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HomeMy WebLinkAbout09-24-12 Council Agenda & Packet AGENDA SOUTH BEND COMMON COUNCIL MEETING MONDAY, SEPTEMBER 24, 2012 7 : 00 P.M. 1 . INVOCATION - REV. FRED PRESTON 2 . PLEDGE TO THE FLAG 3. ROLL CALL 4 . REPORT FROM THE SUB-COMMITTEE ON MINUTES 5. SPECIAL BUSINESS 12-67 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, HONORING LASALLE INTERMEDIATE ACADEMY FOR BEING SELECTED BY THE U. S. DEPARTMENT OF EDUCATION AS A NATIONAL BLUE RIBBON 6. REPORTS OF CITY OFFICES 7 . RESOLVE INTO THE COMMITTEE OF THE WHOLE TIME: BILL NO. 42-12 PUBLIC HEARING ON A BILL LEVYING TAXES AND FIXING THE RATE OF TAXATION FOR THE PURPOSE OF RAISING REVENUE TO MEET THE NECESSARY EXPENSES OF THE CIVIL CITY OF SOUTH BEND FOR THE FISCAL YEAR ENDING DECEMBER 31, 2013 43-12 PUBLIC HEARING ON A BILL APPROPRIATING MONIES FOR THE PURPOSE OF DEFRAYING THE EXPENSES OF SEVERAL DEPARTMENTS OF THE CIVIL CITY OF SOUTH BEND, INDIANA FOR THE FISCAL YEAR BEGINNING JANUARY 1, 2013 AND ENDING DECEMBER 31, 2013 INCLUDING ALL OUTSTANDING CLAIMS AND OBLIGATIONS AND FIXING A TIME WHEN THE SAME SHALL TAKE EFFECT 44-12 PUBLIC HEARING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA APPROPRIATING MONIES FOR THE PURPOSE OF DEFRAYING THE EXPENSES OF THE DESIGNATED ENTERPRISE FUNDS OF THE CITY OF SOUTH BEND, INDIANA, FOR THE FISCAL YEAR BEGINNING JANUARY 1, 2013 AND ENDING DECEMBER 31, 2013, INCLUDING ALL OUTSTANDING CLAIMS, AND OBLIGATIONS, AND FIXING A TIME WHEN THE SAME SHALL TAKE EFFECT 49-12 PUBLIC HEARING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, APPROPRIATING, ADOPTING AND APPROVING THE SOUTH BEND' PUBLIC TRANSPORTATION CORPORATION' S 2013 BUDGET AND LEVYING THE TAX AND FIXING THE RATE OF THE TAXATION FOR THE PURPOSE OF RAISING REVENUE TO FUND THE SOUTH BEND PUBLIC TRANSPORTATION CORPORATION, SOUTH BEND, INDIANA, FOR THE FISCAL YEAR ENDING DECEMBER 31, 2013 8 . BILLS, THIRD READING TIME: BILL NO. 49-12 THIRD READING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, APPROPRIATING, ADOPTING AND APPROVING THE SOUTH BEND' PUBLIC TRANSPORTATION CORPORATION' S 2013 BUDGET AND LEVYING THE TAX AND FIXING THE RATE OF THE TAXATION FOR THE PURPOSE OF RAISING REVENUE TO FUND THE SOUTH BEND PUBLIC TRANSPORTATION CORPORATION, SOUTH BEND, INDIANA, FOR THE FISCAL YEAR ENDING DECEMBER 31, 2013 9. RESOLUTIONS BILL NO. 12-66 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, APPROVING AND ADOPTING THE HOWARD PARK NEIGHBORHOOD MASTER PLAN 12-71 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND DESIGNATING CERTAIN AREAS WITHIN THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS 3300 N. KENMORE AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A THREE (3) YEAR REAL PROPERTY TAX ABATEMENT FOR INDIANA ROTOMOLDING, INC 12-72 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA CONFIRMING THE GRANT OF CERTAIN REAL PROPERTY TAX ABATEMENT DEDUCTIONS AND WAIVING NONCOMPLIANCE FOR PROPERTY COMMONLY KNOWN AS 7250 VORDEN PARKWAY FOR OLIVE CLEVELAND PARTNERS,LLC 10. BILLS, FIRST READING BILL NO. 52-12 FIRST READING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AUTHORIZING THE ACQUISITION, CONSTRUCTION AND INSTALLATION OF CERTAIN ADDITIONS, EXTENSIONS AND IMPROVEMENTS TO THE CITY' S SEWAGE WORKS, THE ISSUANCE AND SALE OF ADDITIONAL REVENUE BONDS TO PROVIDE FUNDS FOR THE PAYMENT OF THE COSTS THEREOF, THE COLLECTION, SEGREGATION AND DISTRIBUTION OF THE REVENUES OF SUCH SEWAGE WORKS, THE ESTABLISHMENT OF FUND NUMBER 661, THE 2012 SEWAGE WORKS CONSTRUCTION FUND, AND OTHER RELATED MATTERS 53-12 FIRST READING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA CONCERNING THE CURRENT REFUNDING OF OUTSTANDING WATERWORKS REVENUE BONDS OF 2002, ISSUED TO FINANCE CONSTRUCTION OF IMPROVEMENTS TO THE MUNICIPAL WATERWORKS OF THE CITY OF SOUTH BEND, INDIANA; AUTHORIZING THE ISSUANCE OF REVENUE BONDS FOR SUCH PURPOSE IN THE PRINCIPAL AMOUNT NO TO EXCEED FOUR MILLION TWO HUNDRED THOUSAND ($4,200, 000) ; ADDRESSING OTHER MATTERS CONNECTED THEREWITH, INCLUDING THE ISSUANCE OF NOTES IN ANTICIPATION OF BONDS; AND REPEALING ORDINANCES INCONSISTENT HEREWITH 54-12 FIRST READING ON A BILL FIXING MAXIMUM SALARIES AND WAGES OF APPOINTED OFFICERS AND NON- BARGAINING EMPLOYEES OF THE CITY OF SOUTH BEND, INDIANA, FOR THE CALENDAR YEAR 55-12 FIRST READING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA SETTING THE ANNUAL SALARY FOR THE MAYOR FOR THE CALENDAR YEAR 11. UNFINISHED BUSINESS A. REPORTS FROM AREA BOARD OF ZONING APPEALS 1. BILL NO. 12-69 - SPECIAL EXCEPTION- 1307 AND 1311 HICKORY RD 2. BILL NO. 12-70 - SPECIAL EXCEPTION - WEST OF AND ADJACENT TO 1441 N. MICHIGAN ST. B. REPORTS FROM AREA PLAN COMMISSION 1. BILL NO. 37-12 - REZONING - 621 & 625 LINCOLNWAY EAST 2 . BILL NO. 38-12 - REZONING/SPECIAL EXCEPTION -3529 & 3527 WESTERN AVE. C. REPORT FROM HISTORIC PRESERVATION COMMISSION 1. BILL NO. 35-12- HISTORIC LANDMARK AT 307 S MICHIGAN- AVON THEATRE 12 . NEW BUSINESS 13. PRIVILEGE OF THE FLOOR 14 . ADJOURNMENT 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. ot3.- `` --~ ORDINANCE NO. AN ORDINANCE LEVYING TAXES AND FIXING THE RATE OF TAXATION FOR THE PURPOSE OF RAISING REVENUE TO MEET THE NECESSARY EXPENSES OF THE CIVIL CITY OF SOUTH BEND FOR THE FISCAL YEAR ENDING DECEMBER 31,2013 STATEMENT OF PURPOSE AND INTENT It is necessary to pass this Ordinance in order to levy taxes and fix the rate of taxation for the purpose of raising revenue to meet the necessary expenses for 2013. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,AS FOLLOWS: SECTION I.There shall be levied upon each One Hundred Dollars of Assessed Valuation of Taxable Property of the City of South Bend, Indiana,for the fiscal year 2012 to be collected in the year 2013 the following: For CORPORATION GENERAL FUND,the sum of$xxxx on each one hundred dollars of Taxable Property. For PARK AND RECREATION FUND,the sum of$xxxx on each one hundred dollars of Taxable Property. For CUMULATIVE CAPITAL DEVELOPMENT FUND,the sum of$xxxx on each one hundred dollars of Taxable Property. Total Civil City Rate $xxxx For REDEVELOPMENT BOND(COLLEGE FOOTBALL HALL OF FAME),the sum of$xxxx on each one hundred dollars of Taxable Property. Total Redevelopment Rate$xxxx SECTION II.This Ordinance shall be in full force and effect from and after its passage by the Common Council and approval by the Mayor. 0 . Member of the Common Council Attest: Signing of his WI oniy to + f opportunity €og pubilc hearing and City Clerk Council action l this is ue, Presented by me to the Mayor of the City of South Bend, Indiana on the of ,2 , at o'clock m, day Deputy City Clerk — — Approved and signed by me on the day of 2 o'clock .m. at Mayor, City of South Bend,Indiana • • Flied CEP.P"- (� 4 �il�•, 1,h 1st READING --����` PLIFAIC. HEARING �� 2 I Vt-it4 CITY lMFtt f;4 PASSED f: tEi 1200N COUNTY-CITY BUILDING 't .\ x'; d, PHONE 574/235-9216 227 W JEFFERSON BLVD. W F 574/235-9928 BEND,INDI nNA 46601-1830 J ? , ~ r 1865 CITY OF SOUTH BEND PETE BUT- DGIEG, MAYOR DEPARTMENT OF ADMINISTRATION AND FINANCE August 21, 2012 Mr. Derek Dieter President, South Bend Common Council 4'h Floor County-City Building 227 W. Jefferson Blvd. South Bend, IN 46601 • 'Re: Ordinance Levying Taxes and Fixing the rate of Property Taxation to meet City Expenses for the fiscal year ending December 31, 2013 Dear Council President Dieter: Attached herewith please find a bill for consideration by the Common Council of the City of South Bend fixing the property tax rate for the City of South Bend for the fiscal year commencing January 1, 2013 and ending December 31, 2013. This tax rate will apply for property tax assessments in fiscal 2012 with taxes payable in fiscal 2013. This bill is respectively submitted for 1'read filing with the Common Council for the council meeting scheduled for August 27, 2012, 2"d read and public hearing at the council meeting on 24 September 2 council vote at the council meeting on October 8,2012. p 2012, with 3`d read and The bill attached for 1''read filing contains tax rates undefined. The tax rates will be defined prior to the advertising notice deadline of September 7, 2012. A substitute bill will be filed at that time for discussion with the Council during the Personnel and Finance Committee sessions, and public hearings. Please note that final property tax rates for each municipality in the State of Indiana are determined by the Department of Local Government Finance(DLGF) as part of the "1782"budget review process. This bill will be presented to the Common Council by the Mayor and Controller as required at the appropriate sessions of the Personnel and Finance Committee and at the public hearing. pp p Respectively submitted. n Mark W. Neal — / City Controller cc: Mayor Pete Buttigieg Mike Schmuhl, Chief of Staff Kathryn Roos,Deputy Chief of Staff Aladean DeRose,Interim City Attorney • \tk \, s ORDINANCE NO. AN ORDINANCE APPROPRIATING MONIES FOR THE PURPOSE OF DEFRAYING THE EXPENSES OF SEVERAL DEPARTMENTS OF THE CIVIL CITY OF SOUTH BEND, INDIANA FOR THE FISCAL YEAR BEGINNING JANUARY 1,2013 AND ENDING DECEMBER 31,2013 INCLUDING ALL OUTSTANDING CLAIMS AND OBLIGATIONS,AND FIXING A TIME WHEN THE SAME SHALL TAKE EFFECT STATEMENT OF PURPOSE AND INTENT It is necessary to pass this Ordinance in order to appropriate monies to defray the expenses of several departments of the Civil City of South Bend, Indiana for 2013. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,AS FOLLOWS: SECTION I. For the expenses of the Civil City Government, its various departments, funds, commissions, and institutions for the fiscal year ending December 31, 2013, the following sums of money, as set forth in the attached budget which is made a part hereof, are hereby appropriated and ordered set apart out of the funds hereinafter named, and for the purposes hereinafter specified, subject to the laws governing the same. The sums herein appropriated shall be deemed to include all expenditures authorized to be made in said year, unless otherwise expressly stipulated or provided by the laws. SECTION II. For the fiscal year ending December 31, 2013, there is hereby appropriated out of the General Fund Number 101 and from Funds other than the General Fund, of said City to wit: (201) Park and Recreation Fund (202) Motor Vehicle Highway Fund (203) Park Recreation Non-Reverting Fund (209) Studebaker Oliver Reverting Grants (210) Economic Development Grant Fund (211) Community& Economic Development Operating Fund (212) Community and Economic Development Fund (216) Police State Seizures Fund (217) Gift, Donation, Bequest Fund (218) Police Curfew Violations Fund (220) Law Enforcement Continuing Education Fund (222) Central Services Fund (226) Liability Insurance& Premium Reserve Fund (227) Loss Recovery Fund (249) Public Safety Local Option Income Tax Fund (250) General Grant Fund (251) Local Roads and Streets Fund (258) Human Rights-Federal Fund (271) East Race Waterway (273) Moms PAC/Palais Royale Marketing Fund (278) Police Take Home Car Liability Fund (280) Police Block Grant Fund (281) Economic Development Revenue Bonds Fund (288) E.M.S. Capital Improvement Fund (289) Hazmat Fund (291) Indiana River Rescue Fund (292) Police Grants Fund (294) Regional Police Academy Fund (295) COPS More Grant (299) Police Federal Drug Enforcement Fund (313) Hall of Fame Debt Service Fund (377) Professional Sports Development Fund (401) Coveleski Stadium Capital Fund (403) Zoo Endowment Fund (404) County Option Income Tax Fund (405) Park Department Non-Reverting Capital Fund (406) Cumulative Capital Development Fund (407) Cumulative Capital Improvement Fund (408) County Economic Development Income Tax Fund (410) Urban Action Development Grant Fund (412) Major Moves Construction Fund (416) Morris Performing Arts Center Capital Fund (434) CRED Fund (450) Palais Royale Historic Preservation Fund (655) Project ReLeaf Fund (677) Hall of Fame Capital Fund (701) Fire Pension Fund (702) Police Pension Fund (705) Police K-9 Unit Fund (7{11) Self-Funded Employee Benefit Fund (713) Unemployment Compensation Fund (730) City Cemetery Trust Fund SECTION III. This Ordinance shall be in full force and effect from and after its passage by the Common Council and approval by the Mayor. oe,J, 0,,cok Member of the Common Cow Pr if Attest: Con li/7i edm tia City Clerk Presented by me to the Mayor of the City of South Bend, Indiana on the day of ,2 ,at o'clock .m. Deputy City Clerk Approved and signed by me on the day of ,2 ,at o'clock .m. Mayor, City of South Bend,Ir dgialt d 1.<t READING �'� ?�l` ...._. ...._._._.._...... PUBLIC HEARING ' AUG 2 2 i3 3 rd NOT APPROVED E REFERRED PASSES " r," ■ ''gouTRb ; 1200N CouNTY-Crry BUILDING ,� \ �Xi = PHONE 574/235-9216 227 W.JEFFERSON BLVD. W�� FAx FAx 574/235-9928 Souni BEND,INDIANA 46601-1830 �_'�� R�,, ' ''a/` 1865 CITY OF SOUTH BEND PETE BUTTTGIEG,MAYOR DEPARTMENT OF ADMINISTRATION AND FINANCE August 21, 2012 Mr. Derek Dieter President, South Bend Common Council 4th Floor County-City Building 227 W. Jefferson Blvd. South Bend, IN 46601 Re: Ordinance Appropriating Monies for the purpose of Defraying the Expenses of Departments and Funds of the Civil City of South Bend for the fiscal year ending December 31, 2013 Dear Council President Dieter: Attached herewith please find a bill for consideration by the Common Council of the City of South Bend appropriating monies for civil city expenditures for the fiscal year commencing January 1, 2013 and ending December 31, 2013. This bill is respectively submitted for 1St read filing with the Common Council for the council meeting scheduled for August 27, 2012, 2nd read and public hearing at the council meeting on September 24, 2012, with 3rd read and council vote at the council meeting on October 8, 2012. This bill will be presented to the Common Council by the Mayor, Controller, Department Heads and other staff of City Administration as required at the appropriate sessions of the Personnel and Finance Committee and at the public hearing. Respectively submitted, (..........._..\v,N ..(9 Mark W. Neal G � City Controller { MO cc: Mayor Pete Buttigieg . Mike Schmuhl, Chief of Staff CITY CL.SP,. Kathryn Roos,Deputy Chief of Staff Aladean DeRose, Interim City Attorney VC( ' ORDINANCE NO. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND APPROPRIATING MONIES FOR THE PURPOSE OF DEFRAYING THE EXPENSES OF THE DESIGNATED ENTERPRISE FUNDS OF THE CITY OF SOUTH BEND, INDIANA, FOR THE FISCAL YEAR BEGINNING JANUARY 1,2013 AND ENDING DECEMBER 31,2013, INCLUDING ALL OUTSTANDING CLAIMS,AND OBLIGATIONS,AND FIXING A TIME WHEN THE SAME SHALL TAKE EFFECT STATEMENT OF PURPOSE AND INTENT It is necessary to pass this Ordinance in order to appropriate monies to defray the expenses of designated Enterprise Funds of the City of South Bend, Indiana for 2013. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,AS FOLLOWS: • SECTION I. For the expenses of designated Enterprise Funds of the City of South Bend, Indiana, its various departments, funds,commissions and institutions for the fiscal year ending December 31,2013, the following sums of money,as set forth in the attached budget which is made a part hereof, are hereby appropriated and ordered set apart within the funds hereinafter named in Section II,and for the purposes hereinafter specified in Section II,subject to the laws governing the same.The sums herein appropriated shall be deemed to include all expenditures authorized to be made in said year, unless otherwise expressly stipulated or provided by law. SECTION II. For the fiscal year ending December 31,2013,the above appropriations are made within the following funds of the City: (600) Consolidated Building Fund (601) Parking Garage Fund (610) Solid Waste Fund (611) Solid Waste Depreciation Fund (620) Water Works General Operations Fund (622) Water Works Capital Fund (623) Water Works Bond Capital Fund (624) Water Works Customer Deposit Fund (625) Water Works Sinking Fund {626) Water Works Bond Reserve Fund (629) Water Works 08 M Reserve Fund (640) Sewage Repair Fund/Insurance Fund (641) Sewage Works General Operations Fund (642) Sewage Works Capital Fund (643) Sewage Works O&M Reserve Fund (649) Sewage Works Sinking Fund (653) Sewage Works Debt Service Reserve Fund (659) 2011 Sewer Bond (661) 2012 Sewer Bond (663) 2013 Sewer Bond . (670) Century Center Operating Fund (671) Century Center Capital Fund SECTION III.This Ordinance shall be in full force and effect from and after its passage by the Common Council and approval by the Mayor. " ax Ai- 6,- 0 I,iikAei ) Member of the t-- Attest: Signin,g of thl3 NPI.',0 T..4t.,b r,,,c.:yide,pa opportuniy Council eacn City Clerk Presented by me to the Mayor of the City of South Bend, Indiana on the day of ,2 ,at o'clock . m. Deputy City Clerk Approved and signed by me on the day of ,2 ,at o'clock .m. Mayor, City of South Bend, Indiana 1st READING L kl AUG 22 7.Q12 PUBLIC HEARING 3 rd READING .......—.1 NOT APPROVED REFERRED PASSED OOOOOOOOOOOOOOOOOOOOO /01 )01;111/Vii 1200N COUNTY-CITY BUILDING .', \ PHONE 574/235-9216 227 W JEFFERSON BLVD. ►cc�,ii FAx 574/235-9928 SOUTH BEND,INDIANA 46601-1830 :1,11A 1865 CITY OF SOUTH BEND PETE BUTTIGIEG,MAYOR DEPARTMENT OF .ADMINISTRATION AND FINANCE August 21, 2012 Mr. Derek Dieter President, South Bend Common Council 4th Floor County-City Building 227 W. Jefferson Blvd. South Bend,IN 46601 Re: Ordinance Appropriating Monies for the purpose of Defraying the Expenses of Designated Enterprise Funds of the City of South Bend for the fiscal year ending December 31, 2013 Dear Council President Dieter: Attached herewith please find a bill for consideration by the Common Council of the City of South Bend appropriating monies for enterprise fund expenditures of the City of South Bend for the fiscal year commencing January 1, 2013 and ending December 31, 2013. This bill is respectively submitted for 1"read filing with the Common Council for the council meeting scheduled for August 27,2012, 2"d read and public hearing at the council meeting on September 24, 2012, with 31-d read and council vote at the council meeting on October 8,2012. This bill will be presented to the Common Council by the Mayor, Controller, Department heads and other staff of City Administration as required at the appropriate sessions of the Personnel and Finance Committee and at the public hearing. Respectively submitted, Mark W. Neal (� City Controller r "` � _..,a. cc: Mayor Pete Buttigieg ( AUG 22 ZU I Mike Schmuhl, Chief of Staff Kathryn Roos, Deputy Chief of Staff Av " CITY'CLERK,SOO'S Aladean DeRose, Interim City Attorney � • -.-- )\e4C) (S-k, \X 0 °- ORDINANCE NO. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,APPROPRIATING,ADOPTING AND APPROVING THE SOUTH BEND PUBLIC TRANSPORTATION CORPORATION'S 2013 BUDGET AND LEVYING THE TAX AND FIXING THE RATE OF THE TAXATION FOR THE PURPOSE OFRAISING REVENUE TO FUND THE SOUTH BEND PUBLIC TRANSPORTATION CORPORATION, SOUTH BEND,INDIANA,FOR THE FISCAL YEAR ENDING DECEMBER 31,2013 Pursuant to Indiana law, the South Bend Public Transportation Corporation is required to submit its proposed budget and tax levy to the Common Council of the City of South Bend for adoption. Specifically, Indiana Code § 6-1.1-17-20 requires that the South Bend Public Transportation Corporation, as a political subdivision governed by a majority of unelected officials, submit its proposed budget and property tax levy to the Common Council of the City of South Bend. Pursuant to Indiana Code § 6-1.1-17-20(e),the Common Council of the City of South Bend is required to review the South Bend Public Transportation Corporation's budget and proposed tax levy and adopt a final budget and tax levy for the South Bend Public Transportation Corporation. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, as follows: SECTION 1. The South Bend Public Transportation Corporation's budget for the year ending December 31, 2013 in the sum of$10,735,511.00, as shown on Budget Form 4-A, filed with the Common Council on August 31, 2012, is appropriated, adopted, approved and ordered set apart out of the several funds herein named and for the purposes herein specified, subject to the laws governing the same. Such sums herein appropriated shall be held to include all expenditures authorized to be made during the year, unless otherwise expressly stipulated and provided for bylaw. In addition, for the purpose of raising revenue to meet the necessary expenses of the South Bend Public Transportation Corporation, a total property tax levy of$3,823,000.00 and a total tax rate of 0.1204 as shown on Budget Form 4-B are also appropriated, approved and adopted. SECTION 2. This Ordinance shall be in full force and effect from and after its passage by the Common Council of the City of South Bendand approved by the Mayor. ( ,I,t Ot ,-L\ Member, South Bend CommontCouncil Attest: 4 4yki' r.'f' v if '7'1':)4 - is City Clerk 9 Y''aJ4 ° k f ee a C 4.10110 Presented by me to the Mayor of the City of South Bend, Indiana on the day of , 2012, at o'clock . m City Clerk, Deputy Approved and signed by me on the day of , 2012, at o'clock, .m Mayor, City of South Bend, Indiana Filed in , flek ay`, � � I 1st READING PUBLIC HEAPNG `�°Jl F 4 2U Z JOHN 3 rd READING CITY GL . . 1 e w ta NOT APPROVED REFERRED nA rr r11 Via Hand Delivery September 4, 2012 Mr. Derek D. Dieter President-City of South Bend Common Council County-City Building-Room 400S South Bend, IN 46601 Dear President Dieter: Enclosed is an original and several copies of: AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, APPROPRIATING,ADOPTING AND APPROVING THE SOUTH BEND PUBLIC TRANSPORTATION CORPORTATION'S 2013 BUDGET AND LEVYING THE TAX AND FIXING THE RATE OF THE TAXATION FOR THE PURPOSE OF RAISING REVNUE TO FUND THE SOUTH BEND PUBLIC TRANSPORTATION CORPORATION, SOUTH BEND, INDIANA, FOR THE FISCAL YEAR ENDING DECEMBER 31,2013 Due to a recent enactment of Indiana law, Transpo is required to submit its proposed budget and tax levy to the City of South Bend Common Council(the"Council")for adoption by the Council. Specifically, Indiana Code § 6-1.1-17-20 requires that Transpo,as a political subdivision governed by a majority of unelected officials, submit its proposed budget and property tax levy to the Council for adoption. Pursuant to I.C. § 6-1.1-17-20(e),the Council should review Transpo's budget and proposed tax levy and adopt a final budget and tax levy for Transpo. I.C. § 6-1.1-17-3 sets forth the publication requirements relating to the Council's adoption of Transpo's budget and levy. Pursuant to this code section,the first publication of Transpo's budget must occur by September 13,2012 and the second publication must be made by September 20,2012. Transpo's Board of Directors will vote to approve the budget and levy after it is formally adopted by the Council. Transpo's Board of Directors will vote to approve the budget and levy at Transpo's regularly scheduled monthly Board meeting on October 22,2012. Transpo's budget was filed with the Common Council on August 31, 2012. Transpo will present this Ordinance to the Council by its Controller,Christopher Kubaszak. Tranpso's General Counsel,Jamie C. Woods, may also attend along with Members of Transpo's Board of Directors. On behalf of Transpo's Board of Directors,the Council's assistance in this budget process is greatly appreciated. Sincerely, William R. Sp ul k ; Interim General Manager, South Bend Public Transportation Corporation 1111111771 9 South Bend Public Transportation Corporation Via Hand Delivery August 31, 2012 Mr. Derek D. Dieter President-City of South Bend Common Council County-City Building- Room 400S South Bend, IN 46601 Dear President Dieter: Enclosed are two (2)copies of the South Bend Public Transportation Corporation's("Transpo's") 2013 Operating and Capital Budget. Due to a recent enactment of Indiana law,Transpo is required to submit its proposed budget and tax levy to the City of South Bend Common Council (the"Council") for adoption by the Council. Specifically, Indiana Code§6-1.1-17-20 requires that Transpo, as a political subdivision governed by a majority of unelected officials,submit its proposed budget and property tax levy to the Council for adoption. Pursuant to I.C. §6-1.1-17-20(e),the Council should review Transpo's budget and proposed tax levy and adopt a final budget and tax levy for Transpo. I.C. § 6-1.1-17-3 sets forth the publication requirements relating to the Council's adoption of Transpo's budget and levy. Pursuant to this code section,the first publication of Transpo's budget must occur by September 13, 2012 and the second publication must be made by September 20,2012. Transpo's Board of Directors will vote to approve the budget and levy after it is formally adopted by the Council. Transpo's Board of Directors will vote to approve the budget and levy at Transpo's regularly scheduled monthly Board meeting on October 22,2012. On behalf of Transpo's Board of Directors,the Council's assistance in this budget process is greatly appreciated. As I have expressed to the City of South Bend's Controller, I am willing to assist in this process in any manner whatsoever. Please contact me if you would like to discuss any aspect of the adoption of Transpo's budget. Sincerel , Flied -.__ f et,ec 74, Rat ., ,,,.: UG 1 4112 Christopher Kubaszak n,.;;, " Controller,South Bend Public Transportation Corporation �1,�`.yy.' gj_� i,::. , 3 (574)232-9901.FAX(574)239-2309.1401 S.Lafayette Blvd..P.O.Box 1437•South Bend,IN 46624 . SOUTH BEND PUBLIC TRANSPORTATION CORPORATION-/ r;i'''. I:: ''C'''.' e:::?, r „, ,....._, ill / r 2013 FISCAL OPERATING & CAPITAL BUDGET January 1, 2013 through December 31, 2013 Short Form Prepared By South Bend Public Transportation . Accounting Staff SOUTH BEND PUBLIC TRANSPORTATION CORPORATION SOUTH BEND, INDIANA 2013 FISCAL YEAR BUDGET REQUEST TABLE OF CONTENTS BUDGET ESTIMATE FOR 2013 PROJECTIONS/ ASSUMPTIONS 2013 Revenue Projection 1 2013 Expense Projection 2 2013 Appropriations 3 2013 Budget Assumptions 4 2013 Budget Policy Statements 6 2013 Budget Summaries by Category—All Accounts 7 2013 Capital Requirement 16 e e e e o „ o e \° a \° ° e b e e QON) 0 U) 0 ) N CCD 0 N 0)) V. 0 0 0 CO �' V. 0 0 uS C F 10 0 O CO OD In 0 O O s- Cl co O O O O W N Q N r- Z O M D W e e e e e e \ ° ° ° ° \ \ o o e m O` O O ON) O 7f O 0 O O ON-D 0 O O 0 O r N Q O O O •- M O O O 6 Ti d p Q p< O N r N NF- N Z . 0 W W Q F- N. 0 0 OD Cl N C 0 0 0 0 C e e e e N-2 t‘,.1 W U) 0 0 0 et It) CCD 0 0 Ct) t)) CO 0. 0 0 0 Z e QU Ti: O O 0 O) tt) t: O O N Co 'a' C O Q C C7 e 0 N m' 0 Z g O Co 0 CO CO co st 0 it J U) I Cl Cl CD Cl t- N co e0- 0 co O tt CO Cti CD 0 CO CO '- h , , 0 d 0 N F- N tp CO N co- 00) O) CA O 0 U n 0 W. o N 4 — N N .- O Z ZZ d9 to 69 69 4 69 69 69 49 69 69 69 69 69 69 69 W. _o 0 n I— U F- ill - °O rn 0 CO)_ 0 00 0) a`'D 0 0 r) Q W eN- Q O st CO N Cl O r O Q) O i 0 M esi re 0 N U) O N CO N 0 0V CO 0 CC 0O N O 0 W a N N a- of Cl) W N 0 N N 'V 0 Z F- co ■ O O) tt) 0 0 0 0 0 - 00 0 0 lA 0 0 0 ' CO Cal LU 0 OD Z 0 CO 'ct 14 tp N O O N C .q N. 