FEW
more in principal amount of bonds shall be entitled to receive interest payments by wire transfer
by providing written wire instructions to the Paying Agent before the Record Date for any
payment. All payments of principal of, and premium, if any, on this bond shall be made upon
surrender thereof at the principal office of the Paying Agent, in any U.S. coin or currency which
on the date of such payment shall be legal tender for the payment of public and private debts, or
in the case of a Registered Owner of $1,000,000 or more in principal amount of the Bonds (as
hereinafter defined), by wire transfer on the due date upon written direction of such owner
provided at least fifteen (15) days prior to the maturity date or redemption date.
THIS BOND SHALL NOT CONSTITUTE AN INDEBTEDNESS OF THE CITY
WITHIN THE MEANING OF THE PROVISIONS AND LIMITATIONS OF THE
CONSTITUTION OF THE STATE OF INDIANA, AND THE CITY SHALL NOT BE
OBLIGATED TO PAY THIS BOND OR THE INTEREST THEREON EXCEPT FROM THE
SPECIAL FUND, ENTITLED "SEWAGE WORKS SINKING FUND" AS DESCRIBED
HEREIN, PROVIDED FROM THE NET REVENUES OF THE CITY'S SEWAGE WORKS
UTILITY.
It is hereby certified and recited that all acts, conditions and things required to be done
precedent to and in the execution, issuance and delivery of this bond have been done and
performed in regular and due form as provided by law.
This bond shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been executed by an authorized representative of the Registrar.
This bond is one of an authorized issue of bonds of the City of South Bend, Indiana, of
like date, tenor and effect, except as to denomination, numbering, rates of interest, redemption
terms and dates of maturity, aggregating
Dollars ($ ), numbered consecutively from 1 upward (the "Bonds "), issued for the
purpose of providing funds to be applied to the cost of refunding outstanding (i) City of South
Bend, Indiana Sewage Works Revenue Bonds of 1998 and (ii) City of South Bend, Indiana
Sewage Works Revenue Bonds of 2004 (collectively, the "Refunding "), to refund interim notes
issued in anticipation of the Bonds, if any, and to pay incidental expenses and costs of issuance
of the Bonds. This bond is issued pursuant to an ordinance adopted by the Common Council of
said City on the _ day of , 2013, entitled "An Ordinance of the Common Council of
the City of South Bend, Indiana, Concerning the Refunding of Outstanding Sewage Works
Revenue Bonds of 1998 and Sewage Works Revenue Bonds of 2004, Each Issued to Finance
Construction of Improvements to the Municipal Sewage Works of the City of South Bend,
Indiana; Authorizing the Issuance of Revenue Bonds for such Purpose in the Principal Amount
not to exceed Fifteen Million Seventy -Five Thousand Dollars ($15,075,000); Addressing Other
Matters Connected Therewith, Including the Issuance of Notes in Anticipation of Bonds; and
Repealing Ordinances Inconsistent Herewith" (the "Ordinance "), and in accordance with the
provisions of Indiana law, including without limitation Indiana Code 36 -9 -23, and other
applicable laws, as amended (the "Act' %, all as more particularly described in the Ordinance.
The owner of this bond, by the acceptance hereof, agrees to all the terms and provisions
contained in the Ordinance and the Act.
A -2
Pursuant to the provisions of the Act and the Ordinance, the principal of and interest on
(i) this bond and all other bonds of this issue, (ii) all Prior Bonds (as defined in the Ordinance),
which Prior Bonds are on a parity with this bond and all other bonds of this issue, and (iii) all
bonds hereafter issued on a parity with this bond and all other bonds of this issue, are payable
solely from the Sewage Works Sinking Fund, as described in the Ordinance, to be provided from
the Net Revenues (defined as the gross revenues of the Sewage Works of the City after deduction
only for the payment of the reasonable expenses of operation, repair and maintenance but not
including depreciation and payments in lieu of taxes). This bond and the issue of which it is a
part, together with the Prior Bonds and any parity bonds hereafter issued constitute a first charge
against said Net Revenues.
The City irrevocably pledges the entire Net Revenues of said Sewage Works to the
prompt payment of the principal of and interest on the bonds authorized by the Ordinance, of
which this is one, and any bonds ranking on a parity therewith (including the Prior Bonds), to the
extent necessary for that purpose, and covenants that it will cause to be fixed, maintained and
collected such rates and charges for service rendered by said Sewage Works as are sufficient in
each year for the payment of the proper and reasonable expenses of operation, repair and
maintenance of said Sewage Works, to provide for proper depreciation and for the payment of
the sums required to be paid into said Sewage Works Sinking Fund under the provisions of the
Ordinance. In -the event the City or the proper officers thereof shall fail or refuse to so fix,
maintain and collect such rates or charges, or if there be a default in payment of the interest on or
principal of this bond, the owner of this bond shall have all of the rights and remedies provided
for under Indiana law.
The City covenants that for so long as the Bonds and any bonds issued on a parity
therewith, including the Prior Bonds, remain outstanding it will set aside and pay into the
Sinking Fund a sufficient amount of the Net Revenues for the payment of (a) the principal of and
interest on all bonds which by their terms are payable from the Net Revenues, as such principal
and interest shall fall due and (b) the necessary fiscal agency charges for paying bonds. Such
required payments shall constitute a first charge upon all the Net Revenues. Reference is made
to the Ordinance for a more complete statement of the revenues from which and conditions under
which this bond is payable, a statement of the conditions on which obligations may hereafter be
issued on parity with this bond, the manner in which the Ordinance may be amended and the
general covenants and provisions pursuant to which this bond has been issued.
This bond is subject to defeasance prior to payment or redemption as provided in the
Ordinance.
If this bond shall not be presented for payment or redemption on the date fixed therefor,
the City may deposit in trust with the Paying Agent or another paying agent, an amount
sufficient to pay such bond or the redemption price, as the case may be, and thereafter the
Registered Owner shall look only to the funds so deposited in trust for payment and the City
shall have no further obligation or liability in respect thereto.
This bond is transferable or exchangeable only upon the registration record kept for that
purpose at the office of the Registrar by the Registered Owner in person, or by his attorney duly
authorized in writing, upon surrender of this bond together with a written instrument of transfer
A -3
or exchange satisfactory to the Registrar duly executed by the Registered Owner or such
attorney, and thereupon a new fully registered bond or bonds in the same aggregate principal
amount, and of the same maturity, shall be executed and delivered in the name of the transferee
or transferees or the Registered Owner, as the case may be, in exchange therefor. This bond may
be transferred or exchanged without cost to the Registered Owner except for any tax or
governmental charge required to be paid with respect to the transfer or exchange. The City, the
Registrar, the Paying Agent and any other registrar or paying agent for this bond may treat and
consider the person in whose name this bond is registered as the absolute owner hereof for all
purposes including for the purpose of receiving payment of, or on account of, the principal
hereof and interest and premium, if any, due hereon.
The bonds maturing on any maturity date are issuable only in the denomination of $5,000
or any integral multiple thereof.
[A Continuing Disclosure Contract from the City to each registered owner or holder
of any bond, dated as of the date of initial issuance of the Bonds (the "Contract "), has been
executed by the City, a copy of which is available from the City and the terms of which are
incorporated herein by this reference. The Contract contains certain promises of the City
to each registered owner or holder of any Bond, including a promise to provide certain
continuing disclosure. By its payment for and acceptance of this bond, the registered
owner or holder of this bond assents to the Contract and to the exchange of such payment
and acceptance for such promises.]
IN WITNESS WHEREOF, the City of South Bend, in St. Joseph County, Indiana, has
caused this bond to be executed in its corporate name by the manual or facsimile signature of the
Mayor, and its corporate seal to be hereunto affixed, imprinted or impressed by any means and
attested manually or by facsimile by its Clerk.
(SEAL)
ATTEST
Clerk
CITY OF SOUTH BEND, INDIANA
Mayor
REGISTRAR'S CERTIFICATE OF AUTHENTICATION
It is hereby certified that this bond is one of the bonds described in the within - mentioned
Ordinance duly authenticated by the Registrar.
BE
as Registrar
Authorized Representative
The following abbreviations, when used in the inscription of the face of this bond, shall
be construed as through they were written out in full according to applicable laws or regulations:
TEN. COM. as tenants in common
TEN. ENT. as tenants by the entireties
JT. TEN. as joint tenants with right of survivorship and not as tenants in
common
UNIF. TRAN.
MIN. ACT
Custodian
(Cust.) (Minor)
under Uniform Transfer to Minors Act of
(State)
Additional abbreviations may also be used although not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please Print or Typewrite Name and Address and Social Security or
Other Identifying Number) $ principal amount (must be a multiple of $1,000) of the
within bond and all rights thereunder, and hereby irrevocably constitutes and appoints
, attorney to transfer the within bond on the books kept for the
registration thereof with full power of substitution in the premises.
A -5
Dated:
NOTICE: The Signature to this assignment must
correspond with the name as it appears on the face
of the within bond in every particular, without
alteration or enlargement or any change whatsoever.
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by an eligible guarantor institution participating
in a Securities Transfer Association recognized
signature guarantee program.
MSO1 KWB 1387653x4
A -6
Fred in Clear *ss Office E
f� ?.
CITY
BARNES ÞBURG LLP
Philip J. Faccenda, Jr.
(574) 237 -1148
philip.faccenda @btlaw.com
HAND DELIVERED
Mr. John Voorde
Clerk of the City of South Bend
455 County -City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
600 1st Source Bank Center
100 North Michigan
South Bend, IN 46601 -1632 U.S.A.
(574) 233 -1171
Fax (574) 237 -1125
www.btlaw.com
March 20, 2013
Re: City of South Bend, Indiana Sewage Works Refunding Revenue Bonds of 2013A
Dear Mr. Voorde:
Enclosed for filing are multiple copies of the Ordinance for the above - referenced City of
South Bend, Indiana Sewage Works Refunding Revenue Bonds of 2013A for refinancing prior
sewage works bonds of the City of South Bend as described in the Ordinance for first reading
before the Common Council on March 25, 2013 and second reading on April 8, 2013. Please
return a file- stamped copy to my attention.
Please call me with any questions you may have.
PJF: ske
Enclosures
cc: Aladean M. DeRose, Esq. (w /enc.)
Mark W. Neal (w /enc.)
Eric Horvath, P.E. (w /enc.)
SBDS02 PFACCENDA 4395140
Atlanta Chicago Delaware
Very truly yours,
BARNES & THORNBURG LLP
Philip J. Faccenda, Jr.
Indiana Los Angeles
FYGd
,e
L MAR
cn,v _ . t
Michigan Minneapolis Ohio Washington, D.C.
RESOLUTION NO.
A RESOLUTION OF THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA,
APPROVING A PETITION OF THE SOUTH BEND
BOARD OF ZONING APPEALS
FOR THE PROPERTY LOCATED AT
1047 LINCOLNWAY EAST
WHEREAS, Indiana Code Section 36 -7 -4- 918.6, requires the Common Council to give notice
pursuant to Indiana Code Section 5- 14- 1.5 -5, of its intention to consider Petitions from the Board
of Zoning Appeals for approval or disapproval; and
WHEREAS, the Common Council must take action within sixty (60) days after the Board of
Zoning Appeals makes its recommendation to the Council; and
WHEREAS, the Common Council is required to make a determination in writing on such
requests,pursuant to Indiana Code Section 36 -7 -4- 918.4, and
WHEREAS, the South Bend Board of Zoning Appeals has made a recommendation, pursuant to
applicable state law.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA as follows:
SECTION I. The Common Council has provided notice of the hearing on the Petition from the
Board of Zoning Appeals pursuant to Indiana Code Section 5- 14- 1.5 -5, requesting that a Special
Exception be granted for the property located at:
1047 LINCOLNWAY EAST
in order to permit
MANUFACTURING OF FOOD PRODUCTS IN A "LB" DISTRICT
SECTION II. Following a presentation by the Petitioner, and after proper public hearing, the
Common Council hereby approves the petition of the South Bend Board of Zoning Appeals, a
copy of which is on file in the Office of the City Clerk.
SECTION III. The Common Council of the City of South Bend, Indiana, hereby fmds that:
1. The proposed use will not be injurious to the public health, safety, comfort, community
moral standards, convenience or general welfare;
2. The proposed use will not injure or adversely affect the use of the adjacent area or
property values therein;
3. The proposed use will be consistent with the character of the district in which it is located
and the land uses authorized therein;
4. The proposed use is compatible with the recommendations of the City of South Bend
Comprehensive plan;
SECTION IV. Approval is subject to the Petitioner complying with the reasonable conditions
established by the Board of Zoning Appeals which are on file in the office of the City Clerk.
SECTION V. The Resolution shall be in full force and effect from and after its adoption by the
Common Council and approval by the Mayor.
pRESENTM
j ,OT APP OVER
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Member of the Common Council
Ji tad
CITY
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Date: February 12, 2013
To: Area Board of Zoning Appeals and
Common Councilmen and Councilwomen of the City of South Bend
South Bend, Indiana
From: Sean Meehan and Andrew Walton
2416 River Ave
Mishawaka, Indiana 46544
Property
in Petition: 1047 Lincoln Way East
South Bend, Indiana 46601
Variance
Requested: Seeking a Special Exception to allow manufacturing of food products in Local Business "LB" District for
use of a Micro - Brewery and Restaurant.
With regards to the variance we are seeking, the proposed use will:
1) Not be injurious to the public health, safety, comfort, community moral standards, convenience, or general
welfare of the community because all manufacturing being done at the property will be self - contained and all
manufacturing materials will be regarded as safe and for human consumption;
2) Not injure or adversely affect the use of the adjacent properties or property values within because all
manufacturing materials are regarded as safe and for human consumption;
3) Be consistent with the character of the district in which it is located and the land uses authorized therein
because of other businesses located in the immediate area; and
4) Be compatible with the recommendations of the City of South Bend Comprehensive Plan.
