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HomeMy WebLinkAbout9408-03 Authorizing the issuance of Bonds to evidence a loan from the Indiana Department of Environmental Management Brown-Fields Cleanup Revolving Loan FundORDINANCE No. as a Passed by the Common Corrncit of the City of South Bend, Indiana March 24, Attest: Attest:, 20 03 Presented by me to the Mayor of the City of South Bend, Indiana March 25, Z~ 03 Ciry Clerk President of Common Council Ciry Clerk Approved and signed by me March 25, Zp o3 Mayrn ORDINANCE NO. l~o~ "~3 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AUTHORIZING THE ISSUANCE OF BONDS TO EVIDENCE A LOAN FROM THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT BROWN-FIELDS CLEANUP REVOLVING LOAN FUND ADMINISTERED BY THE INDIANA DEVELOPMENT FINANCE AUTHORITY, PLEDGING A PORTION OF THE CITY'S COUNTY OPTION INCOME TAX REVENUES TO SECURE SUCH BONDS, AND OTHER MATTERS CONNECTED THEREWITH STATEMENT OF PURPOSE AND INTENT The City of South Bend, Indiana (the "City") owns certain Brownfield property near South Bend Avenue and Howard Street in the northeast portion of the City, commonly known as Fredrickson Park, and more particularly described on Exhibit "A" hereto (the "Property"). The City has previously investigated the environmental condition of the Property and has determined to undertake certain non-time critical removal activities and other general environmental activities in connection with the environmental remediation of the Property in order to make the property suitable for future redevelopment (the "Project") The City has determined to borrow an amount not to exceed One Million Dollars ($1,000,000) from the Indiana Department of Environmental Management ("IDEM") Brownfields Cleanup Revolving Loan Fund (the "Fund"), administered by the Indiana Development Finance Authority ("IDFA") for the purpose of providing funding from the Fund for the assessment and general remediation of a "Brownfield site" located on the Property (the "Loan"). The City has submitted an application to IDFA (the "Application"), which Application sets forth the request for the Loan and the details of the Project. On November 6, 2002 the Common Council gave preliminary approval to the City obtaining the Loan from IDFA by Ordinance No. 9361-02. On November 19, 2002 IDFA approved making the Loan to the City in Resolution G37- 2002 (the "IDFA Resolution"), upon the terms and conditions set forth in the IDFA Resolution and in a Loan, Servicing and Disbursement Agreement to be entered in to between IDFA and the City, substantially in the form of the agreement that has been submitted to the Common Council (the "Loan Agreement"). The St. Joseph County Income Tax Council has imposed a county option income tax ("COIT") pursuant to IC 6-3.5-6 on the adjusted gross income of the County taxpayers. The City shall repay the Loan from then current revenues of the City (the "City Revenues") annually appropriated by the Common Council of the City (the "Common Council") for the purpose of making such Loan payments, and, to the extent available, COIT revenues (the "COIT Revenues ") allocated to the City (the COLT Revenues, together with the City Revenues shall be referred to as the "Available Revenues"), it being the expectation of the City that any such COIT Revenues shall be used by the City to offset any necessary appropriation of the City Revenues. The bonds which shall evidence the Loan shall constitute a limited obligation of the City payable solely from Available Revenues, and neither the full faith and credit nor the taxing power of the City is pledged to the payment of the principal of and the interest on the bonds. 2 It is possible for a portion of the Loan will be forgivable by IDFA (the "Forgivable Portion") if the City achieves certain economic development goals set forth in the Loan Agreement which evidences the Loan. NOW THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AS FOLLOWS: Section I. The Common Council hereby authorizes revenue bonds of the City (the "Bonds") to be issued upon the terms and conditions set forth herein in the form of the Loan pursuant to I.C. 36-4-6-19 (the "Act") for the purpose of financing all or a portion of the Project. The City shall use the proceeds of the Loan in accordance with the terms to be set forth in the Loan Agreement for purposes of the Project. Section 2. The Bonds to be issued by the City and evidenced by the Loan shall be payable from the Available Revenues, and the Bonds shall constitute a limited obligation of the City payable solely from the Available Revenues and neither the full faith and credit or the taxing power of the City is pledged to the payment of and interest on the Bonds. Furthermore, the Available Revenues shall be subject to annual appropriation by the Common Council. Section 3. The Common Council hereby authorizes the issuance of the Bonds in the form of the Loan in an aggregate principal amount not to exceed the amount of the Loan, all in accordance with the Act and the Loan Agreement. The Bonds shall be designated as the "City of South Bend, Indiana Taxable Revenue Bonds of 2003 (Environmental Remediation Project), Series _" (with the blank to be completed with the letter which shall correspond to the applicable series of the Bonds). As contemplated in the Loan Agreement, the initial amount of the Loan (the "Initial Loan Amount") may be for less than S 1 million, however, the amount of the Loan may be increased, from time to time, up to a maximum aggregate principal amount of 3 $1 million. The Initial Loan Amount shall be evidenced by two Bonds of the City, the Bond evidencing the non-forgivable portion of the Loan being designated as "City of South Bend, Indiana Taxable Revenue Bonds of 2003 (Environmental Remediation Project), Series A", and the Bond evidencing Forgivable Portion of the Loan being designated as "City of South Bend, Indiana Taxable Revenue Bonds of 2003 (Environmental Remediation Project), Series B". In the event that the Loan amount is increased, at any time and from time to time, in accordance with the Loan Agreement, the City's obligation to repay the increased portion of the Loan shall be evidenced by additional Bonds with the same designation, other than the Series designation, which will be the next consecutive letter of the alphabet. Section 4. The Bonds will be sold to IDFA pursuant to a negotiated sale, in accordance with I.C. 6-3.5-6-25, for par value as provided in the Loan Agreement. The Bonds shall be dated and have an original issuance date as of the date of the Loan. The Bonds shall mature on a date not later than twenty (20) years from the date of original issuance thereof and shall bear interest at a rate not to exceed three percent (3.0°l0) per annum. Each series of the bonds maybe prepaid by the City at par on any date and shall be negotiable without