HomeMy WebLinkAboutagenda item 2015 0625 rdc 06a3Department of
Community Investment
Memorandum
June 25, 2015
TO: South Bend Redevelopment Commission
FROM: Brock Zeeb/ David Relos, Economic Resources
SUBJECT: Annual Financial Information -2008 Eddy Street Commons Bonds
Annually the Redevelopment Commission and Redevelopment Authority are required to certify
certain financial information under the bond's Continuing Disclosure Undertaking Agreement.
This information is:
• The City's audited financial statements, as prepared and examined by the State Board of Accounts,
within 60 days of receipt therefrom
• Unaudited financial statements from the City if audited financial statements are not yet available, and
the following operating data:
o Direct and overlapping debt
o Direct debt issuance limitation
o Tota I tax rates
o Net assessed valuation
o Property taxes levied and collected
o Ten largest city taxpayers
Additionally, the following material everits must be disclosed:
• Principal and interest payment delinquencies
• Nonpayment defaults
• Unscheduled draws on debt service reserves reflecting financial difficulties
• Unscheduled draws on credit enhancements reflecting financial difficulties
• Substitution of credit or liquidity providers, or their failure to perform
• Adverse tax opinions or events affecting the tax exempt status of bonds
• Modifications to the rights of bondholders
• Bond calls
• Defeasances
• Release, substitution or sale of property securing repayment of the bonds
• Rating changes
This information is compiled and verified by the City Controller. Staff requests Commission
certification of this annual information.
227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 I P: 574-235-9371 I FAX: 574-235-9021 I SOUTHBENDIN.GOV
ITEM: 6.A.(3)
[!E3banko
· -Global Corporate Trust Services
60 Livingston Avenue, EP-MN-WS3C
St. Paul, MN 55107-2292
June1,2015
Mr. Brock Zeeb
South Bend Redevelopment Authority
1200 County-City Building
227 W. Jefferson
South Bend, IN 46601
Re: South Bend Redevelopment Authority Lease Rental Revenue Bond of 2008' (Eddy Street Commons
Project)
Dear Mr. Zeeb:
This letter is being sent in advance of the due date of the following items to assist you in providing us with the required
documentation in a timely manner.
Item
Annual Financial Information and Exhibit B
Document Reference
Continuing Disclosure Agreement
11
If the requested item(s) has been sent, you may disregard this letter.
Due Date
06/29/2015
Pursuant to the terms of the above agreement, the above item must be filed with the Municipal Securities Rulemaking
Board (MSRB) and made available via the Electronic Municipal Market Access System (EMMA) in a word-searchable
portable document format (pdf). If the item is not submitted in a word-searchable portable document format,
extraordinary fees may be assessed. If the required item is not received timely, U.S. Bank may be required to submit
a "Failure to File Disclosure Document" notice via the MSRB EMMA system.
We appreciate your attention to this matter. Please contact me at the telephone number or email address below to
discuss. any questions or concerns you may have regarding the content of this letter. You may also contact your
Account Manager, T. Scott Fesler, at 317-264-2501.
~nV
Assistant Vice President
Telephone: 651-466-6291
Facsimile: 651-466-7427
Email: jennifer.edwards2@usbank.com
Account Number: 122418000
Tickler Number(s): 1068465
usbank.com
EXHIBlTB
CERTIFICATE RE: ANNUAL FINANCIAL INFORMATION DISCLOSURE
The undeisiglled, on·behalf of the S-0u.th.Bend Redevelopment Authority and the
South Bend Redevelopment Commission, as the collective Obligor under the Continuing
Disclosure Un.dertakip.g Agreement, dated March 1, 2008 (the nAgreem~ntlf), between the
. Obligor and U.S. Bank National Association" as Counterparty, hereby cerrifies that the
infonnation enclosed herewith constitutes the Annual Information. (as defined in the Agreement)
which is required to be provided pursua1.:1t to Section 4(a)(2) of the Agreement.