For Property: 1047 Lincoln Way East
South Bend, Indiana 46601
Zoned Local Business ( "LB ")
3rd District of South Bend
Valerie Schey —Congresswoman
Sean Meehan
2416 River Ave
Mishawaka, IN 46544
574 - 210 -6809
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Wednesday, March 6, 2013
4th Floor, Council Chambers
AREA BOARD OF ZONING APPEALS
OF
ST. JOSEPH COUNTY, INDIANA
AGENDA
1:30 p.m.
County -City Building
1. The petition of Michael & Teresa Hardy seeking the following variances: from the maximum allowable
1,383 sq. ft. for accessory structures to 1,920 sq.ft.; from the maximum allowable 17' height for accessory
structures to 20' and from the maximum allowable 4 stalls for accessory structures to 5, on property
located at 825 Potter Point Drive, Centre Township. Zoned "SF I".
2. The petition of John & Kara Corban seeking a variance to allow a 4' wrought iron fence in front of the wall
of the main building, on property located at 117 N. Olive Street, Town of Osceola, Penn Township. Zoned
Residential.
3. The petition of Joseph Kafka seeking a variance to allow a 1,728 sq.ft. building on a parcel without a
primary building, on property located at 204 S. Harris St., Town of New Carlisle, Olive Township. Zoned
Residential.
4. The petition of Ceres Farms, LLC and Stephen E. & Sharon L. Gumz seeking a variance from the required
600' frontage to 0', on property located on the east side of Smilax Road north of Madison Road, Greene
Township. Zoned Agricultural.
5. The petition of Mary Hershberger seeking the following: PARCEL I. from the required 20 acres to 2.19
acres; PARCEL II.• from the required 600' frontage to 392', on property located at 62788 Ironwood Road,
Madison Township. Zoned Agricultural.
6. The petition of Barnes & Thornburg, LLC seeking a variance from the maximum allowable 385 sq. ft. for
an upper level building identification sign to 466 sq.ft. on the north facing fagade and to 466 sq. ft. for the
south facing fagade, on property located at 100 N. Michigan Street, Portage Township. Zoned "CBD ".
7. The petition of Sean Meehan and Andrew Walton seeking a Special Exception to allow manufacturing of
food products in a "LB" District, on property located at 1047 Lincolnway East, Portage Township. Zoned
"LB ".
OTHER BUSINESS:
AREA BOARD OF ZONING APPEALS
125 S. Lafayette Blvd.
Suite 100
South Bend, Indiana 46601
(574) 235 -9554
FA: (574) 235 -5541
March 7, 2013
The Honorable Common Council
of the City of South Bend
4th Floor, County -City Building
South Bend, Indiana 46601
RE: Petition for Special Exception of Sean Meehan & Andrew Walton
ABZA 3/6/13
Dear Council Members:
The above referenced petition of Sean Meehan and Andrew Walton was legally advertised on February
15, 2013. The Area Board of Zoning Appeals gave it a public hearing on March 6, 2013 at which time the
following action was taken:
Upon a motion by Mr. Matthys being seconded by Mr. Urbanski and unanimously carried, the
petition for Special Exception to allow manufacturing of food products in a "CBD" District, on
property located at 1047 Lincolnway East, is sent to the Common Council with a Favorable
Recommendation.
The deliberations of the Area Board of Zoning Appeals and points considered in arriving at the above
decision as shown in the Minutes of the Public Hearing, and will be forwarded to you at a later date, to be
made part of this report.
Sincerely,��
Charles C. Bulot, C.B.O.
Building Commissioner
CCB /cah
SPECIAL EXCEPTION PURSUANT 21- 09.3(D)
AREA BOARD OF ZONING APPEALS
SEAN MEEHAN & ANDREW WALTON
FINDINGS OF FACT
1. THE PROPOSED USE WILL NOT BE INJURIOUS TO THE PUBLIC HEALTH, SAFETY, COMFORT,
COMMUNITY MORAL STANDARDS, CONVENIENCE OR GENERAL WELFARE BECAUSE:
Development and use as presented will comply with all building, fire safety, traffic, and parking regulations as to
not being injurious to the public health, safety, morals, and general welfare of the community.
2. THE PROPOSED USE WILL NOT INJURE OR ADVERSELY AFFECT THE USE OF THE ADJACENT
AREA OR PROPERTY VALUES THEREIN BECAUSE:
The variance or use shall improve the appearance of the .neighborhood and will not devalue the surrounding
properties.
3. THE PROPOSED USE WILL BE CONSISTENT WITH THE CHARACTER OF THE DISTRICT IN
WHICH IT IS LOCATED AND THE LAND USES AUTHORIZED THEREIN BECAUSE:
Conditions on the property predate the Zoning Ordinance, which creates a different condition for this property.
4. THE PROPOSED USE IS COMPATIBLE WITH THE RECOMMENDATIONS OF THE CITY OF SOUTH
BEND COMPREHENSIVE PLAN BECAUSE:
It is the feeling of the Board that the variance is blending into the overall Comprehensive Plan and is not
deviating from it's intent.
CONDITIONS OR REVISIONS:
DECISION
IT IS THEREFORE the decision of the Board that this request for Special Exception shall be passed onto the City of
South Bend Common Council with a: FAVORABLE RECOMMENDATION
ADOPTED this 6TH Day of MARCH, 2013.
YES NO
MICHAEL UR13ANSKI
M
RANDALL MATTHYS
ABSENT
JACK YOUNG
0
GERALD PHIPPS
ABSENT
ROBERT HAWLEY
M
JOE VELLEMAN
M
BRENDAN CRUMLISH
SEANMEEHAN AND ANDREW WALTON
The petition of Sean Meehan and Andrew Walton seeking a Special Exception to allow manufacturing of food
products in a "LB" District, on property located at 1047 Lincolnway East, Portage Township. Zoned "LB ".
MR. ANDREW WALTON: 26559 St. Rd. 2, South Bend.
MR. SEAN MEEHAN: 2416 River Ave., Mishawaka.
MR. VELLEMAN: Is there anything you would like to add to your petition that would sway our vote your
way?
MR. WALTON: If we don't get the exception we won't be able to produce beer at the property and that's no
good.
MR. VELLEMAN: You're currently producing something someplace right now or no?
MR. WALTON: No.
MR. VELLEMAN: So this is a brand new venture?
MR. MEEHAN: Yes sir.
MR. VELLEMAN: And it's going to be started just a brew house or is it also going to have the restaurant, are
you going to do both sections right off the bat or are you just going to brew beer there for sale or are you going
to have a restaurant at the same time?
MR. WALTON: The idea is we're going to get the brewery on line so we can start producing packaged beer
before we open the main pub portion but it would also include an ale house, a pub portion in the same
building.
MR. VELLEMAN: By your drawing it looks like, for lack of a better term, the lower section's where your
brewery's going to be and then the restaurant will kind of be up on the hill there where they used to have the
big...
MR. WALTON: Yeah, that's primarily correct. The ale house will be actually on the same level as the
brewery but in a different section of the building and then we're going to, the plan is to utilize the upper floor
of the building also for family dining.
MR. VELLEMAN: How many are you going to employ?
MR. MEEHAN: We're not quite sure yet. We're looking at about 25 to 30.
MS. NAYDER: I just have a question. When you say ale house, is that more or less mean restaurant or ...?
Just your term for restaurant?
MR. MEEHAN: Exactly.
MR. PHIPPS: What changes are you going to be making to the existing structure?
MR. WALTON: We're going to make it a lot more esthetically pleasing, that's our number one goal right
now. There's going to be some minor structural changes in the first phase, we've got to install some floor
drains, some things of that nature but nothing significant in the plan so far.
MR. VELLEMAN: Because that will have to become ADA compliant if you change the use, is that correct?
MR. WALTON: Yeah we plan to make it ADA compliant.
MR. MATTHYS: Didn't we approve something similar to that for the old State Theatre not so long ago?
MR. VELLEMAN: Yeah the State Theatre is also putting in a small micro - brewery as well.
IN FAVOR
There was no one present to speak in favor of this petition.
REMONSTRANCE
There was no one present to speak in remonstrance of this petition.
MR. CRUMLISH: Mr. Lyons, what is the off street loading requirement for a brewery?
MR. LYONS: It's actually based on the restaurant portion and the manufacturing portion separately. We did
discuss with them the need that in the future they may need a parking calc but until they've worked out exactly
their layout for the restaurant portion, because that would be their largest loading for the parking calc. That
they may in future have to come back for a parking variance, they don't know at this time.
MR. CRUMLISH: I used the term loading in terms of trucks.
MR. LYONS: Oh, for loading?
MR. CRUMLISH: Yeah. Don't they need a dock?
MR. LYONS: No a building under 10,000 square feet would not need a loading dock.
MR. CRUMLISH: I didn't know the area of the building.
A motion to send the Special Exception to the Common Council with a Favorable Recommendation was
made by Mr. Matthys and seconded by Mr. Urbanski. The motion carried unanimously.
After hearing the evidence on the petition, the Area Board of Zoning Appeals find that you did satisfy
the Standards as set forth in I.C. 36- 7- 4- 918.5; therefore, the petition for Special Exception was sent to
the Common Council with a Favorable Recommendation.
Based on the testimony presented, the Area Board of Zoning Appeals, after careful consideration, finds this
Special Exception sent to the Common Council with a Favorable Recommendation and will issue written
Finding of Facts.
PETITION SENT TO THE COMMON COUNCIL WITH A FAVORABLE RECOMMENDATION
36
RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF
SOUTH BEND, INDIANA, REGARDING THE SETTING OF A PUBLIC
HEARING ON A LEASE FOR THE CONSTRUCTION AND EQUIPPING
OF A FIRE STATION AND A FIRE SAFETY TRAINING FACILITY,
AUTHORIZING THE PUBLICATION OF A NOTICE OF THE SAME,
AND REGARDING CERTAIN RELATED MATTERS
WHEREAS, the Common Council (the "Common Council ") of the City of South
Bend, Indiana (the "City ") has determined that it is necessary to undertake certain improvements
consisting of (i) the construction, erection, equipping and leasing of a fire station facility to
replace the existing Fire Station #5 located at 2221 Prairie Avenue in the City, and (ii) the
construction, erection, equipping and leasing of a fire safety training facility located generally on
a 5.5 acre parcel near Sample and High Streets in the City (collectively, the "Projects "); and
WHEREAS, the Common Council considers it necessary to pursue the financing
of the Projects by the issuance of first mortgage bonds (the "Bonds ") by the City of South Bend
Building Corporation (the "Building Corporation ") which would be paid from lease rental
payments made by the City to the Building Corporation; and
WHEREAS, said lease rental payments will be structured such that said lease
rental payments will be paid from the Emergency Medical Service Funds (the "EMS Funds ")
expected to be received by the City and, if such EMS Funds are ever insufficient, from a tax
levied by the City for such purpose; and
WHEREAS, the EMS Funds are expected to be sufficient to pay said lease
rentals, and the pledge of a tax levy will be used to provide additional security to obtain a more
favorable bond rating on the Building Corporation's bonds which will provide a significant
savings to the City because of the lower interest rates that a more favorable bond rating will
achieve; and
WHEREAS, because the City expects to pay said lease rentals from the EMS
Funds, the Projects do not constitute "controlled projects" as provided by Indiana Code 6- 1.1 -20-
1.1; and
WHEREAS, the Common Council desires to hold a public hearing regarding the
determination to enter into such a lease to provide for the financing of the Projects; and
WHEREAS, the Common Council further desires to initiate a petition of
taxpayers requesting the City enter into a lease of the Projects with the Building Corporation;
and
NOW, THEREFORE, BE IT RESOLVED, by the Common Council of the City
of South Bend, Indiana, as follows:
DMS_US 51827101v2
Section I. The Common Council hereby authorizes a hearing to be held by
this Common Council pursuant to IC 36 -1 -10 for the purpose of receiving public input regarding
the determination to enter into a lease for the purpose of completing a lease financing for the
Projects. Such hearing shall be held at a regular meeting of the Common Council on April 22,
2013, at 7:00 p.m. (local time), in the Council Chambers, 4th Floor, County -City Building, South
Bend, Indiana.
Section II. The Common Council hereby authorizes and directs the
administrative staff of the City, with assistance from counsel, to provide notice of such hearing
as required by law and to initiate the circulation of a petition of taxpayers requesting the City
enter into a lease for the Projects with the Building Corporation.
Section III. The Common Council desires to receive a petition of taxpayers
requesting that the City enter into a lease of the Projects with the Building Corporation.
Section IV. The Common Council hereby indicates on behalf of the City its
intent to reimburse certain preliminary expenses related to the Project which have been or will be
incurred by or on behalf of the City prior to the issuance of the Bonds from the Proceeds of the
Bonds, pursuant to Indiana Code 5- 1 -14 -6 and in compliance with Section 1.150 -2 of the
Treasury Regulations.
Section V. This Resolution shall be in full force and effect from and after its
passage by the. Common Council and approval by the Mayor.
PP,5NTEu q —J'13
LU
id1..+6 7 e.irt.
COMMON COUNCIL OF THE CITY
OF SOUTH BEND, INDIANA
By:
Member of the Common Council
DMS US 51827101v2 - 2 -
OrrMIL , ,
Council a&i"'O oil Gi;ls .vvu.n, .