registration. Section 5. The Mayor and the Clerk of the City are hereby authorized and directed to execute and deliver and the Clerk is hereby authorized to affix the seal on, when and if appropriate, the Loan Agreement and the Bonds, together with any documents, instruments, or certificates they deem necessary or appropriate upon the advice of counsel to complete the transactions contemplated herein. Two copies of the Loan Agreement hereby incorporated into this Ordinance, were duly filed in the Office of the Clerk and are available for public inspection in accordance with Section 36-1-5-4 of the Indiana Code. 4 Section 6. This Ordinance shall be in full force and effect from and after its passage by the Common Council and approval by the Mayor. SBDS02 ABF 2G8G09v2 1st READING 3 ' ~ ~ - D~ PUBLIC HEARING 3,Z~-U3 G3 rd READING '3_y~.o3 NOT APPROVED REFERRED PASSED 3_z~- O3 COMMON COUNCIL OF THE CITY OF SOUTH BEND Mem er of the Common Council 5 ~'Z~~~ X97 ~~~~'o ~ ~~~~~~ ~~;~,~ Q ~ 200 k CITY CII.EF?i+t, 3D. f~EP83), SA:. j TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 21-03 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AUTHORIZING THE ISSUANCE OF BONDS TO EVIDENCE A LOAN FROM THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT BROWN-FIELDS CLEANUP REVOLVING LOAN FUND ADMINISTERED BY THE INDIANA DEVELOPMENT FINANCE AUTHORITY, PLEDGING A PORTION OF THE CITY'S COUNTY OPTION INCOME TAX REVENUES TO SECURE SUCH BONDS, AND OTHER MATTERS CONNECTED THEREWITH Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation. Karl King Chairman 12U0 CAUN'I'Y-CITY BUILDING SOUTH BEND, INDIANA 46601-1830 PHONE 574/ 235-9371 Fax 574/235-9021 TDD 574/ 235-5567 CITY OF SOUTH BEND STEPHEN J. LUECKE, MAYOR COMMUNITY S~L ECONOMIC DEVELOPMENT JON R. HUNT EXECUTIVE DIRECTOR March 4, 2003 South Bend Common Council 4`~ Floor County City Building South Bend, IN 46601 Dear Council Members: Enclosed is an Ordinance authorizing the issuance of bonds to evidence a loan from the Indiana Department of Environmental Management Brownfields Cleanup Revolving Loan Fund for the Fredrickson Park project. The proceeds of the loan will be used to cover the costs of remediation at Fredrickson Park. On November 6, 2002 you adopted Ordinance 9361-02 authorizing the preliminary issuance of the bonds for this project. At that time I told you I would come back to the Council with a final bond ordinance once the details of the loan were worked out. This Ordinance authorizes the issuance of bonds of up to $1,000,000 with a portion of that "forgivable" if the economic development goals for the project are met. The Ordinance also pledges a portion of the City's County Option Income Tax revenues to make payments on the bonds. Also enclosed with this letter is the Loan, Servicing and Disbursement Agreement beriveen The Indiana Development Finance Authority and the City of South Bend which is incorporated by reference in the Ordinance. Please file this Agreement in the office of the Clerk of the South Bend Common Council along with the Ordinance so that it is available for public inspection pursuant to IC 36-1-5-4. I will attend the Council meeting on March 24`~ and the associated Council committee meeting to answer any questions that you have. Please contact me at 235-9374 if you need additional information prior to that meeting. I respectfully request your approval of this Ordinance. Sincerely, «-!" ~ C~'l `~ Ann E. Kolata Senior Redevelopment Specialist cc: Alan B. Feldbaum, Barnes & Thornburg ~i`SQ,p Q ~ ?~~~ COMMUNITY DEVELOPMENT ECONOMIC DEVELOPMENT FINANCIAL & PROGRAM ~~ "" PAMELA C. MEYER DONALD E. INKS MANAGEMENT /, y 574/235-9660 574/235-9371 ELIZABETH LEONARD c,;! ~~~P'f FAx: 574!235-9697 574/235-9371 t' INDIANA DEVELOPMENT FINANCE AUTHORITY LOAN, SERVICING AND DISBURSEMENT AGREEMENT BROWNFIELD REDEVELOPMENT LOAN TO THE CITY OF SOUTH BEND, INDIANA This LOAN, SERVICING AND DISBURSEMENT AGREEMENT (the "Loan Agreement") is made and entered into by and between the INDIANA DEVELOPMENT FINANCE AUTHORITY (the "IDFA") and the CITY OF SOUTH BEND, INDIANA, a qualified entity pursuant to Indiana Code 13-19-5 et. se ., (the "Borrower"). WHEREAS, the Borrower has applied for a partially forgivable loan from the Brownfields Cleanup Revolving Loan Fund (tlie "BCRLF"), guidelines for which have been modeled after the Indiana Environmental Remediation Revolving Loan Fund (the "ERRLF") as established in accordance with Indiana Code 13-19-5, in an amount not to exceed One Million Dollars ($1,000,000) (the "Loan"); and Whereas the Loan is meant to assist the Borrower in financing the costs of hazardous substance remediation activities at a Brownfield site (as defined in IC 13-11-2-19.3) located in South Bend, Indiana and referred to locally as the Fredrickson Park site, thereby encouraging future use of the site as an outdoor environmental education facility (the "Brownfields Project"), a description of which is attached hereto and made a part hereof as Attachment A; and WHEREAS the Brownfields Project, for the purpose of this Loan Agreement, consists of hazardous substance remediation activities and other tasks (the "Project Activities") outlined in the Groundwater Sampling and Analysis Plan (the "SAP") and the Remediation Work Plan (the "RWP") (collectively the "Remediation Plans"), incorporated by reference herein, as approved by the Indiana Department of Environmental Management (the "IDEM"); and WHEREAS, the Borrower and IDFA have identified Economic Development Goals for the Brownfields Project, as described in Attachment C, attached hereto and incorporated by reference herein; and WHEREAS, the Brownfields Project qualifies as a priority for a partially forgivable Loan, consistent with IC 13-19-5-15, because it is located within one-half mile of an elementary school; and WHEREAS, in Resolution G37-2002 (the "Resolution"), a copy of which is attached hereto and made a part hereof as Attachment B, the IDFA approved making such a partially forgivable Loan in accordance with Indiana Code 13-19-5, but only upon the terms and conditions set forth in the Resolution and this Loan Agreement; and WHEREAS, the Loan will be evidenced by the Borrower's special, limited obligation revenue bonds (the "Bonds") authorized by the Ordinances (as hereinafter defined); and WHEREAS, the Ordinances and the Bonds are incorporated into this Agreement by reference, and specimens of the Bonds are attached to this Agreement. NOW, THEREFORE, IN CONSIDERATION of the above premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I. AMOUNT AND TERMS OF THE LOAN Section 1. Subject to the terms and conditions hereof, and relying upon the representations, warranties and covenants herein set forth, IDFA agrees to make a secured loan to the Borrower in the aggregate principal amount of up to One Million Dollars ($1,000,000) (the "Loan") to be used for the