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M N j 0) 0) CO N N N EA m V e= e- p) O) ZER ER ER ER ER ER ER ER ER ER ER EA W C13 Z A', I- 0 0 co J a) aa)) as rt D J 0 V Z I- w J o Q O ac) F E x y o W i7- 1 a a) O - _ a) a :° a )(a o 3 y 0 1 m (C d c otf y a) 0 a) to m 0 2 U (x0 C N 0 U N 017 M ` (0 (0 C N c �2 i_+ 3 d 0 c _ t _1 F- Cl) (i Cl) i 3- c p i ~ TRANSPO Budgeted Appropriations Operatin Budget Capital Budget Total 2013 Category 2013 2012 2013 2012 Appropriations Personnel Services 6,839,556 6,697,424 6,839,556 Other Services and Charges 1,469,620 1,423,485 1,469,620 Supplies 1,240,471 1,498,667 1,240,471 Capital Outlays 390,000 220,668 795,904 413,354 1,185,904 Total Appropriations $ 9,939,646 $ 9,840,244 $ 795,904 $ 413,354 $ 10,735,551 I_ I I I 3 8E.y. AP i ® ww esaiet... .1 ,° ' P' 1 2013 OPERATING BUDGET ASSUMPTIONS REVENUES: Federal, State, and,Local: Given past and continued success in securing adequate capital funds through congressionally designated funding for major capital projects, we are able to continue to avail ourselves of annual federal capital formula grant funds toward preventative maintenance and education/training, making such funds available to the operations budget. In 2012, the State of Indiana has fixed PMTF rate for the next two years and has made it a line item in the State's Budget. We based the 2013 PMTF revenue on 2012 actual approved budget. This caused our budget figure to be decreased 20% from 2012 budget. Property Tax revenue was budgeted at $199,200 more than prior year, due to the receipt of tax revenue in June 2012 that was over budgeted figures for the first installment. • Ridership and Leases: Farebox revenues from regular services include a 4.03% increase from our 2012 forecasted levels. The revenue increase is due the service changes that occurred April 2012. They did not have as drastic of an effect on ridership that was originally estimated. However, TRANSPO ACCESS has realized an increase in ridership since 2008 and is expected to continue this trend in future years. Lease revenues reflect current tenant agreements and renewals of existing contracts. EXPENSES: Employee Wages and Benefits: TRANSPO will see an increase in wages for bargained for employees in 2013, due to the finalization of a three year collective bargaining agreement. Employee benefits reflect an estimated seven percent increase over 2012. This increase is mainly due to an estimated increase of five percent in health insurance. Other benefits reflect current bargaining agreement terms and contingencies for future premiums given their historical trends. Vehicular and Operating: Vehicular and commercial insurance costs decrease from the 2012 budget. Diesel fuel has been budgeted at an average of $3.06 per gallon and gasoline at $3.30 per gallon. Both of these markets have been extremely volatile and it is projected that future world developments could cause costs to increase. Utilities: Utility costs have been budgeted at 1% less than 2012 forecasted levels, due to TRANSPO cost savings experienced in the new Administration, Maintenance and Operations facility. 4 Marketing: Marketing contracts, services, and advertising placement accounts have been decreased to reflect an estimated decline in the local funding. Training: The 2013 budgeted amounts decreased from 2012 budgeted provisions. TRANSPO plans to use federal grants to offset most of the cost associated with training. The current budget provides continued opportunities for all positions. Transfer — Capital Improvement Fund/Restricted Liability Reserve: The 2012 budget provides the opportunity to transfer up to $74,480 to the Capital Improvements fund for future capital expenditures or deposit op to $74,480 into a restricted liability reserve account, to be used for general liability purposes. D UPON THE ADOPTION OF THE ANNUAL BUDGET BY THE SOUTH BEND PUBLIC TRANSPORTATION BOARD OF DIRECTORS, A MONTHLY BUDGET, BASED ON HISTORICAL AND FUTURE TRENDS, WILL BE ESTABLISHED. THIS WILL HELP FACILITATE THE MONTHLY REVIEW OF FINANCIAL REPORTS BY BOARD MEMBERS AND INTERNAL MANAGEMENT. 5 Df,1 =t �" 2 013 OPERATING BUDGET POLICY STATEMENTS FINANCIAL CAPACITY: 1. The proposed budget does not reflect any fare changes. A fare analysis may be conducted and recommendations will follow, based upon the results of the analysis. 2. Management will continue to search for investment, grant and funding opportunities so as to maximize revenues. 3. Management will assure cash handling practices to safeguard funds in its protection and toward timely collection of funds owed. SERVICE POLICY: 4. A review of current services levels will be conducted and recommendations will follow based upon the results of the analysis. 5. Management will continue to work within the current FTA charter regulations and existing agreements with private charter providers in order to provide charter services. 6. Curb-to-curb ACCESS service will be provided in accordance with all applicable FTA guidelines. MANAGEMENT: 7. A professional workforce will carry out our Mission Statement. Management will assure fairness, even-handedness, consistency, and effective Equal Employment Opportunity and Affirmative Action policies and practices. 8. Assumes continuation of team development, employee recognition, and continuation of increased opportunities for employee training. 9. Assumes continued pursuit of programs of wellness and accident prevention in an effort to stem, to whatever extent possible, rising insurance costs. 6 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Salaries&Wages Summary 2011ACTUAL $4,725,419 2013 BUDGET REQUEST $ 4,910,940 2012 AS OF 6/30 $2,191,822 2012 APPROVED BUDGET $ 4,628,069 2010 ANNUALIZED $5,211,623 BUDGET CHANGE $ 282,871 Account Title 2011 2012 Operators $2,907,250 $ 3,081,293 Access Drivers& Clerk 338,814 344,042 Operations Administration 302,377 308,637 Revenue-Vehicle Maintenance 546,009 660,670 Maintenance Administration 124,945 124,945 Non-Revenue-Vehicle Maintenance 103,392 102,036 General Administration 305,282 289,317 Total $4,628,069 $ 4,910,940 7 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Fringe Benefits Summary 2011 ACTUAL $1,789,950 2013 BUDGET REQUEST $ 1,928,616 2012 AS OF 06/30 $ 962,334 2012 APPROVED BUDGET $ 1,800,675 2011 ANNUALIZED $1,924,667 BUDGET CHANGE $ 127,941 Account Title 2012 2013 FICA $ 354,047 $ 375,687 Pension plan 211,694 211,694 Medical Insurance 1,015,710 1,101,551 Dental Insurance 42,957 44,154 Life Insurance 20,926 26,730 Short-Term Disability 16,031 18,412 Unemployment Insurance 12,423 12,423 Worker's Compensation 77,120 88,198 Uniforms 46,267 46,267 Tool Allowance 3,500 3,500 Total $1,800,675 $ 1,928,616 8 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Services Summary 2011 ACTUAL $ 929,788 2013 BUDGET REQUEST $ 824,826 2010 AS OF 06/30 $ 506,672 2012 APPROVED BUDGET $ 714,216 2010 ANNUALIZED $1,013,344 BUDGET CHANGE $ 110,610 Account Title 2012 2013 Management Service Fees $ 253,407 $ 247,577 Advertising Fees 5,000 7,500 Professional& Technical 246,039 254,039 Tuition & Registration- Employees - Tuition & Registration - Board Temporary Help 5,000 2,500 Contract Services Operations 21,750 139,150 Contract Services Maintenance 120,000 100,000 Contract Services Administration 9,960 13,260 Security Services 48,060 55,800 Physical Damage Repairs 35,000 35,000 Recoveries of Physical Damage Repairs (30,000) (30,000) Total $ 714,216 $ 824,826 9 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Materials& Supplies Summary 2011 ACTUAL $1,854,522 2013 BUDGET REQUEST $ 1,240,471 2012 AS OF 06/30 $ 779,074 2012 APPROVED BUDGET $ 1,457,331 2011 ANNUALIZED $1,558,148 BUDGET CHANGE $ (216,860) Account Title 2012 2013 Fuel & Lubricants Operations $ 1,121,729 $ 949,518 Fuel & Lubricants Maintenance 13,302 16,353 Tires & Tubes Operations 2,000 _ Tires & Tubes Maintenance 3,200 - Materials&Supplies Operations 14,500 - Materials&Supplies Maintenance 230,000 210,000 Materials & Supplies Marketing 45,600 37,600 Other Materials & Supplies Operations 6,000 6,000 Other Materials & Supplies Maintenance 3,600 3,600 Other Materials&Supplies General Administration 17,400 17,400 Total $ 1,457,331 $ 1,240,471 10 TRANS PO 2013 BUDGET SUBMISSION DEPARTMENT: Administration & Maintenance ACCOUNT TITLE: Utilities ACCOUNT NUMBER: 505-0x50-00 505-0x2x 00 2011 ACTUAL $ 185,853 2013 BUDGET REQUEST $ 209,267 2012 AS OF 06/30 $ 91,427 2012 APPROVED BUDGET $ 211,645 2012 ANNUALIZED $ 182,854 BUDGET CHANGE $ (2,378) Account Title 2012 2013 Electricity $ 100,392 $ 98,014 Water& Sewage 16,654 $ 16,654 Trash Collection 5,000 $ 5,000 Telephone 10,351 $ 10,351 Natural Gas 79,248 $ 79,248 Totals $ 211,645 $ 209,267 11 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Insurance Summary 2011 ACTUAL $ 215,208 2013 BUDGET REQUEST $ 246,977 2012 AS OF 06/30 $ 101,485 2012 APPROVED BUDGET $ 324,873 2012 ANNUALIZED $ 202,971 BUDGET CHANGE $ (77,896) Insurance - Liability& Physical Damage $ 239,192 Other Corporate Insurance 7,785 Total $ 246,977 12 TRANS PO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Miscellaneous Summary 2011 ACTUAL $ 42,276 2013 BUDGET REQUEST $ 84,070 2012 AS OF 06/30 $ 16,888 2012 APPROVED BUDGET $ 62,420 2011 ANNUALIZED $ 33,776 BUDGET CHANGE $ 21,650 . Account Title 2012 2013 Dues & Subscriptions $ 28,420 $ 28,070 Travel& Meetings 4,000 2,000 Donated Services Promotion 15,000 2,000 1,000 Advertising Placements 28,000 38,000 Interest Expense _ Miscellaneous - Total $ 62,420 $ 84,070 13 TRANSPO 2011 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Tangible Property/Fixed Assets ACCOUNT NUMBER: 111-0101-00 through 111-0107-00 2012 ACTUAL $ - 2013 BUDGET REQUEST $ - 2011 AS OF 6/30 $ - 2012 BUDGET REQUEST $ - BUDGET CHANGE $ - This account is used for capital purchases in the operating fund. These are purchases for which there is no Capital Grant. It may be used for office equipment or furniture. Shop and Office Equipment $ - 14 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Passenger Fares Summary ACCOUNT NUMBER: 413-0100-00 2011 ACTUAL: $ 1,401,657 2013 BUDGET REQUEST $ 1,408,314 2012 AS OF 06/30 $ 710,316 2012 BUDGET REQUEST $ 1,346,826 BUDGET CHANGE: $ 61,488 Account Title 2012 2013 Passenger Revenue 875,169 945,333 Access Passenger Revenue 35,152 35,366 Access Punch Card Revenue 57,553 61,967 Passport Revenue 173,534 185,675 Student Pass Revenue 56,880 28,320 Tripper Revenue 9,623 9,783 Two Ride Pass Revenue 90,958 65,334 Two Week Pass 47,957 76,537 $ 1,346,826 $ 1,408,314 15 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Transfer- Capital improvement Fund/Reserve for Liability ACCOUNT NUMBER: 301-0101-00 2011 ACTUAL $ - 2013 BUDGET REQUEST $ 74,480 2012 AS OF 06/30 $ 2012 APPROVED BUDGET $ _ BUDGET CHANGE $ 74,480 This account is used for the transfer to the Capital Improvement Fund for the "Local Share" or to fund a reserve for future liabilities. The capital expenditures are detailed in the monthly Capital Improvement resolutions. $ 74,480 Detail of Capital Funds required to match existing grants on following page Total $ 74,480 16 SOUTH BEND PUBLIC TRANSPORTATION CORPORATION SOUTH BEND, INDIANA 2013 FISCAL YEAR BUDGET REQUEST TABLE OF CONTENTS BUDGET ESTIMATE FOR 2013 PROJECTIONS I ASSUMPTIONS 2013 Revenue Projection 1 2013 Expense Projection 2 2013 Appropriations 3 2013 Budget Assumptions 4 2013 Budget Policy Statements 6 2013 Budget Summaries by Category—All Accounts 7 2013 Capital Requirement 16 o 0 0 o p p p _ J N O (0 CO - 0 N N. °0 ° F 0 0 0 0 o r Q 0) O 0 tt O el to (O O IN., O O O Co cij N ~ O O O (� 6 N O O O , M (o O O Q O M Z W ¢ 0 W N- O O 0) 0 \ 0 0 0 0 o 0 0 0 \ \° m N 1.- Co O O N (0o c co O ((0 N- CO O 0 O O co 2 O O O N M O O O co e p ¢ O O N r N N Z 1- N fn W W Z o 0 0 0 0 0 0 \° ° ° ° o 0 0 Q h- N. 0 0 CO Co o 0 \ o \ \ \ 0 N z N w to o O 0 st ►(j (p 0 O N N- Co O 0 0 Z \ C Q th O O O 0) O O r Co �Y O p Z o N ' O N 0 < O Ih g� CO i LPL O CO 0 00 00 0 It 0 0 tf) 1[) Q. 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W LL- co E y _ t N a) a o ca a) w m v7 a 3 y m o co d y m N W a) (x0 03 a) l0 co C I- = w F- co LL. to 2 = o a H TRANSPO Budgeted Appropriations Operatin Budget Ca ital Bud et Category 2013 P g Total 2013 2012 2013 2012 Appropriations Personnel Services 6,839,556 6,697,424 6,839,556 Other Services and Charges 1,469,620 1,423,485 1,469,620 Supplies 1,240,471 1,498,667 1,240,471 Capital Outlays 390,000 220,668 795,904 413,354 1,185,904 Total Appropriations $ 9,939,646 $ 9,840,244 $ 795,904 $ 413,354 $ 10,735,551 I 3 y. „.t: ,fi a1 p r F I,?i ,.. II , , _.... 2013 OPERATING BUDGET ASSUMPTIONS REVENUES: Federal, State, and Local: Given past and continued success in securing adequate capital funds through congressionally designated funding for major capital projects, we are able to continue to avail ourselves of annual federal capital formula grant funds toward preventative maintenance and education/training, making such funds available to the operations budget. In 2012,the State of Indiana has fixed PMTF rate for the next two years and has made it a line item in the State's Budget. We based the 2013 PMTF revenue on 2012 actual approved budget. This caused our budget figure to be decreased 20% from 2012 budget. Property Tax revenue was budgeted at $199,200 more than prior year, due to the receipt of tax revenue in June 2012 that was over budgeted figures for the first installment. Ridership and Leases: Farebox revenues from regular services include a 4.03% increase from our 2012 forecasted levels. The revenue increase is due the service changes that occurred April 2012. They did not have as drastic of an effect on ridership that was originally estimated. However, TRANSPO ACCESS has realized an increase in ridership since 2008 and is expected to continue this trend in future years. Lease revenues reflect current tenant agreements and renewals of existing contracts. EXPENSES: Employee Wages and Benefits: TRANSPO will see an increase in wages for bargained for employees in 2013, due to the finalization of a three year collective bargaining agreement. Employee benefits reflect an estimated seven percent increase over 2012. This increase is mainly due to an estimated increase of five percent in health insurance. Other benefits reflect current bargaining agreement terms and contingencies for future premiums given their historical trends. Vehicular and Operating: Vehicular and commercial insurance costs decrease from the 2012 budget. Diesel fuel has been budgeted at an average of$3.06 per gallon and gasoline at$3.30 per gallon. Both of these markets have been extremely volatile and it is projected that future world developments could cause costs to increase. Utilities: Utility costs have been budgeted at 1% less than 2012 forecasted levels, due to TRANSPO cost savings experienced in the new Administration, Maintenance and Operations facility. 4 Marketing: Marketing contracts, services, and advertising placement accounts have been decreased to reflect an estimated decline in the local funding. Training: The 2013 budgeted amounts decreased from 2012 budgeted provisions. TRANSPO plans to use federal grants to offset most of the cost associated with training. The current budget provides continued opportunities for all positions. Transfer — Capital Improvement Fund/Restricted Liability Reserve: The 2012 budget provides the opportunity to transfer up to $74,480 to the Capital improvements fund for future capital expenditures or deposit op to $74,480 into a restricted liability reserve account, to be used for general liability purposes. D UPON THE ADOPTION OF THE ANNUAL BUDGET BY THE SOUTH BEND PUBLIC TRANSPORTATION BOARD OF DIRECTORS, A MONTHLY BUDGET, BASED ON HISTORICAL AND FUTURE TRENDS, WILL BE ESTABLISHED. THIS WILL HELP FACILITATE THE MONTHLY REVIEW OF FINANCIAL REPORTS BY BOARD MEMBERS AND INTERNAL MANAGEMENT. 5 .1 1, P `,a ® ro Y s 2013 OPERATING BUDGET POLICY STATEMENTS FINANCIAL CAPACITY: 1. The proposed budget does not reflect any fare changes. A fare analysis may be conducted and recommendations will follow, based upon the results of the analysis. 2. Management will continue to search for investment, grant and funding opportunities so as to maximize revenues. 3. Management will assure cash handling practices to safeguard funds in its protection and toward timely collection of funds owed. SERVICE POLICY: 4, A review of current services levels will be conducted and recommendations will follow based upon the results of the analysis. 5. Management will continue to work within the current FTA charter regulations and existing agreements with private charter providers in order to provide charter services. 6. Curb-to-curb ACCESS service will be provided in accordance with all applicable FTA guidelines. MANAGEMENT: 7. A professional workforce will carry out our Mission Statement. Management will assure fairness, even-handedness, consistency, and effective Equal Employment Opportunity and Affirmative Action policies and practices. 8. Assumes continuation of team development, employee recognition, and continuation of increased opportunities for employee training. 9. Assumes continued pursuit of programs of wellness and accident prevention in an effort to stem, to whatever extent possible, rising insurance costs. 6 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: Ap ACCOUNT TITLE: Salaries& Wages Summary 2011ACTUAL $4,725,419 2013 BUDGET REQUEST $ 4,910,940 2012 AS OF 6/30 $2,191,822 2012 APPROVED BUDGET $ 4,628,069 2010 ANNUALIZED $5,211,623 BUDGET CHANGE $ 282,871 Account Title 2011 2012 Operators $2,907,250 $ 3,081,293 Access Drivers&Clerk 338,814 344,042 Operations Administration 302,377 308,637 Revenue-Vehicle Maintenance 546,009 660,670 Maintenance Administration 124,945 124,945 Non-Revenue-Vehicle Maintenance 103,392 102,036 General Administration 305,282 289,317 Total $4,628,069 $ 4,910,940 7 TRANSP0 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Fringe Benefits Summary 2011 ACTUAL $1,789,950 2013 BUDGET REQUEST $ 1,928,616 2012 AS OF 06/30 $ 962,334 2012 APPROVED BUDGET $ 1,800,675 2011 ANNUALIZED $1,924,667 BUDGET CHANGE $ 127,941 Account Title 2012 2013 FICA $ 354,047 $ 375,687 Pension plan 211,694 211,694 Medical Insurance 1,015,710 1,101,551 Dental Insurance 42,957 44,154 Life Insurance 20,926 26,730 Short-Term Disability 16,031 18,412 Unemployment Insurance 12,423 12,423 Worker's Compensation 77,120 88,198 Uniforms 46,267 46,267 Tool Allowance 3,500 3,500 Total $1,800,675 $ 1,928,616 8 TRANS PO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Services Summary 2011 ACTUAL $ 929,788 2013 BUDGET REQUEST $ 824,826 2010 AS OF 06/30 $ 506,672 2012 APPROVED BUDGET $ 714,216 2010 ANNUALIZED $1,013,344 BUDGET CHANGE $ 110,610 Account Title 2012 2013 Management Service Fees $ 253,407 $ 247,577 Advertising Fees 5,000 7,500 Professional& Technical 246,039 254,039 Tuition & Registration- Employees - Tuition & Registration - Board - -- Temporary Help 5,000 2,500 Contract Services Operations 21,750 139,150 Contract Services Maintenance 120,000 100,000 Contract Services Administration 9,960 13,260 Security Services 48,060 55,800 Physical Damage Repairs 35,000 35,000 Recoveries of Physical Damage Repairs (30,000) (30,000) Total $ 714,216 $ 824,826 9 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Materials& Supplies Summary 2011 ACTUAL $1,854,522 2013 BUDGET REQUEST $ 1,240,471 2012 AS OF 06/30 $ 779,074 2012 APPROVED BUDGET $ 1,457,331 2011 ANNUALIZED $1,558,148 BUDGET CHANGE $ (216,860) Account Title 2012 2013 Fuel & Lubricants Operations $ 1,121,729 $ 949,518 Fuel & Lubricants Maintenance 13,302 16,353 Tires & Tubes Operations 2,000 Tires & Tubes Maintenance 3,200 - Materials &Supplies Operations 14,500 - Materials&Supplies Maintenance 230,000 210,000 Materials & Supplies Marketing 45,600 37,600 Other Materials& Supplies Operations 6,000 6,000 Other Materials& Supplies Maintenance 3,600 3,600 Other Materials& Supplies General Administration 17,400 17,400 Total $ 1,457,331 $ 1,240,471 10 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: Administration & Maintenance ACCOUNT TITLE: Utilities ACCOUNT NUMBER: 505-0x50-00 505-0x2x-00 2011 ACTUAL $ 185,853 2013 BUDGET REQUEST $ 209,267 2012 AS OF 06/30 $ 91,427 2012 APPROVED BUDGET $ 211,645 2012 ANNUALIZED $ 182,854 BUDGET CHANGE $ (2,378) Account Title 2012 2013 Electricity $ 100,392 $ 98,014 Water& Sewage 16,654 $ 16,654 Trash Collection 5,000 $ 5,000 Telephone 10,351 $ 10,351 Natural Gas 79,248 $ 79,248 Totals $211,645 $ 209,267 11 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Insurance Summary 2011 ACTUAL $ 215,208 2013 BUDGET REQUEST $ 246,977 2012 AS OF 06/30 $ 101,485 2012 APPROVED BUDGET $ 324,873 2012 ANNUALIZED $ 202,971 BUDGET CHANGE $ (77,896) Insurance- Liability & Physical Damage $ 239,192 Other Corporate Insurance 7,785 Total $ 246,977 12 TRANSPO 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Passenger Fares Summary ACCOUNT NUMBER: 413-0100-00 2011 ACTUAL: $ 1,401,657 2013 BUDGET REQUEST $ 1,408,314 2012 AS OF 06/30 $ 710,316 2012 BUDGET REQUEST $ 1,346,826 BUDGET CHANGE: $ 61,488 Account Title 2012 2013 Passenger Revenue 875,169 Access Passenger Revenue 35,152 945,366 Access Punch Card Revenue 5, Passport Revenue 57,553 6 61,9967 67 Student Pass Revenue 173,534 185,675 Tripper Revenue 56,880 28,320 Two Ride Pass Revenue 9,623 9,783 Two Week Pass 90,958 65,334 47,957 76,537 $ 1,346,826 $ 1,408,314 15 2013 BUDGET SUBMISSION DEPARTMENT: All ACCOUNT TITLE: Transfer-Capital Improvement Fund/Reserve for Liability ACCOUNT NUMBER: 301-0101-00 2011 ACTUAL $ - 2013 BUDGET REQUEST $ 74,480 2012 AS OF 06/30 $ 2012 APPROVED BUDGET $ - BUDGET CHANGE $ 74,480 This account is used for the transfer to the Capital Improvement Fund for the "Local Share" or to fund a reserve for future liabilities. The capital expenditures are detailed in the monthly Capital Improvement resolutions. $ 74,480 Detail of Capital Funds required to match existing grants on following page Total $ 74,480 16 06- \2_,---(.° RESOLUTION NO, A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, APPROVING AND ADOPTING THE HOWARD PARK NEIGHBORHOOD MASTER PLAN WHEREAS,in 2006,City Plan,a comprehensive plan for South Bend was adopted by the Area Plan Commission of St.Joseph County and the Common Council of the City of South Bend,which recommends that area-specific plans be developed for portions of the City to provide strategic direction in the future growth and development of that area;and WHEREAS,the City of South Bend through its Redevelopment Commission and Holladay Properties have undertaken the responsibility to prepare a Master Plan for the Howard Park Neighborhood in the East Bank of South Bend;and WHEREAS,the Howard Park Neighborhood Master Plan is comprised of those properties that lie within the following boundaries:St.Joseph River to the West,Jefferson Blvd on the North,Eddy St.to the East, and the St.Joseph River&Eddy St.to the South;and WHEREAS,the Howard Park Neighborhood Master Plan contains a detailed land use plan for the development of the area with public and private sector investment opportunities;and WHEREAS,the Area Plan Commission of St.Joseph County,Indiana approved land use plan for the Howard Park Neighborhood Master Plan by resolution on 08/21/2012;and WHEREAS,the Howard Park Neighborhood Master Plan,which is attached hereto and incorporated herein,contains all the elements necessary to strategically guide development in the Howard Park Neighborhood of the East Bank of the St.Joseph River,and is appropriate and in the best interest of South Bend and its citizens. NOW,THEREFORE,BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA AS FOLLOWS: SECTION I:That the Howard Park Neighborhood Master Plan,a true and complete copy of which is attached hereto and incorporated herein shall be and hereby is approved. SECTION II:That this Resolution 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 Co>`ncil cirrog 1. �, s P c 1. �"+t f`'3 s3�t 8i�y ti E.;�``u �, ©i� lfsala.', Io in Ct r s' .,. 1 1 'S C rY CLERK,R K,uS U'I t- f,.jtr Aci', IN PkESEh:.�EL 0 " Z" Nat APPrR.OYC? WDOPTE0 •'st3T8-4,„ O 4 : 1400 COUNTY-CITY BUILDING .", \ i0/' PHONE 574/235-9241 227W.JEFFERSON BOULEVARD W \ ����i t■ FAX 574/235-7670 SOUTH BEND,INDIANA 46601-1830 : �e` ( Y865 CITY OF SOUTH BEND PETE BUTTIGIEG,MAYOR DEPARTMENT OF LAW A1.ADEAN M. DEROSE CITYATrORNEY,AD INTERIM August 22, 2012 Mr. Derek Dieter President, South Bend Common Council 4111 Floor, County-City Building South Bend, IN 46601 y Re: Resolution of the Common Council of the City of South Bend, Indiana Approving and Adopting the Howard Park Neighborhood Master Plan Dear President Dieter: The South Bend Redevelopment Commission has prepared a Master Plan for the Howard Park Neighborhood located within the area commonly known as the East Bank. In order to accomplish the Master Plan Howard Park Neighborhood, it is necessary to amend the South Bend Central Development Area Plan, and to approve the Howard Park Master Plan. A detailed explanatory memo from Jitin Kain, Senior Economic Development Specialist, is attached along with the proposed Resolution and the Howard Park Neighborhood Plan dated August 10, 2012. Mr. Kain will present this Resolution to the Council at its Committee meeting and at the full Council regular meeting. Thank you for your consideration. Sincerely, A/a "1 &Ecr-L--- Aladean M. DeRose Crty Attorney to Unterinr -,. #455/ �-2734.kieL y x / eY i I t Sr�'C as ras'k AMD/cw Ufa 2 2 CHERYL A. GREENE ANN-CAROL NASH ANDREA L. BEACHKOFSKY LAWRENCE J.METEIVER JEFFREY L.SANFORD • RESOLUTION NO. 3064 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION AMENDING THE DEVELOPMENT PLAN FOR THE SOUTH BEND CENTRAL DEVELOPMENT AREA AND ADOPTING THE MASTER PLAN FOR THE HOWARD PARK NEIGHBORHOOD WHEREAS, the South Bend Redevelopment Commission (the "Commission"), governing body of the City of South Bend, .Indiana, Department of Redevelopment (the "Department") and the Redevelopment District of the City of South Bend, Indiana (the "Redevelopment District"), exists and operates under the provisions of the Redevelopment of Cities and Towns Act of 1953 which has been codified in IC 36-7-14 elm., as amended from time to time (the"Act"); and WHEREAS, the Commission has previously designated and declared an area in the City of South Bend, Indiana (the "City") known as the South Bend Central Development Area to be a blighted area within the meaning of the Act and adopted a Redevelopment Plan (the "Redevelopment Plan") all pursuant to Resolution No. 137 adopted by the Commission on May 10, 1985 (the "Declaratory Resolution"); and WHEREAS, pursuant to Section 16(a) of the Act, the Declaratory Resolution was approved by a resolution of the St. Joseph County Area Plan Commission (the "Plan Commission"), constituting its written order approving the Declaratory Resolution and the Redevelopment Plan (the "Plan Commission Order"); and WHEREAS, pursuant to Section 16(b) of the Act, the Common Council of the City adopted its resolution which approved the Plan Commission Order;and WHEREAS, after notice and a public hearing thereon, the Declaratory Resolution was subsequently confirmed by the Commission; and WHEREAS, pursuant to the Act and the Redevelopment Plan, the Department has conducted surveys and investigations and has thoroughly studied the South Bend Central Development Area and the Howard Park Neighborhood; and WHEREAS, upon such surveys,investigations and studies having been made, the Commission finds that the Redevelopment Plan cannot be achieved by regulatory processes or by the ordinary operations of private enterprise without resort to the powers allowed under the Act and that the public health and welfare will be benefited by the accomplishment of an amendment to the Redevelopment Plan; and WHEREAS, the Commission desires to amend the Redevelopment Plan by adopting a Master Plan for the Howard Park Neighborhood (the "Amendment"); and WHEREAS, the Amendment adopts only the portion of the Master Plan lying inside and related to the South Bend Central Development Area(depicted in Exhibit A); and • WHEREAS, there was presented to this meeting of the Commission for its consideration and approval, a copy of the Amendment, which Amendment consists of thirty seven (37)pages, and is attached hereto as Exhibit B; and WHEREAS, the Commission has determined that it has no present plans to acquire any interests in real property as part of the Amendment; and WHEREAS, the Amendment conforms to other development and redevelopment plans for the City. NOW THEREFORE, BE IT RESOLVED by the South Bend Redevelopment Commission as follows: 1. The Commission hereby finds and determines that the public health and welfare will be benefited by accomplishment of the Amendment for the Area. 2. The Commission hereby finds and determines that the Amendment is reasonable and appropriate when considered in relation to the Redevelopment Plan and the purposes of the Act. 3. The Commission hereby finds and determines that the Amendment for the Area conforms to the comprehensive plan for the City. 4. The Commission hereby finds and determines that it will be of public utility and benefit to amend the Redevelopment Plan for the Area, as set forth herein and in the Amendment and develop the Area under the Act. 5. The Amendment is in all respects approved and is hereby adopted as the Amendment for the Area. The Amendment shall be entitled "Howard Park Neighborhood Master Plan", and, when combined with the Redevelopment Plan, shall be deemed to refer to such Redevelopment Plan as amended. 