Filed
F
CITY CUD fr: �� '� "* o t�, IN �
120ON CouNTY Cny BLuLDJNG
227 W. JEFFERSON BLvD.
SOUTH BEND, INDIANA 46601 -1830
PHoNE574/235 -9216
FAX 574/235 -9928
CITY OF SOUTH BEND PETE B=GIEG, MAYOR
DEPARTMENT OF .ADMINISTRATION .AND FINANCE
April 3, 2013
Mr. Derek Dieter
President, South Bend Common Council
4th Floor, County -City Building
South Bend, IN 46601
Re: Resolution and Ordinance Concerning Lease for Construction and Equipping of New Fire
Station #5 and Fire Safety Training Facility
Dear President Dieter:
As you know, discussions have been ongoing about the need to replace Fire Station #5
located at 2221 Prairie Avenue in South Bend, and the benefit to the City of constructing a fire
safety training facility in South Bend. An ordinance and a resolution are being filed this date
which commence the process for lease financing of both of these state of the art facilities. A
duplicate original of this letter is being submitted to cover both the Resolution and the Ordinance
because they are integrally related.
The attached Ordinance approves and authorizes the execution of a Lease whereby
construction of both new Fire Station #5 and the fire safety training facility will be achieved
through a lease between the City as lessee and the City of South Bend Building Corporation as
lessor, for a term not to exceed twenty one years, at a lease rental rate of not more than
$561,000 per year, payable in semi - annual installments of $280,500 each. The proposed Lease is
also attached. It is expected that lease rental payments shall be payable from the Emergency
Medical Services Fund (EMS Funds), and that EMS Funds will fully cover the Lease costs.
Should EMS Funds and other revenues be insufficient for this purpose, the Lease has been
structured so that the tax levy will serve as back -up only; this will enable marketing of the
Building Corporations bonds at a lower rate of interest. Please note that the Project does not
constitute a "controlled project" as such term is defined by IC 6- 1.1- 20 -1.1 because such rentals
are reasonably expected to be paid from funds other than property taxes that are exempt from the
levy limitations of IC 6 -1.1 -18.5.
A pre - curser to passage of the Ordinance is the attached Resolution which authorizes the
steps required to approve the proposed Lease under IC 36 -1 -10. Therefore, the Resolution sets
public hearing on the Lease for April 22, 2013 which is intended to coincide with the Council's
review, public hearing, and passage of the Ordinance. The Resolution also directs that a petition
from at least 50 South Bend real property owners be circulated and signed requesting that the
City enter the proposed Lease, all as required by State law (IC 36- 1 -10 -7) .
Derek Dieter
Page 2
April 3, 2013
The City Administration has been pleased with the Common Council's positive response
to the discussions of these Projects in the recent past, and hopes that the Council will approve
both the Resolution and Ordinance.
I will present the companion Resolution and Ordinance to the Common Council at its
Committee meeting and at the public hearing.
Thank you for your consideration of these matters.
Sincerely,
k
Mark Neal
City Controller
Filed in, C'
Office
Arid _Of
CM CLERK, SOUTH B NO-,, I
LEASE
Between
CITY OF SOUTH BEND BUILDING CORPORATION
and
CITY OF SOUTH BEND, INDIANA
DATED AS OF MAY 1, 2013
(FIRE STATION / FIRE SAFETY TRAINING CENTER PROJECTS)
TABLE OF CONTENTS
1.
Premises, Term and Warranty ............................................................... ..............................1
2.
Semiannual Rental Payments ................................................................ ..............................2
3.
Additional Rental Payments ................................................................. ...............................
4
4.
Abatement of Rent ................................................................................. ..............................4
5.
Alteration and Repairs .......................................................................... ............................... 5
6.
Insurance ............................................................................................... ............................... 5
7.
General Covenants ................................................................................. ..............................6
8.
Option to Purchase ................................................................................ ............................... 7
9.
Option to Renew .................................................................................... ..............................9
10.
Utility Service ........................................................................................ ..............................9
11.
Transfer to Lessee .................................................................................. ..............................9
12.
Defaults .................................................................................................. ..............................9
13.
Notices .................................................................................................. .............................10
14.
Successors or Assigns ........................................................................... .............................10
15.
Construction of Covenants ................................................................... .............................10
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LEASE
CITY OF SOUTH BEND BUILDING CORPORATION
TO
CITY OF SOUTH BEND, INDIANA
THIS CONTRACT OF LEASE, made and entered into as of this 1 st day of May,
2013 (the "Lease "), by and between the City of South Bend Building Corporation, an Indiana
not - for - profit corporation (hereinafter with its successors and assigns as provided by this Lease
called "Lessor "), and the City of South Bend, Indiana (hereinafter called "Lessee "),
WITNESSETH:
In consideration of the mutual covenants herein contained, it is agreed that:
1. Premises, Term and Warranty. The Lessor does hereby lease, demise
and let to Lessee (i) the real estate in the City of South Bend, Indiana, more particularly
described in Exhibit A attached hereto and made a part hereof as Parcel I and Parcel II; (ii) the
building or buildings to be erected on Parcel I described in Exhibit A (the "Fire Station Project ");
and (iii) the building or buildings to be erected on Parcel II described in Exhibit A (the "Fire
Safety Training Center Project" and, with the Fire Station Project, collectively, the "Projects "),
all pursuant to plans and specifications prepared by the project architects engaged by the Lessee.
The above - mentioned plans and specifications may be changed, additional
construction work may be performed by Lessor, but only with the approval of Lessee, and only if
such changes or modifications, additional construction or equipment do not alter the character of
the Projects or reduce the value thereof. Any such additional construction shall be part of the
property covered by this Lease. The above - mentioned plans and specifications have been filed
with and approved by Lessee.
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TO HAVE AND TO HOLD the same with all rights, privileges, easements and
appurtenances thereunto belonging, unto Lessee, for a term of twenty -one (21) years, beginning
(i) with respect to the Fire Station Project on the date the Fire Station Project is completed and
ready for occupancy and ending on the day prior to such date twenty -one (21) years thereafter
and (ii) with respect to the Fire Safety Training Center Project on the date the Fire Safety
Training Center Project is completed and ready for occupancy and ending on the day prior to
such date twenty -one (21) years thereafter. However, the term of this Lease shall terminate 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, or
(iv) to improve the leased property. The date on which the Fire Station Project and the Fire
Safety Training Center Project are completed and ready for occupancy 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 and such endorsement shall be recorded as an addendum to this Lease. The Lessor
hereby represents that it is possessed of a good and indefeasible estate in fee simple to the above -
described real estate, and Lessor warrants and will defend the same against all claims whatsoever
not suffered or caused by the acts of omissions of Lessee or its assigns.
2. Semiannual Rental Payments. During the term of this Lease, the Lessee
agrees to pay rental for said premises at the semiannual rate of Two Hundred Eighty Thousand
Five Hundred and 00 /100 Dollars ($280,500.00). The first semiannual rental payment shall be
due on the later of (i) the day that the Projects are completed and ready for occupancy or July 15,
2014. If completion of the Projects is later than July 15, 2014, the first installment shall be in an
amount which provides for rental at the rate specified above prorated from the date of such
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completion until the first January 15 and July 15 following the date of such completion.
Thereafter, such rental shall be payable in advance in semiannual installments of Two Hundred
Eighty Thousand Five Hundred and 00 /100 Dollars ($280,500.00) on January 15 and July 15 of
each year. The last semiannual rental payment due with respect to the Projects before the
expiration of this Lease shall be adjusted to provide for rental at the yearly rate specified above
prorated from the date such installment is due to the date of the expiration of this Lease.
All payments so made by the Lessee for the Projects hereunder shall be
considered as payment to the Lessor of the rentals payable hereunder. All rentals payable under
the terms of this Lease shall be paid by the Lessee to the banking institution appointed as Trustee
(the "Trustee ") under the Trust Indenture and Mortgage (the "Indenture ") securing the First
Mortgage Bonds (hereinafter referred to as 'Bonds ") to be issued by the Lessor.
After the sale of the Bonds issued by the Building Corporation to pay the cost of
the Projects, including expenses incidental thereto, the first semiannual lease payment for the
Projects 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 Projects shall be reduced to an
amount equal to the multiple of One Thousand Dollars ($1,000) next higher than the sum of
principal and interest due on the Bonds in each corresponding year ending on each Bond
maturity date on such bonds plus Two Thousand Five Hundred Dollars ($2,500), payable in
equal semiannual installments, assuming for such purposes that the first semiannual rental
installment for the Projects is due on July 15, 2014. Such amount of reduced annual rental for
the Projects shall be endorsed on this Lease at the end hereof by the parties hereto in the form of
an addendum to be set forth in Exhibit B hereto, as soon as the same can be done after the sale of
the Bonds, and such endorsement shall be recorded as an addendum to this Lease. In addition,
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such addendum shall specify the Trustee to whom the Lessee shall pay the rental to be due under
this Lease.
3. Additional Rental Payments. The Lessee shall pay as further rental for
said premises all taxes and assessments levied against or on account of the Projects and expenses
incurred by the Building Corporation related to the Indenture, including but not limited to fees of
the Trustee. Any and all such payments shall be made and satisfactory evidence of such
payments in the form of receipts shall be furnished to the Lessor by the Lessee, at least three (3)
days before the last day upon which the same must be paid to avoid delinquency. In case the
Lessee shall in good faith desire to contest the validity of any such tax or assessment, and shall
so notify the Lessor, and shall furnish bond with surety to the approval of the Lessor conditioned
for the payment of the charges so desired to be contested and all damages or loss resulting to the
Lessor from the non - payment thereof when due, the Lessee shall not be obligated to pay the
same until such contests shall have been determined.
4. Abatement of Rent. In the event the Projects shall be partially or totally
destroyed, whether by fire or any other casualty, so as to render the same unfit, in whole or part,
for use and occupancy by the Lessee, it shall then be the obligation of the Lessor to restore and
rebuild the Projects as promptly as may be done, unavoidable strikes and other causes beyond the
control of the Lessor excepted; provided, however, that the Lessor shall not be obligated to
expend on such restoration or rebuilding more than the amount of the proceeds received by the
Lessor from the insurance provided for in Paragraph 6 hereof.
The rent payable hereunder for the Projects shall be abated for the period during
which the Projects, or any part thereof, are unfit for occupancy and such abatement shall be in
proportion to the percentage of floor area of each of the Projects which is unfit for occupancy.
Ci!
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5. Alteration and Repairs. The Lessee assumes all responsibility for
repairs and alterations to the Projects. No alterations shall be made by Lessee without first
obtaining the written consent of Lessor. Subject to Paragraph 11, at the end of the term, Lessee
shall deliver the leased property to Lessor in as good condition as at the beginning of the term,
reasonable wear and tear only excepted. Equipment or other personal property which becomes
worn out or obsolete may be discarded or sold by Lessee. Lessee need not replace such personal
property, but may replace such property at its own expense, which replacement property shall
belong to Lessee. The proceeds of the sale of any personal property shall be paid to the above -
mentioned Trustee. Lessee may trade in any obsolete or worn out personal property or
replacement property which will belong to Lessee upon payment to the Trustee of an amount
equal to the trade -in value of such property.
6. Insurance. Lessee, at its own expense, will, during the full term of the
Lease, keep the Projects insured against physical loss or damage, however caused, with such
exceptions as are ordinarily required by insurers of buildings or facilities of a similar type, with
good and responsible insurance companies, subject to the approval of Lessor. Such insurance
shall be in an amount at least equal to the greater of (i) the option to purchase price or (i) one
hundred percent (100 %) of the full replacement cost of the Projects as certified by a registered
architect, registered engineer, or professional appraisal engineer, selected by the Lessor, on the
effective date of this Lease, and on or before the first day of the anniversary date of this Lease 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. The Lessee will, at all
times during the full term of this Lease, keep in effect, public liability and property damage
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insurance, insuring the Lessee, the Lessor, and the Trustee in amounts customarily carried for
similar properties. Such public liability and property damage insurance may be provided under
the public liability self - insurance program of Lessee. During the full term of this Lease, Lessee
will also, at its own expense, maintain rent or rental value insurance in an amount equal to the
full rental value of the Projects for a period of two (2) years against physical loss or damage of
the type insured against pursuant to the preceding requirements of this clause. Such policies
shall be for the benefit of persons having an insurable interest in the demised premises, and shall
be made payable to the Lessor or to such other person or persons as the Lessor may designate.
Such policies shall be countersigned by an agent of the insurer who is a resident of the State of
Indiana, and such policies, together with a certificate of the insurance commissioner certifying
that the persons countersigning such policies are duly qualified in the State of Indiana as resident
agents of the insurers on whose behalf they may have signed, and the certificate of the architect
or engineer hereinbefore referred to shall be deposited with the Lessor. If, at any time, the
Lessee fails to maintain insurance in accordance with this clause, such insurance may be
obtained by the Lessor and the amount paid therefor shall be added to the amount of rental
payable by the Lessee under this Lease; provided, however, that the Lessor shall be under no
obligation to obtain such insurance and any action or non - action of the Lessor in this regard shall
not relieve the Lessee of any consequence of its default in failing to obtain such insurance.
7. General Covenants. The Lessee shall not assign this Lease or sublet the
demised premises herein described without the written consent of Lessor; provided, however,
that the Lessee shall in no event assign or sublet the demised premises if such assignment or
sublease will result in the loss of the exclusion from gross income for federal income tax
purposes of interest on any obligation issued by the Lessor to finance the demised premises.
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Lessee shall use and maintain the demised premises in accordance with the laws and ordinances
of the United States of America, the State of Indiana, and all other proper governmental
authorities.