remediation of hazardous substances (the "Project Activities") in conjunction with the redevelopment of a former un-permitted landfill area in order to establish an environmental educational facility (the "Brownfields Project"). A description of the Brownfields Project is attached hereto and made a part hereof as Attachment A. Initially, the amount of the Loan shall be Seven Hundred Eighty Nine Thousand Nine Hundred Dollars and No Cents ($789,900.00) (the "Initial Loan Amount"), however, the Loan amount may be increased, at any time and from time to time, up to a maximum aggregate principal amount of $1,000,000, in accordance with Article I, Section 3, below. The Loan is intended to be a partially forgivable Loan, and percent (_%) of the Loan shall be forgiven if the Borrower timely attains its Economic Development Goals as stated in Attachment C. The Loan shall be available for disbursement and shall be disbursed in accordance with the conditions set forth in this Loan Agreement and in the Bonds, defined below. Section 2. The Bonower's obligation to repay the Loan shall be evidenced by bonds issued by Borrower, designated as "Taxable Revenue Bonds of 2003, Series ~". The Initial Loan Amount shall be evidenced by two bonds of the Borrower, designated as "Taxable Revenue Bonds of 2003, Series A" (the "Series A Bond") and "Taxable Revenue Bonds of 2003, Series B" (the Series B Bond"), attached hereto and made a part hereof as Attachment D. In the event that the Loan amount is increased, at any time and from time to time, in accordance with Article I, Section 3, below, the Borrower's obligation to repay the increased portion of the Loan shall be evidenced by additional bonds with the same designation, other than the Series designation, which will be the next consecutive letter of the alphabet (the "Additional Bonds", and together with the Series A Bond and the Series B Bond, collectively, the "Bonds"). Section 3. In the event that additional funds become available to the BCRLF for the Brownfields Project, IDFA shall loan such additional funds, up to an additional Two Hundred Ten Thousand One Hundred Dollars ($210,100), to Borrower hereunder ("Additional Loans"). Each Additional Loan hereunder shall constitute a part of the "Loan" evidenced hereby. The Borrower's Obligation to repay each Additional Loan shall be evidenced by two Additional Bonds of Borrower, designated as set forth in Article I, Section 2, hereof. One of such Additional Bonds (the "Non- Forgivable Additional Bond"), in an amount equal to eighty percent (80%) of the principal amount of such Additional Loan, shall evidence the non-forgivable portion of such Additional Loan; and the other Additional Bonds (the "Forgivable Additional Bond"), in an amount equal to percent (_%) of the principal amount of such Additional Loan, shall evidence the forgivable portion of such Additional Loan. Section 4. The Loan shall be available for disbursement after satisfaction of the following: (A) the execution of this Loan Agreement and the Bonds (collectively, the "Loan Documents"), and (B) satisfaction of conditions stipulated by the IDFA in Resolution G36-2002. IDFA shall then periodically disburse the proceeds of the Loan to the Borrower based upon the completion of Project Activity milestones provided in the RWP. A summary of the Project Activity milestones, provided in the RWP as the "Construction Schedule", is attached hereto and is made a part hereof as Attachment F. -2- Upon the completion of a RWP Project Activity milestone, the Borrower shall submit a draw request to the IDEA that includes satisfactory documentation of activities and expenditures associated with said milestone. Upon concurrence by the IDEM Site Manager, as defined hereinafter, that the milestone has been met, IDEA agrees to approve the draw request of the Borrower. The proceeds of the Loan, in an amount equal to the approved draw request, will be disbursed to the Borrower within ten (10) business days of the approval of the request. IDEM and IDFA agree not to unreasonably withhold approval or payment of a draw request once a satisfactory draw request is submitted. The Borrower shall notify IDFA and the IDEM Site Manager at least five (5) business days prior to completion of work that satisfies a Project Activity milestone to insure timely review and approval as described herein. Section 5. The Loan will be disbursed when the conditions herein are met. All expenditures from the Loan proceeds shall be documented and provided to IDFA as required herein. Section 6. The non-forgivable portion of the Loan, memorialized by the Series A Bond and the Non-Forgivable Additional Bonds, if any, shall be repaid as follows: A. Payments of interest only shall be due and payable quarterly on the last day of the quarter beginning June 30, 2003 in the amount set forth in Attachment D-1 (in the event that any Non-Forgivable Additional Bonds are issued after June 30, 2003, such payments shall commence with the next quarterly payment). B. Payments of principal and interest shall be due and payable quarterly on the last day of the quarter, beginning on June 30, 2004 (in the event that any Non-Forgivable Additional Bonds are issued after June 30, 2004, such payments shall commence with the next quarterly payment). C. Payments of principal and interest shall continue thereafter until the Loan is repaid. The final payment of principal and interest is due on February 28, 2012. Section 7. The forgivable portion of the Loan, represented by the Series B Bond and the Forgivable Additional Bonds, if any, shall be entirely forgiven if the Borrower timely attains its Economic Development Goals as specified in Attachment C. The Borrower shall be deemed to have met the Economic Development Goals upon timely delivery to IDFA of (A), (B), and (C) as follows: A. the Final Landfill Closure Report referenced in Article III Section 1 (c) hereof; B. written acknowledgment by the IDEM of the satisfactory completion of Project Activities at the Brownfields Project site (the "Environmental Certification"), said Project Activities being described generally in the Project Description (Attachment A), described specifically in the Remediation Plans (incorporated herein by reference), and memorialized in the Final Landfill Closure Report; and C. narrative and photographic documentation jointly prepared and submitted by official designees of the Borrower of the completion and/or implementation of the Economic Development Goals described in Attachment C (the "Development Certification"). Upon delivery of the Final Landfill Closure Report and the Environmental and Development Certifications, and without any further action, the forgivable portion of the Loan shall be forgiven and -3- the Series B Bond and each of the Forgivable Additional Bonds, if any, shall be marked "canceled" and returned to Borrower. If