.Dated:~---~-----
By:
.ATTEST:
By:~·~~~~~-~-~~
Secretary .. Treasurer
By:
ATTEST:
By:~--~-------
Sectetazy
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SOU'IHBENDREDEVELOPMENT
AUTIIORITY
· President
SOUTH B~ REDEVELOPMENT
COMMISSION
· President
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CONTINUING DISCLOSURE
UNDERTAKING AGREEMENT
. · Thi~ UNDER:TAKING AGREE:rv.tENr (the 11Agreernent1 1
) is made as of March 1.,
.200-8, between the South Bend Redevelopnient Authority, a pµblic body corporate and politic,.
organized and existing under LC. 36 .. 7~14,5 (the 11Authorify11
); the South Bend--Redevelop111ent
Comnussion, the governing body. of the .Department of R-edevelopment and the Redevelopment
District of the City of South Bend) Indiana (the 11Commission11
) (b~th the Autho~icy and the
Commission are collectively referred to h~~ein ~_the 110hligor11
) an<£ U.S. Bank National
Association, a banking and financial institution organized under the laws of the United· States of
Amer.ica (the 11Counterparty11
), for the purpose of permitting City Securities Corporation (the
11Underwr.iter 11
), to purchase tb.e South Bend Redevelopment Authority L~ase .Rental Revenue
Bonds of 2008 (Eddy Street Commons Project), dated March 18,. 200& (the i1
Bonds 11
), issue-d
pursuant to a Trust Agreement dated as ofMarch 1, 2008, between the Autlmrity and u:s. Bank
National Association) as trustee (the t
1Trust AgreementPl)!r in compliance with the Secmit{es and
Exchange Commission (1rSEC 11
) Rule 15c2-12 (the "SEC Rule 11
) as published in the Federal
Register on November 17 ~ 1994. .
WHEREAS, the Authority has issued its Bonds pursuant to the Trust Agreement;
and
WHEREAS> pursuant to a Lease Agreement, between the Authority) as lessorj
and the Commission, as -lessee, date.d as of October 15, 2007) as amended by an Addendum to..
Lease dated as ofMarch 17, 2008 (collectively, the 11L~ase 11), the Commission is requii'ed to pay
l~se rentals_, which rentals will be used to pay the principal and interest due on the Bonds; and
. WHEREAS, the Commission fa an Obligated Person (as denned in the SEC Rule).
because the lease rental payments due under the Lease· are the· only source of :funds (other than
bond proceeds held under the Trust Agreement) pledged to pay the principal and interest due on
the Bonds; ·
NOW, THEREFORE~ it is agreed by the parties hereto as follows:
Section 1. ·Definitions, The words and terms defined in this Agreement shall
have the meaning$ herein specified. Those words and terms not expressly -defined herein .shall
have the mecµrings assigned to them in the SEC Rule.
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(1) 11Bondholder11 or 11holderr1 or any similar ·tenn, when used \Vith
reference to a bond o:r Bonds) means any person who shall be the
registered owner of any ou1standing Bond} :includmg the holders of
beneficial interests in the Bonds.
(2) 11Final Official Statementlt means the Official Statement, dated as
of M&ch 5!1 2008~ relating to the Bonds, including any document
W.cluded by specific reference to such document previously
provided to each NRlvfSIR and to the Indiana state information
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depositozy then in existence) if any (11SID")> or TIJed with the
Municipal Sec1:ll1ties Rulemakjng Board (11MSRB 11
).
(3) 11NR.NfSIR11 means a nationally recognized municipal securities
:infot.ination repository which is designated as such at any point in
time by the SEC. TI1e current NIDvISIRs are listed on Exhibit A
· attached hereto.
( 4) "Obligated Person" means any person, including an issuer of
municipal securities, who is either generally or through an
enterprise, fund, or account of such person coillmitted by contract
or other arrangement ·to support payment of all .Or part of the
obligations on the Bonds (other than providers of municipal' bond
.insurance~ letters of -0redit, or other credit or liquidity facilities).
_ All Obligated Persons -with respect to the Bonds currently are
.identified herein.