Lessee has determined that a present need exists for the Projects, which need is
not temporary or expected to diminish in the near future. The Projects are essential to and will
be used by Lessee during the term thereof only for the purposes of performing one or more
governmental functions of Lessee consistent with the permissible scope of Lessee's authority and
will not be used in a trade or business of any person or entity. Lessee agrees to execute, if
requested, a certificate regarding such matters.
The Lessee covenants that it will not take any action or fail to take any action that
would result in the loss of the excludability 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 excludability. The Lessee further covenants that
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.
8. Option to Purchase. Lessor hereby grants to Lessee the right and option,
on any date prior to the expiration of this Lease, upon written notice to Lessor, to purchase the
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demised premises at a price equal to the amount required to enable Lessor to pay all
indebtedness, including accrued and unpaid interest to the first date on which bonds may be
redeemed and all premiums payable on the redemption thereof. In no event, however, shall such
purchase price exceed the capital actually invested in such property by Lessor represented by
outstanding securities or existing indebtedness plus the cost of transferring the property. The
phrase "capital actually invested" as used herein shall be construed to include, but not by way of
limitation, the following amounts expended by the Lessor: organization and incorporation
expenses, financing costs, carrying charges, legal fees, architects' fees, contractors' fees and
reasonable costs and expenses incidental thereto.
Upon request of the Lessee, the Lessor 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 the demised premises in accordance with the preceding paragraph. The
statement shall also set forth the name of the Trustee under the trust agreement or agreements
securing the outstanding indebtedness of the Lessor.
If the Lessee exercises its option to purchase, it shall pay to the Trustee referred to
above the purchase price which is required to pay all indebtedness of Lessor, including all
premiums payable on the redemption thereof and accrued and unpaid interest. Such payment
shall not be made until the Trustee gives to Lessee a written statement that such amount will be
sufficient to retire all outstanding indebtedness of Lessor secured by the trust agreement or
agreements between the Trustee and the Lessor, including all premiums payable on the
redemption thereof and accrued and unpaid interest.
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Nothing herein contained shall be construed to provide that Lessee shall be under
any obligation to purchase the demised premises, or under any obligation in respect to any
creditors, members or security holders of Lessor.
9. Option to Renew. Lessor hereby grants to Lessee the right and option to
renew this Lease for a further like, or lesser, term upon the same or like conditions as herein
contained, and Lessee shall exercise this option by written notice to Lessor given upon any rental
payment date prior to the expiration of this Lease.
10. Utility Service. The Lessee agrees to pay or cause to be paid all charges
for sewer, gas, water,. electricity, lights, heat or power, telephone or other utility services used,
rendered or supplied upon or in connection with the leased premises throughout the term of this
Lease, and to indemnify Lessor and save it harmless against any liability or damages on such
account. The Lessee shall also procure any and all necessary permits, licenses or other
authorizations required for the lawful and proper installation and maintenance upon the leased
premises of wires, pipes, conduits, tubes and other equipment and appliances for use in
supplying any such service to and upon the leased premises.
11. Transfer to Lessee. In the event Lessee does not exercise its option to
purchase under Paragraph 8 or option to renew under Paragraph 9, and upon full discharge and
performance by the Lessee of its obligations under this Lease, the demised premises shall
become the absolute property of the Lessee, and Lessor shall execute the proper instruments
conveying title to the premises to Lessee.
12. Defaults. If the Lessee shall default in the payment of any rentals or other
sums payable to the Lessor hereunder, or in the observance of any other covenant, agreement or
condition hereof, which nonobservance shall continue for ninety (90) days after written notice to
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correct the same, then, in any or either of such events, the Lessor may proceed to protect and
enforce its rights by suit or suits in equity or at law in any court of competent jurisdiction,
whether for specific performance of any covenant or agreement contained herein, or for the
enforcement of any other appropriate legal or equitable remedy, or the Lessor, at its option,
without further notice, may terminate the estate and interest of the Lessee hereunder, and it shall
be lawful for the Lessor forthwith to resume possession of the demised premises and the Lessee
covenants to surrender the same forthwith upon demand.
The exercise by the Lessor of the above right to terminate this Lease shall not
release the Lessee from the performance of any obligation hereof maturing prior to the Lessor's
actual entry into possession. No waiver by the Lessor of any right to terminate this Lease upon
any default shall operate to waive such right upon the same or other default subsequently
occurring.
13. Notices. Whenever either parry shall be required to give notice to the
other under this Lease, it shall be sufficient service of such notice to deposit the same in the
United States mail, in an envelope duly stamped, registered and addressed to the other party or
parties at their last known place of business.
14. Successors or Assigns. All covenants of this Lease, whether by Lessor or
Lessee, shall be binding upon the successors and assigns of the respective parties hereto.
15. Construction of Covenants. Lessor was organized for the purpose of
constructing the Projects and leasing the same to Lessee under the provisions of the Indiana
Code, Title 36, Article 1, Chapter 10. All provisions herein contained shall be construed in
accordance with the provisions of said Chapter, and to the extent of inconsistencies, if any,
between the covenants and agreements in this Lease and provisions of said Chapter, the
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provisions of said Chapter shall be deemed to be controlling and binding upon Lessor and
Lessee.
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed for and on their behalf as of the day and year first hereinabove written.
ATTEST:
Secretary
(SEAL)
ATTEST:
Clerk
LESSOR
CITY OF SOUTH BEND
BUILDING CORPORATION
President
LESSEE
CITY OF SOUTH BEND, INDIANA
Mayor
(Signature Page to Lease)
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STATE OF INDIANA )
SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for the State of Indiana,
personally appeared and
, personally known to me as the President and Vice
President, respectively, of the City of South Bend Building Corporation, and acknowledged the
execution of the foregoing Lease for and on behalf of said Corporation.
Witness my hand and notarial seal this day of , 2013.
My Commission Expires:
County Resident
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Notary Public
Printed
(Notary Page to Lease)
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for the State of Indiana,
personally appeared and , personally
known to me as the Mayor and Clerk, respectively, of the City of South Bend, Indiana, and
acknowledged the execution of the foregoing Lease for and on behalf of said City.
Witness my hand and notarial seal this day of , 2013.
Notary Public
Printed
My Commission Expires:
County Resident
This instrument was prepared by Randolph R. Rompola, Attorney at Law, Faegre Baker Daniels LLP, 202 South
Michigan Street, Suite 1400, South Bend, Indiana 46601.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in
this document, unless otherwise required by law. Randolph R. Rompola, Attorney at Law.
(Notary Page to Lease)
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EXHIBIT A
Fire Station Project
The Land ( "Parcel 1 ") upon which the new Fire Station will be constructed is located generally
at 2221 Prairie Avenue and is described as follows:
Parcel l:
INSERT LEGAL
The Fire Station Project will consist of the demolition of the existing Fire Station No. 5 located
at 2221 Prairie Avenue and construction of a new fire station facility that will contain
approximately 3,000 square feet of living space and an apparatus bay containing approximately
1,400 square feet which can accommodate any of the City's fire engines.
Fire Safety Training Facility Project
The Land ( "Parcel 2 ") upon which the new Fire Safety Training Center Project will be
constructed is on an approximately 5.5 acre parcel of real estate situated generally near Sample
and High Streets and is described as follows:
Parcel 2:
INSERT LEGAL
The Fire Safety Training Center Project will consist of the construction of closed campus
containing numerous training environments and structures, including (i) a 4200 square foot
classroom building with an attached outdoor classroom and demonstration space; (ii) a six (6)
story training tower which will contain moveable interior walls; (iii) a 2000 square foot burn
building that will support live fire and Class A combustibles and provide different tactical
options depending upon approach (the front of the building will mimic a single family residence
and the rear mimics an apartment building); and (iv) designated areas and props for auto
extrication, rooftop operations, collapse rescue and trench and confined space rescue.
A -1
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EXHIBIT B
FORM OF ADDENDUM TO LEASE
Addendum to Lease Between
City of South Bend Building Corporation, as Lessor,
and City of South Bend, Indiana, as Lessee
(Fire Station and Fire Safety Training Center Projects)
THIS ADDENDUM, made and entered into this day of ,
2013 (the "Addendum "), between City of South Bend Building Corporation, an Indiana non-
profit corporation (the "Building Corporation "), and City of South Bend, Indiana the "Lessee "),
WITNESSETH:
WHEREAS, the Building Corporation and Lessee have entered into a lease dated
as of May 1, 2013 (the "Lease "), which was recorded in the office of the Recorder of St. Joseph
County, Indiana, as Document Number ; and
WHEREAS, Section 3 of the Lease provides that the reduced annual rental
payable by the Lessee shall be endorsed on the Lease and recorded as an addendum to the Lease;
NOW, THEREFORE, IT IS HEREBY AGREED, CERTIFIED, AND
STIPULATED by the undersigned that:
1. The first semiannual rental installment in the amount of
and 00 /100 Dollars ($ ) shall be due on the
later of (i) the day that the Projects is completed and ready for occupancy, or (ii) July 15, 2014.
If completion of the Project is later than July 15, 2014, the first installment shall be in an amount
which provides for rental at the rate specified for the Projects in Exhibit A attached hereto and
made a part hereof for the semiannual period in which the Projects are completed and ready for
occupancy, prorated from the date of such completion until the first January 15 or July 15
following such date of completion. Thereafter, such rental shall be payable in advance in
semiannual installments on January 15 or July 15 of each year as provided for in the attached
lease payment schedule at Exhibit A. The last semiannual rental payment due with respect to the
Projects before the expiration of this Lease shall be adjusted to provide for rental at the yearly
rate specified for the Projects in Exhibit A prorated from the date such installment is due to the
date of the expiration of this Lease.
2. The amendments to the Lease as set forth in this Addendum to Lease shall
be effective as of the date of this Addendum to Lease and all remaining terms, covenants, and
conditions set forth in the Lease shall remain in full force and effect.
B -1
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IN WITNESS WHEREOF, the undersigned have caused this Addendum to be
executed for and on their behalf on the day and year first hereinabove written.
ATTEST:
Secretary
Lo
(SEAL)
ATTEST:
Clerk
LESSOR
CITY OF SOUTH BEND
BUILDING CORPORATION
President
LESSEE
CITY OF SOUTH BEND, INDIANA
Mayor
B -2
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STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for the State of Indiana,
personally appeared. and , personally
known to me as the President and Secretary, respectively, of the City of South Bend Building
Corporation, and acknowledged the execution of the foregoing Lease for and on behalf of said
Corporation.
Witness my hand and notarial seal this day of , 2013.
Notary Public
Printed
My Commission Expires:
County Resident
B -3
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EXHIBIT A
ADDENDUM LEASE PAYMENT SCHEDULE
B -5
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INSTRUCTIONS
RELATIVE TO CIRCULATION OF PETITION
1. The person who circulates a counterpart of a lease petition for the purpose
of obtaining signatures thereon must be an owner of taxable real estate located within the
boundaries of the City of South Bend.
2. The person who circulates each counterpart and executes the verifying
affidavit attached hereto must sign the petition. The best practice is for such person to sign the
counterpart which he or she circulates, on the first line. The person who circulates a counterpart
should sign the counterpart and the verifying affidavit in the same style.
3. Counterparts cannot be passed around from one person to another for
circulation.
4. The signatures on each counterpart must be affixed in the presence of the
person who circulates the counterpart and executes the verifying affidavit attached thereto.
5. Qualified petitioners are persons or corporations who are owners of
taxable real estate located within the boundaries of the City of South Bend, as shown by the tax
records in the County Auditor's Office. Persons purchasing real estate on contract, heirs in
estates in which the real estate has not been distributed, and other persons whose ownership is
not of record in the County Auditor's Office are not qualified petitioners.
6. One person cannot sign for another. A husband and wife owning real
estate jointly are each qualified petitioners, and it is not necessary for each to sign in order for
the other to constitute a valid petitioner; however, each must sign separately if the signatures are
to be counted as signatures of two separate petitioners. In such cases, the wife should not sign as
"Mrs. John P. Doe," but should sign her own name, thus "Mary T. Doe."
7. All names should be written as they appear on the tax records in the
County Auditor's Office, as neatly as possible. It is a good practice to include complete first
names, middle initials, and any "Jr." or "III," if applicable.
8. Each person signing the petition must:
a. sign his/her full name and do not use nicknames;
b. print his/her name;
DMS_US 518271240
C. print the address of the taxable real property he /she owns;
and
d. print the township in which the taxable real property is
located.
9. Do not insert a counterpart number at the top of the petition. This will be
done after all counterparts have been collected.
10. On the last page you will find this language:
"Counterpart No.
Line No. it
Please leave the Counterpart No. blank. Please fill in Line No. with the line
number of your signature on the petition. As mentioned above, your signature should be on the
first line.
11. The Verifying Affidavit on the last page of the petition must be notarized
after you have obtained signatures. In order to have your signature on the Verifying Affidavit
notarized, you must personally appear before a notary public.
-2-
DMS_US 518271240
PETITION OF TAXPAYERS
OF THE CITY OF SOUTH BEND, INDIANA,
Counterpart No.
TO: The Common Council of the City of South Bend, Indiana
We, the undersigned, being the owners of taxable real property located within the
boundaries of the City of South Bend, Indiana (the "City "), hereby petition and request the Common
Council of the City to enter into negotiations to secure a lease providing for (i) the construction, erection,
equipping and leasing of a fire station to replace the existing fire station located at 2221 Prairie Avenue in
the City which new fire station will provide approximately 3,000 square feet of living space and an
apparatus bay of approximately 1400 square feet and (ii) the construction, erection, equipping and lease
of a new fire safety training facility located on a 5.5 acre parcel located generally near Sample and High
Streets in the City which facility will consist of the construction of closed campus containing numerous
training environments and structures, including (A) a 4200 square foot classroom building with an
attached outdoor classroom and demonstration space; (B) a six (6) story training tower which will contain
moveable interior walls; (C) a 2000 square foot burn building that will support live fire and Class A
combustibles and provide different tactical options depending upon approach (the front of the building
will mimic a single family residence and the rear will mimic an apartment building); and (D) designated
areas and props for auto extrication, rooftop operations, collapse rescue and trench and confined space
rescue (collectively, the "Improvements ") all to be constructed, erected or acquired by the City of South
Bend Building Corporation and leased to the City.