any one of the three aforementioned deliverables are not received by the IDFA by February 28, 2005, the Economic Development Goals will be deemed unattained and payments on the forgivable component of the Loan shall commence on June 30, 2005 including principal and accrued interest in the amount set forth in the amortization schedule provided as Exhibit A to the Series B Bond in Attachment D. Section 8. The Borrower, without penalty, may prepay the Loan at any time during the term of this Loan. ARTICLE II. BORROWER'S REPRESENTATIONS AND WARRANTIES To induce the IDFA to enter into this Loan Agreement to make the Loan, the Borrower represents and warrants to the IDFA that: Section 1. The Borrower is a political subdivision as defined in Indiana Code 13-11-2-164(c). Section 2. The Common Council (the "Common Council") of Borrower approved the Loan and the Brownfields Project in Ordinance No. 9361-02 and Ordinance No. = 03 (collectively, the "Ordinances"), along with a commitment for repayment of the Loan pursuant to Indiana Code 13-19-5, with such Ordinances being attached hereto and made a part hereof as Attachment E. Section 3. The Borrower's governing body has authorized the development and approval of the Economic Development Goals and the timetable for such goals. Section 4. The Borrower is eligible for a partially forgivable Loan pursuant to the BCRLF Program Guidelines as modeled after Indiana Code 13-19-5, and its Economic Development Goals, identifed in Attachment C, satisfy the requirements of Indiana Code 13-19-5. Section 5. The Borrower has taken all necessary actions to borrow funds from the BCRLF, including obtaining an authorizing letter from bond counsel, and is authorized to execute and deliver the Loan Documents and enter into the transactions contemplated by the Loan Documents. The performance of the Borrower's obligations under the Loan Documents and compliance with their provisions will not result in or constitute a default or be in conflict with any instrument, document, decree, order, judgment, statute, rule or governmental regulation applicable to the Borrower. Section 6. Assuming the due authorization and execution of the Loan Documents by the IDFA, each of these instruments will constitute legal, valid, and binding obligations of the Borrower, enforceable against it in accordance with their respective terms. The Loan evidenced by the Loan Documents shall be payable from the revenue sources described in the Ordinances or other additional legally available revenues of the Borrower, subject to a new ordinance adopted by the Common Council of the City. The Loan shall not constitute a general obligation of the Borrower. The Loan described herein shall be evidenced by the Bonds issued pursuant to the Ordinances. Section 7. The Borrower acknowledges that the Cooperative Agreements entered into between the IDEM and the USEPA, incorporated by reference herein, in conjunction with the BCRLF Memorandum of Understanding entered into between the IDFA and the IDEM pursuant to the -4- Cooperative Agreements, incorporated by reference herein, solely designate and appropriate the funds loaned hereunder and that the Borrower is under no obligation to loan any of its own funds. Section 8. No litigation or proceeding of any governmental authority or any other person, firm or corporation is presently pending or, to the knowledge of the Borrower, threatened, which questions the validity of the Loan Documents or the transactions contemplated thereby or which might materially and adversely affect the Borrower's operations, financial condition or ability to perform any of its obligations under the Loan Documents. Section 9. The Borrower has not received notice and has no reasonable grounds to believe that it is in violation of any laws or orders that in any manner adversely and materially affect the Borrower's ability to perform its obligations under the Loan Documents. Section 10. No other approval, consent or authorization of any form is or will be required in connection with the execution and delivery of the Loan Documents or the borrowing evidenced thereby, except as indicated herein. ' Section 11. The representations and warranties contained herein shall be true on and as of the date of the signing of this Loan Agreement with the same effect as though such representations and warranties had been made on and as of such date, and on such date no Event of Default as defined in Article V herein, and no condition, event or act which, with the giving of notice or the lapse of time or both, would constitute an Event of Default shall have occurred and be continuing or shall exist. Section 12. The Borrower acknowledges that the IDEM will designate a Site Manager. The IDEM Site Manager will review, oversee, and inspect all Project Activities in conjunction with a designated representative of the Borrower. The IDEM Site Manager will have the rights and responsibilities as outlined herein. The Borrower will designate a Project Coordinator whose Brownfields Project duties shall include but will not be limited to (i) serve as the primary point of contact for both the Site Manager and the IDFA; and (ii) serve as the primary point of contact for media and community inquiries regarding the Brownfields Project. Section 13. The Borrower represents and warrants that (i) the Brownfields Project site is not listed or proposed for listing on the National Priorities List of the USEPA; (ii) the Borrower did not generate or transport hazardous substances, pollutants, or contaminants at or to the Brownfields Project site; and (iii) the Borrower acquired the Brownfields Project site after the disposal or placement of hazardous substances, pollutants, and contaminants on Brownfields Project site and has not caused, contributed to, or exacerbated the release of such substances, pollutants, or contaminants on or from the Brownfields Project site. ARTICLE III. COVENANTS OF BORROWER Section 1. The Borrower affirmatively covenants that until payment in full of the Bonds and performance of all the Borrower's other obligations under the Loan Documents (the "Term of the Loan"), unless otherwise consented to in writing by the IDFA, that: A. The Borrower shall accept the Loan and use such funds solely for payment of expenses related to the completion of approved Project Activities at the Brownfields Project site. -5- Project Activities are generally described in the Borrower's Loan Application to the IDFA and in the Project Description found in Attachment A hereto of this Loan Agreement, and are specifically described in the Remediation Plans. The foregoing documents may be amended, supplemented, or replaced from time to time as approved by the IDFA and the IDEM. B. The Borrower shall provide or shall cause to be provided to IDFA properly documented records of all expenses incurred in connection with the