Section 2. Obligated Persons. The Obligor hereby warrants and represents as of
the date hereof that the Obligor is the only Obligated Person with respect to the Bonds. If the
0 bligOI' is no longer committed by contract or other ~rangement to support payment of the
obligations on the Bonds~ the Obliger s1lall no longer be considered an Obligated Person within
the meaning of the SEC RuJe and the continuing obligation under this Agreement to provide
annual financial information and notices of events shall terminate with respect to the Obligor. If
the Obligor is 110 longer considered an Obligated P~rson within the meaning of the SEC Rule,
the Obligor shall file:-or cause to be filed \vith each NRMS~ the SID and the MSRB a written
notice that it is no l<?nger an Obligated Person. In the event that any entity subsequently becomes
an Obligated Person with respect to the Bonds, the Obligor agrees to use its best efforts (so long
as it continues to be an Obligated Person with respect to the Bonds) to cause such other' entity to
enter into a WJitten undertaking to comply with the disclosute requirements of the Obligated
Person set forth herein. ·
Section 3. Term. The term of this Agreement is from the date hereof to the
earlier of (i) the date of the last payment of prindpal of and interest on the Bonds, or (ii) the date
the Bond$ are defeased under the Trtist Agreement~ or (iii) the date of rescission as described in
Section 12. ·
information:
Section 4. Provision of Financial Infonnation.
(a) The Obligor hereby ?Udertakes to provide the ·following · financial ·
(1) · To each NRMSIR and to the SID, when and if available~ the
audited .financial ·statements of the City pf South Bend, Indiana
(the 11City11
) as prepared atid examined· ·by the State Board of
Accounts for _each fiscal ye<ll', beginning with the fiscal year
ending December 3 t 2008~ together .with the opinion of such ·
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accountants and fill notes thereto~ within sixty (60) days of rec~ipt
·· from the State Board or Accounts; and
_ (2) To each NRMSIR and to the SID~ within 18!J-days of the close of
each fiscal year of the City~ beginning with the calendar year
endingDecember 31, 2008,. tmaudited annual fmancial information
fol' the City for such calendar year incIUding (i) unaudited financial
statements of the City if audited financial statements are not then
available; and (ii} operating data Qf the type included Under the
follmving headings in Appendix B to the Final Of:ficfol Statement
(collec.tively, the "Annual Iufonnaiionn): .
APPENDIXB.
· Direct and Overlapp:ing Debt
Direct Debt Issuance Limitation
Total Tax Rates
Net Assessed Valuation.
Property Taxes Levied and Collected
Ten Largest City Taxp~yers
(b) To the t'.xtent the Ann~ Infonnation ot audited financial statements
:relating to the City referred to in paragraph (a) of thls Section 4 is included in a :final official
statement (as that tem1 is defined in paragraph (f)(3) of the SEC Rule) dated within one hundted
twenty (120) days prior to the due date for such infonnation for any fisoal year and filed with
each NRMSIR~ the SID, and the MSRB, the Obligor shall have been deemed to have provided
that infonnation as of the due date for th.e immediately preceding fiscal year as requireQ. by
paragraphs (a)(l) and (2) of this Section 4.
. (c) If any Annual Information or audited financial statements relating to the
City referred to in paragraph (a) of this Section 4 no longer c.an be generated because the
operations to whlch they related have been materially changed or discontjnued, a statement to
that effec_t, provided by 'the Obligor to each NRMSIR and. to .~he · Srp,. along with aI1Y other
Annual Information or audited financial statements required t(f be· provided under this
Agreement~ shall satisfy the undertaking to provide such Annual Information or audited financial
statements. To the extent available, the Obligor shall cause to be filed along with the· other .
· Annual Info1'1llation or audited financial statements operating dcita similar to that which can no
longer pe provided. ·
.(d) The disclos1J,te shall be accompanie.d by a certificate of an authorized
representative of the Obligor in the form of Exhlb~t B attached hereto.