6. The maps and plats of the South Bend Central Development Area, showing the boundaries, the location of the various parcels of property, streets, alleys and other features affecting the acquisition, clearance, replatting, replanning,rezoning or redevelopment of the Area, that are to be devoted to public ways, levees, sewerage, parks, playgrounds and other public purposes under the Plan, which maps and plats were previously adopted by the Commission, are hereby confirmed by the Commission. 7. No property acquisition is included as part of the Amendment. 8. The Secretary is directed to file a certified copy of the Amendment and this Resolution with the minutes of this meeting. 9. This Resolution, together with supporting data, shall be submitted to the St. Joseph County Area Plan Commission and the City of South Bend, Indiana, Common Council, as provided by Section 16 of the Act, for the approval of the Resolution and the Amendment, and if approved by both bodies, the Resolution and the Amendment shall be submitted to public hearing and remonstrance as provided by Section 17 of the Act, after public notice in accordance with Section 17 of the Act and IC 5-3-1 and after all required filings with governmental agencies and officers have been made pursuant to Section 17 of the Act. 10. All other findings, determinations and conclusions contained in the Redevelopment Plan shall remain as stated therein. 11. All orders or resolutions in conflict herewith are hereby rescinded, revoked and repealed in so far as such exist. 12. This Resolution does not affect any rights or liabilities accrued, penalties incurred, offenses committed, or(except as otherwise provided herein)proceedings begun before the effective date of this Resolution. 13. The United States of America is hereby assured of full compliance by the South Bend Redevelopment Commission with regulations of the Department of Housing and Urban Development effectuating Title VI of the Civil Rights Act of 1964, as amended. 14. This Resolution shall be in full force and effect from and after its adoption by the Commission. ADOPTED AND APPROVED at a meeting of the South Bend Redevelopment Commission held on the 16th day of August, 2012, at the County-City Building, Room 1308, 227 West Jefferson Boulevard, South Bend, Indiana. CITY OF SOUTH BEND, DEPARTMENT OF DEVELOPMENT ignahae Marcia I. Jones, President Printed Name and title South Bend Redevelopment Commission ATTEST: David A. Varner, Vice-President Printed Name and Title South Bend Redevelopment Commission EXHIBIT A Howard Park Neighborhood Master Plan -,...., 5 c;,;.:i - /1".."4,:;•/„.,rft....ei67, rvir,0441a?4, t•• ',.• ::'‘ *.1.•:'ar•".;?.,f-.' r, r t' 4:".4.,'<''.. .1 i."-' f',ir "1• '!-') 'fa g;-. 1; ...''.4:-- , 14. ar=...".--..=.:-':...,••'.----,,.,,, ....,r .--- . -'.47.!---I"k".- —'7 7*-..: '''':: .--•-t•tie5' .3f"r ' -k.•-.4r1 r%,..;.--,....f-.',,,,..,,41,.'AP;.) •:i..: '..: ,•:-...,..• ..•:..;,1.,'„--.-i 1..... '-‘1,•,....--.:. 1-, -',R4.,...,).-,...,. -,,,,'-i.„-- . , , ,. . • .„..;.---- 1,4; ,..,. k, .-44,-. t.,•,'''' - ' ' - ' ' . 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EXHIBIT B Howard Park Neighborhood Master Plan Updated:August 2012 RESOLUTION NO.228-12 A RESOLUTION OF THE AREA PLAN COMMISSION OF ST.JOSEPH COUNTY,INDIANA, APPROVING THE HOWARD PARK NEIGHBORHOOD MASTER PLAN,SOUTH BEND,IN WHEREAS,the City of South Bend,Indiana(the"City"),recognizes the need to improve and develop the Howard Park neighborhood through strategic planning;and WHEREAS,the City through its Redevelopment Commission(the"Commission")and Holladay Properties have undertaken the responsibility to prepare a Master Plan for the Howard Park Neighborhood of South Bend; and WHEREAS,the Howard Park Neighborhood Master Plan is comprised of those properties that lie within the following boundaries: St.Joseph River to the West,Jefferson Blvd on the North,Eddy St.to the East,and the St.Joseph River&Eddy St.to the South; and WHEREAS,the Howard Park Neighborhood Master Plan is a strategic development plan that was created with input from a variety of stakeholders,including Howard Park Neighborhood residents and businesses;and WHEREAS, the Howard Park Neighborhood Master Plan contains a detailed land use plan for the development of the area with public and private sector investment opportunities and a projected development schedule; and WHEREAS,the St.Joseph County Area Plan Commission(the"Plan Commission")is the body charged with the duty of developing a general plan of development for the City;and WHEREAS, on August 16,2012,the Commission,the governing body of the City of South Bend,Indiana,Department of Redevelopment, approved and adopted its resolution,entitled"Resolution of the South Bend Redevelopment Commission Amending the Development Plan for South Bend Central Development Area for the Howard Park Neighborhood"(the"Declaratory Resolution");and WHEREAS,the Declaratory Resolution approves an amendment(the"Plan Amendment")to incorporate the Howard Park Neighborhood Master Plan into the redevelopment plan(the"Original Plan")for the South Bend Central Development Area(the"Area"),(the Original Plan,as amended by the Plan Amendment,shall hereinafter be referred to as the"Redevelopment Plan");and WHEREAS,the Commission has submitted the Declaratory Resolution and the Plan Amendment to the Plan Commission for approval pursuant to the provisions of Indiana Code 36-7-14,as amended(the "Act"),which Declaratory Resolution and Plan Amendment are attached hereto and made a part hereof; and WHEREAS,pursuant to the provisions of the Act,the Plan Commission desires to issue its written order approving the Declaratory Resolution and the Redevelopment Plan,including the Plan Amendment. i BDDBOI 5268508v2 NOW,THEREFORE,BE IT RESOLVED by the Area Plan Commission of St.Joseph County, Indiana as follows: 1. That the Howard Park Neighborhood Master Plan is approved as the land use policy for the future land use development of the area considered. 2. That the Declaratory Resolution and the Redevelopment Plan,including the Plan Amendment,conform to the plan of development for the City. 3. That the Redevelopment Plan, including the Plan Amendment, is in all respects approved, ratified and confirmed. 4. That the Declaratory Resolution of the Commission adopting the Plan Amendment is in all respects approved,ratified and confirmed. 5. That the Plan Commission has given consideration to transitional and permanent provisions for adequate housing for the residents of the Area,if any,who will be displaced by the- redevelopment of the Area. 6. That this Resolution hereby constitutes the written order of the Plan Commission approving the Declaratory Resolution and the Redevelopment Plan,including the Plan Amendment, pursuant to Indiana Code 36-7-14-16(a). 7. That the Secretary of the Plan Commission is hereby directed to file a copy of the Declaratory Resolution and the Plan Amendment with the minutes of this public meeting. 8. That this Resolution shall be in full force and effect from and after its adoption by the Plan Commission. Passed by the Area Plan Commission of St:Joseph County,Indiana this ( )St day of_at ,2012. \ I J.41E.DeLee President Area Plan Commission of St.Joseph County Attest: w. *Al/ W.Byorni v` Secretary ( 1 t" f i Area Plan Commission of St.Joseph County .. BDDBOI 5268508v2 • -2- ..,, m e m ® r a n d u m r'g BF Community & Economic Development r?; ,�:, ^1865... 227 West Jefferson, Suite 1200, South Bend, Indiana 46601-1830• Phone 574/235-9371 • Fax 574/235-9021 T o : South Bend Common Council • From: Jitin Kain, Senior Economic Development Specialist Subject: Adoption of the Howard Park Neighborhood Master Plan Date: August 22, 2012 Attached with this memo is a Resolution which adopts the Howard Park Neighborhood Master Plan as part of the process to amend the Redevelopment Plan for the South Bend Central Development Area(SBCDA). The Howard Park Neighborhood of South Bend has the potential to become an exciting,dynamic urban neighborhood and is poised for private sector investment and development of its infill properties. After the completion of Phase 1 of the East Bank Master Plan(covers neighborhood North of Jefferson Blvd)in 2008, a planning study of the Phase 1I area, more commonly known as the Howard Park Neighborhood,began. This area is decidedly more residential in character. However,there are several commercial and industrial users who call the Howard Park Neighborhood home, and scenic river views which characterize the vast potential the neighborhood possesses. Key strategies identified in the plan include: • Redevelopment of the 10 acre Transpo site in to a mix of residential uses along the river front • Conversion of existing industrial uses to reside ntial as those properties come up for sale or re-use • Enhancement of the River Walk • Pedestrian and bike friendly pathways throughout the neighborhood. The Master Plan was completed in the spring of 2009.At the time the South Bend Central Development Area did not include the Eastern half of the Transpo site. In December of 2011, the boundaries of the development area were expanded to include the remainder of the Transpo site in order to support a private sector development project. The Redevelopment Commission approved Declaratory Resolution #3064 on 8/16/12 to begin the process of amending the SBCDA which is attached. Also attached is Area Plan Commission Resolution 228-12 which . was approved on 8/21/12. Staff requests approval of the attached Resolution. R L 9 1 F 14-)° lz-� RESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND DESIGNATING CERTAIN AREAS WITHIN THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS 3300 N. Kenmore AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A THREE (3) YEAR REAL PROPERTY TAX ABATEMENT FOR INDIANA ROTOMOLDING, INC. WHEREAS, a petition for real property tax abatement has been filed with the City Clerk for consideration by the Common Council of the City of South Bend, Indiana requesting that the area commonly known as 3300 N. Kenmore, South Bend,Indiana, and which is more particularly described as follows: 5/855 Ac Tract E of Kenmore NE 14 NE 14 Sec 28-38-2e and which has Key Number 025-1010-038518, be designated as an Economic Revitalization Area under the provisions of Indiana Code § 6-1.1-12.1 et Ng., and South Bend Municipal Code Sections 2-76 et seq., and; WHEREAS, the Department of Community and Economic Development has concluded an investigation and prepared a report with information sufficient for the Common Council to determine that the area qualifies as an Economic Revitalization Area under Indiana Code § 6-1.1-12.1, et seq., and South Bend Municipal Code Sections 2-76, et seq., and has further prepared maps and plats showing the boundaries and such other information regarding the area in question as required by law; and WHEREAS, the Community and Economic Development Committee of the Common Council has reviewed said report and recommended to the Common Council that the area qualifies as an Economic Revitalization Area. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of South Bend, Indiana, as follows: SECTION I. The Common Council hereby determines and finds that the Petition for Real Property Tax Abatement and the Statement of Benefits form completed by the Petitioner meet the requirements of Indiana Code § 6-1.1-12.1 et seq.,for tax abatement. SECTION II. The Common Council hereby determines and fmds the following: A. That the description of the proposed redevelopment or rehabilitation meets the applicable standards for such development; B. That the estimate of the value of the redevelopment or rehabilitation is reasonable for projects of this nature; C. That the estimate of the number of individuals who will be employed or whose employment will be retained by the Petitioner can reasonably be expected to result from the proposed described redevelopment or rehabilitation; D. That the estimate of the annual salaries of those individuals who will be employed or whose employment will be retained by the Petitioner can be reasonably expected to result from the proposed redevelopment or rehabilitation; E. That the other benefits about which information was requested are benefits that can be reasonably expected to result from the proposed described redevelopment or rehabilitation; and F. That the totality of benefits is sufficient to justify the requested deduction, all of which satisfy the requirements of Indiana Code § 6-1.1-12.1-3. SECTION III. The Common Council hereby determines and fords that the proposed described redevelopment or rehabilitation can be reasonably expected to yield benefits identified in the Statement of Benefits, Sections 1 through 3 of the Petition for Real Property Tax Abatement Consideration and the Memorandum of Agreement between the Petitioner and the City of South Bend, and that the Statement of Benefits form completed by the petitioner, said form being prescribed by the State Board of Accounts, are sufficient to justify the deduction granted under Indiana Code § 6-1.1-12.1-3. SECTION IV. The Common Council hereby accepts the report and recommendation of the Community and Economic Development Committee that the area herein described be designated as an Economic Revitalization Area and hereby adopts a Resolution designating this area as an Economic Revitalization Area for purposes of real property tax abatement. SECTION V. The designation as an Economic Revitalization Area shall be limited to two (2) calendar years from the date of the adoption of this Resolution by the Common Council. SECTION VI. The Common Council hereby determines that the property owner is qualified for and is granted property tax deduction for a period of up to four(4)years. SECTION VII. The Common Council directs the City Clerk to cause notice of the adoption of this Declaratory Resolution for Real Property Tax Abatement to be published pursuant to Indiana Code § 5-3-1 and Indiana Code § 6-1.1-12.1-2.5, said publication providing notice of the public hearing before the Common Council on the proposed confirming of said declaration. SECTION VIII. This Resolution shall be in full force and effect from and after its adoption by the Common Council and approval by the Mayor. o. a ( ; Member of the Common 4ouncil • Counc,11 Edon xi1G a 7,777 n. r Pst.SEN7ED SE *: =' ..y 14 NOT APPk v!Fd y ,Q t. 'e'z'C.a ti SOU'1;. . 1200 COUNTY-CITY BUIL.DNG .E7 N „\ 4�t= PHONE 574/235-9371 227 W JEFFERSON BOULEVARD U "\\\ ", ' FAX 574/235-9021 W SOUTH BEND,INDIANA 46601-1830 r * ,e iL x l 1865 ''',. CITY OF SOUTH BEND PETE BUTTTGJEG,MAYOR COMMUNITY & ECONOMIC DEVELOPMENT September 10, 2012 Council Member Henry Davis, Chairperson Community&Economic Development Committee South Bend Common Council 4th Floor, County City Building South Bend, IN 46601 RE: Commercial Real Property Tax Abatement Petition for: Indiana Rotomolding, Inc. Dear Council Member Davis: Please find attached the Department of Community & Economic Development's report on a commercial real property tax abatement petition for the above-referenced. Petitioner, for the construction of a 25,000 square foot building at 3300 N. Kenmore. Also attached is a copy of the Petition, Statement of Benefits form, and supporting information. The report contains the Department's findings relative to the above Petition. The Petitioner,Indiana Rotomolding, Inc. proposes to construct a building which will cost $750,000. The Petitioner is seeking a three to four year real property tax abatement for the building. A representative of the Petitioner will be available to meet with the Committee on Monday, September 24, 2012. Should you or any other Council member have questions concerning this report,or need additional information,please feel free to call me at 235-5836. Respectfully, David P. Relos Economic Development Specialist Attachments cc: South Bend Common Council Members Mayor Pete Buttigieg Don Inks COMMUNITY DEVELOPMENT ECONOMIC DEVELOPMENT PAMELA C. MEYER DONALD E.INKS 574/235-9660 574/235-9371 FAX: 574/235-9469 • TAX ABATEMENT REPORT TO: SOUTH BEND COMMON COUNCIL FROM: DAVID RELOS, ECONOMIC DEVELOPMENT PLANNER c1/4-- SUBJECT: REAL PROPERTY TAX ABATEMENT PETION FOR: INDIANA ROTOMOLDING,INC. DATE: SEPTEMBER 10, 2012 On August 31,2012,a petition for real property tax abatement consideration for property located at 3300 N.Kenmore was filed with the City Clerk by Indiana Rotomolding,Inc. Pursuant to Chapter 2,Article 6, Section 2-84.2 of the Municipal Code of the City of South Bend, this petition was referred to the Department of Community and Economic Development for purposes of investigation and preparation of a report determining whether the area qualifies as an Economic Revitalization Area pursuant to I.C.6-1.1-12.1 and whether all zoning requirements have been met. The Department of Community and Economic Development has reviewed the petition,investigated the area, and makes the following report. PROJECT SUMMARY Indiana Rotomolding, Inc. is a custom plastic processor utilizing the rotational molding process to manufacture yellow crash barrels for highway safety, along with a wide variety of other small and large 'hollow products which are shipped up to 800 miles away. The petitioner would like to construct a 25,000 square foot building, which will enable the expansion of their manufacturing facility to accommodate orders from a large new customer. The estimated dollar value of the project,excluding land,is$750,000. Information about construction related activities is not yet known, but will be available prior to the Common Council's date for granting a confirming resolution. The company will qualify for a three to four year real property abatement. Total taxes to be abated during a (4) four year abatement period are estimated at $10,044. Total taxes to be paid during a(4) four year abatement period are estimated at $291,483. Total taxes to be abated during a(3)three year abatement are estimated at$7,995. Total taxes to be paid during a(3) three year abatement are estimated at $218,150. EMPLOYMENT IMPACT Per the petition,it is estimated that the total project will create at least twenty(20)new,permanent, full- time jobs in the first year of production,representing new annual payroll of at least$900,000. The project will maintain 70 existing,permanent, full-time jobs with a total annual payroll of$2,500,000. ABATEMENT QUALIFICATION 1. A review of the tax abatements previously granted finds that the petitioner has been granted or been associated with one previous tax abatement. Type Resolution Number Date 4 year real property abatement 3678-07 January 08, 2007 2. The Building Commissioner has reviewed the petition and finds the property to be properly zoned for the proposed project. 3. A review of the South Bend Redevelopment designation areas finds that the property is located in the Airport Economic Development Area,which is a Tax Incremental Allocation Area; therefore, the petition for real property tax deduction must first be approved by the South Bend Redevelopment Commission. 4. A review of the Tax Abatement Ordinance No. 9394-03 finds that the petitioner meets the qualifications for a(3)three to (4) four year real property tax abatement under section 2-82,Real Property Tax Abatement- Industrial Development City-Wide. 10-Sep-12 • Indiana Rotomolding, Inc. Public Benefit Points Summary* Qualify Earned Available Public Benefit Item: (Y or N) Points Points Project Related: 1. A. Redevelop a Site that has Special Needs N 0 49 B. Develop Based on Local University Research N 0 35. C. Achieve a Physical Element of a Plan N 0 36 Sub-total Project Related: 0 120 2. Super Size Proiects(point values are cumulative): A. 100%to 199% Y 25 25 B. 200%to 299% N 0 68 C. 300%to 399% N 0 65 D. 400%and Over N 0 52 Sub-total Super Size Projects: 25 210 3. Construction Related: • A. Employ Local Companies N 0 20 B. Purchase Materials from Local Companies N 0 20 C. Require Employees vs.Independent Contract( N 0 19 D. Require Target Wage Levels N 0 22 E. Require Health Benefits N 0 22 F. Require Pension Benefits N 0 18 G. Maintain Affirmative Action Plan N 0 20 Sub-total Construction Related: 0 141 4. Wage&Benefit Related: A. Pay Target Wage Levels N 0 33 B. Provide Health Benefits Y 34 34 C. Provide Pension Benefits N 0 29 D. Provide Training N 0 28 E. Provide Child Care N 0 15 F. Provide Transportation Assistance N 0 14 G. Provide Employer Assisted Housing program N 0 9 Sub-total Wage&Benefit Related: 34 162 5. Workforce Related: A. Create New Jobs Y 42 42 B. Retain Existing Jobs Y 41 41 C. Maintain Affirmative Action Plan N 0 35 D. Provide Targeted Hiring Preference N 0 34 Sub-total Workforce Related: 83 152 6. Pay for Municipal Infrastructure:(point values are cumulative): A. Pay for Oversizing or Upgrading N 0 14 B. Pay for 26-50%of Extension Cost N 0 26 C. Pay for 51-75%of Extension Cost N 0 39 D. Pay for 76-100%of Extension Cost N 0 52 Sub-total Infrastructure Related: 0 131 7. Support a Municipal Facility: A. Support a Municipal Facility N 0 84 Total Public Benefit Points: 142 1000 *Qualification for each Public Benefit Item based on best available information at time of application or good faith determination if no information available. • 10-Sep-12 Indiana Rotomolding, Inc. Public Benefit Points Summary* Qualify Earned Available Public Benefit Item: (Y or N) Points Points Project Related: 1. A. Redevelop a Site that has Special Needs N 0 49 B. Develop Based on Local University Research N 0 35 C. Achieve a Physical Element of a Plan N 0 36 Sub-total Project Related: 0 120 2. Super Size Projects(point values are cumulative): A. 100%to 199% Y 25 25 B. 200%to 299% N 0 68 C. 300%to 399% N 0 65 D. 400%and Over N 0 52 Sub-total Super Size Projects: 25 210 3. Construction Related: A. Employ Local Companies Y 20 20 B. Purchase Materials from Local Companies Y 20 20 C. Require Employees vs.Independent Contract( Y 19 19 • D. Require Target Wage Levels Y 22 22 E. Require Health Benefits Y 22 22 F. Require Pension Benefits Y 18 18 G. Maintain Affirmative Action Plan Y 20 20 Sub-total Construction Related: 141 141 4. Wage&Benefit Related: A. Pay Target Wage Levels Y 33 33 B. Provide Health Benefits Y 34 34 C. Provide Pension Benefits N 0 29 D. Provide Training N 0 28 E. Provide Child Care N 0 15 F. Provide Transportation Assistance • N 0 14 G. Provide Employer Assisted Housing program N 0 9 Sub-total Wage&Benefit Related: 67 162 5. Workforce Related: A. Create New Jobs Y 42 42 B. Retain Existing Jobs Y 41 41 C. Maintain Affirmative Action Plan N 0 35 D. Provide Targeted Hiring Preference N 0 34 Sub-total Workforce Related: 83 152 6. Pav for Municipal Infrastructure:(point values are cumulative): A. Pay for Oversizing or Upgrading N 0 14 B. Pay for 26-50%of Extension Cost N 0 26 C. Pay for 51-75%of Extension Cost N 0 39 D. Pay for 76-100%of Extension Cost N 0 52 Sub-total Infrastructure Related: 0 131 7. Support a Municipal Facility: A. Support a Municipal Facility N 0 84 Total Public Benefit Points: 316 1000 *Qualification for each Public Benefit Item based on best available information at time of application or good faith determination if no information available. 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QQQ N � Z a N 1- ._ Z op0 � U 0 E W ac) QZ E NU w co ci,>. c- co N N O co U y = e UmJ Q UJ 0 3 INDIANA L)) - , ; , , , ,,,, ,,,,, ROTOMOLDING, INC.; August 31, 2012 City Clerk's Office County City Building Room 455 227 W.Jefferson Blvd South bend, IN 46601 To Whom It May Concern, Indiana Rotomolding, Inc. would like to add a 25,000 sq.ft. addition to our Industrial building located at 3300 N. Kenmore, South Bend, IN. We have recently been awarded a significant contract from an existing customer and will need additional equipment and personnel to produce the product. I would prefer to manufacture the new product at this location as opposed to one of our facilities in Elkhart County. Therefore, I have enclosed a form SB-1 as well as a Petition For Real Property Tax Abatement Consideration. If you have any questions,please contact me at 574-232- 8066 (106) or jack.welter @iri-roto.com. Thanks in advance for your consideration. V....144' J Jac E. Welter President Encs. t CITY GLEi\k,:..�A. .. _• @ ' 3300 N. Kenmore • South Bend,IN • 46628 • Phone: 574-232-8066 • Fax: 574-232-6036 • www.iri-roto.com 1 STATEMENT OF BENEFITS d��• `� 20 PAY 20 REAL ESTATE IMPROVEMENTS '.i ` l'/ State Form 51767(R2/1-07) FORM SB-1 I Real Property ,;,; Prescribed by the Department of Local Government Finance .This statement is being completed for real property that qualifies under the following Indiana Code(check one box): . 16 Redevelopment or rehabilitation of real estate improvements(IC 6-1.1-12.1-4) ❑ Eligible vacant building(IC 6-1.1-12.1-4.8) INSTRUCTIONS: 1. This statement must be submitted to the body designating the Economic Revitalization Area prior to the public hearing if the designating body requires information from the applicant in making its decision about whether to designate an Economic Revitalization Area. Otherwise this statement must be submitted to the designating body BEFORE the redevelopment or rehabilitation of real property for which the person wishes to claim a deduction. "Projects"planned or committed to after July 1, 1987,and areas designated after July 1, 1987,require a STATEMENT OF BENEFITS. (IC 6-1.1-12.1) 2. Approval of the designating body(City Council, Town Board,County Council,etc.)must be obtained prior to initiation of the redevelopment or rehabilitation, BEFORE a deduction may be approved. 