Project Activities during the course of the reimbursement request process. Borrower shall document all the uses of the proceeds of the Loan, and maintain adequate books and accounts in accordance with generally accepted accounting principles consistently applied. Borrower shall permit any representative of IDFA at any reasonable time to inspect, audit and examine such books. Borrower shall maintain documentation on the use of the proceeds of the Loan for ten years after completion of Project Activities supported by the Loan. C. After execution of this Loan Agreement and upon completion of all Project Activities, the Borrower shall submit or shall cause to be submitted a Final Landfill Closure Report (the "Report") to the IDFA and IDEM Brownfields Section that is acceptable to both IDFA and IDEM. The report is due by March 31, 2005 or at the conclusion of the Project Activities, whichever is earlier. The Report must include (1) a narrative summary, including graphical and photographic illustrations where appropriate, demonstrating the successful completion of all Project Activities in accordance with the Remediation Plans; (2) documentation of proper compliance with all applicable laws and regulations governing the Project Activities completed at the Brownfields Project site; and (3) documentation of expenses incurred during the completion of the Project Activities in connection with the Brownfields Project. D. During the execution of the Remediation Plans, the Borrower will provide a site access agreement that gives any designated representative of IDFA or IDEM, including but not limited to the IDEM Site Manager, access to enter and inspect the Brownfields Project site at all times during normal working hours and at other times upon prior arrangement. The IDFA or IDEM will also have access to enter and inspect the Brownfields Project site 30 (thirty) days following completion of all Project Activities at the site. The Borrower also will obtain or provide permission for any such state representative to have access to, and permit such representative to examine, copy without charge, or take notes from any and all books, records, and other documents in the possession or control of the property owner relating to the Brownfields Project at all times. The State does not have any obligation to make such inspections. E. At the request of the IDEM Site Manager, the Borrower must stop Project Activities if said activities are not substantially in accordance with the Remediation Plans. The Borrower acknowledges that the IDEM Site Manager has the authority to stop work immediately in the event of an imminent and substantial threat to human health and the associated environment. F. The Borrower must comply with all licensing or permitting requirements for this Brownfields Project, and shall carry out all Project Activities as may be required by all applicable provisions of any federal, state, local or other governing or regulatory body laws, guidelines, and procedures. Borrower acknowledges that Loan proceeds shall be -6- used exclusively for the completion of non-time critical removal activities as described in CERCLA § 101 (23) and described in 40 C.F.R. §300.415. G. The Borrower certifies that it is not now, and has not in the past, been subject to any penalties resulting from environmental non-compliance at the Brownfields Project site. Borrower further certifies that it will modify the Project Activities, as required by IDFA and/or IDEM, based on unforeseen site conditions or public involvement requirements. H. If required, the Borrower shall prepare an Engineering Evaluation/Cost Analysis (the "EE/CA"), or its equivalent, consistent with 40 C.F.R. §300.415 (b)(4)(I). I. In implementing the Remediation Plans, the Borrower shall consider and follow, when necessary and appropriate (i) the guidelines set forth by the USEPA in the BCRLF Administrative Manual (the "Manual"), dated 1998, including any subsequent updates to the Manual and all other federal guidance pursuant to the BCRLF Program, the foregoing incorporated herein by reference; and (ii) the USEPA publication titled "Guidance on Conducting Non-Time Critical Removal Actions Under CERCLA," (EPA/540-R-93-057, Publication No. 9360.0-32, PB93-963402 of August 1993). The Borrower shall immediately report in writing any potential or anticipated changes to the Remediation Plans pursuant to, but not limited to, the discovery of hazardous substances, pollutants or contaminants not identified in the Remediation Plans. The IDEM Site Manager and IDFA shall approve all changes or modifications to the Remediation Plans or related documents prior to such change or modification becoming effective. The Borrower shall be responsible for all additional costs incurred as the result of any changes or modifications. In the event that unforeseen conditions are discovered during the course of the Project Activities, IDEM and IDFA reserve the right to revise the Remediation Plans, including other Brownfields Project submittals as deemed necessary, all of which the Borrower must implement. All costs resulting from revisions to the Remediation Plans or associated submittals are the responsibility of the Borrower. K. The Borrower shall carry out the Project Activities in accordance with the Davis-Bacon Act of 1931 (CERCLA 104(g)(1), 40 U.S.C. §276a to 276a-5 and 42 U.S.C. / §3222 as set forth in U.S.C. §104 (g)). Compliance with the Davis-Bacon Act requires payment of federal prevailing wage rates for construction, repair or alteration work funded in whole or in part with Loan proceeds. The Borrower must obtain recent and applicable wage rates from the U.S. Department of Labor and incorporate them into any and all applicable contracts for Project Activities. L. The Borrower shall require that all contractors involved in Project Activities maintain and keep in fiill force and effect insurance of the types and amounts necessary to protect the security for the Borrower's indebtedness to IDFA, including without limitation, general liability insurance with a minimum of $1,000,000 coverage per accident or claim, property insurance and workman's compensation insurance (if applicable). Insurance coverage shall be primary in relation to any other insurance or self-insurance available to IDFA. ~ The IDFA and the State shall be named as Additional Insured on ~ This sentence to be reviewed with the City Attorney. -7- all coverages. The Borrower shall deliver to IDFA from time to time at IDFA's request certificates of insurance or policies setting forth all business insurance then. in effect. Policies shall be endorsed to provide that IDFA shall be provided with written notice of thirty (30) days for any cancellation, suspension or reduction in limits. M. The Borrower certifies that all contractors and consultants involved in Project Activities are not presently or