( e) Annual Information or audited financial statements required to. be
provided pursuant to this Section 4 may be provided by a specifio reference to such Annual
Information or audited financial statements already prepared and previously provided to each
NRMSIR and the SID,. or filed with the SEC; however$ if such document is a final official
statement, it must also be availabfo frQm the MSRR
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Section 5. Accounting Principles. The financial i-pfonnation will be prepared on
a cash. basis as prescribed by the State Board of Accmmts, as in effect from time to time, as
described in the auditors' report and notes accompanying the audited financial statements of the·
~ity or those mandated by state law from time to time. The audited :financial statements of the
City, as· described in Section 4(a)(1) hereof~ will be prepared in accordance with generally
accepted· accounting principle.s and Government Auditing Standards issued .by the C01p.ptr0Uer
General of the Umted States.
Section -6. Material Events. The Obligor undertake.s to disclose in a timely
manner the occurrence of only the fo11oW.ing events, if material (whl9h determination of
materiality shall be made by the Obligor in accordance with the standards established. by federal
securities laws), to eachNRMSIR or to the MSRB:i and to the SID:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(ID)
(11)
principal and interest payment delinquencies;
non-payment related defaults~
Ullscheduled draws on. debt service reserves reflecting
financial difficulties; ··
unscheduled draws on credit enhancements reflecting
.firiancial difficulties;
substitution of credit or liquidity providers~ or their failure
to perform;
adverse tax opinio~s or events affecting the tax ... exempt
status of the Bonds;
modifications to the ri~ts·of Bondholders;
Bon4 calls ( Dther than schedule mandatory sinking fund
. redemptions for which notice is given ·m. accotdance with
the Trust Agt'eement);
defeasances;
release, substitution or sale of property securing repayment
of the Bonds; and ·
rating changes. .
The discJosure shall be. accompanied -by a certificate of an authorized
representative of the Obliger in the form of Exhibit C attached hereto.
Section 7. Notice to Cour;i.te;mruj:y. The Obligor hereby agrees to provide to the
Counterparty a copy of any_ Annual. Information, audited :financial statements, material event
notice, o:r notice of failure t.O disclose Annual Information which it files or causes to be filed
under Sections 4~ 6 and 9 hereof: respectively, concurrently with or prior to such filing. Except
as provided in Section 11 hereof, the Counterparty's receipt of any info1mation,, statements or
notic.es pursuant to tills Section 7 shall impose oil the Counterparty no duties of disclosure or
disseminat!-on 'With.respect to such :information or notices. ·
Section 8. Use of Agent. The Obligor may~ at its sole discretion, 'utilize an agent
(the ''Dissem:ination Agent 11) ill connection with the dissemination of any information required to
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be provided by the Obligor pursuant to the terms of this Agreement. If a. Dis~e:tnination Agent is
selected for these purposes, the Obligor shall provide prior written notice theteof-(as well as
notice of replacement or dismissal of sueh agent) to the CounteI1Jarty and t9 each NfilvfSIR.1 the
SID, and the MSRB.
Furthe:r, the Obligor .may~ at itS sole disctt1tion> retain counsel or others with
expertise in securities matters for t1w p-qrpose of assisting the Obligm in making judgments with
respect to the scope ofits obligations hereunder and complfance therewith, all in on;Ier to ~er
the purpo~es of this Agreement. ·
Section 9. Failure to Disclose, If, for any .reason) the Obligor fails to provide the
audited financial statements· or Annual Information as required by this Agreement~ the Obligor
shall provide notice of ~uoh failure in a timely manner to each NRMSIR or to the MSRB, and to
the SID.
Section 10. Remedies.
(a) The purpose of this Agreement is to enable the Underwriter to purchase
the Bonds by providing for an und.ertaking by the Obligor in satisfaction of the SEC Rule. This
Agreement fa solely for the benefit of the holders of the ~onds and creates no new contractual or
other rights for, nor cmi it be relied upon by~ the SEC, Underwriter, brokers, dealers.'1 municipal
securities dealers, potential customers, other Obligated Persons or any other third party, The sole
remedy against the Obligor for auy failure to carry out.any provision of this Agreement shall be
for specific perfotm.ance of the Obligor•s disclosU,re ob.ligations hereunder and not for money
·damages of any kind or in any amount or for any other rernedy. The Obligor1s failure to honor
its covenants hereunder shall ·not c.onstitutc a breach Ot d\'favlt of the Bonds, the Trust
Agreement or any other agreement to which the Obligor is a party.