3. To obtain a deduction,application Form 322 ERA/RE or Form 322 ERA/VBD, Whichever is applicable,must be filed with the County Auditor by the later of:(1)May 10;or(2)thirty(30)days after the notice of addition to assessed valuation or new assessment is mailed to the property owner at the address shown on the records of the township assessor. 4. Property owners whose Statement of Benefits was approved after June 30, 1991, must attach a Form CF-1/Real Property annually to the application to show compliance with the Statement of Benefits. [IC 6-1.1-12.1-5.1(b)and/C 6-1.1-12.1-5.3(j)] 5. The schedules established under IC 6-1.1-12.1-4(d)for rehabilitated property and under IC 6-1.1-12.1-4.8(1)for vacant buildings apply to any statement of benefits approved on or after July 1, 2000. The schedules effective prior to July 1,2000,shall continue to apply to a statement of benefits filed before July 1,2000. SECTION 1 TAXPAYER INFORMATION Name of taxpayer 6, � r n-PA Addre s of tax ayer(number and street,city,state,and ZIP code) 4 o i4y:04 MefboW cr., E b wi9.4 04)0, rkNL FtitL Name of contact person Telephone number p E-mail address 1fJELtt�2 -9-232-'3v(otp IoL� jucK.ws.t -&�fI-rtio..-Q SECTION 2 LOCATION AND DESCRIPTION OF PROPOSED PROJECT Name of designating body Resolution number 2J '1 Pt D rot aT J t '4.4- Location of property County DLGF taxing district number 330o pot,'1-k r--e-PnAo , 5;vrtAk C ib: f' 4,(:,28 s+. Spsol-t Geani. ot8 Description of real property improvements,redevelopment,or rehabilitation(use additional sheets if necessary) Estimated start date(month,day,year) 5000 sca-Fr. rY 3J('FPKnt(ti(,, A-o04-31-tai-) fvt- !}00��r'i-t rfv7-0k* cti 10- l-201 t ID YtiAi L N C w 1 M1-(of CU,--1-01/hU, Estimated completion date(month,day,year) 3-1- zo V3 SECTION 3 ESTIMATE OF EMPLOYEES AND SALARIES AS RESULT OF PROPOSED PROJECT Current number Salaries Number retained Salaries Number additional Salaries 10 a,5 O0,000 10 2,500l00 0 20 900000 S •N4 S IT •TOTAL • _ • _ • •ze•• • •r a NOTE:Pursuant to IC 6-1.1-12.1-5.1 (d)(2)the COST of the property REAL ESTATE IMPROVEMENTS is confidential. COST ASSESSED VALUE Current values 1 LIS4r©00 f't3R.000 Plus estimated values of proposed project 0 000 Less values of any property being replaced . t_ . Net estimated values upon completion of project .at i e`j ODU SECTION 5 WASTE CONVERTED AND OTHER is ENEFITS PROMISED BY THE TAXPAYER Estimated solid waste converted(pounds) Estimated hazardous waste converted(pounds) '49. Other benefits r -- ' .QA • yk R-ovr-a.vNL 0 D ( wo � Tit) ST- To c 44c:11 ;y,. - k L '?r It.', !;, t i I r'U ; cLEL i,, ; ., ' SECTION 8 • TAXPAYER CERTIFICATION • I he eby certify that the representations in this statement are true. Signatut:�']tho iz d r't• entative Title ��ff �, ��� (' Date sign d(month,day,year) Page 1 of 2 }FOR LiSE'OF THE OESIGNATINGBODY We have reviewed our prior actions relating to the designation of this Economic Revitalization Area and find that the applicant meets the general standards adopted in the resolution previously approved by this body. Said resolution,passed under IC 6-1.1-12.1,provides for the following limitations: A. The designated area has been limited to a period of time not to exceed calendar years*(see below). The date this designation expires is B. The type of deduction that is allowed in the designated area is limited to: 1.Redevelopment or rehabilitation of real estate improvements ❑Yes ❑No 2.Residentially distressed areas ❑Yes 0 No 3.Occupancy of a vacant building ❑Yes ❑No C. The amount of the deduction applicable is limited to$ D. Other limitations or conditions(specify) E. The deduction is allowed for years*(see below). We have also reviewed the information contained in the statement of benefits and find that the estimates and expectations are reasonable and have determined that the totality of benefits is sufficient to justify the deduction described above. Approved(signature and title of authorized member of designating body) Telephone number Date signed(month,day,year) Attested by(signature and title of attester) Designated body *If the designating body limits the time period during which an area is an economic revitalization area,it does not limit the length of time a taxpayer is entitled to receive a deduction to a number of years designated under IC 6-1.12-12.1-4. A. For residentially distressed areas,the deduction period may not exceed five(5)years: B. For redevelopment and rehabilitation or real estate improvements: 1. If the Economic Revitalization Area was designated prior to July 1,2000,the deduction period is limited to three(3),six(6),or ten(10)years. 2. If the Economic Revitalization Area was designated after June 20,2000,the deduction period may not exceed ten(10)years. C. For vacant buildings,the deduction period may not exceed two(2)years. • Page 2 of 2 CITY OF SOUTH BEND PETITION FOR REAL PROPERTY TAX ABATEMENT CONSIDERATION The undersigned owner(s) of real property, located within the City of South Bend, hereby petition the Common Council of the City of South Bend for real property tax abatement consideration and pursuant to I.C., 6-1.1-12.1-1, et seq., and South Bend Municipal Code Sec. 2-76 et seq., for this petition state the following: 1. Describe the proposed redevelopment or rehabilitation project, including information about physical improvements to be made,the proposed use of the improvements, and a general statement as to the importance of the project to your business: NQtt—E ' fYN}P JPp,c n\.< \I 2 S r 000 sa. FT To A(CeIrs"m°1) A-6) .Tto?J Yv�HChrAJ � �� P-u,1, CPA) vrC .t "� IV4 W LIV4( Cat s'-r-o rv*- L_ Land Size acres; Building Size 1, 100 sq.ft. 2. Describe the overall nature of the business and of the operations occurring at the Property (Please attach an additional sheet if more space is needed): _AND. f.6 17Q N-,0 0.')6 is A cws-rol„- eLrAv Tr( PRt, r c— :�ri( 2j i T IC (CDT -Tro,.1(NL 1►✓\,,�-oi1J� P k()( 5T. .�(�DQ11it-TC iP�ANVc14(-t-4 TNCC,V1 ycZww \ CD 4- 41Lbkwa-% *re tkND w.i=D7 ✓nti��rr't� of cTKE,1L 5(You. ANA L ' 40RDw Pi?041/4)c.T- s zt?Qc a w To 3 l,Qc Av P . 3. Estimate the dollar value of the project (excluding land): $ 1501000 4. The current assessed valuation of the real property before rehabilitation, redevelopment, economic revitalization, or improvement is: $ 1 3°1 000 (This information may be obtained from the St.Joseph County Assessor's Office 235- 9557.) 5. (a) The real property for which tax abatement consideration is petitioned (Property)is owned or to be owned by the following individual(s) or corporation(s) (if the business organization is publicly held, indicate also the name of the corporate parent, if any, and the name under which the corporation has filed with the Securities and Exchange Commission): NAME ADDRESS INTEREST(%) E,w, MM—skit (0V190 14134 mtpo'J CT 100/ Cbwfsa c -4-6, NN: 4 cth (Rev 5/13/11) (b) The following other person(s) or corporation(s) lease, intend to lease, or have an option to buy the Property (include corporate information as required in 5(a) above, if applicable); NAME ADDRESS INTEREST(%) • T1.%DrtwN- �To:mtLb Jb, 71_Nc. 3300 N. kIJmok ST 100 S-ou11-1{ (A28 6. The commonly known address of the Property is: 3300 N. 5c �•T>� l��t''D �rJ Kole 7. The Key Number(s) of said property is: C z5 - I o 10-03f 51€ • 8. A legal description of the above address is attached hereto, marked "Exhibit A,"and incorporated herein. 9. A map and/or plat describing the Property is attached hereto, marked"Exhibit B,"and incorporated herein. 10. Photographs of the property, taken within two (2) weeks of filing of this petition, are attached hereto, marked "Exhibit C," and incorporated herein. 11. The REAL property where the proposed redevelopment or rehabilitation project will be carried out is located in the following Allocation Area, if any, declared and confirmed by the South Bend Redevelopment Commission: N/A 12. The redevelopment or rehabilitation project itself will: (a) create 0 permanent, full-time and . permanent, part-time jobs within the first year, representing a new annual payroll of$ 9001000 ; and (b) maintain 6 existing, permanent, full-time and existing, permanent, part-time jobs (including existing, permanent, full-time, minority employment of 11 workers and existing, perma- nent, part-time, minority employment of 0 workers) with a total annual payroll of $ AIS oa 003 for all existing employees. 13. Provide current wage information for existing employees including: base rate,cost-of- living allowances, hazardous-duty pay, incentive pay including commissions and production bonuses, on-call pay and tips (please show average hourly rate or range). Do Not Include: back pay, jury duty pay, overtime pay, severance pay, shift differentials, non-production bonuses, and tuition reimbursements. Full-Time Part-Time Laborers $ $ Technical $ t) _kJ)? htR $ Managerial $ qS000 - "1o�0o0 $ Administrative $ y o1oo0 $ (Rev 5/13/11) 2 14. The projected annual salary for each new position indicated in item 12 above is estimated to be as follows (Please attach additional sheet (s) if more space is needed): POSITION (Indicate Full Time [FT] or Part Time [PT]) EMPLOYMENT WAGE ID (fT ��ot cTTo� t. oQ 4 3rc, moo �� (F c) tlu[111yiltbn- /5-,IEcLJ Qi if 55'00o AV 6. 15. Indicate whether your company provides the following benefits (use Y/N): '1 Health Care Benefits N Pension Plan N Employer Provided Training (recognized or certified training/educational courses or programs) Ni Day Care (provide or contribute to the cost of child day care for its employees) N Transportation Assistance (provide direct or indirect support and assistance to its employees who lack private transportation to get back and forth from residence to place of employment) 14 Employer-Assisted Housing Program (provide an employer-assisted home ownership program) N Targeted Hiring Preference (provide hiring preference for residents of Census Tracts designated by the City's Community & Economic Development Department that have the highest unemployment or the highest percentage of low and moderate income individuals). (Additional information may be requested for verification of the above items) 16. List the real and personal property taxes paid at the location during the previous five years, whether paid by the current owner or a previous owner: YEAR REAL PROPERTY TAXES PERSONAL PROPERTY TAXES awe qMOte.?1 11,10N.4-1 2005 5 5 33. 3 9 $ 1?p81.3 5 2.010 Si, 373,0(0 $ 1�3qe-6L 2011 2 "113 . to 5 I S 2017- $ �Z 12_6,60 s' I`I GIE,ti (This information may be obtained from the St. Joseph County Treasurer's office 235-9531) (Rev 5/13/11) 3 17. Please list the number of full-time and part-time minority employees for each of the last three years: Year ac 1Z 2c,l t Z'l O Full Part Full Part Full Part Black Go - 8 �7 Hispanic 4 i.L - 3 Asian - - Indian - - - Other - - - - 18. Does your business maintain a written (formal) affirmative action plan or other similar plan in order to achieve racial diversity? If yes, please briefly indicate specific goals, objectives, and means as designated by your plan: NO 19. Indicate whether or not your project will finance any of the following activities (If desired, please contact the Community & Economic Development Department 235-9335 for additional information on this section): N Conversion to residential use of a commercial building "Eligible Building"as Ndesignated by the Community & Economic Development Department. Rehabilitation of a building that is either: (a) on the National Register of Historic Places; (b) designated as a local landmark; (c) located in a National Register or local landmark district; (d) eligible for nomination as a National Register or local landmark; or (e) is rated as Outstanding (0/13) or Significant (S/12 or S/11) in the most recent Historic Preservation county- wide survey. N Rehabilitation and reuse of a property that is designated a Problem Property by the Community and Economic Development Department. N Cleaning up a"Brownfield,"which is any site, building,facility or complex that has been designated a brownfield by the Community and Economic Development Department. 20. Is your business based upon licensing intellectual property from research conducted at a public or private university, college, or community college located within St. Joseph County, Indiana? If yes, please include a description of the research based aspects of the business (Please attach additional sheet (s) if more space is needed): NO (Rev 5/13/11) 4 21.Will your project achieve one or more physical elements identified in a development or revitalization plan that has been approved by the Common Council? If yes, please explain. NO 22. Does your business provide significant financial support to a Municipal Facility (i.e. municipally owned park, recreation center or cultural arts or entertainment facility or other similar public amenity)? If yes, please explain. NO 23. Is your company incurring any of the costs of extension or over-sizing of municipal infrastructure serving the project site? This includes water, sewer, drainage facilities, wastewater treatment facilities, road and street improvements, street lighting, traffic control and related public improvements (Please attach additional sheet (s) if more space is needed): N 24. Information is required on the companies through which construction materials will be purchased for the project. (Please complete the table on page 8 of this application). 25. Information is required on the construction companies that will be utilized for the construction or rehabilitation associated with the project. (Please complete the table on page 9 of this application). 26. No building permit has been issued for construction on the property in connection with the improvement in question as of the date of filing of this petition. (The Property Owner's signature at the end of this application is verification of this statement). 27. The Standard Industrial Classification (SIC) or North American Industry Classification Systems (NAICS) major group within which the proposed project would be classified, by number and description is: N( TC c — 3�(a 28. The Internal Revenue Service Code of Principal Business Activity by which the proposed project would be classified, by number and description is: 3 �.lvjOt? 29. The current use of the Property is SN Q1/45 and the current zoning is_ L i . (This information may be obtained from the Building Department 235- 9554). (Rev 5/13/11) 5 30. Has your business been granted previous tax abatement(s)? If yes, please provide type (real and/or personal property), term and date of approval. (Please attach additional sheet(s) if more space is needed) ABATEMENT TYPE TERM DATE OF APPROVAL ilOKV-76 TM y 'E s TfttduA j aooi 31. Other anticipated public financing for the project including, if any, industrial revenue- bonding to be sought or already authorized, assistance through the United States Department of Housing and Urban Development funds from the City of South Bend, Small Business Administration Sections 503 and 504 financing through the Business Development Corporation of South Bend, Mishawaka, and St.Joseph County, Indiana, Industrial Revolving Fund; or other public financial assistance, including but not limited to public works improvements. NIA 32. The following person(s)should be contacted as Petitioner's primary agent(s) regarding additional information and public hearing notifications and the following individual(s) may participate at the committee and full council meetings of the South Bend Common Council: Name: ACK 1n1�LTEiZ Address: 330o hl KOJne\tuQk City, State, Zip: SEur+t Qe NN 6(42,8 Telephone: Spy- 231- $otQ O E-mail address: S( WC w�.Vrcr��rl -elf°. con. . 33. If this real property tax abatement is for warehouse or industrial developments, pursuant to South Bend Municipal Code Sec. 2-83.2, please indicate the name, address, telephone number and e-mail address of the person who will work with WorkOne Northern Indiana (WNI) or its successor agency for employee recruitment, and sign the required WNI form attached to the petition. Name: IBC. WELTER. Address: 3S 00 N K—N n City, State, Zip: 5''■ XN 6i ' w y(o629 Telephone: 5-1,4-.z3 t-So co to E-mail Address: :pc.Y•wc.lkk.a I r; .NA).co a. (Rev 5/13/11) 6 a) et ea.0 ° c a eu ,- 'o� aoWcay > Z '� a.coC", msaa5 oCj v „CM 0 .0m = •«. s3Q-�' - = ° ° C 7� c.,,..-2Q- a ° EOn0 3 V = ° L M C t I-"O w O A a) Z tuc .RO 0 oz C E= Oa 0 > .... . . ..„ 0 „ 0 a0 • . � :. 0 eo , ii :rn o ° aOi _a °- E 020- c .. .c c a 1 O N 34D O •� A ,0 a) a) c 2 w Z H la 4:1 CO o 3 2 _ " 14 7 L 0035 O -3 � 'C . 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'' -•,,A-.41--..,-,;-. . 1.4,:t•-t-4',1t.•,'",": • ,.' " ••:-:i•,,,,,-;,---2%,-, - ',', -, 04-c,''4-:*"4" •r .''• .."'--' ',. . .....,_._..„ • • • - • - .....„, . ,.. -...•:',.-=i.k.:•..-fle.', ':`,;, • -'.,.---'1i:j'-'1',••11.-:" • '. , -:: *!'•' 1:,'''.'- - , •-•,.-.1---; - iai-,--4, ei, " '._.:- A--: .._, ‘'.•`".`-1:'Y- if!' '. ... 1 ' ; -.,::4.0.) f/ . • 4'....‘,"'!, '... y: -- '' W. MONgeld .,, . 41, , v-r = , . .-:,.,.. ,,y-- , .. CITY OF SOUTH BEND, INDIANA WORKONE NORTHERN INDIANA FORM Pursuant to Section 2-83.2 of the South Bend Municipal Code, the Petitioner referred to herein agrees to work with WorkOne Northern Indiana, 851 South Marietta Street, South Bend, Indiana 46601 , or its successor agency as a condition of receiving property tax abatement. E4 W tAl-vJ Petitioner's Name \ EL- Agent's Name Acting on Behalf of the Petitioner ILK \t LTA Contact Person 3 300 N, r-FNtv\oi-C ST. Street Address City, State, Zip Code s14,_ L32 - g0(06 Business Telephone Number duck, in1 Z�TQ(&i('; e0i-0. (.0►e. E-mail Address Sign re of°Petitioner cc: WorkOne Northern Indiana ,..w __ Chairperson, Community and Economic Development Committer ` Department of Community and Economic Development i } City Clerk's Office LI Ro 3 'i m (Rev. 5/13/11) Indiana Rotomolding, Inc. 3300 N. Kenmore x ` a I T 4 3300 N. Kenmore 111 pf a _ :_,.._-.. . .. ;,-------' .,.., c ' - ill :.... Stit,. 4.,,,,,,- - , 1111-:::.i.-";::::: •:„:::,C,,].':.:1._. -4 '' ..,, E Wit: al 3 +t; t _ ` . .. t F I ,.„. ,,:, q • zt 1 w yr - __-Utld�7 F i, aaa, ,�t- Y • F ! Y T 1 �� r �rrf fl SRC _ - _ ',,I.,:-.',-,:.' .osh � �l1?ii,a- Y t1�'t ., t .. Ili h-k.‘. ,r, 1 ' .- . — ' ''-— . ' , ,., ....,;;::-_-_:: ..-.‘_,Fliiiitlir:Williti.: :'-iiti R F : : ,e , > RESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA CONFIRMING THE GRANT OF CERTAIN REAL PROPERTY TAX ABATEMENT DEDUCTIONS AND WAIVING NONCOMPLIANCE FOR PROPERTY COMMONLY KNOWN AS 7250 VORDEN PARKWAY FOR OLIVE CLEVELAND PARTNERS, LLC WHEREAS, on July 12, 2010, the Common Council of the City of South Bend (the "Council") adopted Resolution No. 4036-10 (the "2010 Resolution"), approving a five (5) year real property tax abatement for the proposed construction of a new industrial design-built warehouse/distribution facility containing approximately 80,000 square feet (the "Building Project") to be constructed by Olive Cleveland Partners, LLC ("Taxpayer") within an area designated an economic revitalization area in the City of South Bend in accordance with IND. CODE § 6-1.1-12.1-1, et sea.; and WHEREAS, the Taxpayer described for the Council that the Building Project (also known as the Invacare Building)had multiple purposes and benefits, including that it would: (a) accommodate the relocation of Invacare Corp. and expansion of its facilities within South Bend, into a new building with new investment/construction costs of no less than$2,400,000; (b) facilitate Invacare Corp.'s consolidation of its Midwest regional distribution operations in South Bend; (c) result in Invacare Corp. retaining its business in South Bend, including its employee base of 23 employees with payroll over$670,000; and (d) be completed in the Spring of 2011, in order to relocate Invacare Corp. out of a facility at 7055 Cleveland Road (the "Cleveland Road Site") and to facilitate Patterson Logistics' remaining in South Bend and expanding into the Cleveland Road Site (which was desired by Patterson Logistics as part of its decision to locate its Midwest operations in South Bend); and WHEREAS, as contemplated as part of the Building Project, the Taxpayer (a) successfully completed its construction of a new 80,000 square foot warehouse/distribution facility at a cost in excess of$2,400,000, (b) was instrumental in relocating Invacare Corp. to the 1 Benefits and its application for tax abatement related to the construction of a new 80,000 square foot design-built warehouse/distribution in the City of South Bend at 7250 Vorden Parkway South Bend, Indiana (the "Property"), and (b) wholly inadvertent oversight and misunderstanding leading to a belated filing of the Form 322 ERA/RE "Application for Deduction from Assessed Valuation of Structures in Economic Revitalization Areas" to claim the benefits of tax abatement for the March 1, 2011 assessment date on the Property. SECTION 2. The foregoing facts, taken together, lead the Common Council to conclude that the Taxpayer has fulfilled its projected plans to construct new improvements contemplated as part of the 2010 Resolution (the "Abatement") and that its belated filing of an application required to claim the benefits of the Abatement as of March 1, 2011 (for taxes due and payable in 2012)was inadvertent. SECTION 3. The Common Council hereby waives the matter of noncompliance that may be waived under State and local law regarding the late filing of applicable deduction applications in order for the Taxpayer to claim and receive the benefit of tax Abatement on its investment in new building improvements contemplated as part of the 2010 Resolution as of the March 1, 2011 assessment date, all as is permitted under IND. CODE § 6-1.1-12.1-11.3 (including specific waiver that the deduction application under ND. CODE § 6-1.1-12.1-5 be timely filed with the county auditor to claim property tax abatement deductions for. the 20.11-Pay-2012 tax year). SECTION 4. The Common Council incorporates herein by reference, and hereby ratifies and reaffirms: (a) the 2010 Resolution; (b) the tax abatement application and statements of benefits of the Taxpayer; and(c)the recitals of this Resolution. The Common Council and the Clerk of the City of South Bend are authorized to take all such further acts and execute and deliver all such further documents for the St. Joseph County Auditor or otherwise as may be reasonably necessary to give effect to this Resolution, all without further application to or formal action by the Common Council. SECTION 5. This Resolution shall be in full force and effect from and after its passage and approval by the Mayor. D9,t_lk 0 ,h„,_A.,,, t Member of the Common Counci pq 13 D �. fe ,,, ,'�� Dri.� tfti op`pi a ,, Council action on Vas issue, . tv E- ' ii1 k 4,u PRESENTED DoT APPROVED BARNES ES V&THORl B R G LLP 600 1st Source Bank Center 100 North Michigan South Bend,IN 46601-1632 U.S.A. (574)233-1171 Fax(574)237-1125 Richard J.Deahl (574)237-1240 www.btlaw.com richard.deahl @btlaw.com September 18, 2012 VIA E-MAIL & HAND DELIVERY Mr. John Voorde City Clerk, City of South Bend 455 County-City Building 227 West Jefferson Boulevard South Bend, IN 46601-1830 RE: Olive Cleveland Partners, LLC Resolution for Waiver of Non-Compliance (Tax Abatement) Dear Mr. Voorde: Our Firm has the pleasure of representing Olive Cleveland Partners, LLC ("OCP") with certain real estate matters. On behalf of OCP, we kindly request the Common Council's consideration of the enclosed Resolution to formally waive OCP's technical non-compliance with a filing requirement to claim the benefits of certain tax abatement. More specifically, in 2010, the Common Council granted a five (5) year tax abatement on OCP's proposed investment to construct a 80,000 square foot warehouse/distribution facility on Vorden Parkway for Invacare Corp. OCP successfully completed construction of this facility, exceeded its investment target and accommodated the relocation of Invacare Corp. and expansion of its business within South Bend to this new building. This relocation of Invacare resulted in its ability to retain its business and expand its workforce in South Bend and facilitated the expansion of Patterson Logistics into Invacare's former site. These were all benefits of the proposed project which have been met by OCP. The new building was first assessed as of March 1, 2011 (for property taxes due this year). Due to a wholly inadvertent oversight regarding coordination of tax filings, OCP learned that it filed its application to claim the benefits of abatement a mere eleven (11) days after the period that such filing was due. The enclosed resolution kindly requests a waiver of this non- compliance in order to restore the tax abatement benefits to which OCP would have received had it timely filed.the application. We are happy to meet with the Community and Economic Development Committee of the Council and the full Council on Monday, September 24th, or at such other date as the Council Atlanta Chicago Delaware Indiana Los Angeles Michigan Minneapolis Ohio Washington,D.C. Mr. John Voorde September 18,2012 Page 2 may prefer. Please feel welcome to contact me, at any time, if I can provide any additional information. We greatly appreciate your professional assistance. Very truly yours, ES & THORNBURG LLP Richard J. Deahl RJD:slr Enclosure SBDS02 434884v1 • BARNES&THORNBURG ur ` . • say 1 200 COUNTY-CITY BUILDING �.\ j PHONE 574/235-9371 227W.JEFFERSON BOULEVARD \ CE?i�� �" FAX 574/235-9021 SOUTH BEND,INDIANA 46601-1830 �-• 2865 CITY OF SOUTH BEND PETE BUTTIGJEG,MAYOR COMMUNITY & ECONOMIC DEVELOPMENT September 19, 2012 Council Member Henry Davis, Chairperson Community& Economic Development Committee South Bend Common Council 4th Floor, County City Building South Bend, IN 46601 RE: Real Property Tax Abatement Petition for: Olive Cleveland Partners, LLC Dear Council Member Davis: Olive Cleveland Partners, LLC was approved fora five year real property tax abatement on July 12,2010 through resolution number 4036-10. The filing deadline for Form 322 was March 26,2012. Because of an inadvertent oversight regarding coordination of tax filings within the company, the petitioner missed the filing deadline by just 11 days. The petitioner has complied or exceeded their targeted goals for their five year tax abatement,constructing an 80,000 sf warehouse / distribution facility at a cost in excess of$2,400,000. This newly constructed facility allowed Invacare Corporation to expand their operations in South Bend, and allowed Patterson Logistics to move to Invacare's former building and consolidate their Midwest operations to South Bend. The petitioner is requesting a resolution from the Common Council waiving the filing date for the Deduction Application. A representative of the petitioner will be available to meet with the Committee on Monday, September 24, 2012. To accomplish this request, a tax abatement recipient must notify the Council in writing.Attached you will find a letter from the petitioner's representative,Richard J.Deahl,requesting the waiver. Should you or any of the other Council members have any questions concerning the report or need additional information, please feel free to call me at 235-5836. Si rely, vid Relos Economic Development Specialist Attachments cc: South Bend Common Council Members Mayor Pete Buttigieg Don Inks Scott Ford `- COMMUNITY DEVELOPMENT ECONOMIC DEVELOPMENT PAMELA C.MEYER DONALD E.INKS 574/235-9660 574/235-9371 ax: 574/235-9469 \( - Li_ ORDINANCE NO. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA AUTHORIZING THE ACQUISITION, CONSTRUCTION AND INSTALLATION OF CERTAIN ADDITIONS,EXTENSIONS AND IMPROVEMENTS TO THE CITY'S SEWAGE WORKS,THE ISSUANCE AND SALE OF ADDITIONAL REVENUE BONDS TO PROVIDE FUNDS FOR THE PAYMENT OF THE COSTS THEREOF,THE COLLECTION, SEGREGATION AND DISTRIBUTION OF THE REVENUES OF SUCH SEWAGE WORKS, THE ESTABLISHMENT OF FUND NUMBER 661, THE 2012 SEWAGE WORKS CONSTRUCTION FUND,AND OTHER RELATED MATTERS 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" or the "Works"), pursuant to the provisions of Indiana Code 36-9-23, as amended (the "Act"). The Board has determined and recommended to the Common Council of the City (the "Common Council") that certain additions, extensions and improvements to the Sewage Works, as described herein, are necessary. The Board has employed Greeley and Hansen, LLC, The Troyer Group, Inc., Cardno/JFNew, Christopher Burke Engineering, McCormick Engineering, LLC, Lawson-Fisher Associates, P.C., DLZ, Inc., Abonmarche Consultants, R.W. Armstrong, Donahue and Associates, Malcolm Pirnie, Inc., Ken Herceg & Associates, Wightman Petrie, American Structurepoint, Inc., Symbiont Science, Engineering and Construction, Inc., Gary A. Gilot, P.E., and John C. Engstrom, P.E., as professional engineers (the "Engineers"), to prepare and file plans, specifications, and detailed descriptions and estimates of the costs of the necessary additions, extensions and improvements to the Sewage Works, which plans, specifications, descriptions and estimates, to the extent required by law, have been duly submitted to and approved or will be approved by all governmental authorities having jurisdiction thereover (the improvements and extensions to the Sewage Works as described in the Engineers' plans and specifications and below are referred to herein as the "Project"), including, without limitation, the Indiana Department of Environmental Management(the"Department"). The Common Council finds that the estimates prepared and delivered by the Engineers with respect to the costs (as defined in Indiana Code 36-9-23-11) of acquisition, construction and installation of such improvements and extensions to the Sewage Works, and including all authorized costs relating thereto, including the costs of issuance of bonds on account of the financing of all or a portion thereof, will be in the estimated amount not to exceed Twenty Five Million Dollars ($25,000,000). The Common Council finds that to provide funds necessary to pay for the costs of the Project, it will be necessary for the City to issue sewage works revenue bonds in an amount not to exceed Twenty Five Million Dollars($25,000,000). Pursuant to Ordinance No. 8919-98 adopted by the Common Council on June 22, 1998 (the "1998 Ordinance"), the City has heretofore issued revenue bonds payable from the Net Revenues (as defined below) of the Sewage Works, such bonds being designated as "Sewage Works Refunding Revenue Bonds of 1998" (the "1998 Bonds"), outstanding after December 1, 2011, in the amount of$10,865,000, and maturing on December 1, 2018. Pursuant to Ordinance No. 9523-04 adopted by the Common Council on August 10, 2004 (the "2004 Ordinance"), the City has heretofore issued sewage works bonds payable from the Net Revenues of the Sewage Works, designated as "Sewage Works Revenue Bonds of 2004" (the "2004 Bonds"), outstanding after December 1, 2011, in the amount of $8,465,000, and maturing on December 1,2024. Pursuant to Ordinance No. 9672-06 adopted by the Common Council on April 11, 2006, as amended by Ordinance No. 9767-07 adopted by the Common Council on June 25, 2007 (collectively, the "2006 Ordinance"), the City has heretofore issued revenue bonds payable from the Net Revenues of the Sewage Works, such bonds being designated as (i) "Sewage Works Revenue Bonds of 2006" (the "2006 Bonds"), outstanding after December 1, 2011, in the amount of$6,745,000, and maturing on December 1, 2026; (ii) "Sewage Works Revenue Bonds of 2007" (the "2007 Bonds"), outstanding after December 1, 2011, in the amount of $14,305,000, and maturing on December 1, 2027; and (iii) "Sewage Works Revenue Bonds of 2007 B" (the "2007B Bonds"), outstanding after December 1, 2011, in the amount of $14,240,000, and maturing on December 1, 2027. Pursuant to Ordinance No. 9951-09 adopted by the Common Council on August 10, 2009, as amended by Ordinance No. 9971-09 adopted by the Common Council on October 26, 2009 (collectively, the "2009 Ordinance"), the City has heretofore issued revenue bonds payable from the Net Revenues of the Sewage Works, designated as "Sewage Works Revenue Bonds of 2009" (the "2009 Bonds"), outstanding after December 1, 2011, in the amount of$3,029,211, and maturing on December 1, 2028. Pursuant to Ordinance No. 10052-10 adopted by the Common Council on November 8, 2010 (the "2010 Ordinance"), the City has heretofore issued revenue bonds payable from the Net Revenues of the Sewage Works, designated as "Sewage Works Revenue Bonds of 2010" (the "2010 Bonds"), outstanding after December 1, 2011, in the amount of$8,980,000, and maturing on December 1,2030. Pursuant to Ordinance No. 10118-11 adopted by the Common Council on September 12, 2011 (the "2011 Ordinance" and with the 1998 Ordinance, the 2004 Ordinance, the 2006 Ordinance, the 2009 Ordinance and the 2010 Ordinance, the "Prior Ordinances"), the City has heretofore issued revenue bonds payable from the Net Revenues of the Sewage Works, designated as "Sewage Works Revenue Bonds of 2011" (the "2011 Bonds" and with the 1998 Bonds, 2004 Bonds, 2006 Bonds, 2007 Bonds, 2007B Bonds, 2009 Bonds and 2010 Bonds, the "Prior Bonds"), outstanding after December 1, 2011, in the amount of $21,500,000, and maturing on December 1, 2031. 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 costs of future additions, -2 - extensions and improvements to the Sewage Works, 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. Subject to the provisions of the immediately preceding paragraph, this Council now finds that all conditions precedent to the adoption of an ordinance, authorizing the issuance of additional bonds ranking on a parity with the Prior Bonds for the purpose of financing the cost of the Project and the authorized costs relating thereto, have been complied with in accordance with the provisions of the Prior Ordinances and the Act. The Common Council consequently seeks to authorize the issuance of revenue bonds to finance the acquisition, construction and installation of the Project pursuant to the Act and the sale of such revenue bonds at public sale pursuant to the provisions of Indiana Code 5-1-11, subject to and dependent upon the terms and conditions hereinafter set forth. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AS FOLLOWS: SECTION 1. Acquisition, Construction and Installation of the Project. The City, acting by and through the Board and as the owner and operator of the Sewage Works for the collection and treatment of sewage and other wastes, hereby orders, authorizes and directs the Board to proceed with the acquisition, construction and installation of additions, extensions and improvements to the Sewage Works, pursuant to the Act and in accordance with the plans, specifications and cost estimates prepared and filed with the Board by the Engineers, which plans, specifications and cost estimates are hereby adopted and approved and, by reference, incorporated fully into this Ordinance, and two copies of which are now on file in the office of the Board and are open for public inspection. The actions of the Board in connection with the acquisition, installation, and financing of such improvements to the Sewage Works are hereby authorized, approved, ratified and confirmed. Where used in this Ordinance, the term "City" shall be construed also to include any department, board, commission or officer or officers of the City or of any City department, board or commission. The terms "Sewage Works," "sewage works," "works" and similar terms used in this Ordinance shall be construed to mean and include the existing structures and property of the Sewage Works and all enlargements, improvements, extensions and additions thereto, and replacements thereof, now or subsequently constructed or acquired, from the proceeds of the bonds authorized herein or otherwise. Such additions, extensions and improvements shall be constructed and the bonds herein authorized shall be issued pursuant to the provisions of this Ordinance and the Act. SECTION 2. Description of the Project. The Project consists of the improvements described in Appendix A attached hereto and incorporated herein. The City, acting by and through the Board, shall proceed with the acquisition, construction and installation of the Project and shall enter into all contracts necessary or - 3 - • appropriate for such purpose, in conformity with and subject to the requirements and conditions set forth in this Ordinance and in the Act and in accordance with the plans and specifications previously prepared for and on behalf of the City. SECTION 3. Authorization for Bonds. In accordance with the Act and for the purpose of providing funds with which to pay the costs of the Project, together with all authorized costs relating thereto including the costs of the issuance of the 2012 Bonds (defined below) on account thereof, the City shall issue and sell its sewage works revenue bonds, in one or more series, in an amount not to exceed Twenty Five Million Dollars ($25,000,000), to be designated "Sewage Works Revenue Bonds of 2012" (the "2012 Bonds"). Such 2012 Bonds shall be signed in the name of the City by the manual or facsimile signatures of the Mayor of the City (the "Mayor") and the Controller of the City (the "Controller") and attested by the Clerk of the City (the "Clerk"), who shall affix the seal of the City to each of the 2012 Bonds manually or shall have the seal imprinted or impressed thereon by facsimile or other means. In case any officer whose signature appears on the 2012 Bonds shall cease to be such officer before the delivery of such 2012 Bonds, such signature shall nevertheless be valid and sufficient for all purposes as if such officer had remained in office until delivery thereof. The 2012 Bonds shall also be authenticated by the manual signature of the Registrar (as defined below). Subject to the provisions of this Ordinance regarding the registration of the 2012 Bonds, the 2012 Bonds shall be fully negotiable instruments under the laws of the State of Indiana(the "State"). Any other provisions of this Ordinance to the contrary notwithstanding, the 2012 Bonds shall be issued on a parity with the outstanding Prior Bonds, and none of the provisions of this Ordinance shall be construed to affect the rights of the holders of the outstanding Prior Bonds. The Board shall instruct the Financial Advisor to perform any and all computations necessary to confirm the preliminary evidence and findings demonstrating compliance with the conditions set forth in the Prior Ordinances for issuance of additional revenue bonds on parity with the outstanding Prior Bonds. The City shall not issue the 2012 Bonds without first receiving a certificate from the Financial Advisor in form and substance satisfactory to the Controller regarding compliance with certain conditions set forth in the Prior Ordinances for the issuance of additional revenue bonds on parity with the outstanding Prior Bonds. The 2012 Bonds shall be on a parity with the Prior Bonds, and shall be sold at a price not less than 99% of the par value thereof, shall be issued in fully registered form in denominations of Five Thousand Dollars ($5,000) or any integral multiple thereof, shall be numbered consecutively from R-1 up, shall be originally dated as of the first day of the month in which the 2012 Bonds are sold or as otherwise determined by the Controller, and shall bear interest at a rate or rates not exceeding eight percent (8.0 %) per annum (the exact rate or rates to be determined pursuant to Section 8 hereof) payable on the first (1st) day of June and December in each year, following the original date of the 2012 Bonds as determined by the Controller, with the advice of the Financial Advisor and as set forth in the notice of intent to sell bonds or notice of bond sale pursuant to in Section 8 herein. Interest shall be calculated on the basis of a 360-day year comprised of twelve 30-day months. The 2012 Bonds shall mature annually on December 1 as finally determined by the Mayor and the Controller with the advice of the Financial Advisor and as set forth in the notice of intent to sell referred to herein and as evidenced by delivery of the executed initial issue of the 2012 Bonds to the Registrar for authentication; provided that the _ 4 - original aggregate principal amount does not exceed the amount authorized above, and that the final maturity shall be no later than December 1, 2032. All payments of interest on the 2012 Bonds shall be paid by check or draft 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 at the addresses as they appear on the registration books kept by the Registrar (the "Registration Record") or at such other address as is provided to the Paying Agent (as defined below) in writing by such registered owner. All principal payments and premium, if any, on the 2012 Bonds shall be made upon surrender thereof at the principal corporate trust office of the Paying Agent in any coin or currency of the United States of America which on the date of such payment shall be legal tender for the payment of public and private debts. Interest on 2012 Bonds shall be payable from the interest payment date to which interest has been paid next preceding the authentication date thereof unless such 2012 Bonds are authenticated after the fifteenth (15th) day of the month preceding 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 fifteenth (15th) day of the month immediately preceding the first interest payment date, in which case they shall bear interest from the original date, until the principal shall be fully paid. The 2012 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. Each 2012 Bond shall be transferable or exchangeable only upon the Registration Record by the Registrar, by the registered owner thereof in person, or by his attorney duly authorized in writing, upon surrender of such 2012 Bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly,executed by the registered owner or his attorney duly authorized in writing, 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. The costs of such transfer or exchange shall be borne by the City, except for any tax or governmental charge required to be paid in connection therewith, which shall be payable by the person requesting such transfer or exchange. The City, Registrar and Paying Agent may treat and consider the persons in whose name such 2012 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. - 5 - In the event any 2012 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 City 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 2012 Bond with their reasonable fees and expenses in this connection. Any 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 2012 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 2012 Bonds issued hereunder. SECTION 4. Terms of Redemption. (a) The Mayor and the Controller, upon consultation with the Financial Advisor, may designate maturities of the 2012 Bonds (or a portion thereof in integral multiples of$5,000 of principal amount each) that shall be subject to optional redemption and/or mandatory sinking fund redemption, and the corresponding redemption dates, amounts and prices (including premium, if any). Except as otherwise set forth in this Ordinance, the Mayor and the Controller, upon consultation with the Financial Advisor, are hereby authorized and directed to determine the terms governing any such redemption, provided that any redemption premium shall not exceed two percent(2%) of the par amount of the 2012 Bonds to be redeemed. (b) Notice of redemption shall be given not less than 30 days prior to the date of redemption and shall be mailed by first-class mail or by registered or certified mail to the address of each registered owner of a 2012 Bond to be redeemed as shown on the Registration Record 45 days prior to the date fixed for redemption, except to the extent such redemption notice is waived by owners of 2012 Bonds redeemed; provided, however, that failure to give such notice by mailing, or any defect therein, with respect to any 2012 Bond shall not affect the validity of any proceedings for the redemption of any other 2012 Bonds. The notice shall specify the date and place of redemption, the redemption price and the CUSIP numbers of the 2012 Bonds called for redemption. The place of redemption may be determined by the City. Interest on the 2012 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 2012 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. (c) The 2012 Bonds may be subject to mandatory sinking fund redemption as set forth herein. At the option of the successful bidder for each series of the 2012 Bonds, all or a portion of the 2012 Bonds of a particular series may be aggregated into one or more term bonds payable from mandatory sinking fund redemption payments (the "Term Bonds") required to be made as set forth below. The Term Bonds shall have a stated maturity or maturities on December -6 - 1 of the years in which the 2012 Bonds are outstanding as determined pursuant to Section 3 hereof or as determined by the successful bidder. In the event that the successful bidder opts to aggregate certain 2012 Bonds into Term Bonds, such Term Bonds shall be subject to mandatory sinking fund redemption prior to maturity at a redemption price equal to 100% of the principal amount thereof, plus accrued interest to the redemption date, but without premium, on December 1 of each year and in the principal amounts corresponding to and consistent with the maturity schedule for the 2012 Bonds set forth in the bond sale notice. The Registrar and Paying Agent shall credit against the current mandatory sinking fund requirement for a Term Bond of a particular maturity, any 2012 Bonds of such maturity delivered to the Registrar and Paying Agent for cancellation or purchased for cancellation by the Registrar and Paying Agent and cancelled by the Registrar and Paying Agent and not theretofore applied as a credit against any mandatory sinking fund requirement. Each 2012 Bond so delivered or purchased shall be credited by the Registrar and Paying Agent at 100% of the principal amount thereof against the mandatory sinking fund redemption requirements for the applicable Term Bond in order of mandatory sinking fund redemption (or final maturity) dates determined by the Clerk, and the principal amount of such Term Bond to be redeemed on such mandatory sinking fund redemption dates by operation of the mandatory sinking fund requirements shall be reduced accordingly; provided, however, the Registrar and Paying Agent shall only credit 2012 Bonds against the mandatory sinking fund requirements to the extent such 2012 Bonds are received on or before 45 days preceding the applicable mandatory sinking fund redemption date. The Registrar shall determine by lot (treating each $5,000 principal amount of each 2012 Bond as a separate 2012 Bond for such purpose) the 2012 Bonds within a Term Bond of a particular maturity to be redeemed pursuant to the mandatory sinking fund redemption requirements on December 1 of each year. Notice of any such mandatory sinking fund redemption shall be given in the same manner as notice of optional redemption is required to be given pursuant to this Section 4 of this Ordinance. If 2012 Bonds are to be redeemed by optional redemption and mandatory sinking fund redemption on the same date, the Registrar shall select by lot the 2012 Bonds for optional redemption before selecting the 2012 Bonds by lot for the mandatory sinking fund redemption. In the event any of the 2012 Bonds are issued as Term Bonds, the form of the 2012 Bond set forth in Appendix B to this Ordinance shall be modified accordingly. Any reference to payment of principal on the 2012 Bonds shall include payment of scheduled mandatory sinking fund redemption payments described in this Section 4. (d) All 2012 Bonds which have been redeemed shall be canceled and shall not be reissued; provided, however, that one or more new registered 2012 Bonds shall be issued for the unredeemed portion of any 2012 Bond without charge to the holder thereof. - 7 - (e) No later than the date fixed for redemption, funds shall be deposited with the Paying.Agent to pay, and the Paying Agent is hereby authorized and directed to apply such funds to the payment of, the 2012 Bonds or portions thereof called for redemption, including accrued interest thereon to the redemption date. No payment shall be made upon any 2012 Bond or portion thereof called for redemption until such 2012 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 2012 Bond. SECTION 5. Appointment of Registrar and Paying Agent. The Controller is hereby authorized to appoint a registrar and a paying agent for the 2012 Bonds ("Registrar" or "Paying Agent"). The Registrar is hereby charged with the responsibility of authenticating the 2012 Bonds, and shall keep and maintain books for the registration and transfer of the 2012 Bonds. The Mayor is hereby authorized to enter into such agreements or understandings with any institution serving as Registrar and Paying Agent as will enable the institution to perform the services required of the Registrar and Paying Agent. The Controller is authorized to pay such fees as the institution may charge for the services it provides as Registrar and Paying Agent, and such fees may be paid as fiscal agency charges from the Sinking Fund described herein to pay the principal of and interest on the 2012 Bonds. 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 2012 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 be sent by 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 2012 Bonds then outstanding by first-class mail of the removal of the Registrar and Paying Agent. Notices to registered owners of the 2012 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 bond register. Any predecessor Registrar and Paying Agent shall deliver all the 2012 Bonds and cash in its possession and the bond register to the successor Registrar and Paying Agent. At all times, the same entity shall serve as Registrar and as Paying Agent. SECTION 6. Form of Bonds. The form and tenor of the 2012 Bonds shall be substantially as set forth in Appendix B, with all blanks to be filled in properly and all necessary additions and deletions to be made prior to delivery thereof. SECTION 7. Authorization for Book-Entry System. The 2012 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 2012 Bonds to the purchasers. The following provisions of this section apply in such event. One definitive 2012 Bond of each maturity shall be delivered to the Clearing Agency (or its agent) and held in its custody. The City, the Registrar and the Paying Agent may, in connection therewith, do or perform or cause to be done or performed any acts or things not - 8 - adverse to the rights of the holders of the 2012 Bonds as are necessary or appropriate to accomplish or recognize such book-entry form 2012 Bonds. During any time that the 2012 Bonds remain and are held in book-entry form on the books of a Clearing Agency: (1) any such 2012 Bond may be registered upon the books kept by the Registrar in the name of such Clearing Agency, or any nominee thereof, including Cede & Co., as nominee of The Depository Trust Company; (2) except as otherwise described in the Continuing Disclosure Contract described below, the Clearing Agency in whose name such 2012 Bond is so registered shall be, and the City, the Registrar and the Paying Agent may deem and treat such Clearing Agency as, the absolute owner and holder of such 2012 Bond for all purposes of this Ordinance, including, without limitation, the receiving of payment of the principal of and interest on such 2012 Bond, the receiving of notice and giving of consent; (3) except as otherwise described in the Continuing Disclosure Contract, 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 2012 Bond, including, without limitation, any responsibility or obligation hereunder to maintain accurate records of any interest in any 2012 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 2012 Bond, the receiving of notice or the giving of consent; and (4) the Clearing Agency is not required to present any 2012 Bond called for partial redemption prior to receiving payment so long as the Registrar, the 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 2012 Bonds to the effect that such Clearing Agency is unable or unwilling to discharge its responsibility as a Clearing Agency for the 2012 Bonds, or the City elects to discontinue its use of such Clearing Agency as a Clearing Agency for the 2012 Bonds, then the City, the Registrar and the 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 2012 Bonds, as are necessary or appropriate to discontinue use of such Clearing Agency as a Clearing Agency for the 2012 Bonds and to transfer the ownership of each of the 2012 Bonds to such person or persons, including any other Clearing Agency, as the holders of the 2012 Bonds may direct in accordance with this Ordinance. Any expenses of such discontinuance and transfer, including expenses of printing new certificates to evidence the 2012 Bonds, shall be paid by the City. During any time that the 2012 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 direct or indirect participant with respect to the identity of any beneficial owner of 2012 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 2012 Bond has been obtained, the Registrar shall be entitled to treat the beneficial owners of the 2012 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. • - 9 - During any time that the 2012 Bonds are held in book-entry form on the books of a Clearing Agency, the Mayor, the Controller 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 (the "DTC Letter of Representations"), and the provisions of any such DTC 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 2012 Bonds are held in book-entry form, the provisions of this section shall control over conflicting provisions in any other section hereof. SECTION 8. Sale of Bonds. (a) The Controller is hereby authorized and directed to have the 2012 Bonds prepared, and the Mayor, Controller and the Clerk are hereby authorized and directed to execute the 2012 Bonds in substantially the form and the manner herein provided. (b) The 2012 Bonds shall be sold in a competitive sale. The Controller shall cause to be published either (i) a notice of sale once each week for two consecutive weeks in accordance with I.C.