We believe a need exists for such Improvements and that the City does not have current
funds to pay for the cost of constructing, erecting and equipping said Improvements to meet the present
need.
We hereby petition the City to investigate the need for the Improvements, and upon
determining that such need exists, to enter into a contract of lease with the City of South Bend Building
Corporation, an Indiana nonprofit corporation, which will construct, erect or acquire the Improvements
and thereafter lease the Improvements to the City.
We urge that action be taken as promptly as possible pursuant to and in accordance with
the provisions and procedures set forth under I.C. 36 -1 -10, as amended, to secure, if possible, a lease
upon the above referenced Improvements.
This petition may be circulated in several counterparts, and all such counterparts together
are to be considered as constituting one petition.
Township Where
Taxable Real
Name Address Property Located
Signature
Print
DMS_US 518272142
2.
Township Where
Taxable Real
Name Address Property Located
Signature
Print
3.
Signature
Print
4.
Signature
Print
S.
Signature
Print
6.
Signature
Print
7.
Signature
Print
8
Signature
Print
9.
Signature
Print
-2-
DMS_US 51827214v2
I
Township Where
Taxable Real
Name Address Property Located
10.
Signature
Print
11.
Signature
Print
12.
Signature
Print
13.
Signature
Print
14.
Signature
Print
15.
Signature
Print
16.
Signature
Print
17.
Signature
Print
-3-
DMS_US 51827214v2
Township Where
Taxable Real
Name Address Property Located
18.
Signature
Print
19.
Signature
Print
20.
Signature
Print
21.
Signature
Print
22.
Signature
Print
23.
Signature
Print
24.
Signature
Print
25.
Signature
Print
-4-
DMS_US 51827214v2
I
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, the undersigned, a Notary Public in and for the State of Indiana, personally
appeared and acknowledged the execution of the foregoing
Counterpart.
Witness my hand and notarial seal this day of , 2013.
(Seal)
'My Commission Expires:
I am a resident of
County, Indiana
DMS_US 51827214v2
10
Notary Public
(Printed Name)
u
ORDINANCE NO.
V� "I! X10,
AN ORDINANCE TO VACATE THE FOLLOWING DESCRIBED PROPERTY:
The street to be vacated is Assumption Drive that loops from
Locust Road. This loop street is approximately 1, 750 feet
around (from Locust Road to Locust Road) and has a width of
50 feet. Said street was dedicated to the City of South Bend,
Portage Township, St. Joseph County, Indiana.
STATEMENT OF PURPOSE AND INTENT
Pursuant to Indiana Code Section 36- 7 -3 -12, the Common Council is charged with
the authority to hear all petitions to vacate public ways or public places within the City.
The following Ordinance vacates the above described public property.
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA, as follows:
SECTION I. The Common Council of the City of South Bend having held a Public
Hearing on the petition to vacate the following property:
The street to be vacated is Assumption Drive that loops from
Locust Road. This loop street is approximately 1, 750 feet
around (from Locust Road to Locust Road) and has a width of
50 feet. Said street was dedicated to the City of South Bend,
Portage Township, St. Joseph County, Indiana.
hereby determines that it is desirable to vacate said property.
SECTION II. The City of South Bend hereby reserves the rights and easements of
all utilities and the Municipal City of South Bend, Indiana, to construct and maintain any
facilities, including, but not limited to, the following: electric, telephone, gas, water, sewer,
surface water control structures and ditches, within the vacated right -of -way, unless such
rights are released by the individual utilities.
SECTION III. The following property may be injuriously or beneficially affected by
such vacating:
Lot # - 5578
Lot # - 5579
Lot # - 5580.1
Lot # - 5586
Lot # - 5595
Section IV. The purpose of the vacation of the real property is
To allow for new parking lots to support the new planned
sanctuary and warehouse facilities.
SECTION V. This ordinance shall be in full force and effect from and after its
passage by the Common Council and approval by the Mayor.
Member of the Common Counci
Attest:
City Clerk
Presented by me to the Mayor of the City of South Bend, Indiana on the
day of , 2 , at o'clock . M.
Approved and signed by me on the
o'clock . M.
RFAMKIG 1, -V
FU�� ;C HIARINO
3 -i RED^ MN'G
NOT .4,ppRovtD
F[ ". ,PED
F».>-D
City Clerk
day of , 2 , at
Mayor, City of South Bend, Indiana
Office
APR - 12'013
r
k. i41
CITY CLEs -sgk; 'x' SEND, IN
PETITION TO VACATE PUBLIC RIGHTS -OF -WAY
LSTREETS /ALLEYS)
TO THE COMMON COUNCIL
OF THE CITY OF SOUTH BEND, INDIANA
DATE:
1 (WE), THE UNDERSIGNED PROPERTY OWNER(S), PETITION YOU TO VACATE:
A. THE ALLEY DESCRIBED AS:
B. THE STREET DESCRIBED AS:
4 --,;,sLj k4ip TI t he
NAME (signed & printed)
ADDRESS
RETURN TO:
OFFICE OF THE CITY CLERK
JOHN VOORDE, CITY CLERK
ROOM 455 - COUNTY -CITY BUILDING
SOUTH BEND, IN 46601
574 - 235 -9221
CONTACT PERSON (S)
LOT #
NAME: Gj"1w-f L.., -Fv- .& r -
ADDRESS: 26)
w
PHONE: 5 ?�• 2�3 - 0008_
Filed in Clerk's Office
APR 2013
CITY CLERK 60 oa' iiv
LEGAL DESCRIPTION:
THE STREET TO BE VACATED IS ASSUMPTION DRIVE THAT LOOPS FROM LOCUST ROAD,
THIS LOOP STREET IS APPROXIMATELY 1,750 FEET AROUND (FROM LOCUST ROAD TO
LOCUST ROAD) AND HAS A WIDTH OF 50 FEET. SAID STREET WAS DEDICATED TO THE
CITY OF SOUTH BEND, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA.
Filed in Clerk's Alice
APB 12013
CrnrCLERK. -, t `vtN.D,jf4
INTER - OFFICE MEMORANDUM
DEPARTMENT OF PUBLIC WORKS
DIVISION OF ENGINEERING
TO: Janice Talboom
FROM: Michael Mecham
SUBJECT: Street Vacation Assumption Drive
DATE: April 2, 2013
On October 9, 2012 the Board of Public Works considered the subject street vacation. The Board submitted a
favorable recommendation to the City Council for this vacation. The recommendation of the Board of Public
Works is still valid and believes the recommendation should go forward
Filed i
Office
FAPR `z ZQ13 I
crr
GLm ;
1� ,`, SEND, IN
What we do today makes a differ once!
1316 COUNTY -CITY BUILDING
2.1.7 W. JEFFERSON Bou1.P.vARD
SOUTH' BEND, INDIANA 466o1 -1830
CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR
BOARD OF PUBLIC WORKS
October 9, 2012
Mr. Dave Bailey
Provident Ministry
60650 CR 7
Elkhart, Indiana 46517
RE: Street Vacation — Assumption Drive
(Preliminary Review)
Dear Mr. Bailey:
PHONE 574/ 235-9251
PAX 574235-9-M
The Board of Public Works, at its October 9, 2012, meeting, reviewed comments by the
Engineering Division, Area Plan Commission, Economic Development, Fire Department, Police
Department, and the Solid Waste Division. The following comments and recommendations were
submitted:
Area Plan stated that the vacation would not hinder the growth or orderly development of the unit
or neighborhood in which it is Iocated or to which it is contiguous. The vacation would not make access
to the lands of the aggrieved person by means of public way difficult or inconvenient. The vacation
would not hinder the public's access to a church, school or other public building or place. The vacation
would not hinder the use of a public right of way by the neighborhood in which it is located or to which it
is contiguous.
Therefore, the Board of Public Works submitted a favorable recommendation for the vacation of
this alley.
Please contact Tony Molnar at (574) 235 -9254 prior to picking up your radius may. You
will need a radius map showing properties within 150' of the proposed vacation for your petition to the
Common Council. Once you pick up the radius map, proceed to the City Clerk's office for your alley
vacation packet.
Sincerely,
1
Llnda M. Martin, Clerk
c: Federico Rodriguez, Fire Department
Tony Molnar, Engineering
Janice Talboom, City Clerk's Office
Michael Mecham, Engineering
iE
Jil
CD
I
T-i
Nancv Schrader
From: Nancy Schrader
Sent: Wednesday, September 26, 2012 1:30 PM
To: Andre Price (APRICE @southbendin.gov); Jitin Kain; Michael Mecham;
FRO DRIG U @South BendIN.Gov; Jbyorni @cost joseph.in.us'; SGOEN @SouthBendIN.Gov,
'pmgriffin @nisource.com'
Cc: CGREENE @SouthBendIN.Gov
Subject: FW: Message from 45C -5
Attachments: Message from 45C -5; image001 jpg
Please provide your recommendation.
Thank you.
Nancy Schrader
City of South Bend
Department of Public Works
Division of Engineering
227 W. Jefferson Blvd.
South Bend, IN 46601
Office: (574) 235 -9251
Fax: (574) 235 -9171
nischrad@southbendin.eov
1
Nancy Schrader
From: Federico Rodriguez
Sent: Wednesday, September 26, 2012 1:48 PM
To: Nancy Schrader
Subject: RE: Message from 45C -5
Attachments: image001 jpg
Approved SBFD
_.- ..........._ ... ................... ........_....._......................................................................_........_...... .............I.- ............_.. _.
From: Nancy Schrader
Sent: Wednesday, September 26, 2012 1:30 PM
To: Andre Price; Jitin Kain; Michael Mecham; Federico Rodriguez; jbyorni @cost- joseph.in.us; Stephen Goen;
pmgriffin @nisource.com .
Cc: Cheryl Greene
Subject: FW. Message from 45C -5
Please provide your recommendation.
Thank you.
Nancy Schrader
City of South Bend
Department of Public Works
Division of Engineering
227 W. Jefferson Blvd.
South Bend, iN 46601
Office: (574) 235 -9251
Fax: (574) 235 -9171
nischrad@southbendin.eov
1
Nancy Schrader
From:
Sent:
To:
Subject:
Attachments:
no objection
Philip M. Griffin
NIPSCO Project Engineer
Office Phone: 574- 284 -2214
Mobile Phone: 574- 220 -3804
FAX: 574- 284 -2220
pmgriffin @NiSource.com
Wednesday, September 26, 2012 2:12 PM
Nancy Schrader.
Re: FW: Message from 45C -5
pic14684 jpg
Nancy Schrader
<njschrad @southbe
n d in.gov> To
Andre Price
09/26/2012 01:29 <a price @southbendin.gov>, Jitin
PM Kain <jkain @southbendin.gov >,
Michael Mecham
<mmecham @southbendin.gov >, Federico
Rodriguez
<frodrigu @southbendin.gov >,
"jbyorni @co.st - joseph.in.us"
<jbyorni @co.st- joseph.in.us >,
Stephen Goen
<sgoen @south bendin.gov >,
"pmgriffin @nisource.com"
<pmgriffin @nisource.com>
cc
Cheryl Greene
<cgreene @southbendin.gov>
Subject
FW: Message from 45C -5
1
Please provide your recommendation.
Thank you.
( -----------------------------+------------------------------------- - - - - -- J
I (Embedded image moved to I Nancy Schrader
lfile: p!c14684.jpg) ICity of South Bend 1
I 1 Department of Public Works
1 ( Division of Engineering 1
( 1227 W. Jefferson Blvd. 1
1 (South Bend, IN 46601 J
( 1 Office: (574) 235 -9251 J
I 1 Fax: (574) 235 -9171 J
I 1 njschrad @southbendin.gov J
I I i
l i
I----------------------------+------------------------------------- - - - - -- I
IMPORTANT NOTICE! This E -Mail transmission and any accompanying attachments may contain confidential information
intended only for the use of the individual or entity named above. Any dissemination, distribution, copying or action
taken in reliance on the contents of this E -Mail by anyone other than the intended recipient is strictly prohibited and is
not intended to, in anyway, waive privilege or confidentiality. If you have received this E -Mail in error please
immediately delete it and notify sender at the above E -Mail address. Please note that incoming a -mails are not routinely
screened for response deadlines, and as such, please notify the sender separately by fax of any message containing
deadlines. In addition, E -Mail information cannot be guaranteed to be secure or error -free as information could be
intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain virus. Therefore, the sender does not
accept liability for any errors or omissions in the contents of this message which arise as a consequence of E -Mail
transmission. If verification is required, please request a hard -copy version.
- - - -- Message from "OcePrinter @southbendin.gov"
<OcePrinter @southbendin.gov> on Wed, 26 Sep 201217:45:42 +0000 - - --
To: Nancy Schrader <njschrad @southbendin.gov>
Subject: Message from 45C -5
[ attachment "S45C- 512092612450.pd#" deleted by Phil G riffi n/NCS/E nte rp rise]
JOHN W. BYORNI
EXECUTIVE DIRECTOR
LARRY MAGLIOZZI
DEPUTY DIRECTOR
AREA PLAN COMMISSION OF ST. JOSEPH COUNTY, IN
227 W. JEFFERSON BLVD., ROOM 1140 COUNTY•CITY BUILDING, SOUTH BEND, INDIANA 46601 (574) 235 -9571
September 26, 2012
City of South Bend
Board of Public Works
13th Floor, County -City Building
South Bend, Indiana 46601
RE: Street Vacation
Petitioner: City of South Bend
Location: Assumption Drive
Dear Board Members:
The staff has reviewed this petition. It is the staff's opinion that:
(1) The vacation would not hinder the growth or orderly development of the unit or neighborhood in
which it is located or to which it is contiguous.