(b) Subject to paragraph ( e) of this Section 10, in the event the Obligor fails to
provide any information. required of it by the terms of this .A,greementJI any holder of Bonds may
pursue the remedy set forth in the. preceding paragraph in any court of competent jurisdiction in
the county in. which the Obligor is located. An affidavit to the effect that such person is a holder
of Bonds supported by reasonable docum,entation of such claim ~hail be sUfficient to ev!dence
standlilg to pursue this remedy. ·
( c) Subject to paragraph ( e) of this Section 10, any challenge to the adequacy
of fae information provided by the Obl:lgor by the tyrn1.S of this Agreement may be pursued-only
py holders of not less than. 25% in principal· amoll11t of Bonds then outstanding in any court of
competent jurisdiction in the county In whlQh the Obligot is located. An affidavit to the effect
that such persons are holders of Bonds supported by reasona.bl.e documentation of such claim
shall be suffici~ut .to evidence standing to pursue the remedy set fo~ in the preceding paragraph.
( d) The Counterparty, upon :Indemnification ~~ti.sfactory to it and demand by
those persons it reasonably believes to be.holders of Bonds) !?lay also pursue the remedies set
forth in paragraph (b) above in any court of coni:petent jurisdiction in the county in which the
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Obligor is located, The Counte-rparty shall have no obligation to pursue any remedial action in
the absence of a valid demand from holders of Bonds and indemnification satisfactory to it.
. .
. .
( e) Prior to pursuing any remedy under :this Sec.tion, a p.older of Bonds or the
Counterparty ·shall give notice to the Obligor and the Countetparty, via registered or certified
mail, of such breach and its intent to pursue such. remedy. Fifteen (15) days after mailing of such
notice~ and not before, a ho-1der of Bonds or the Coooterparty may pursue such remedy under this
Section. The Obligor1
s failure to honor its covenants hereunder shall not constitute a 'breach ot
default of the Bonds, the Trust Agreement, the Lease or any other agreement to whlch the
Obliger is a party.
. Section 11. Counterpartv's Obligations. The Counterparty hereto shall .have no
. obligation to take any action whatsoever with respect t9 information provided or required to be
provided by the 0 bligor under this Agreement., ·except (1) as set forth in this Section 11 and
(ii) any -0bligations .mising from the Counterparty serving as a Dissemination Agent, and uo
implied covenants or obligations shall be read into this. Agreement against the Coilnterparty.
Further:r except as set forth in this Section 11, the Counterparty hereto shall have no
responsibility to ascertain: the truth, completeness, accuracy or timeliness of the information
provided as required hereunder by the Obligor or the City, Dr otherwise to determine whe~er any
such information or notices are or have been provided in compliance with the SEC Rule or the
:requirements of this Agreement.
The Counterparty may, at its sole clisc~etion, retain counsel or others with
expertise in continuing disclosure matters fo:r the purpose. of assisting the Counterparty b.
making judgments with respect to the scope of its obligations hereunder and compliance
therewith.
If the Counterparty has not received. th~ Annual Information by the date which is
ten (10) days before the date set forth in Section 4(a)(2} of this Agreement, 1'.he Counterpariy
shall notify the Obligo.r, via registered or certified mai1 1 that it has not received such Annual
In.formation. However, a failure by the C-0unterparty to provide (-0r any delay in providing) any
notice required by this paragraph shall not: (i) ope~ate to relieve the Obligor of its obligation to
-. provide the Annllal Information in the manner and within the time specified in this Agreement;
or (ii) constitute a defense_ for the Obligor,. or the basis for any claim, counterc1~, cross-claim
or third-party claim by the Ob1igor, in any action brought pursuant to Section 10 of this
Agreement or otherwise, Nothing contained in this paragraph shall operate to grant any
additional rights o! remedies to any holder of Bonds. ·
The Counterparty hereto shall be obligated to, and hereby agrees that it will~
within five (5) business days after the date required by Section 4(a)(2) of tpis Agreement,
forward to those persons . or entities scheduled to receive Annual Information· a notice ·
substantially :in the form of Exhibit D attached hereto in the event that the Counterparly has not .