§5-3-1-2, in which case the date fixed for the sale shall not be earlier than fifteen (15) days after the first of such publications and not earlier than three (3) days after the second of such publications, or (ii) a notice of intent to sell bonds once each week for two weeks in accordance with I.C. §5-1-11-2 and I.C. §5-3-1-4 and in a newspaper of general circulation published in the State capital. Said sale notice shall state the time and place of sale, the purpose for which the 2012 Bonds are being issued, the total amount thereof, the amount and date of each maturity, the maximum rate or rates of interest thereon, their denominations, the time and place of payment, the terms and conditions upon which bids will be received and the sale made and such other information as is required by law or as the Controller shall deem necessary. The Controller is designated as the officer responsible for the sale of the 2012 Bonds, and shall provide or cause to be provided all notices required by law. All bids for the 2012 Bonds shall be presented to the Controller in accord with the terms set forth in the sale notice. Bidders for the 2012 Bonds shall be required to name the rate or rates of interest which the 2012 Bonds are to bear, which shall be the same for all 2012 Bonds maturing on the same date and the interest rate bid on any maturity of 2012 Bonds must be no less than the interest rate bid on any and all prior maturities, not exceeding eight percent (8%) per annum, and such interest rate or rates shall be in multiples of one-one hundredth (1/100) of one percent (1%). The Controller shall award the 2012 Bonds to the bidder who offers the lowest interest cost, to be determined by computing the total interest on all the 2012 Bonds to their maturities and deducting therefrom the premium bid, if any, or adding thereto the amount of the discount, if any. No bid for less than ninety-nine percent (99%) of the par value of the 2012 Bonds, plus accrued interest, shall be considered. The Controller may require that the successful bidder provide to the City a good faith deposit in the form of cash, certified or cashier's checks payable to the order of the City, or wire transfer(as instructed by the City) (the "Deposit"), in an amount not to exceed one percent (1%)of the aggregate principal amount of the 2012 Bonds as a guaranty of the performance of said bid. The successful bidder shall be required to submit to the - 10 - • City the Deposit not later than 3:30 p.m. (local time) on the next business day following the award. In the event the successful bidder shall fail or refuse to accept delivery of the 2012 Bonds and pay for the same as soon as the 2012 Bonds are ready for delivery or at the time fixed in the notice of sale, then such Deposit and the proceeds thereof shall be the property of the City and shall be considered as its liquidated damages on account Of such default. In the event no satisfactory bids are received on the day named in the sale notice, the sale may be continued from day to day thereafter for a period of thirty (30) days without readvertisement; provided, however, that if said sale is continued, no bid shall be accepted which offers an interest cost which is equal to or higher than the best bid received at the time fixed for sale in the bond sale notice. The Controller shall have full right to reject any and all bids. The opinion of bond counsel to the City approving the legality of the 2012 Bonds will be furnished to the purchaser at the expense of the City. (c) Upon the consummation of the sale of the 2012 Bonds, the Controller is hereby authorized and directed to (i) to collect from the purchaser the purchase price for the 2012 Bonds; (ii) deliver the 2012 Bonds to the purchaser; and (iii) take the purchaser's receipt for the 2012 Bonds. The amount to be collected from the purchaser shall be the full amount which the purchaser has agreed to pay therefor, which shall be not less than 99% of the par value of the 2012 Bonds plus accrued interest to the date of delivery. (d) The 2012 Bonds, when fully paid for and delivered to the purchasers, shall be the binding special revenue obligations of the City, payable out of the Net Revenues of the City's Sewage Works to be set aside into the Sinking Fund as herein provided. SECTION 9. Use of Bond Proceeds. Any accrued interest and premium received at the time of delivery of the 2012 Bonds shall be deposited in the Debt Service Account of the Sinking Fund described below and shall be applied to the payment of interest on the 2012 Bonds on the earliest interest payment dates. The remaining proceeds received from the sale of the 2012 Bonds shall be deposited in a bank or banks which are legally qualified depositories of the funds of the City, in a special fund to be designated as the "City of South Bend, Indiana, 2012 Sewage Works Construction Fund Number 661" (the "Project Fund"). The numeric designation for the Project Fund may be changed from time to time at the discretion of the Controller. The proceeds deposited in the Project Fund shall be expended only for the purpose of paying the cost of the Project and the costs of issuance of the 2012 Bonds. Any balance remaining in the Project Fund after the completion of the Project, which is not required to meet unpaid obligations incurred in connection therewith or to pay the costs of issuance of the 2012 Bonds, may be used as provided in Indiana Code 5-1-13, as amended, or as otherwise permitted by law. SECTION 10. Official Statement and Continuing Disclosure Contract. (a) The Mayor and the Controller each are hereby authorized to deem final an official statement with respect to the 2012 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 "Rule"), subject to completion as permitted by the 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 Mayor or the Controller in the form of a final official statement. - 11 - (b) If necessary in order for the purchaser or the underwriter of the 2012 Bonds to comply with the Rule, the-Mayor and/or the Controller are hereby authorized to execute and deliver, in the name and on behalf of the City, (i) an agreement by the City to comply with the requirements for a continuing disclosure undertaking of the City pursuant to subsection (b)(5) or (d)(2) of the Rule, and (ii) amendments to such agreement from time to time in accordance with the terms of such agreement (the agreement and any amendments thereto are collectively referred to herein as the "Continuing Disclosure Contract"). The City hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Contract. The remedies for any failure of the City to comply with and carry out the provisions of the Continuing Disclosure Contract shall be as set forth therein. SECTION 11. Collection of Revenues; Funding Operation, Repair and Maintenance. 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. 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 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 12. 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 and 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. - 12 - (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 2012 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. (c) Reserve Account. On the date of delivery of the 2012 Bonds or any other bonds payable from the Reserve Account, funds on hand of the Sewage Works, proceeds of the 2012 Bonds or such other bonds or a combination thereof may be deposited into the Reserve Account. Except as otherwise required by the Prior Ordinances, the balance to be maintained in the Reserve Account shall equal but not exceed an amount (the "Reserve Requirement") equal to the least of(i) the maximum annual debt service on the 2012 Bonds and any other bonds payable from the Reserve Account, (ii) one hundred twenty-five percent (125%) of average annual debt service on the 2012 Bonds and any other bonds payable from the Reserve Account, or(iii) ten percent (10%) of the proceeds of the 2012 Bonds and any other bonds payable from the Reserve Account, plus if and to the extent the amount set forth above is less than maximum annual debt service on the 2012 Bonds and any other bonds payable from the Reserve Account, a minor portion of the proceeds thereof under Section 148(e) of the Internal Revenue Code of 1986, as amended (the "Code"). Notwithstanding such Reserve Requirement, certain of the Prior Ordinances require a Reserve Requirement in an amount equal to the maximum annual debt service on the sewage works revenue bonds payable from the Reserve Account (including the 2012 Bonds and the Prior Bonds) so long as the Prior Bonds with such a Reserve Requirement are outstanding. If the initial deposit into the Reserve Account does not equal the Reserve Requirement, or if no deposit is made, the City shall deposit a sum of Net Revenues into the Reserve Account 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 2012 Bonds. The Reserve Account shall constitute the margin for safety and protection against default in the payment of principal of and interest on the 2012 Bonds and any other bonds payable from the Reserve Account, and the moneys in the Reserve Account shall be used to pay current principal and interest on the 2012 Bonds and any other bonds payable from the Reserve Account to the extent that moneys in the Bond and Interest Account are insufficient for that purpose. Any deficiency in the balance maintained in the Reserve Account shall be made up from the next available Net - 13 - Revenues remaining after credits into the Bond and Interest Account. Any moneys in the Reserve Account 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 or installments of principal of fully registered bonds at a price not exceeding par and accrued interest, and redemption premium, if any. As an alternative to holding cash funds in the Reserve Account, 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 Reserve Account by depositing a Credit Facility (as defined below) therein, provided that such deposit does not adversely affect any then existing rating on the 2012 Bonds. Notwithstanding the prior sentence, certain of the Prior Ordinances require the City to additionally give notice to (and/or seek the consent of) the holder of certain of the Prior Bonds so long as such Prior Bonds are outstanding prior to any deposit of a Credit Facility in the Reserve Account. 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 Reserve Account shall treat the maximum amount available under such Credit Facility as its value. To the extent that any 2012 Bonds are insured, and the Credit Facility is not being provided by the insurer of such 2012 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 2012 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. 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 13. Sewage Works Improvement Fund. On the first day of each calendar month after the 2012 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 Debt Service Reserve Account of the Sinking Fund. SECTION 14. Investments. 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. - 14 - 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. 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 15. Books and Records. The City shall keep proper books of records and accounts, separate from all of its other records and accounts, in which complete and correct entries shall be made showing all revenues collected from the Works and deposited in said funds, all disbursements made therefrom on account of the operation of the Works and to meet the requirements of the Sinking Fund, and all other transactions relating to the Works, including the cash balances in each of the funds and accounts described herein as of the close of the preceding fiscal year. Upon written request, there shall be prepared and furnished to the original purchasers of the 2012 Bonds and to any subsequent owner of the bonds at the time then outstanding, not more than four (4) months after the close of each fiscal year, operating income and expense and balance sheet statements of the Works, covering the preceding fiscal year, which annual statements shall be certified by the Controller, or the person charged with the duty of auditing the books and records relating to the Works, or such statements may be prepared by an independent certified public accountant retained by the City for the purpose of preparing such statements. Copies of all such statements and reports shall be kept on file in the office of the Controller. Any owner or owners of the 2012 Bonds then outstanding shall have the right at all reasonable times to inspect the Works and all records, accounts and data of the City relating thereto. Such inspections may be made by representatives duly authorized by written instrument. SECTION 16. 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 2012 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 2012 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. - 15 - SECTION 17. Defeasance. If, when the 2012 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 2012 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 2012 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 2012 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 18. 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 2012 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 2012 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 the 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 2012 Bonds shall be not less than one hundred twenty-five percent (125%) of the maximum annual interest and principal requirements of the then outstanding 2012 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 2012 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. - 16- SECTION 19. Additional Covenants of the City. For the purpose of further safeguarding the interests of the holders of the 2012 Bonds, it is specifically provided as follows: (a) All contracts let by the City in connection with the construction of said additions and improvement to the Sewage Works in connection with the Project shall be let after due advertisement as required by the laws of the State of Indiana, and all contractors shall be required to furnish surety bonds in an amount equal to one hundred percent (100%) of the amount of such contracts, to insure the completion of said contracts in accordance with their terms, and such contractors shall also be required to carry such employers liability and public liability insurance as are required under the laws of the State of Indiana in the case of public contracts, and shall be governed in all respects by the laws of the State of Indiana relating to public contracts. (b) All additions and improvement to the Sewage Works in connection with the Project shall be constructed under the supervision and subject to the approval of the Engineers or such other competent engineer as shall be designated by the Board. All estimates for work done or material furnished shall first be checked by the Engineers or such other competent engineer as shall be designated by the Board and approved by the Board. (c) 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. (d) So long as any of the 2012 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. (e) So long as any of the 2012 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 out or obsolete or other property not required for proper operation and maintenance of the Works. (f) 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 - 17 consent of the Authority if such undertaking would involve, commit, or use the revenues of the Sewage Works. (g) Except as provided in Section 18 hereof, so long as any of the 2012 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 2012 Bonds, unless all of the 2012 Bonds are redeemed, retired, or defeased coincidentally with the delivery of such additional bonds or other obligations. (h) 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. (i) This Ordinance shall not be repealed or amended in any respect which will adversely affect the rights of the owners of any 2012 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. (j) The provisions of this Ordinance shall be construed to create a trust in the proceeds of the sale of the 2012 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 2012 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 2012 Bonds or in the event of default with respect to any of the provisions of this Ordinance or the Act. SECTION 20. Tax Covenants. In order to preserve the exclusion of interest on the 2012 Bonds from gross income for federal income tax purposes and as an inducement to purchasers of the 2012 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 2012 Bonds or property financed by the 2012 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 2012 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 2012 Bond proceeds will be loaned to any entity or person other than a state or local governmental unit. No 2012 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 2012 Bond proceeds. - 18 - (c) The City will not take any action or fail to take any action with respect to the 2012 Bonds that would result in the loss of the exclusion from gross income for federal income tax purposes of interest on the 2012 Bonds pursuant to Section 103 of the Code, including, without limitation, the taking of such action as is necessary to rebate or cause to be rebated arbitrage profits on 2012 Bond proceeds or other monies treated as 2012 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, in trust for such purposes. (d) The City will file an information report,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 2012 Bond is outstanding hereunder which would cause any 2012 Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code and the regulations applicable thereto as in effect on the date of delivery of the 2012 Bonds. The City will not take any action or fail to take any action with respect to the 2012 Bonds that would result in the loss of the exclusion from gross income for federal income tax purposes of interest on the 2012 Bonds pursuant to Section 103(a) of the Code, and the City will not act in any manner which would adversely affect such exclusion. Notwithstanding any other provisions of this Ordinance, the foregoing covenants and authorizations (the "Tax Covenants") which are designed to preserve the exclusion of interest on the 2012 Bonds from gross income under federal income tax law (the "Tax Exemption") need not be complied with if the City receives an opinion of nationally recognized bond counsel that any Tax Covenant is unnecessary to preserve the Tax Exemption. SECTION 21. Amendments. Subject to the terms and provisions contained in this section, and not otherwise, the owners of not less than sixty-six and two-thirds per cent (66- 2/3%) in aggregate principal amount of the 2012 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 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 2012 Bond or an advancement of the earliest redemption date on any 2012 Bond; or (b) A reduction in the principal amount of any 2012 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 - 19 (d) A preference or priority of any 2012 Bond or 2012 Bonds over any other 2012 Bond or 2012 Bonds; or (e) A reduction in the aggregate principal amount of the 2012 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 2012 Bonds. The Registrar shall not, however, be subject to any liability to any owners of the 2012 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 2012 Bonds of not less than sixty-six and two-thirds per cent (66-2/3%) in aggregate principal amount of the 2012 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 2012 Bonds, whether or not such owners shall have consented thereto. No owner of any 2012 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 2012 Bonds then outstanding, shall thereafter be determined exercised and enforced in accordance with this Ordinance, subject in all respects to such 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 2012 Bonds, and the terms and provisions of the 2012 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 2012 Bonds then outstanding. Without notice to or consent of the owners of the 2012 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 - 20 (b) to grant to or confer upon the owners of the 2012 Bonds any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the owners of the 2012 Bonds; or (c) to procure a rating on the 2012 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 2012 Bonds; or (d) to make any other change which is not to the prejudice of the owners of the 2012 Bonds; or (e) to provide for the refunding or advance refunding of the 2012 Bonds. SECTION 22. Defaults. In the event available moneys hereunder, subject to the restrictions on use of money held under this Ordinance as set forth herein, are insufficient to pay debt service on all bonds payable from the revenues of the Sewage Works when due, available moneys shall be applied, after payment of all costs and expenses associated therewith, to the 2012 Bonds and any bonds issued on parity with the 2012 Bonds as follows: First - To the payment to the persons entitled thereto of all installments of interest then due, including interest on any past due principal at the rate borne by such bond, in the order of the maturity of the installments of such interest and, if the amount available shall not be sufficient to pay in full any particular installment, then to such payment ratably, according to the amounts due on such installments, to the persons entitled thereto, without any discrimination or privilege; and Second - To the payment to the persons entitled thereto of the unpaid principal of and premium on any of such bonds which shall have become due either at maturity or pursuant to a call for redemption (other than bonds called for redemption for the payment of which other moneys are held), in the order of their due dates, and, if the amount available shall not be sufficient to pay in the amounts due on any particular date, then to such payment ratably, according to the amount due on such date, to the persons entitled thereto without any discrimination or privilege. During the continuance of any default in the payment of either principal of or interest or premium on any 2012 Bond or bonds issue on parity with the 2012 Bonds, no payment shall be made with respect to any subordinate and junior bonds ("Junior Bonds"). Moneys available for payment to holders of Junior Bonds shall, in the event of an insufficient amount being available to pay all debt service with respect to the Junior Bonds when due, be applied to the Junior Bonds in accordance with the sequence and other terms set forth above with respect to payments regarding bonds issued on parity with the 2012 Bonds unless otherwise provided in the ordinance authorizing the Junior Bonds. SECTION 23. No Conflict. Except as described below, all ordinances and parts of ordinances in conflict herewith are hereby repealed. -21 - SECTION 24. 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 25. Bond Insurance. In connection with the sale of the 2012 Bonds, the Mayor, the Controller and the Clerk are each authorized to execute and deliver such agreements and instruments as they deem advisable to secure bond insurance for the 2012 Bonds, and the execution and delivery of such agreements and instruments are hereby approved. The premium, if any, for such bond insurance shall be payable from the proceeds of the 2012 Bonds. SECTION 26. Rates and Charges. The estimate of rates and charges which will be needed and charged to the general classes of users of property to be served by the Sewage Works in order to provide sufficient moneys to make payments of principal and interest on the 2012 Bonds, along with the other payments identified in this Ordinance, is set forth in Ordinance No. 10019-10, adopted by the Common Council on June 28, 2010. SECTION 27. Holidays, Etc. 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 city 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. Effectiveness. This Ordinance shall be in full force and effect from and after its passage, provided, the provisions of the ordinances pursuant to which the Prior Bonds were issued shall remain in effect and shall supersede the provisions of this Ordinance in the event of any conflict with this Ordinance until such time as the Prior Bonds are all defeased on paid in full. SECTION 29. Notice of Adoption and Purport of this Ordinance. Upon passage of this Ordinance, the Clerk of the City shall immediately cause to be published in accordance with Indiana Code 5-3-1, a notice of the adoption and purport of this Ordinance in accordance with Indiana Code Section 36-9-23-10. In the event that any objecting petition is filed in accordance with Indiana Code Section 36-9-23-12,no further proceedings shall be taken by the City relating to the Project until the later of(i)the date on which the court having jurisdiction over such matter confirms the decision of the City to issue bonds relating to the Project, or (ii) if an appeal is taken, the date on which the appropriate court of last resort confirms the decision of the City to issue bonds relating to the Project, except as permitted by Indiana Code Section 36-9-23-12(f). SECTION 30. Actions and Agreements. Each of the Mayor, the Controller 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. - 22 - SECTION 31. This Ordinance shall be in full force and effect from and after its passage by the Common Council and approval by the Mayor. LAA-t' a 6,01, ( 4 Member of the Common Council Attest: SIOng th;:a :3 OppOrtuity f end Council action on this Mu% 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. Mayor, City of South Bend, Indiana 1 , :t P.F.ADING Ct. SFP 1 20 'LMIC HEARING = rd READi■'IG ,50 54 I ;UT APPROVED arTY --• , . EFcEsRERDED -23 - )A APPENDIX A PROJECT DESCRIPTION The Project consists of the design, acquisition and installations of certain additions, extensions and improvements to the Sewage Works,including, but not limited to: 1. Diamond Avenue Separation—Sewer separation improvements along Diamond Avenue from Vassar Avenue to approximately Euclid. 2. East Bank Separation Phase 4—Sewer Separation improvements for combined Sewage Overflow("CSO") separation along the east bank of the St. Joseph River within the City. 3. Wastewater Treatment Plant digester improvements. 4. Green Design and Low Impact Design projects recommended in the"South Bend Long Term Control Plan Optimization"Report. 