The street appears to serve only the property owner.
(2) The vacation would not make access to the lands of the aggrieved person by means of public
way difficult or inconvenient.
The street is entirely within property owned by the petitioner.
(3) The vacation would not hinder the public's access to a church, school, or other public building or
place.
Public access to this site is still available from Locust Road.
(4) The vacation would not hinder the use of a public way by the neighborhood in which it is located
or to which it is contiguous.
The street is not currently used as a thoroughfare.
Due to the above stated reasons, the staff recommends that the proposed street vacation be approved.
Please contact our office if you have any questions or need any additional information.
Sincerely,
�", � 1ayh4
Christa Nayder, Planner
SERVING ST. JOSEPH COUNTY, SOUTH BEND, LAKEVILLE. NEW CARLISLE, NORTH LIBERTY, OSCEOLA, & ROSELAND
WWW. ST] OS E PH C 0 U NTY IND I ANA. CO
Nancy Schrader
From: Stephen Goen
Sent: Thursday, September 27, 2012 7:36 AM
To: Nancy Schrader
Subject: RE: Message from 45C -5
Attachments: image001 jpg
No objections
................. .. ...... ....................................... .............._..... ........ ....._...................... ............ ........ .... ..... ... ....... ..........._. ... _ ............... ....._._._........ ............. ........... _ ........ ......
._......._........._._....
From: Nancy Schrader
Sent: Wednesday, September. 26, 2012 1:30 PM
To: Andre Price; Jitin Kain; Michael Mecham; Federico Rodriguez; jbyorni @co.st joseph.in.us; Stephen Goen;
pmgriffin @nisource.com
Cc: Cheryl Greene
Subject: FW: Message from 45C -5
Please provide your recommendation.
Thank you.
Nancy Schrader
City of South Bend
Department of Public Works
Division of Engineering
227 W. Jefferson Blvd.
South Bend, IN 46601
Office: (574) 235 -9251
Fax: (574) 235 -9171
nischrad @southbendin.gov
INTER - OFFICE MEMORANDUM
BOARD OF PUBLIC WORKS
DATE SENT: 9/26/2012
TO: Andre Price, Solid Waste
Jitin Kain, Community & Economic Development
- .Michael Mecham, Engineering Department
Federico Rodriguez, Fire Department
John Byorni, Area Plan Commission (ibyorni@co.st-
iLseph.in.us or 235 -9813 fax)
Stephen Goen, Police Department
Cheryl Greene, City Attorney's Office
Phil Griffin, NIPSCO (m riffin nisource.com) (FYI Only)
FROM: Linda M. Martin, Clerk
SUBJECT: REQUEST FOR RECOMMENDATION - STREET VACATION
APPLICANT: provident Ministry
LOCATION: Assumption Drive
DATE DUE: ASAP
FAX OR E -MAIL TO: 235 -9171 / Imartin(a�southbendiin aov
RECOMMENDATIONS AND COMMENTS:
/1 j
B /``',�
Y Date
Linda Martin
From:
Michael Divita
Sent:
Friday, September 28, 2012 3:38 PM
To:
Linda Martin
Cc:
Jitin Kain
Subject:
Fwd: Street Vacation Recommendation - Assumption
Street Vacation: Assumption Drive
Approval recommended. Given the unified ownership of adjoining parcels to this semi - circular street, no neighborhood or
access issues are evident should this vacation proceed.
Michael Divita
Planner
City of South Bend
Department of Community & Economic Development
1200 County-City Building
227 W. Jefferson Boulevard
South Bend, IN 46601
Phone: (574) 235 -5843
Fax: (574) 235 -9469
mdivitaCa)southbend in.gov
From: Jitin Kain
Sent: Wednesday, September 26, 2012 1:49 PM
To: Michael Divita
Subject: FW: Message from 45C -5
Mike- Please review and provide recommendation.
Thanks,
Atin
..n' %Swc,T!"; �.
x' �RVII :
Jitin Kain
Sr. Economic Development Specialist
Community & Economic Development
(574) 235 -5835
ikainPsouthbendin.gov
City of South Bend
227 W. Jefferson Blvd., Suite 1200
South Bend, IN 46601
http: //www.south bendi n.eov
From: Nancy Schrader
Sent: Wednesday, September 26, 2012 1 :30 PM
To: Andre Price; Jitin Kain; Michael Mecham; Federico Rodriguez; jbyorni @cost- joseph.in.us; Stephen Goen;
pmgriff•{n @nisource.com
Cc: Cheryl Greene
Subject: FW: Message from 45C -5
TO:
FROM:
SUBJECT:
APPLICANT:
LOCATION:
DATE DUE:
FAX OR E -MAIL TO:
INTER - OFFICE MEMORANDUM
BOARD OF PUBLIC WORKS
DATE SENT: 9126/2012
Andre Price, Solid Waste
,41t'n Kain, Community & Economic Development
Achael Mecham, Engineering Department
- ederico Rodriguez, Fire Department
--dohn Byorni, Area Plan Commission (jbyorni0_co.stt-
jose2h.in.us or 235 -9813 fax)
v,Kephen Goen, Police Department
Cheryl Greene, City Attorney's Office
15hii Griffin, NIPSCO (m riffin nisource.com) (FYI Only)
Linda M. Martin, Clerk
REQUEST FOR RECOMMENDATION – STREET VACATION
Provident Ministry
Assumption Drive
ASAP
235 -9171 / lmartinPsouthbendin.gov
RECOMMENDATIONS AND COMMENTS:
By Date
8,3111k IJo, 00-0
ORDINANCE NO.
AN ORDINANCE AMENDING THE ZONING ORDINANCE AND REQUESTING A
SPECIAL EXCEPTION FOR PROPERTY LOCATED AT 3529 and 3527 WESTERN
AVENUE, SOUTH BEND, INDIANA, 46619, COUNCILMANIC DISTRICT N0. 2 IN
THE CITY OF SOUTH BEND, INDIANA
STATEMENT OF PURPOSE AND INTENT
PETITIONERS DESIRE TO REZONE THE PROPERTY FROM MU MIXED USE TO
LB LOCAL BUSINESS DISTRICT TO OPERATE A CONVENIENCE STORE AND ALSO
REQUEST APPROVAL OF A SPECIAL EXCEPTION TO ADD A GASOLINE SERVICE
STATION FACILITY WITHIN THE LB LOCAL BUSINESS DISTRICT
CLASSIFICATION.
NOW THEREFORE BE IT ORDAINED by the Common Council of the City of
South Bend, Indiana as follows:
SECTION 1. Ordinance No. 9495 -04, as amended, which ordinance is commonly
known as the Zoning Ordinance of the City of South Bend, Indiana, be and the same
hereby is amended in order that the zoning classification of the following described real
estate in the City of South Bend, St. Joseph County, State of Indiana:
THAT PART OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 37
NORTH, RANGE 2 EAST, PORTAGE TOWNSHIP, CITY OF SOUTH BEND, ST.
JOSEPH COUNTY, INDIANA WHICH IS DESCRIBED AS THE WEST 86 FEET OF
LOT NUMBERED 1071 IN THE PLAT OF "LA SALLE PARK" AS RECORDED IN THE
RECORDS OF THE ST. JOSEPH COUNTY, INDIANA RECORDER'S OFFICE.
CONTAINING 0.24 ACRES MORE OR LESS.
SUBJECT TO ALL LEGAL HIGHWAYS, EASEMENTS AND RESTRICTIONS OF
RECORD.
be and the same is hereby established as LB Local Business District.
SECTION II. That a Special Exception for Gasoline Service Station facility in a LB
Local Business zoning district is hereby granted subject to a site development plan
hereby attached and made a part of this Ordinance and which site plan contains and lists
all conditions, if any, of approval.
1�
SECTION 111. This ordinance shall be in full force and effect from and after its passage
by the Common Council, approval by the Mayor, and legal publication.
Member of the Common Counco
-A
bJ
1L��0S064�Fmd9t'a i4
Attest:
City Clerk
Presented by me to the Mayor of the City of South Bend, Indiana on the
day of , 20_, at o'clock _.m.
City Clerk
Approved and signed by me on the
20 , at -o'clock m.
Mayor of the City of South Bend, Indiana
1st READING
PUBLIC HEARING
3 rd READING
NOT APPROVED
REFERRED
PASSED
day of
1)V-14 Danch, F/arner & Associates, Inc.
MICHAEL J. DANCH, L.A.
RON HARNER, P.S.
Honorable Members of the City of
South Bend Common Council
4t1i Floor County -City Building
South Bend, hndiana 46601
RE: Rezoning Petition for 3527 & 3529 Western Avenue,
South Bend:
Dear Council Members:
Land Surveyors . Professional Engineers
Landscape Architects. Land Planners
April 3, 2013
Our clients are requesting the approval of a Rezoning Petition for the properties located at 3527
and 3529 Western Avenue, South Bend, Indiana. This requested Rezoning would allow for the
approval of a Convenience Store with two Gasoline service pumps. The proposed site
improvements require rezoning of the property to the LB Local Business District classification
and approval of a Special Exception for the Gasoline service pumps. This is the same petition that
was previously submitted to the Council for approval last year. Our clients did meet with several
members of the LaSalle Park Neighborhood Association in January to discuss the project. As a
result of that meeting, our clients did make some improvements that were allowed under the
present zoning. Our clients also agreed to work with the neighborhood members to create a set of
written commitments that can be enforceable as part of the rezoning process.
Our clients believe the improvements proposed for the properties along with a set of
enforceable written commitments would be a compatible use in the surrounding mixed use
neighborhood along the Western Avenue corridor.
If you have any questions concerning this matter, please feel free to give me a call at 234 -4003.
Sincerely,
Michael J. Danch
President
Danch, Hamer & Associates
File No. 120200 "C" Md.
1643 Commerce Drive . South Bend, IN 46628
Office 574/234 -4003 ■ 800/594 -4003 ■ Fax 574/234 -4119
208 West Mars m Berrien Springs, MI 49103
office 269/471 -3010 ■ Fax 269/471 -7237
PETITION FOR A COMBINED HEARING
Cit� of South Bend, Indiana
1 (we) the undersigned make application to the City of South Bend Common Council to amend the zoning
ordinance to grant a Special Exception as herein requested and to the Area Plan Commission to grant the
following variance(s):
1) The subject property is located at:
3529 and 3527 Western Avenue, South Bend, Indiana 46619
2) The property Tax Key Number(s) is /are: Key # 1: 18 -4068 -2518
Key# 2: 18- 4068 - 251801
3) Name and address of property owner(s) of the petition site:
Parwinder Kaur & Singh Harjinder Barbara Dockery
3529 Western Avenue 3527 Western Avenue
South Bend, Indiana 46619 South Bend, Indiana 46619
574- 234 -7870 574- 287 -0108
E -Mail Address N/A E -Mail Address N/A
4) Name and address of contingent purchaser(s), if applicable:
Parwinder Kaur & Singh Harjinder
3529 Western Avenue
South Bend, Indiana 46619
574- 234 -7870
E -Mail Address N/A
5) It is desired and requested that this property be rezoned:
From: MU Mixed Use District
To: LB Local Business District
6) This rezoning is requested to allow the following use(s): Convenience Store with a Gasoline Service
Station facility.
7) If applicable, a detailed description and the purpose of the variance(s) being requested:
The Petitioners, Parwinder Kaur & Singh Harjinder have been the owners of the real estate at 3529
Western Ave. for the past few years as shown in the records of the Auditor's office. They desire to expand
the services they can supply to their patrons at this location. They have been working with their neighbor,
Barbara Dockery of 3527 Western Ave., owner of the property to the east of the existing Convenience
store, to purchase her property and add a Gasoline Service Station facility. Based on discussions with the
Building Department and Area Plan Commission staffs, in order to add the gasoline pumps, the properties
would be required to be Rezoned, a Special Use would be required to be approved for the pumps and
several Variances would be needed to layout the property as shown on the attached site plan. The
Convenience store has been in operation for the past several years and the site has been the home to a retail
establishment of varying types for the past several decades. The addition of the gasoline pumps as noted
requires a Rezoning, Special Use and Variances. Once the Rezoning is initiated, the properties included are
required to be brought up to all the developmental standards of the zoning district being requested. In this
particular situation, the Rezoning necessitates that several Variances be approved as well. Shown below are
the Variances being requested for the property:
1). A Variance from the requirement of providing perimeter trees at a minimum rate of one (1) over -story
deciduous tree every forty (40) feet to providing a minimum of two trees (2) in the parkway of
Kenmore on the west side of the site and one (1) tree along the north property line as shown.
The petitioners are asking for approval of this Variance as the property is located in the urban core
area of the City with limited area. The Petitioners would add two trees in the parkway area of Kenmore
Street in an area presently used for parking. That pavement would be removed and landscaping will be
added to soften the western fagade of the building, which is also the main entrance. Trees cannot be
placed along Western Avenue as the City has recently placed new street lighting in the grass parkway
along with the electric line running in the grass area. One tree would also be placed along the north
property line away from the existing overhead utility lines running along the alley. The property to the
east is a combination home and business which appears to have been vacant for quite some time. The
owners do not believe approval of this Variance would be detrimental to any surrounding property.