proposed to be debarred or suspended, declared ineligible, or voluntarily excluded from federal, state or local (hereinafter "public") transactions; have not within a three year period preceding this Agreement been convicted of or had a civil judgment rendered against them for (i) fraud or commission of a criminal offence in connection with obtaining, attempting to obtain, or performing a public transaction or contract under a public transaction, (ii) violation of federal or state antitrust laws, or (iii) embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; are not presently indicted for or otherwise criminally or civilly charged by a public entity with commission of any of the offenses enumerated under Article III, Section 1 (G) hereof; and have not within the preceding three years had a public transaction terminated for cause or default. N. The Borrower shall demonstrate compliance with al] applicable cross-cutting requirements, which are defined as those federal requirements applicable to the BCRLF by operation of statutes, executive orders, and regulations. Adherence to cross-cutting requirements is applicable to this Brownfields Project by the terms of the statutes, executive orders, and regulations heretofore described, in that this Brownfields Project is receiving federal financial assistance and irrespective of whether the statute authorizing said assistance specifically references the requirements. The Borrower shall maintain records which segregate expenditures based on federal or non-federal sources of funds, although cross-cutting requirements apply only to the federal expenditures. All records that demonstrate compliance with cross-cutting requirements and that are maintained by the Borrower shall be reported to IDFA on a quarterly basis. O. The Borrower shall promptly give the IDFA written notice of: (i) any Event of Default by the Borrower, as defined below, together with a written statement of the action being taken by the Borrower to remedy such Event of Default; (ii) any litigation or proceeding before any court or governmental authority which, if adversely determined, might materially and adversely affect the Borrower's operations, financial condition or ability to perform any of its obligations under the Loan Documents; or (iii) any changes, amendments or modifications to existing contracts, agreements, ordinances or legislation that materially and adversely affect the Borrower's operations, financial conditions or ability to perform any of its obligations under the Loan Documents. P. The Borrower agrees to cooperate fully with an audit of the Loan and the Project Activities, if so required. Q. The Borrower agrees to erect a sign at the Brownfields Project site, with content approved by IDFA and the IDEM, that describes the nature of the Project Activities and identifies the federal nature of project financing. R. Borrower shall, upon reasonable request of the IDFA, duly execute and deliver to the IDFA such further instruments or information, and do and cause to be done such further -8- acts as may be necessary or proper in the opinion of IDFA to carry out more effectively the provisions and purposes of this Loan Agreement. ARTICLE IV. COVENANTS OF THE IDFA Section 1. The IDFA will: (A) provide and disburse up to One Million Dollars and No Cents ($1,000,000.00) to the Borrower upon execution of this Loan Agreement and the Bonds and in the manner prescribed herein, such indebtedness to be memorialized in the form of the Bonds, (B) receive payments of principal and interest on the Loan from the Borrower as set forth in Exhibit A to each of the Series A, Series B Bonds and the Additional Bonds (if any); and (C) maintain records of all disbursements of Loan proceeds to the Borrower, payments received from Borrower, and invoices received by the Borrower. ARTICLE V. EVENTS OF DEFAULT BY BORROWER Section 1. Each of the following constitutes a separate event of default ("Event of Default") by the Borrower: A. The Borrower fails to pay the full amount of principal and interest that is due under the terms of the Series A Bond, the Series B Bond or any Additional Bonds (if any), within ten (10) days of that payment's due date. B. RESERVED C. Any representation or warranty made by the Borrower in Article II, or otherwise furnished in writing in connection with this Loan Agreement, is found to be false or misleading in any material respect when made. D. Use of the proceeds of the Loan for Project Activities other than those approved either by IDEM in the Remediation Plans, or approved by IDFA as otherwise provided for in the guidelines set forth in the Manual, including any subsequent updates to the Manual and all other federal guidance pursuant to the BCRLF Program. E. The Borrower violates any one or more affirmative covenants contained in Article III to be performed by the Borrower and such violations have not been remedied within thirty (30) days of the date that written notice of the violation was delivered to the Borrower from the IDFA, provided that it shall not be a default if a violation cannot be remedied within thirty (30) days and the Borrower institutes corrective action within such 30-day period and diligently pursues such corrective action until the violation is remedied. F. RESERVED G. The repayment source from which the Borrower is repaying the Loan, as pledged in the Ordinances, is materially and adversely affected or diminished. -9- ARTICLE VI, REMEDIES Section 1. If any Event of Default occurs and is not expressly waived by IDFA, the IDFA shall not have any further obligation to disburse Loan funds hereunder, and all amounts payable under the Bonds, including penalties and interest, immediately become due and payable with no need for presentment, demand, protest or further notice, except to the extent as otherwise may be required by law. The IDFA may exercise any or all rights and remedies, singly or in combination, available under law to remedy such Event of Default or collect such amounts due, provided that the only sources available to the IDFA for repayment of the Loan are as set forth in the Ordinances and provided further that the Loan does not and shall not constitute a general obligation of the Borrower. Any failure of IDFA to exercise any remedies under the Bonds or applicable law should not be deemed a waiver of such rights. Section 2. The Borrower agrees to pay all costs of collection of the IDFA in case an Event of Default occurs under this Loan Agreement. Said costs shall include, without limitation, all reasonable expenses, court costs and the reasonable attorneys' fees incurred by the IDFA. ARTICLE VII. SECURITY Section 1. On or before July 1 of each year, commencing July 1, 2003, the IDFA shall send a written notice to the Borrower setting forth the dates and amounts required to be repaid under the Loan during the Borrower's next