5. Preparation of CSO Long-Term Control Plan Designs of the City. 6. Making any and all improvements related to and contemplated by the CSO Long-Term Control Plan of the City. 7. Make any and all additional improvements related to the foregoing. A-1 APPENDIX B FORM OF 2012 BOND No. R- UNITED STATES OF AMERICA STATE OF INDIANA COUNTY OF ST. JOSEPH CITY OF SOUTH BEND SEWAGE WORKS REVENUE BOND OF 2012 Interest Maturity Original Authentication Rate Date Date Date CUSIP 1 , 20_ , 20 , 20_ REGISTERED OWNER: Cede&Co. PRINCIPAL SUM: Dollars ($ ) The City of South Bend, in St. Joseph County, State of Indiana, for value received, hereby promises to pay to the Registered Owner set forth above, solely out of the special fund hereinafter referred to, the Principal Sum set forth above on the Maturity Date set forth above (unless this bond is subject to and is called for redemption prior to maturity as hereinafter 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 an interest payment date and on or before such interest payment date in which case interest shall be paid from such interest payment date, or unless this bond is authenticated on or before 15, 20_ in which case it shall bear interest from the Original Date, which interest is payable semi-annually on the first day of June and December of each year, beginning on 1, 20 The principal of this bond is payable at the office of (the "Registrar" or "Paying Agent"), in , Indiana. All payments of interest on this bond shall be paid by check or draft mailed one business day prior to the interest payment date to the registered owner hereof as of the fifteenth day of the month preceding the interest payment 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. All payments of principal of this bond shall be made upon surrender thereof at the principal corporate trust office of the Paying Agent in any coin or currency of the United States of B-1 America which on the dates of such payment shall be legal tender for the payment of public and private debts. This bond is one of an authorized issue of bonds (the "Bonds") of the City of South Bend, Indiana, of like original date, tenor and effect, except as to denomination, numbering, interest rates, redemption terms and dates of maturity, in the total amount of Dollars ($ ), numbered from R-1 up, issued for the purpose of providing funds to be applied to the cost of certain additions, extensions and improvements to the sewage works of the City (the "Sewage Works" or the "Works"), and to pay all expenses necessarily incurred in connection with the issuance of such bonds, as authorized by Ordinance No. adopted by the Common Council of the City of South Bend on the day of , 2012, entitled "An Ordinance of the Common Council of the City of South Bend, Indiana Authorizing the Acquisition, Construction and Installation of Certain Additions, Extensions and Improvements for the City's Sewage Works, the Issuance and Sale of Revenue Bonds to Provide Funds for the Payment of the Costs Thereof, and the Collection, Segregation and Distribution of the Revenues of Such Sewage Works, and Other Related Matters" (the "Ordinance"), and in strict compliance with the provisions of I.C. 36-9-23, as amended (collectively, the "Act"). Pursuant to the provisions of the Act and said 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 of South Bend 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 the Works as are sufficient in each year for the payment of the proper and reasonable expenses of operation, repair and maintenance of the 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 of South Bend further covenants that it will set aside and pay into its Sewage Works Sinking Fund a sufficient amount of the Net Revenues of the Works to (a) pay the principal and interest payments on all bonds payable from the Net Revenues of the Sewage Works, as such principal and interest shall fall due, (b) pay the necessary fiscal agency charges for paying all bonds and interest as required by the Ordinance, and (c) an additional amount B-2 necessary to maintain the reserve required by the Ordinance. Such required payments shall constitute a first charge upon all the Net Revenues of the Works. [The Bonds maturing on and after 1, 20 , are redeemable at the option of the City on 1, 20 , or any date thereafter, on thirty (30) days' notice, in whole or in part, in inverse order of maturity and by lot within a maturity, at face value, together with the following premiums: % if redeemed on 1,20 or thereafter on or before , 20_; _% if redeemed on , 20_ or thereafter prior to maturity; plus in each case accrued interest to the date fixed for redemption.] [Notice of redemption shall be mailed to the address of the Registered Owner as shown on the registration record of the City, as of the date which is forty-five (45) days prior to such redemption date, not less than thirty (30) days prior to the date fixed for redemption. The notice shall specify the date and place of redemption and sufficient identification of the Bonds called for redemption. The place of redemption may be determined by the City. Interest on the 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.] [The Bonds shall be called for redemption in multiples of $5,000. The Bonds in denominations of more than $5,000 shall be treated as representing the number of Bonds obtained by dividing the denomination of the Bond by $5,000 within a maturity. The Bonds may be redeemed in part. In the event of the redemption of the Bonds in part, upon surrender of the Bond to be redeemed, a new Bond or Bonds in an aggregate principal amount equal to the unredeemed portion of the Bond surrendered shall be issued to the Registered Owner.] This bond is subject to defeasance prior to payment as provided in the Ordinance and the owner of this bond, by the acceptance hereof, hereby agrees to all the terms and provisions contained in the Ordinance. This bond is transferable or exchangeable only upon the books of the City 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 or exchange satisfactory to the Registrar duly executed by the Registered Owner or his attorney duly authorized in writing, 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. The City, any registrar and any 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 due hereon. B-3 The bonds maturing in any one year are issuable only in fully registered form in the denomination of$5,000 or any integral multiple thereof not exceeding the aggregate principal amount of the bonds maturing in such year. [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 of this issue (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 this bond and all other bonds of this issue, 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.] 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 preparation and complete 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. • B-4 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 signatures of the Mayor and Controller, its corporate seal to be hereunto affixed, imprinted or impressed by any means and attested manually or by facsimile by its City Clerk. CITY OF SOUTH BEND, INDIANA (SEAL OF CITY) By Mayor By Controller ATTEST: City Clerk 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. as Registrar By Authorized Representative B-5 (Form of Assignment) • FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please Print or Typewrite Name and Address) $ principal amount (must be a multiple of $5,000) 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. 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. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Bond, shall be construed as though 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 TRANS MIN ACT - Custodian (Cust) (Minor) under Uniform Transfers to Minors Act of (State) Additional abbreviations may also be used though not in the list above. SBDS02 PFACCENDA 434335v3 B-6 BARNES&THORIVBVRV LLP 600 1st Source Bank Center 100 North Michigan South Bend,IN 46601-1632 U.S.A. (574)233-1171 Philip J.Faccenda,Jr. Fax(574)237-1125 (574)2374148 www.btlaw.com philip.faccenda@btlaw.com September 19, 2012 • HAND DELIVERED Mr. John Voorde Clerk of the City of South Bend 455 County-City Building 227 West Jefferson Boulevard • South Bend, Indiana 46601 Re: City of South Bend, Indiana Sewage Works Revenue Bonds of 2012 Dear Mr. Voorde: Enclosed for filing are multiple copies of the Ordinance for the above-referenced City of South Bend, Indiana Sewage Works Revenue Bonds of 2012 for financing sewage works projects of the City of South Bend as described in the Ordinance for first reading before the Common Council on September 24, 2012 and second reading on October 8, 2012. Please return a file-stamped copy to my attention. Please call me with any questions you may have. Very truly yours, • BARNES & THORNBURG LLP fp."(A.,(vf Philip J. Faccenda,Jr. PJF:ske Enclosures • r L�� �y` � , , cc: Aladean M. DeRose, Esq. (w/enc.) w� Mark W. Neal (w/enc.) Gary A. Gilot, P.E. (w/enc.) i a PT) , John J. Dillon(w/enc.) ` 1 t-, k,14 t r SBDS02 PFACCENDA 434878v1 • Atlanta Chicago Delaware Indiana Los Angeles Michigan Minneapolis Ohio Washington,D.C. ORDINANCE NO. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA CONCERNING THE CURRENT REFUNDING OF OUTSTANDING WATERWORKS REVENUE BONDS OF 2002,ISSUED TO FINANCE CONSTRUCTION OF IMPROVEMENTS TO THE MUNICIPAL WATERWORKS OF THE CITY OF SOUTH BEND,INDIANA; AUTHORIZING THE ISSUANCE OF REVENUE BONDS FOR SUCH PURPOSE IN THE PRINCIPAL AMOUNT NOT TO EXCEED FOUR MILLION TWO HUNDRED THOUSAND ($4,200,000); 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") has heretofore established, constructed and financed a municipal waterworks and now owns and operates said works pursuant to I.C. 8-1.5, as amended, and other applicable laws(together, the "Act"). The City's Municipal Waterworks Utility is subject to the authority and regulation of the Indiana Utility Regulatory Commission ("IURC") and has not withdrawn from the IURC's authority and regulation. The Common Council of the City (the "Council") previously found in its Ordinance No. 9247-01 adopted by the Council on August 27, 2001 (the "2002 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 on Exhibit A to the 2002 Ordinance) (the "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 2002 Ordinance, the City issued its "Waterworks Revenue Bonds of 2002"dated June 1, 2002 (the "2002 Bonds") originally issued in the amount of$5,580,000, now outstanding in the amount of$3,945,000,with a final maturity of January 1, 2023. The Council has determined, after being duly advised, (i) that the 2002 Bonds should be currently refunded to obtain a reduction in interest payments and effect a savings to the City (the "Refunding"); (ii) that the Refunding of the 2002 Bonds, together with redemption premium and accrued interest thereon and including all costs related to the refunding, cannot be provided for out of funds of the waterworks now on hand, and (iii)that the Refunding should be accomplished by the issuance of waterworks revenue bonds of the City. The Council has determined, after being duly advised, that it is beneficial to currently refund the 2002 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 2012B 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 "Waterworks Revenue Bonds of 2012" dated June 21, 2012 (the "2012A Bonds"), originally issued in the amount of $8,300,000 authorized by Ordinance No. 10134-11 adopted by the Council on November 28, 2011 (the"2012A Ordinance"), now outstanding in the amount of$8,300,000. 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 "Waterworks Revenue Bonds of 2009, Series B" dated November 19, 2009 (the "2009B Bonds") originally issued in the amount of$5,380,000 authorized by Ordinance No. 9937-09 adopted by,the Council on June 8, 2009 (the "2009 Ordinance"), now outstanding in the amount of$5,380,000. 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 "Waterworks Revenue Bonds of 2009, Series A" dated September 1, 2009 (the "2009A Bonds") originally issued in the amount of$429,000 authorized by the 2009 Ordinance, now outstanding in the amount of$427,332. 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 "Waterworks Revenue Bonds of 2006" dated June 1, 2006 (the "2006 Bonds") originally issued in the amount of $4,710,000 authorized by Ordinance No. 9603-05 adopted by the Council on July 25, 2005 (the "2005 Ordinance"), now outstanding in the amount of$3,885,000. The Council also finds that there are now outstanding the 2002 Bonds, now outstanding in the amount of$3,945,000. 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 "Waterworks Revenue Bonds of 2000" dated June 12, 2000 (the "2000 Bonds") (the 2012A Bonds, the 2009B Bonds, the 2009A Bonds, 2006 Bonds, the 2002 Bonds and the 2000 Bonds together, the"Prior Bonds")) originally issued in the amount of $2,600,000 authorized by Ordinance No. 9095-00 adopted by the Council on February 28, 2000 (the "2000 Ordinance"), now outstanding in the amount of $1,321,395. The Council finds that on or about May 28, 2002, the Council adopted Ordinance No. 9328-02 (the "2002 Supplemental Ordinance"), which supplemented and amended the 2002 Ordinance and the 2000 Ordinance to permit the City to substitute an insurance policy to provide funds for the Debt Service Reserve Account thereby freeing monies currently held in the Debt Service Reserve Account for use by, and improvement of the waterworks. The 2002 Supplemental Ordinance, together with the 2009 Ordinance, the 2005 Ordinance, the 2002 • - 2 - Ordinance and the 2000 Ordinance are sometimes collectively referred to herein as the "Prior Ordinances". The Council now finds that pursuant to the 2002 Supplemental Ordinance, the City entered into an Insurance Agreement with Financial Security Assurance Inc. ("FSA"), dated June 27, 2002 (the "FSA Insurance Agreement"), and pursuant to the FSA Insurance Agreement, FSA issued its Municipal Bond Debt Service Reserve Insurance Policy No. 29146-R, effective June 27, 2002 (the "2002 Reserve Insurance Policy"). The 2002 Reserve Insurance Policy covers principal and interest payments on 2000 Bonds and 2002 Bonds, up to the policy limit stated in the 2002 Reserve Insurance Policy. The initial policy limit of the 2002 Reserve Insurance Policy was set at$2,332,703. The Council now finds that pursuant to the 2005 Ordinance, the City entered into an Insurance Agreement with MBIA Insurance Corporation ("MBIA"), dated June 6, 2006 (the "MBIA Insurance Agreement"), and pursuant to the MBIA Insurance Agreement, MBIA issued its Debt Service Reserve Surety Bond No. 48026(2), effective June 6, 2006 (the "2006 Reserve Insurance Policy"). The 2006 Reserve Insurance Policy covers principal and interest payments on the 2006 Bonds, up to the policy limit stated in the 2006 Reserve Insurance Policy. The initial policy limit of the 2006 Reserve Insurance Policy was set at$365,826. The Prior Bonds constitute a first charge upon the Net Revenues (as hereinafter defined). The Prior Ordinances provide that the City may authorize and issue additional bonds payable out of the Net Revenues ranking on parity with the Parity Bonds (as hereinafter defined) for the purpose of financing the cost of future additions, extensions and improvements to the works subject to the provisions of the Prior Ordinances. The conditions precedent to the issuance of additional parity bonds set forth in the Prior Ordinances, as described above, have been satisfied, subject to approval by the State of Indiana(the"State"). 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 2002 Bonds. The Council hereby determines, after being duly advised, that it is beneficial to currently refund the 2002 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 current refunding of the 2002 Bonds the costs of which are not expected to exceed $4,200,000, without further authorization from the Council. The terms "works" and "utility" and other like - 3 - terms where used in this Ordinance shall be construed to mean and include all structures and property of the City's waterworks utility. The Project has 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 2012B 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 the 2002 Bonds. SECTION 2. Authorization of Obligations. (a) The City shall issue its "Waterworks Refunding Revenue Bonds of 2012B" 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 "2012B Bonds"), in one or more series (as designated by the City, a "Series"), in an original principal amount not to exceed Four Million Two Hundred Thousand Dollars ($4,200,000) (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 2012B Bonds and funding a debt service reserve as described herein. The City reasonably expects to reimburse expenditures for the Refunding with the proceeds of the 2012B 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 2012B Bonds shall rank on parity for all purposes with the Prior Bonds. The 2012B 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 2012B Bonds shall bear interest at a rate or rates not exceeding five percent (5%) per annum, and interest shall be payable semiannually on January 1 and July 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 2012B Bonds to the Registrar for authentication. Interest on the BANs and the 2012B Bonds shall be calculated according to a 360-day calendar year containing twelve 30-day months. The 2012B Bonds shall mature on January 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 2012B Bonds to the Registrar for authentication, and over a period ending not later than January 1, 2023. All or a portion of the 2012B 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 2012B Bonds, relative to the form of 2012B 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 2012B Bonds, and any bonds ranking on a parity therewith, including the Prior Bonds, as to principal, premium, if any, and interest, shall be payable solely from and are secured by an irrevocable pledge of and shall constitute a charge upon all the.Net Revenues (as defined in the following sentence) of the works. The term "Net Revenues," as used herein, shall be defined as the gross revenues of the works after deduction only for the payment of the reasonable expenses of operation, repair and maintenance of the works, and which reasonable expenses of operation, repair and maintenance specifically do not include any rates or charges in lieu of taxes made and collected by the works and transferred to the City in accordance with the Act (the "PILOT Payment"). The City specifically subordinates its right to receive any PILOT Payment to the rights of the holders of the 2012B Bonds, and any Parity Bonds, including the Prior Bonds, to receive payment of the principal, premium, if any, and interest,•payable on such bonds. PILOT Payments shall be made not more frequently than semiannually on January 2 and July 2 and may be made only if all monthly deposits required by this Ordinance are current and held as of such dates in the Operation and Maintenance Fund and the Sinking Fund (each as defined herein). Other than PILOT Payments and normal and regular pro rata payments to the City for shared expenses charged by the City to its various departments, no moneys derived from the revenues of the works shall be transferred to the General Fund of the City or be used for any purpose not connected with the works. All payments of interest on the 2012B 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 2012B 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 2012B 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 2012B 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 2012B Bonds shall be payable from the interest payment date to which interest has been paid next preceding the authentication date thereof unless such 2012B Bonds are authenticated after the Record Date for an interest payment date and on or before such - 5 - 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 2012 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 2012 Bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the registered owner or such attorney, and thereupon a new fully registered 2012 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 transferee 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 2012B 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 2012 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 2012 Bond with their reasonable fees and expenses in this connection. Any 2012 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 2012 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 2012B 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 2012B Bonds (together with any successor, the "Registrar"or"Paying Agent"). The Registrar is hereby charged with the responsibility of authenticating the 2012B 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 2012B Bonds as fiscal agency charges. - 6 - 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 2012B 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 2012B Bonds then outstanding by first-class mail of the removal of the Registrar and Paying Agent. Notices to the registered owners of the 2012B 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 2012B 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 2012B 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 2012B 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 2012 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 2012B Bonds redeemed, provided, however, that failure to give such notice by mailing, or any defect therein, with respect to any 2012 Bond shall not affect the validity of any proceedings for the redemption of any other 2012B Bonds. The notice shall specify the date and place of redemption, the redemption price and the CUSIP numbers of the 2012B Bonds called for redemption. The place of redemption may be determined by the City. Interest on the 2012B 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 2012B 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 2012B 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 2012 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 2012B Bonds or portions thereof called for redemption, including accrued interest thereon to the redemption date. No payment shall be made upon any 2012 Bond or portion thereof called for redemption until such 2012 Bond shall have been - 7 - 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 2012B 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 officer whose signature or facsimile signature appears thereon shall cease to be such officer before the delivery of the 2012B Bonds, such signature shall nevertheless be valid and sufficient for all purposes as if such officer had remained in office until such delivery. The 2012B Bonds shall also be authenticated by the manual signature of the Registrar, and no 2012 Bond shall be valid or become obligatory for any purpose until the certificate of authentication thereon has been so executed. The 2012B 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 2012B 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 2012 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 2012B Bonds as are necessary or appropriate to accomplish or recognize such book-entry form 2012B Bonds. During any time that the 2012B Bonds are held in book-entry form on the books of a Clearing Agency, (1) any such 2012 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 2012 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 2012 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 2012 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 2012 Bond, including, without limitation, any responsibility or obligation hereunder to maintain accurate records of any interest in any 2012 Bond or any - 8 - responsibility or obligation hereunder with respect to the receiving of payment of principal of or interest or premium, if any, on any 2012 Bond, the receiving of notice or the giving of consent; and (4) the Clearing Agency is not required to present any 2012 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 2012B Bonds to the effect that such Clearing Agency is unable or unwilling to discharge its responsibility as a Clearing Agency for the 2012B Bonds, or the City elects to discontinue its use of such Clearing Agency as a Clearing Agency for the 2012B 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 2012B Bonds, as are necessary or appropriate to discontinue use of such Clearing Agency as a Clearing Agency for the 2012B Bonds and to transfer the ownership of each of the 2012B Bonds to such person or persons, including any other Clearing Agency, as the holder of the 2012B Bonds may direct in accordance with this Ordinance. Any expenses of such discontinuance and transfer, including expenses of printing new certificates to evidence the 2012B Bonds, shall be paid by the City. During any time that the 2012B 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 2012B 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 2012 Bond has been obtained, the Registrar shall be entitled to treat the beneficial owners of the 2012B 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 2012B 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 2012B 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 2012B Bonds. The form and tenor of the 2012B Bonds shall be substantially as follows, all blanks to be filled in properly and all necessary additions and deletions to be made prior to delivery: - 9 - R- UNITED STATES OF AMERICA STATE OF INDIANA COUNTY OF ST. JOSEPH CITY OF SOUTH BEND, INDIANA WATERWORKS REVENUE REFUNDING BOND OF 20[ ] Interest Maturity Original Authentication Rate Date Date • Date CUSIP No. 20_ , 2012 ,2012 REGISTERED OWNER: PRINCIPAL SUM: Dollars ($ ) 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 January 1 and July 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 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 - 10- 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$1,000,000 or more in principal amount of the Bonds (as hereinafter defined), by wire transfer on the due date upon written direction of such owner provided at least fifteen (15) days prior to the maturity date or redemption date. THE CITY SHALL NOT BE OBLIGATED TO PAY THIS BOND OR THE INTEREST HEREON EXCEPT FROM THE HEREINAFTER DESCRIBED SPECIAL FUND, AND NEITHER THIS BOND NOR THE ISSUE OF WHICH IT IS A PART SHALL IN ANY RESPECT CONSTITUTE A CORPORATE INDEBTEDNESS OF THE CITY WITHIN THE PROVISIONS AND LIMITATIONS OF THE CONSTITUTION OF THE STATE OF INDIANA. It is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the execution, issuance and delivery of this bond have been done and performed in regular and due form as provided by law. This bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been executed by an authorized representative of the Registrar. This bond is one of an authorized issue of bonds of the City of South Bend, Indiana, of like date, tenor and effect, except as to denomination, numbering, rates of interest, redemption terms and dates of maturity, aggregating Dollars ($ ), numbered consecutively from 1 upward (the "Bonds"), issued for the purpose of providing funds to be applied to the cost of currently refunding outstanding City of South Bend, Indiana Waterworks Revenue Bonds of 2002 (the "Refunding"), to refund interim notes issued in anticipation of the Bonds, if any, to fund a debt service reserve, 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 2012, entitled "An Ordinance of the Common Council of the City of South Bend, Indiana, Concerning the Current Refunding of Outstanding Waterworks Revenue Bonds of 2002, Issued to Finance Construction of Improvements to the Municipal Waterworks of the City of South Bend, Indiana; Authorizing the Issuance of Revenue Bonds for such Purpose in the Principal Amount not to exceed Four Million Two Hundred Thousand ($4,200,000); 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 8-1.5, 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. Pursuant to the provisions of the Act and the Ordinance, the principal of and interest on this bond and all other bonds of said issue, the Prior Bonds (as hereinafter defined), and any bonds hereafter issued on a parity therewith are payable solely from the Sinking Fund (the "Sinking Fund") maintained under the Ordinance to be provided from - 11 - the Net Revenues (defined as the gross revenues of the works after deduction only for the payment of the reasonable expenses of operation, repair and maintenance of the works, and which reasonable expenses of operation, repair and maintenance specifically do not include any rates or charges in lieu of taxes made and collected by the works and transferred to the City in accordance with the Act. The City irrevocably pledges the entire Net Revenues of the works to the prompt payment of the principal of and interest on the Bonds and any bonds ranking on a parity therewith, including the "Waterworks Revenue Bonds of 2012, dated June 21, 2012 (the "2012A Bonds"), "Waterworks Revenue Bonds of 2009, Series B dated November 19, 2009 (the "2009B Bonds"), "Waterworks Revenue Bonds of 2009, Series A" dated September 1, 2009 (the "2009A Bonds"), "Waterworks Revenue Bonds of 2006" dated June 1, 2006 (the "2006 Bonds"), "Waterworks Revenue Bonds of 2002" dated June 1, 2002 (the "2002 Bonds") and the "Waterworks Revenue Bonds of 2000" dated June 12, 2000 (the "2000 Bonds"), (the 2012A Bonds, the 2009B Bonds, the 2009A Bonds, the 2006 Bonds, the 2002 Bonds and the 2000 Bonds together, the "Prior Bonds"), each authorized by ordinance of the City, to the extent necessary for such purposes, and covenants that it will establish proper rates and charges for services rendered by the utility as are sufficient in each year for the payment of the proper and reasonable expenses of operation, repair and maintenance of the works and for the payment of the sums required to be paid into the Sinking Fund under the provisions of the Act and the Ordinance. If the City or the proper officers thereof shall fail or refuse to so fix and collect such rates or charges, or if there be a default in the 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 in the Act. 