2). A Variance from the requirement of providing a minimum of a 6 ft. wide landscape planting area along
the Western Avenue fagade of the existing building to no landscaping and to a minimum of 10 shrubs
along the Kenmore Street fagade as shown.
The Petitioners would state that the Western Avenue frontage has not changed in the last few years
and the owners had placed a concrete sidewalk along that frontage. The building does have an entrance
to that street that presently is not being used. They would ask to not be required to ripe up the concrete
to place a few shrubs along that building front. The petitioners would state that their focus is to remove
the existing parking and pavement on the west side of the building that has been used by patrons for the
past several years. This parking encroaches into the right -of -way for Kenmore Street. The Petitioners
believe removing the pavement and replacing the walk and adding shrubs along the west side of the
building meets the intent of the landscape Ordinance for the City. The Petitioners believe approval of
this Variance would not adversely affect any surrounding property.
3). A Variance from the requirement of providing Type "B" Residential Bufferyard screening along the
north and east property lines to providing a minimum 6 ft. high landscape screening fence along said
property lines to the required 10 ft. sight triangle at northwest corner of site and 10 ft. sight triangle
at southeast corner of site as shown.
The Petitioners would state that presently the existing paved area behind the building is not
screened from the properties to the north or to the east of the petition site. The requirement of a 20 ft.
wide residential bufferyard is quite extreme for smaller properties in the urban core areas of the City.
The Petitioners are asking to be able to use a screening fence along both the north and east property
lines of the site. This provides a solution to the screening of the proposed parking and gas pump areas
without the requirement of using an overly large portion of the site. The Petitioners are trying to locate
improvements on their site and meet the intent of the Ordinances to screen/buffer the uses from the
adjacent properties. They believe approval of this Variance will not have a negative affect on adjacent
properties.
4). A Variance to allow parking spaces, pavement and a dumpster and dumpster enclosure to be placed
in the 20 foot wide Residential Bufferyard along the north property line and east property line to a
minimum of 1 ft. along the north property line and to a minimum of 2ft. along the east property line as
shown.
The Petitioners are asking to encroach into the Residential Bufferyard along both the north and
east property lines. This is to allow the placement of parking spaces along the north line and for a
dumpster enclosure at the northeast portion of the site. This will allow for the Petitioners to remove
the existing parking spaces along Kenmore Street out of the right -of -way and to organize the spaces
at the only viable area on the site. This will also allow a location for a trash dumpster that will be
placed at a location for easy access for a truck to enter the site, empty the trash and leave the site
without unnecessary maneuvering. The Petitioners believe the approval will allow for the site to
be used more efficiently than it is used today. The approval of this Variance should not have an
adverse impact on surrounding properties.
5). A Variance from the requirement of providing a minimum 24 ft. aisleway in the shown north parking
area to a minimum of 22 ft.
The Petitioners are requesting to be able to have a smaller than required aisleway for their proposed
Parking area. They want to replace the existing parking on Kenmore Street to an on -site location. The
best place for the new parking is north of the existing building. Based on the location of the building,
there is a limited area for parking spaces and the aisleway. The Petitioners are balancing the
maneuvering area and the size of the spaces. The 22 ft. aisle is adequate for the small amount of car
parking provided. At this Convenience store, a large portion of patrons using the store walk from their
homes from the surrounding neighborhood. The Petitioners do not believe approval of this Variance
will adversely affect the surrounding properties.
6). A Variance from the requirement of providing a minimum 20 ft. in length parking spaces to a minimum
of 19 ft. as shown in the north parking area.
The Petitioners are requesting the ability to reduce the length of their parking spaces from the
Minimum required 20 ft. length to 19 ft. As mentioned in the previous Variance request, the site is
limited in the amount of area for spaces. The Petitioners believe they have balanced the space by
having parking spaces at 19 ft. and the aisleway at 22 ft. This is similar to other small parking lots
used in the City with limited property. This request is to remove the existing parking spaces that are
presently in the right -of -way of Kenmore Street. The Petitioners believe the small parking lot will work
with the amount of traffic that is typical of this Convenience store. The Petitioners do not believe
approval of this Variance will have a negative impact on adjacent properties.
7). A Variance to allow a Canopy over the gasoline pumps to encroach a maximum of 13 ft. into the 20 ft.
wide Residential Bufferyard along the east property line and to a maximum of 15 ft. into the 30 ft. Front
yard Building Setback along Western Avenue as shown.
The Petitioners are requesting a Variance to encroach into the Residential Bufferyard along the east
property line and to a maximum of 15 ft. into the 30 ft. Front yard Building Setback along Western
Avenue as shown. The Ordinance does not require a Residential Bufferyard for properties with a MU
Mixed Use zoning classification. The adjacent property has that MU classification. The gray area in the
Ordinance is that if an adjacent property has a residential use, the Bufferyard is required. The adjacent
property has a residential home in the rear attached to a store front. The Petitioners decided to take the
conservative approach and request the Variance to allow the Canopy over the gas pumps to encroach
into the perceived Residential Bufferyard. The Canopy would encroach 15 ft. into the 30 ft. Front yard
setback along Western Avenue. This would still place the Canopy behind the front facade of the existing
building. The Petitioners do not believe that this encroachment for the Canopy would have an adverse
impact on the adjacent property that contains a home with a retail store or along the streetscape of
Western Avenue.
8). A Variance from the requirement of providing a minimum of a 10 ft. wide drive -thru lane and 12 ft.
wide bailout lane for the proposed Gasoline Service Station facility to providing a minimum of 9 ft.
wide drive -thru and bailout lanes as shown.
The Petitioners are asking to be allowed to reduce the width of drive lanes defined in the Ordinance
as "drive -thru lanes" and "bail out lanes ". Again, a gray area exists in the Ordinance as it relates to
access and vehicle parking at gasoline pumps. The Petitioners decided to ask for a reduction in the size
of the lanes, in case that it may be interpreted that gasoline pumps fall in the same category as drive -thru
and bail out lanes for fast -food restaurants and banks. The paved area around the proposed gas pumps
will be large enough to allow cars to be at the pumps and still leave room for a "bail out" lane around
the pump islands. The gas pumps are not the primary use at this Convenience store but only an added
service being provided to patrons. The Petitioners do not believe approval of this Variance would
negatively impact surrounding properties.
9). A Variance from the minimum 15 ft. parking setback along Kenmore Street to a minimum of
6 ft. for proposed parking spaces as shown.
4
This Variance request is to allow for the present parking areas as mentioned above to be
relocated from the Kenmore Street right -of -way and placed on -site. As shown the parking spaces
along Kenmore Street will be screened by low shrubs. This is an improvement over the existing
paved area that exists today along Kenmore Street. This Variance will allow for the required number
of parking spaces on -site for the Convenience store and Gas Dispensing facility as stated in the City
Ordinances. The Petitioners do not believe approval of this Variance would have an adverse
affect on any surrounding property.
10). A Variance from the minimum 30 ft. Front yard Building Setback along Western Avenue to a minimum
of 9 ft. and from the minimum 30 ft. Front yard Building Setback along Kenmore Street to a minimum
of 8 ft. for an existing building. The Petitioners would ask for approval to be allowed to have the
existing building remain in the present location which encroaches into the front yard building setback
area along both Western Avenue by 21 ft. and encroaches into the front yard building setback area along
Kenmore Street by 22 ft. The building has existed as shown for the past several decades and the
Petitioners believe approval of this Variance will not be detrimental to any adjacent property.
11). A Variance from the requirement of providing foundation landscaping on three sides of the dumpster
enclosure to no additional screening as shown. The Petitioners would state that presently the dumpster
as had no enclosure for the past several years. They would ask the Commission Members to agree that
providing the shown enclosure along with the additional fencing along the north and south property
lines would be sufficient screening for the dumpster. The Petitioners do not believe approval of this
Variance would have an adverse impact on any surrounding property.
8) A statement on how each of the following standards for the granting of variances is met:
The Petitioners would state that their property is located in the urban core on a corner parcel that has
been used for retail purposes for the past few decades. The Petitioners desire to add gas pumps to their
facility as a convenience for their patrons. The proposed gas pumps are not the primary use of the site.
The gas pumps will be a secondary use. The requested number of Variances, reflect a situation that
exists for retail uses that are located in older neighborhoods. The building has existed for decades and
pre -dates revised zoning ordinance developmental standards. The customer that uses this type of retail
establishment is just as likely to be a walk -in patron as one that uses a car. The Petitioners would state
that the approval of the above requested Variances will not be injurious to the public health, safety,
morals and general welfare of the community. As envisioned the proposed improvements will place
parking, screening, landscaping on -site where none presently exists. This will increase the public health,
safety, morals and general welfare of the community.
The Petitioners would also state that the use and value of the area adjacent to the property included in
the Variances will not be affected in a substantially adverse manner. The site as proposed will provide
more screening, landscaping and on -site parking than has existed before. The proposed improvements
will remove existing parking and pavement that is located in the Kenmore Street right -of -way. The
proposed improvements should help to stabilize values for neighborhood properties adjacent to the site.
The Petitioners would state that the strict application of the terms of this Ordinance would result in
practical difficulties in the use of the property. The strict enforcement of the Ordinance would make any
proposed improvements almost impossible and create a situation where owners could do little to add
value to their properties and provide additional services for the patrons using their establishments.
9). If not clearly shown on the Preliminary Site Plan, a site plan showing the requested variances shall also
be submitted.
The Petitioners have supplied a site plan to help show the proposed improvements and reflect the
Requested Variances and Special Exception.
10) If applicable, a detailed description and purpose of the Special Exception(s) being requested:
The Petitioners are requesting approval of a Special Exception Use as allowed under Section 21 -03.04
comfort, community moral standards, convenience or general welfare. The proposed Gasoline Service
Station facility should be an added convenience for patrons using the facility. The proposed use has
also been used at other establishments in the neighborhood without a-negative impact for surrounding
properties or the community at large.
The Petitioners would state that the proposed use will not injure or adversely affect the use of the
adjacent area or property values therein. The proposed Gasoline Service Station facility is small in size
and tits with the existing Convenience store. The gas pumps are secondary to the primary use of the
property which are items sold in the Convenience store. With the proposed screening and landscaping,
values on adjacent properties should not be adversely affected.
The Petitioners would state that the proposed use will be consistent with the character of the district
in which it is located and the land uses authorized therein. Along this portion of Western Avenue, there
are similar uses as to the one being requested. The combination of the existing Convenience store with
the addition of the gas pumps is in keeping in character with of the district and the surrounding
neighborhood. This proposed use will blend with the mixture of retail uses in the Western Avenue
corridor.
The Petitioners would state that the proposed use is compatible with the recommendations of the City
of South Bend Comprehensive Plan, The City Comprehensive plan shows that this portion of Western
Avenue is appropriate for Commercial (Office & Retail) along with medium density residential
development. The proposed combination Convenience store with gas pumps would fit with those types
of mixed uses.
12) In the case of a Special Exception, the petitioner shall be held to the representations made on the
Preliminary Site Plan.
13) Applications for subdivisions should be obtained from the office of the Area Plan Commission.
14) Attached, and made a part of this PETITION, is:
(a) a copy of legal description of the property;
(b) a list of names and addresses of all property owners, and the tax key numbers for all properties
within 300 feet of the petition property;
(c) 17 site plans; and
(d) addressed, stamped envelopes for all property owners within 300 feet of the petition property.
Signatures) of-All Property owner(s), or
signature of Attorney for all property owner(s):
th M D i
Attorney for the Property Owners
52582 U.S 933 North
South Bend Indiana 46635
574 - 277 -8720
PETITION PREPARED BY & CONTACT PERSON:
Name: Danch, Varner & Associates, Inc.