received a copy of such .Apnual Information; provided, how1wer, that the Counterparty shall not
give such notices as described in this pa1:·agraph and the immediately _preceding paragraph if the
Obligot has proyided the Counterparty with notice· tl1at the-Obligor has issued notice pursuant to
Section 9 hereof.
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Section 12." Resfanation and Removal of Countetparj;y. The Counterparty may
resign in its capacity under this Agreement at any time by giving written notice thereof to the
Obligor. So long as the Obligor has not failed to honor its obligations as set forth in Sections.4,
6 and 9 hereof: the Obligor may remove the Collllterp.arty in its capac.tty under this Agreement at
any time by giving written notice thereof to the Counterparty. Upon such :resignation or
removal, ~e Obligor shall promptly appoint a successor Counterparty.
Section 13 .. Indemnification. To the extent permitted by law, the Obligor releases
the Cotinterparty" from, agrees that the Counterparty shall not be liable for) and agrees to
indemnify and hold the Counterparty harmless fro.m, any liabilify for, or expense (includ:iilg but
:p..ot limited to reasonable attorney fees) resulting from, or any lo~s or damage that may .be
occasioned by, any cause whatsoever pertaining to this Agreement or the actions taken or to be
talcen by any Obligated Person or the Counterparty under th.is Agreement, except the gross
negligence or willful misconduct of the Coi.mterparty. The obligations cf the Obligor under this
Section 13 shall survive the :resignati'?n or removal of the Counterparty and payment of the
Bonds.
Section 14i Modification of Agreem.enL· The Obligor i;rn.d"the Counterparty may,
from time to time) amend or modify this Agreemen.t without the con$ent of or notice to the
holders of the B~nds if either (a)(i) such .amendment or modification is ;m{l.de in connection with
a change in circumstances that arises from a change in legal requirements;) change in law or
change in the identity, nature or status of the Obl:igor~ or type of business conducted, (ii) this
Agree:tnen4 as so amended· o:r modified, would have complied with the requirements of the SEC
Rule on the date hereof, after taking into account any amendments or interpretations of the SEC
Rule,. as. well as any change in cfrcumstances, and (ill) such runendp.lent or modification does not .
. materially impair the· interests of the holder$ of the Bonds 1 as determined either by (A) the·
Counterparty, the trustee under the Trust Agreement or nationally recognized bond counsel or
(B) an approving vote of the holders of the Bonds pursuant to the terms of the Trust Agreement
at the time of such amendment or modification; or (b) suqh ame:ndment or modification
(including an amendment or modification which rescinds this Agreement) is permitted by the
SEC Rule, as then in effect.
· Section 15. Interpretation Under Indiana Law. it is ilie intention of the parties
hereto that tb.is Agreement and the rights and obligations of the partfos hereundel' shall be
governed by and construed and enforced fo accordance with, the law of the State of Indiaria.
Section 16. Severability Clause. In case any provision In. this Agreement shall be
invalid~ illegal or unenforceable, the valjdity, legality and enforceability of the remaining
pro visions shall not in any way be affected or im;Paired thereby. . -.
Section 17. Successors and Assims. All c0venants and agreements in this
Agreement. made by the Obligor and the Counterparty shall bind their successors, whether so
expressed or not..
Section 18. Notice.S .. All notices required to be given ooder this Agree:tlletlt shall
be made at the following addresses:
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BDDBQl 5102824v2
If to the Obligor; South Bend Redevelcp1)1ent Commission
1200 County-City Building
South Benet Indiana 466.01 ·
Ifto the Co~ter:Party: lt.S. Bank National Association
10 West Market Street_, Suite l 15 0
Indianapolis, rlldiana 46204
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