follotiving fiscal year. On or before September 1 of each year, commencing September 1, 2003 (or thirty (30) days after receipt of the aforementioned notice from the IDFA, if later than August 1), the Borrower shall send a written acknowledgment to the IDFA stating: A. the Borrower has received the notice and acknowledges the dates and amounts required to be repaid under the Loan during the Borrower's next following fiscal year; and B. the Borrower has no reason to believe that such Loan repayments will not be made on the dates and in the amounts required; and ARTICLE VIII. GENERAL PROVISIONS Section 1. No delay on the part of the IDFA in the exercise of any power or right shall operate as a waiver of that power or right. A single or partial exercise of any power does not preclude the further exercise of that power or right or the exercise of any other power or right. All rights and remedies existing under the Loan Documents shall be cumulative and in addition to those other rights which may be provided by law. Section 2. All representations, warranties, covenants and agreements made in the Loan Documents survive throughout the entire term of the Loan. -10- Section 3. This Loan Agreement shall be binding upon and inure to the benefit of the IDFA, its successors and assigns,, and except as otherwise expressly provided, to all subsequent holders of the Bonds. Since the IDFA has entered into the Loan in reliance upon the Borrower and its application for the Loan, the Borrower may not assign or transfer its rights and obligations without the written consent of the IDFA. Section 4. Time and each of the terms, conditions, and covenants herein are of the essence to this Loan Agreement. Section 5. This Loan Agreement may not be changed, amended or modified orally. Any change, amendment, or modification must be in writing and signed by the parties hereto, and approved in the same manner as for this Loan Agreement. This Loan Agreement merges and supersedes all prior negotiations, representations, and agreements of any kind between the Borrower and IDFA relating in any manner to the Loan. This Loan Agreement and its attachments constitute the entire agreement between the Borrower and IDFA concerning the Loan. All Attachments mentioned herein, and all documents expressly incorporated by reference, shall together be deemed incorporated herein by reference as though fully set forth herein. Section 6. If any conflicts arise between the terms and conditions of this Loan Agreement and the terms and conditions of other Attachments or documents expressly incorporated by reference, the teens and conditions of this Loan Agreement shall control except where federal statutes or regulations are controlling. Section 7. Nothing in this Loan Agreement, whether express or implied, shall be construed to give any other person other than the Borrower and IDFA any legal or equitable right, remedy, or claim under or in respect to this Loan Agreement or the other Loan documents which are intended for the sole and exclusive benefit of the Borrower and IDFA. Section 8. Copies of this Loan Agreement may be executed separately by the parties and once executed by all parties, all such copies taken together shall constitute a single document. This Loan Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original for all purposes. Section 9. .Notwithstanding anything contained herein, neither IDFA nor the Borrower shall be deemed to be a partner or joint venture of the other. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. The parties will not assume any liability for any injury, including death, to any persons, or any damage to any property arising out of the acts or omissions of agents, employees, or subcontractors of the other parties. Section 10. This Loan Agreement may be terminated by IDFA at any time with cause upon thirty (30) days' written notice. This Loan Agreement may also be cancelled pursuant to Article VIII, Section 14, of this Agreement. Upon such termination, the IDFA shall not have any further obligation to disburse Loan funds hereunder. However, this shall not cause all amounts payable under the Bonds to be immediately due and payable. Instead, the Borrower shall make payments as they otherwise come due under the Bonds. Section 11. All notices and correspondence pursuant to this Loan Agreement shall be made to the addresses of the parties hereto as follows: -11- Borrower City of South Bend, Indiana 1400 County-City Building 227 West Jefferson Blvd. South Bend, Indiana 46601-1830 Attention: Mayor IDFA Indiana Development Finance Authority c/o Deputy Director One North Capitol, Suite 900 Indianapolis, Indiana 46204-2226 IDEM Indiana Department of Environmental Management c/o BCRLF Site Manager 100 North Senate Avenue P. O. Box 6015 Indianapolis, Indiana 46206-6015 Section 12. The IDFA will in good faith perform its required obligations hereunder and does not agree to pay any penalties, liquidated damages, interests, court costs or attorney's fees, except as required by Indiana law, including, in part, Indiana Code 5-17-5-1 et. seg. Section 13. RESERVED Section 14. All parties to this Loan Agreement agree to comply with all applicable federal, state, and local laws, rules, regulations or ordinances, and all provisions required thereby to be included herein are hereby incorporated by reference. The enactment of any state or federal statute or the promulgation of regulations thereunder after execution of this Loan Agreement and affecting this Loan Agreement shall be reviewed by the IDFA, the Attorney General of Indiana and the Borrower to determine whether the provisions of this Loan Agreement require formal amendment. Section 15. To the extent permitted by law, the Borrower, at the Borrower's expense, shall indemnify, defend, and hold harmless the IDFA, the State of Indiana and their respective agents, officers, and employees from any and all claims, suits, demands, losses, expenses, damages (general, punitive or otherwise) and causes of action (whether legal or equitable in nature) asserted by any person, firm, corporation, or other entity arising out of or caused by actions or inactions by the Borrower, or by a contractor, consultant, advisor, or other party involved in Project Activities or the Brownfields Project on behalf of the Borrower. The IDFA and the State shall not provide such indemnification to the Borrower. The Borrower shall pay IDFA upon demand all claims, judgments, damages, lawsuits or expenses (including legal expenses) incurred by IDFA as a result of any legal action arising out of or caused by any of the Loan Documents, or by the use of the proceeds of the Loan. Section 16. RESERVED Section 17. Pursuant to Indiana Code 22-9-1-10, the Borrower and its subcontractors, if any, shall not discriminate against any employee or applicant for employment, to be employed in the -12- performance of this Loan Agreement, with respect to the employee's or applicant's hire, tenure, terms, conditions, or privileges of employment or any matter directly or indirectly related to employment, because of the employee or applicant's race, color, religion, sex, handicap, national origin or ancestry. Section 18. This Loan Agreement shall be construed in accordance with and governed by the laws of the State of Indiana except where superseded by federal statutes or regulations. Suit, if any, must be brought in the State of Indiana. Section 19. The IDFA is exempt from state, federal, and local taxes. The IDFA will not be responsible for any taxes levied on the Borrower as a result of this Loan Agreement. Section 20. Drug-free Workplace: A. The Borrower hereby covenants and agrees to make a good faith effort to provide and maintain during the term of this Loan Agreement adrug-free workplace. B. It is further expressly agreed that the Borrower's failure to in good faith comply with the terms of sub section (A) above shall constitute a material breach of this Loan Agreement, and shall entitle the State to impose sanctions against the Borrower, including, but not limited to, suspension of payment, termination of this Loan Agreement and/or debarment of the Borrower from doing further business with the State for up to three (3) years. Section 21. This Loan Agreement shall be construed solely in accordance with the terms of the State of Indiana and in a manner as to be effective and valid under applicable law. However, if any provision of the Loan Agreement shall be ineffective or invalid, it shall not affect the effectiveness or validity of the remainder the Loan Agreement. [Remainder of page intentionally left blank] `~r" a 4 s .~ 1;m ~~~~ (~ 200 IN WITNESS WHEREOF, the Indiana Development Finance Authority and the City of South Bend, Indiana have, by these duly authorized officials, entered into this Loan Agreement as of this day of March, 2003. CITY OF SOUTH BEND, INDIANA: BY: ATTESTED: BY: Loretta Duda, City Clerk The Honorable Stephen J. Luecke, Mayor Gary A. Gilot , Director of Public Works Charles S. Leone, City Attorney INDIANA DEVELOPMENT FINANCE AUTHORITY W. Calvin Kelly, Deputy Director ATTESTED: BY: TITLE: INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT Lori Kaplan, Commissioner ATTESTED: t~ 6 E;:..,r.,e. ~'~ TITLE: i-`P9~.~ ~ :~ ~~0~ - 14 - LC3^='~l' r,t^~ . "11 J li~E:~iY ~ a~ri!• to ri': G/~ Oci. INDIANA STATE BUDGET AGENCY APPROVAL Michael Landover, Deputy Director ATTESTED: BY: TITLE: ~3tG,v h... '~~~~~ 0 5 2Q~~ ' ice. ATTACHMENT A IDEA .RESOLUTION G37- 2002 Q~rf M ~4.. ~~j `[ LE ~.1,,. ~'?~~~ 0 ~ 200 ff ATTACHMENT B PROJECT DESCRIPTION Fredrickson Park South Bend, Indiana The Fredrickson Park site is a closed inactive landfill that accepted industrial waste for a thirty to forty year period from the 1930's to the mid-1970's. Waste was reportedly dumped at the site on a sporadic basis with no permits ever issued and no leachate collection or other engineering containment system ever installed. No waste disposal at the site (other than isolated dumping of domestic trash by third parties) has occurred for more than twenty years. Loan proceeds will be used to remediate the site through construction of a soil cover that will be installed over the waste to eliminate direct contact with the public. To minimize gas migration from the facility, a gas collection and control system will also be installed at the site. The site will be planted with grasses, wetland plants, and groundcover in addition to trees and plants in areas off the cap. Following completion of the remediation activities, local funds will be raised to complete the development of the park. The ultimate goal for the site is to construct the Fredrickson Park Environmental Educational Center. The new park will be constructed on top of the capped landfill. Structures, such as an amphitheater, a picnic pavilion and an education center will be constructed on land adjacent to the landfill cap. In addition to these physical structures, other planned amenities include the addition of constructed wetlands, walking paths and reforestation around the perimeter of the landfill cap. r P•: i (~ ~ e^:a c ~~.~ o ~ ~oo~_,~ ._~ otter ct~~a::, f ~. ~ ~, ;; ~. , , ATTACHMENT C PROJECT ECONOMIC DEVELOPMENT GOALS Fredrickson Park South Bend, Indiana The City of South Bend (the "Borrower") identifies the following Economic Development Goals and schedule for the Brownfields Project that must be achieved by the Borrower in order to achieve forgiveness of percent (_%) of the Brownfields Loan. At its sole discretion, IDFA may forgive a portion less than percent (_%) if all of the Economic Development Goals stated below are not met. Economic Development Goals and Schedule: 1. Remediation of the site through construction of a soil cover that will be installed over existing waste to eliminate direct contact with the public. Installation of a gas collection and control system to minimize gas migration from the facility. This work will be complete within eighteen (18) months of the date of the loan closing with the IDFA. 2. The remedial work described above will render the site suitable for development of the Fredrickson Park Environmental, Educational .Center (the "Park"), which will transform a longstanding neighborhood eyesore in the midst of a low income South Bend neighborhood into an attractive municipal asset. Phase I of the project takes the site from a negative situation to neutral. This includes remediation of the site, installation of the cap and installation of the venting system. At the end of Phase I the site will have plantings including grass, wetland plants, ground cover and will have unpaved walking paths. Off the cap the Borrower will plant tress and other plants to demonstrate phyto-remediation. This first phase of Park development will be complete within eighteen months of initiating field work, as described in the Remediation Plans. 3. Remediation activities at the Brownfields Project will provide in excess of $200,000 in construction and related wages. Documentation that the Brownfields Project remediation has been completed will be memorialized in Final Landfill Closure Report and documentation that the forgoing Economic Development Goals have been fully or partially realized will be memorialized in the Development Certification. The Final Landfill Closure Report, including documentation of IDEM acceptance (the "Environmental Certification"), and the Development Certification are collectively due to the IDFA on or before February 28, 2005. . ~- ~,_.,.~----~i ~~ ATTACHMENT E CITY OF SOUTH BEND COMMON COUNCIL ORDINANCES ~~ . r. a~ .._ .~ .... . Y~~~'1-v 9ril~~~ it _~~ ~Qfl~ CITdCi~`.~:.,^S.~W;.~,t., ATTACHMENT F RWP PROJECT ACTIVITY MILESTONES /CONSTRUCTION SCHEDULE ~.,~sTe~...~..a*~ SBDS02 AIIF 268392v5