Address: 1643 Commerce Drive
South Bend Indiana 46628
574- 234 -4003 mdanch@danchharner, com
(F 4 t
l
ZO 39Cd H9NCQ 6TTbb6ZbL5 ZO :bT ETOZ/ZO /b0
John Trotter / Western Ave Land Trust
3609 Western Ave
South Bend, IN. 46619
Tax Key # 018 4068 2516
Will J Brown
1918 E Donald
South Bend, IN. 46613
Tax Key # 018 4068 250803
Melveina Foltz & Barbara Geisleman
411 S Kenmore
South Bend, IN. 46619
Tax Key # 018 4076 2766
Juan Cervera & Rosalina Ma
2909 Western Ave
South Bend, IN. 46619
Tax Key # 018 4062 2318
Wendell & Kathy Johnson
305 S Falcon
South Bend, IN. 46619
Tax Key # 018 4062 2313
Episcopal Church Layman Chapel
Christian Methodist
303 S Kenmore
South Bend, IN. 46619
Tax Kpv # n1R 4nAs gri1gn1
Anthony Adamo
PO Box 611
South Bend, IN. 46624
Tax Key # 018 4076 2771
Sharon Palmer
415 S Kenmore
South Bend, IN. 46619
Tax Key # 018 4076 2768
Property Owners
Within 300 Feet
Nader Kanan
3601 Western Ave
South Bend, IN. 46619
Tax Key # 018 4068 2517
Wendell & Kathy Johnson
305 S Falcon
South Bend, IN. 46619
Tax Key # 018 4062 2315
John Adamo Living Trust
PO Box 611
South Bend, IN. 46624
Tax Key # 018.4076 2767
Benita Owens / Estate for Annie
Owens
322 Kenmore St
South Bend, IN. 46619
Tax Kpv * n18 4nss 9liinsn1
Reina Matute
314 S Falcon
South Bend, IN. 46619
Tax Key # 018 4062 2314
Dorothy Broughto / Ann Marie Warner
314 S Wellington
South Bend, IN. 46619
Tax Key # 018 4068 2508
George Swizek & Geraldine Sniadecki
421 S Falcon
South Bend, IN. 46619
Tax Key # 018 4070 2582
Leopoldo & Effie Gonzalez
734 S Lake
South Bend, IN. 46619
Tax Key # 018 4070 2579
Lorene Lee
302 S Falcon
South Bend, IN. 46619
Tax Key # 018 4068 2310
Genevieve Bucher
412 Wellington
South Bend, IN. 46619
Tax Key # 018 4078 2827
Dolores Malone
413 S Falcon
South Bend, IN. 46619
Tax Key # 018 4070 2576
Timothy Bond & Michelle Milton Bond
318 S Wellington
South Bend, IN. 46619
Tax Key # 018 4068 250801
Edmond Henry
6451 Erie Falls Dr.
South Bend, IN. 46614
Tax Key # 018 4062 2317
Wendell & Kathy Johnson
305 S Falcon
South Bend, IN. 46619
Tax Key # 018 4062 2309
Anthony Adamo
PO Box 611
South Bend, IN. 46624
Tax Key # 018 4076 2769
Annie Owens
322 S Kenmore
South Bend, IN. 46619
Tax Key # 018 4068 2514
Mandeep Singh Mandeep Singh Mandeep Singh
PO Box 3522 PO Box 3522 PO Box 3522
South Bend, IN. 46619 South Bend, IN. 46619 South Bend, IN. 46619
Tax Key # 018 4076 2765 Tax Key # 018 4076 2768 Tax Key # 018 4076 2769
Virk Mart Inc
3901 W Dunes Hwy
Uhaul Real Estate Company
PO
Rank Properties LLC / Tim Rankert
Michigan City, IN. 46360
Box 29046
Phoenix, AZ. 85038
56826 Wild Heather Dr
South Bend, IN. 46619
Tax Key # 018 4062 2322
Tax Key # 018 4070 2570
Tax Key # 018 4078 2823
Alan & Jean Neblung
Alan & Jean Neblung
Mandeep Singh
3614 Western
South Bend, IN. 46619
3614 Western
South Bend, IN. 46619
PO Box 3522
South Bend, IN. 46619
Tax Key # 018 4078 2824
Tax Key # 018 4076 2760
Tax Key # 018 4076 2761
Mandeep Singh
PO Box 3522
Nader Kanan
Parwinder Kaur & Harjinder Singh
South Bend, IN. 46619
3601 Western Ave
South Bend, IN. 46619
3529 Western Ave
South Bend, IN. 46619
Tax Key # 018 4076 2762
Tax Key # 018 4068 251701
Tax Key # 018 4068 2518
Barbara Dockery
Lupo House
Vu Dong
3527 Western Ave
South Bend, IN. 46619
52606 Highland Dr
18769 Pudding Ln
Tax Key # 018 4068 251801
South Bend, IN. 46635
Tax Key # 018 4068 251802
South Bend, IN. 46614
Tax Key # 018 4062 2319
Vu Dong
3501 Western Ave
Wendell & Kathy Johnson
Reina Matute
South Bend, IN. 46619
305 S Falcon
South Bend, IN. 46619
314 S Falcon
South Bend, IN. 46619
Tax Key # 018 4062 2320
Tax Key # 018 4062 2311
Tax Key # 018 4062 2312
Nathaniel Jackson & Willie Bee
Benita Owens
Juana Vazquez
323 S Kenmore
South Bend, IN. 46619
321 Kenmore
South Bend, IN. 46619
322 Falcon
South Bend, IN. 46601
Tax Key # 018 4068 2510
Tax Key # 018 4068 251001
Tax Key # 018 4062 2316
Christian Methodist Episcopal
303 S Kenmore
Lorena Vargas & Joel Gonzales
Episcopal Church Lay Chapel
South Bend, IN. 46619
226 Kenmore
South Bend, IN. 46619
Christian Methodist
303 S Kenmore
Tax Key # 018 4068 2512
Tax Key # 018 4117 4454
South Bend, IN. 46619
Tax KPv * n1 R 4nAR 9511
Mandeep Singh
Layman Chapel Christian Methodist
PO Box 3522
Episcopal Church
South Bend, IN. 46619
303 S Kenmore St
Tax Key # 018 4070 2567
South Bend, IN. 46619
Tax Kav # n1R 4nRs gSnc)ni
k
6. _
LL _Qo,
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF SOUTH BEND, INDIANA,
COMMON COUNCIL APPROVING AND AUTHORIZING THE
EXECUTION OF A LEASE FOR THE CONSTRUCTION AND EQUIPPING
OF A NEW FIRE STATION AND A NEW FIRE SAFETY TRAINING
CENTER AND REGARDING CERTAIN RELATED MATTERS
STATEMENT OF PURPOSE AND INTENT
The City of South Bend, Indiana (the "City "), has previously investigated the
necessity for the construction and equipping of a new fire station to replace the existing Fire
Station #5 located at 2221 Prairie Avenue in the City (the "Fire Station Project ") and the
construction and equipping of a new fire safety training center located on a 5.5 acre site near
Sample and High Streets in the City (the "Fire Safety Training Center Project" and, with the Fire
Station Project, the "Projects "). The City has also previously investigated alternative methods
for paying for the Projects. There has been filed with the Common Council of the City (the
"Common Council ") a petition certified by the St. Joseph County Auditor, which petition has
been signed by at least fifty (50) owners of real property subject to taxation by the City and
addressed to the Common Council, requesting that the Common Council enter into a lease
whereby the Projects will be- completed with the assistance of a not - for - profit building
corporation and leased to the City pursuant to the provisions of Indiana Code 36 -1 -10, as
amended.
The City of South Bend Building Corporation (the "Building Corporation ") has
been organized as an Indiana not - for - profit corporation for the purpose of constructing and
leasing public improvements, including the Projects, to the City. A form of lease between the
Building Corporation and the City (the "Lease ") has been prepared and submitted to the
Common Council for its consideration. The Lease, as presented to the Common Council,
provides for the lease of the Projects for a term not to exceed twenty -one (21) years (the
"Term "). The Term would begin on the date that the Projects are available for use by the City.
The lease rentals payable under the Lease (the "Rentals ") by the City with respect to the Projects
shall not exceed $561,000 per year and shall be payable at the semiannual rate of $280,500 on
each January 15 and July 15, beginning on the later of. (i) the date on which the Projects are
completed; or (ii) July 15, 2014. Lease rentals payable under the Lease by the City for the
Projects shall be payable on such dates from Emergency Medical Services Funds received by the
City (the "EMS Funds ") and any other revenues made available for such purpose and to the
extent that such EMS Funds and other revenues are insufficient, from a tax levy. The Rentals
under the Lease have been structured such that the tax levy is expected to serve as a back -up only
for purposes of marketing the Building Corporation's bonds at a lower rate of interest. As a
result, the Project does not constitute a "controlled project" as such term is defined by IC 6 -1.1-
20-1.1 because such Rentals are reasonably expected to be paid from funds other than property
taxes that are exempt from the levy limitations of IC 6 -1.1 -18.5.
NOW, THEREFORE, BE IT ORDAINED, BY THE COMMON COUNCIL
OF THE CITY OF SOUTH BEND, INDIANA, AS FOLLOWS:
Section I. The petition of taxpayers of the City filed with the Common Council at
this meeting is hereby approved.
Section II. The Common Council hereby determines that a need exists for the
completion of the Projects and the funds needed therefor exceed the funds presently available to
the City.
Section III. Having held a public hearing regarding the Lease for which notice
was provided in accordance with Indiana Code 5 -3 -1, the Common Council hereby approves the
Lease in the form presented to this meeting. The Lease with the Building Corporation as lessor
provides for a fair and reasonable rental, and further, the execution of the proposed lease is
necessary and wise. The Mayor and Clerk of the City are hereby authorized to execute and
attest, respectively, the Lease in the form presented to this meeting with such changes as may be
necessary or appropriate on the advice of counsel with such execution and attestation to evidence
approval of such changes; provided, however, that any such changes may not (i) increase the
term of the Lease or increase the rentals payable by the City under the Lease with respect to the
Projects or (ii) alter the scope and nature of the Projects described in the Lease.
Section IV. The Clerk of the City shall cause to be published a notice of
execution of the Lease according to law following such execution.
Section V. All actions taken to publish the notice of the public hearing regarding
the Lease are hereby approved and ratified.
Section VI. The Common Council hereby approves of the use of the Building
Corporation for purposes of financing and leasing the Projects to the City. The Common
Council hereby further approves of the sale and issuance by the Building Corporation of its first
mortgage bonds in one or more series in an aggregate principal amount not to exceed $6,215,000
(the 'Bonds ") to pay the costs of completing the Projects.
Section VIII. The Common Council expects that the Rentals payable under the
Lease will be payable from the EMS Revenues and any other revenues that the Common Council
may make available for such purpose. To the extent that such funds are not expected to be
sufficient to pay such Rentals when due, the City covenants to levy a tax for such purpose. On
the July 15 immediately following the date of issuance of the Bonds by the Building
Corporation, and on each July 15 thereafter (the "Determination Date "), the Controller of the
City (the "Controller ") will determine if the EMS Funds and any other revenues that the
Common Council may make available for such purpose are sufficient on such Determination
Date to pay the Rentals payable under the Lease in the twelve (12) month period beginning on
July 1 in the next following year and each twelve (12) month period beginning on each July 1
thereafter (the 'Pledge Period "). If such revenues are expected to be sufficient, an amount of
such revenues necessary to pay the Rentals during the Pledge Period will be set aside in a
separate account for such purpose. If such revenues are insufficient for such purpose, the
-2-
DMS_US 51840778v2
Common Council hereby covenants to levy a tax for collection during such Pledge Period upon
all of the taxable property of the City in a total amount, together with any available revenues
described above, which will be sufficient to pay the Rentals due under the Lease for the
applicable Pledge Period. The Common Council hereby covenants to levy a tax each year
Rentals are payable under the Lease and there are not sufficient other revenues identified on the
Determination Date for such purpose.
Section IX. This Ordinance shall be in full force and effect from and after its
passage by the Common Council and approval by the Mayor.
By: -0%,WkA
Member of the Common Council
f e.=
F
Attest: �a � f
} 5 F and
City Clerk
Presented by me to the Mayor of the City of South Bend on the day
of , 2013, at o'clock _.m.
City Clerk
Approved and signed by me on the day of
o'clock m.
1 s# READING `[ —0 '-t-3
PUBLIC HEARING
3 rd RC-,4M-R—j
NOT F.P VED,
RbfERR7_D
PAS-SED
DMS_US 51840778v2
Mayor, City of South Bend
-3-
2013, at
Filed
� N ✓� 1
AIPR�,, i
Cad ..Y CL<1AK, SOUTH SEND, IN I
120ON COUNTY CiTr BuLDJNG
227 W. JEFFERSON BLVD.
SOUTH BEND, INDIANA 46601 -1830
PxoNE 5741235 -9216
FAx 574/235 -9928
CITY OF SOUTH BEND PETE B=GIEG, MAYOR
DEPARTMENT OF ADMINISTRATION AND FINANCE
April 3, 2013
Mr. Derek Dieter
President, South Bend Common Council
4th Floor, County -City Building
South Bend, IN 46601
Re: Resolution and Ordinance Concerning Lease for Construction and Equipping of New Fire
Station #5 and Fire Safety Training Facility
Dear President Dieter:
As you know, discussions have been ongoing about the need to replace Fire Station #5
located at 2221 Prairie Avenue in South Bend, and the benefit to the City of constructing a fire
safety training facility in South Bend. An ordinance and a resolution are being filed this date
which commence the process for lease financing of both of these state of the art facilities. A
duplicate original of this letter is being submitted to cover both the Resolution and the Ordinance
because they are integrally related.
The attached Ordinance approves and authorizes the execution of a Lease whereby
construction of both new Fire Station #5 and the fire safety training facility will be achieved
through a lease between the City as lessee and the City of South Bend Building Corporation as
lessor, for a term not to exceed twenty one years, at a lease rental rate of not more than
$561,000 per year, payable in semi- annual installments of $280,500 each. The proposed Lease is
also attached. It is expected that lease rental payments shall be payable from the Emergency
Medical Services Fund (EMS Funds), and that EMS Funds will fully cover the Lease costs.
Should EMS Funds and other revenues be insufficient for this purpose, the Lease has been
structured so that the tax levy will serve as back -up only; this will enable marketing of the
Building Corporations bonds at a lower rate of interest. Please note that the Project does not
constitute a "controlled project" as such term is defined by IC 6- 1.1- 20 -1.1 because such rentals
are reasonably expected to be paid from funds other than property taxes that are exempt from the
levy limitations of IC 6 -1.1 -18.5.
A pre - curser to passage of the Ordinance is the attached Resolution which authorizes the
steps required to approve the proposed Lease under IC 36 -1 -10. Therefore, the Resolution sets
public hearing on the Lease for April 22, 2013 which is intended to coincide with the Council's
review, public hearing, and passage of the Ordinance. The Resolution also directs that a petition
from at least 50 South Bend real property owners be circulated and signed requesting that the
City enter the proposed Lease, all as required by State law (IC 36- 1 -10 -7) .
Derek Dieter
Page 2
April 3, 2013
The City Administration has been pleased with the Common Council's positive response
to the discussions of these Projects in the recent past, and hopes that the Council will approve
both the Resolution and Ordinance.
I will present the companion Resolution and Ordinance to the Common Council at its
Committee meeting and at the public hearing.
Thank you for your consideration of these matters.
Sincerely,
` Mark Neal
City Controller
Filed ;n
FAPR ° 4013
CITY CLERK, SOUTH BEND, IN