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, (b) the necessary fiscal agency charges for paying bonds and (c) an additional amount to maintain the reserve required by the Ordinance. 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. The bonds of this issue are not subject to optional redemption prior to maturity. 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 - 12 - • 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 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. CITY OF SOUTH BEND, INDIANA By: Mayor (SEAL) ATTEST Clerk - 13 - I 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. as Registrar By 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. Dated: NOTICE: The Signature to this assignment must correspond with the name as it appears on the face of the within bond in every - 14 - 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. SECTION 10. Sate of Bonds. (a) The Fiscal Officer is authorized to negotiate the sale of the 2012B 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 Refunding 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 the Ordinance. (b) The Fiscal Officer is hereby authorized to appoint a financial institution to serve as Escrow Trustee (the "Escrow Trustee") for the 2002 Bonds in accordance with the terms of an escrow agreement to be entered into between the City and the Escrow Trustee (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 2012B 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) 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 2012B Bonds have been properly sold and executed, the Fiscal Officer shall receive from the purchasers payment for the 2012B Bonds and shall provide for delivery of the 2012B Bonds to the purchasers. - 15 - (f) The 2012B 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 2012B 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 2012B 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 2012B Bonds in complying with paragraph (b)(5) of the SEC Rule by undertaking to make available appropriate disclosure about the City and the 2012B 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 2012B 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 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 2012B Bonds from Barnes &. Thornburg LLP, and to furnish such opinion to the purchasers of the 2012B Bonds or to cause a copy of said legal opinion to be printed on each 2012 Bond. The cost of such opinion shall be paid out of the proceeds of the 2012B Bonds. (j) In connection with the sale of the 2012B 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 2012B 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 2012B 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 2012B Bonds on the first interest payment date. An amount of proceeds from the sale of the 2012B Bonds of any Series equal to the amount described in Section 14(b) will be deposited to the 2012 Subaccount of the Debt Service Reserve Account for the 2012B Bonds of such Series and applied as described below. An amount of proceeds from the sale of the 2012B Bonds of any Series,equal to the estimated costs of issuance of the 2012B Bonds and other fees and charges 16 - associated with the issuance of the 2012B Bonds, including the premium for any bond insurance obtained for the 2012B Bonds, shall be deposited into-a fund of the utility hereby created and designated as "City of South Bend, Indiana Waterworks 2012B 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 2012B Bonds and other fees and charges associated with the issuance of the 2012B Bonds, including the premium for any bond insurance obtained for the 2012B Bonds. The remaining proceeds from the sale of the 2012B Bonds shall be deposited into a fund of the utility hereby created and designated as "City of South Bend, Indiana Waterworks 2012B 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. There is hereby continued a fund of the utility created and designated in the Prior Ordinances as the Revenue Fund (the "Revenue Fund"). All income and revenues of the works shall be paid into the Revenue Fund for application as described below. SECTION 13. Operation and Maintenance Fund. There is hereby continued a fund of the utility created and designated in the Prior Ordinances as the Operation and Maintenance Fund (the "Operation and Maintenance Fund") (also shown on the books of the utility as the Operating Fund). There shall be transferred from the Revenue Fund and credited to the Operation and Maintenance Fund, on the last day of each calendar month, a sufficient amount so that the balance in this 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 works on a day-to-day basis, but none of the moneys in the Operation and Maintenance Fund shall be used for depreciation, replacements, improvements, extensions or additions. Any balance in Operation and Maintenance Fund in excess of the expected expenses of operation, repair and maintenance for the next succeeding two calendar months may be transferred to the Sinking Fund if necessary to prevent a default in the payment of principal of or interest on the outstanding bonds of the works. SECTION 14. Sinking Fund. There is hereby continued a fund of the utility created and designated in the Prior Ordinances as the Sinking Fund (the "Sinking Fund"), to be used for the payment of the principal of and interest on bonds which by their terms are payable from the Net Revenues, and for the payment of any fiscal agency charges in connection with such payment. The Sinking Fund is divided into two accounts designated as the Bond and Interest Account and the Debt Service Reserve Account, which are pledged for the purposes set forth below. There shall be set aside and deposited in the Sinking Fund, as available, and as hereinafter provided, a sufficient amount of the Net Revenues to meet the requirements of the Bond and Interest Account (also shown on the books of the utility as the Bond Sinking Fund) and of the Debt Service Reserve Account. Such payments shall continue until the balance in the Bond and Interest Account, plus the balance in the Debt Service Reserve Account, equals the amount needed to redeem all of the then outstanding bonds. - 17- (a) Principal and Interest Account. There shall be transferred, on 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-twelfth (1/12) of the principal and one-sixth (1/6) of the interest on all then outstanding bonds payable from Net Revenues on the next succeeding principal and interest payment dates, until the amount so credited shall equal the principal payable during the next succeeding twelve (12) calendar months and the interest payable during the next succeeding six (6) calendar months. There shall similarly be credited to the account any amount necessary to pay when due the bank fiscal agency charges for paying principal of and interest on the bonds 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 bank fiscal agency sufficient moneys to pay the principal and interest on the due dates thereof together with the amount of bank fiscal agency charges. (b) Debt Service Reserve Account. The City may, upon the issuance of the 2012B Bonds of any Series, establish within the Debt Service Reserve Account a subaccount for the 2012B Bonds of such Series (each, a "2012 Subaccount"). The Debt Service 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 (as hereinafter defined) (excluding any Bonds for which a Subaccount was established), and the moneys in the Debt Service 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. The 2012 Subaccount of the Debt Service Reserve Account for the 2012B Bonds of any Series shall constitute the margin for safety and as protection against default in the payment of principal of and interest on the 2012B Bonds of such Series, and the moneys in such 2012 Subaccount shall be used to pay current principal and interest on the 2012B Bonds of such Series to the extent that moneys in the Bond and Interest Account are insufficient for that purpose. (c) No amounts in the 2012 Subaccount of the Debt Service Reserve Account for the 2012B Bonds of any Series shall be available to pay any principal of or interest or redemption premium, if any, on any Bonds, except the 2012B Bonds of such Series. (d) No amounts in the Debt Service Reserve Account shall be available to pay any principal of or interest or redemption premium, if any, on any 2012B Bonds of any Series for which a 2012 Subaccount was established, except that any amounts in the 2012 Subaccount of the Debt Service Reserve Account for the 2012B Bonds of any Series shall be available to pay the principal of or interest or redemption premium, if any, on the 2012B Bonds of such Series. (e) In this Ordinance the term "Parity Bonds" means any and all bonds ranking on a parity with the 2012B 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 City's waterworks. (f) In this Section 14, the term "Bonds" means the 2012B Bonds issued hereunder and all Parity Bonds. - 18 - (g) In this Ordinance, the term "Reserve Requirement" for the Bonds (excluding any Bonds for which a Subaccount was established) means the least of: (i) the maximum annual debt service on the Bonds (excluding any Bonds for which a Subaccount was established), (ii) 125% of the average annual debt service on the Bonds (excluding any Bonds for which a Subaccount was established), or (iii) 10% of the proceeds of the Bonds (excluding any Bonds for which a Subaccount was established). In this Ordinance, the term "Reserve Requirement" for the 2012B Bonds of each Series for which a 2012 Subaccount was established means the least of: (i) the maximum annual debt service on the 2012B Bonds of such series, (ii) 125% of the average annual debt service on the 2012B Bonds of such Series, or (iii) 10% of the proceeds of the 2012B Bonds of such Series. (h) Subject to Section 14(i) and Section 14(j) below,the City shall maintain in the Debt Service Reserve Account (excluding any Subaccounts) an amount equal to the Reserve Requirement for the Bonds (excluding any Bonds for which a Subaccount was established). Subject to Section 14(i) and Section 14(j) below,the City shall maintain in the wol 1 Subaccount • of the Debt Service Reserve Account for the 2012B Bonds of each Series for which a 2012 Subaccount was established an amount equal to the Reserve Requirement for the 2012B Bonds of such Series. (i) To the extent that the amount in the Debt Service Reserve Account (excluding any Subaccounts) on the date of the issuance of the 2012B Bonds of any Series is less than the Reserve Requirement for the Bonds (excluding any Bonds for which a Subaccount was established), that portion of the shortfall which exists as of the date of issuance of the 2012B Bonds of such Series shall, at the election of the Executive and Fiscal Officer with the advice of the City's financial advisor, be deposited into the Debt Service Reserve Account (excluding any Subaccounts) either (i) in a single payment, to be paid on the date of the issuance of the 2012B Bonds of such Series, or(ii) in equal monthly installments, over a period not to exceed sixty (60) months after the date of issuance of the 2012B Bonds of such Series, with the first installment due and payable on the date of the issuance of the 2012B Bonds of such Series, and the remaining installments payable on the last day of each calendar month, commencing on the last day of the month in which the 2012B Bonds of such Series are issued. To the extent that the amount in the 2012 Subaccount of the Debt Service Reserve Account for the 2012B Bonds of any Series on the date of the issuance of the 2012B Bonds of such Series is less than the Reserve Requirement for the 2012B Bonds of such Series, that portion of the shortfall which exists as of the date of issuance of the 2012B Bonds of such Series shall, at the election of the Executive and Fiscal Officer with the advice of the City's financial advisor, be deposited into such 2012 Subaccount either (i) in a single payment, to be paid on the date of the issuance of the 2012B Bonds of such Series, or(ii) in equal monthly installments, over a period not to exceed sixty(60) months after the date of issuance of the 2012B Bonds of such Series, with the first installment due and payable on the date of the issuance of the 2012B Bonds of such Series, and the remaining installments payable on the last day of each calendar month, commencing on the last day of the month in which the 2012B Bonds of such Series are issued. (j) To the extent that additional Parity Bonds are issued subsequent to the issuance of the 2012B Bonds of any Series, the additional amounts, if any, which are required to be paid into the Debt Service Reserve Account to satisfy the Reserve Requirement as a result of the issuance of such additional Parity Bonds shall, at the election of the Executive and Fiscal - 19- Officer with the advice of the City's financial advisor, be deposited into the Debt Service Reserve Account either (i) in a single payment, to be paid on the date of the issuance of such additional Parity Bonds, or (ii) in equal monthly installments, over a period not to exceed sixty (60) months after the date of issuance of such additional Parity Bonds, with the first installment due and payable on the date of the issuance of such additional Parity Bonds, and the remaining installments payable on the last day of each calendar month, commencing on the last day of the month in which such additional Parity Bonds are issued. (k) Subject to Section 14(i) and Section 14(j) above, any deficiency in the balance maintained in the Debt Service Reserve Account (excluding any Subaccounts) or any Subaccounts shall be promptly made up from the next available Net Revenues after credits into the Bond and Interest Account, on a pro rata basis, calculated by reference to the amount of the deficiency in the Debt Service Revenue Account (excluding any Subaccounts) and each Subaccount. Any moneys in the Debt Service Reserve Account (excluding any Subaccount) in excess of the Reserve Requirement for the Bonds (excluding any Bonds for which a Subaccount was established), and any moneys in the 2012 Subaccount for the 2012B Bonds of any Series for which a 2012 Subaccount was established in excess of the Reserve Requirement for the 2012B Bonds of such Series, may be used for the prepayment of installments of principal, together with interest due thereon, on the then outstanding Bonds which are then callable or prepayable, or for the purchase of outstanding Bonds or installments of principal of and interest on the Bonds at a price not exceeding par and accrued interest,or may be transferred to the Improvement Fund. (1) As an alternative to holding cash funds in the Debt Service Reserve Account or any Subaccount, the City, with the advice of the City's financial advisor and nationally recognized bond counsel, may satisfy all or any part of its obligation to maintain any amount in the Debt Service Reserve Account or such Subaccount by depositing a Credit Facility (as defined in the next sentence)therein (which, for any 2009 Bonds for which a Subaccount was established and which were sold to the Indiana Finance Authority through the SRF Program (as hereafter defined), will require the written consent of the Indiana Finance Authority to the deposit of any such Credit Facility), provided that such deposit does not adversely affect any then existing rating on the 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. To the extent that any Bonds are insured, and the Credit Facility is not being provided by the insurer of such Bonds, such insurance policy shall be subject to the insurer's prior written consent. (m) In the event a draw is made against the Credit Facility in the Debt Service Reserve Account or any Subaccount, the City shall repay the amount of the draw and related expenses incurred by the issuer(s) of the Credit Facility (the "Credit Facility Issuer") together with interest thereon at the rate specified in the Credit Facility and/or the related Credit Facility Agreement(as defined below). The repayment of the draw amount, related expenses and accrued interest (the "Credit Facility Costs") shall be paid from the funds that would have been set aside above to replenish the Debt Service Reserve Account or such Subaccount, respectively. Repayment of the Credit Facility Costs shall commence in the first month following each draw, in an amount equal to no less than one twelfth (1/12) of the aggregate Credit Facility Costs related to such draw ("Monthly Installments"). Each Monthly Installment shall be deposited by - 20- the City into the Debt Service Reserve Account or such Subaccount, respectively, and then payments shall be made from the Debt Service Reserve Account or such Subaccount, respectively,to pay Credit Facility Costs. (n) If and to the extent cash has been deposited to the Debt Service Reserve Account or any Subaccount (other than Monthly Installments to pay Credit Facility Costs), all such cash(or permitted investments) shall be used prior to any drawing under the Credit Facility therein, and repayment of any Credit Facility Costs shall be made prior to replenishment of any such cash amounts. (o) If, in addition to the Credit Facility in the Debt Service Reserve Account or any Subaccount, any other reserve account substitute instrument ("Additional Credit Facility") is provided, drawings under the Credit Facility and any such Additional Credit Facility, and repayment of Credit Facility Costs and reimbursement of amounts due under the Additional Credit Facility, shall be made on a pro-rata basis (calculated by reference to the maximum amounts available thereunder) after applying all available cash therein and prior to replenishment of any such cash draws, respectively. (p) Inasmuch as the Reserve Requirement pertaining to the 2000 Bonds, the 2002 Bonds and the 2006 Bonds is currently being satisfied by the 2002 Reserve Insurance Policy and 2006 Reserve Insurance Policy, the City with the advice of the City's financial advisor and nationally recognized bond counsel, may satisfy the.Reserve Requirement pertaining to the 2012B Bonds of any Series as follows: (i) by amending the terms of either the 2002 Reserve Insurance Policy or the 2006 Reserve Insurance Policy to expand the scope of either the 2002 Reserve Insurance Policy or the 2006 Reserve Insurance Policy to include the 2012B Bonds of such Series, and by adjusting the Policy Limit of the 2002 Reserve Insurance Policy or the 2006 Reserve Insurance Policy accordingly; or (ii) by obtaining a separate Additional Credit Facility covering the Reserve Requirement attributable to the 2012B Bonds of such Series; or (iii) by funding the Reserve Requirement attributable to the 2012B Bonds of such Series in cash funds, either (i) in a single payment, to be paid on the date of the issuance of the 2012B Bonds of such Series, or (ii) in equal monthly installments, over a period not to exceed sixty (60) months after the date of issuance of the 2012B Bonds of such Series, with the first installment due and payable on the date of the issuance of the 2012B Bonds of such Series, and the remaining installments payable on the last day of each calendar month, commencing on the last day of the month in which the 2012B Bonds of such Series are issued. (q) The City acknowledges that: (i) at the time that the 2009A Bonds were issued, the City, pursuant to the 2009 Ordinance, established within the Debt Service Reserve Account a subaccount for the 2009A Bonds (the "2009A Subaccount"); (ii) such 2009A -21 - Subaccount constitutes the margin for safety and as protection against default in the payment of principal of and interest on the 2009A Bonds; (iii) the moneys in such 2009A Subaccount shall be used to pay current principal and interest on the 2009A Bonds, to the extent that moneys in the Bond and Interest Account are insufficient for that purpose; (iv); the 2009A Bonds were sold to the Indiana Finance Authority pursuant to its Drinking Water Revolving Loan Program (the "SRF Program") and pursuant to the 2009 Ordinance the "Reserve Requirement" for the 2009A Bonds for which the 2009A Subaccount was establish means the maximum annual debt service on the 2009A Bonds; and (v) each of the provisions in the 2009 Ordinance pertaining to the 2009A Subaccount remain in full force and effect. SECTION 15. Improvement Fund. After meeting the requirements of the Operation and Maintenance Fund and the Sinking Fund, any excess revenues may be transferred from the Revenue Fund and credited to the special utility fund hereby continued which was created and designated in the Prior Ordinances as the "Waterworks Improvement Fund" (the "Improvement Fund") (also shown on the books of the utility as the Depreciation Fund), and said Fund shall be used for improvements, replacements, additions and extensions of the works. Moneys in the 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 Debt Service Reserve Account of the Sinking Fund, or may be transferred to the Operation.and Maintenance Fund to meet unforeseen contingencies in the operation and maintenance of the works. SECTION 16. Investment of Funds. The Revenue Fund and the Sinking Fund each shall be deposited in and maintained as a separate bank account or accounts from all other bank accounts of the City. The Operation and Maintenance Fund and the Improvement Fund may be maintained in a single bank account or accounts, but such bank account or accounts shall likewise be maintained separate and apart from the Revenue Fund and all other bank accounts of the City and apart from the Revenue Fund and the Sinking Fund bank accounts. All moneys deposited in the bank accounts shall be deposited,held and secured as public funds in accordance with the public depository laws of the State of Indiana; provided, that moneys therein may be invested in obligations in accordance with the applicable laws, including particularly Indiana Code, Title 5, Article 13, Chapter 9 as amended or supplemented, and in the event of such investment the income therefrom shall become a part of the funds invested and shall be used only 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 2012B 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, by and through the Board and to the fullest extent permitted by law, shall establish, fix, maintain and collect reasonable and just rates and -22 - charges for the use of and the services rendered by the works so that such rates and charges shall produce revenues at least sufficient in each year to (a) pay all the legal and other necessary expenses incident to the operation of the works, including maintenance costs, operating charges, upkeep, repairs, and interest charges on bonds or other obligations, including leases; (b) provide a sinking fund for the liquidation of bonds or other obligations, including leases; (c) provide a debt service reserve on bonds or other obligations, including leases, as required by the terms of such obligations; (d) prove adequate money for working capital; (e) provide adequate money for making extensions and replacements; and (f) provide money for the payment of any taxes that may be assessed against the works. So long as any of the 2012B Bonds are outstanding, none of the facilities and services afforded by the works shall be furnished without a reasonable and just charge being made therefor. SECTION 19. Defeasance. If, when the 2012B 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 2012B 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 2012B 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 2012B 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 issue additional bonds payable out of the Net Revenues ranking on a parity with the 2012B Bonds for the purpose of financing the cost of future additions, extensions and improvements to the works, or to provide for a complete or partial refunding of obligations, subject to the following conditions precedent: (a) The interest on and principal of all bonds payable from the Net Revenues shall have been paid to date in accordance with the terms thereof, and all required payments into the Sinking Fund required by this Ordinance shall have been made. The Reserve Requirement shall be satisfied for the additional Parity Bonds either at the time of delivery of the additional Parity Bonds or over a five-year or shorter period, in a manner Which is commensurate with the requirements established in Section 14 of this Ordinance. (b) The Net Revenues in the fiscal year immediately preceding the issuance of any such bonds ranking on a parity with the 2012B Bonds shall be not less than one hundred twenty-five percent (125%) of the maximum annual principal and interest requirements of the then outstanding bonds (including the 2012B Bonds and the Prior Bonds) and the additional Parity Bonds proposed to be issued; or, prior to the issuance of the additional Parity Bonds, the water rates and charges shall be increased sufficiently so that the increased rates and charges applied to the previous fiscal year's operations would have produced Net Revenues for the year equal to not less than one hundred twenty-five percent (125%) of the maximum annual principal and interest requirements of the then outstanding bonds and the additional Parity Bonds proposed to be issued. For purposes of this subsection, the records of the works shall be - 23 - analyzed and all showings shall be prepared by an independent certified public accountant employed by the City for that purpose. (c) To the extent required by law, the issuance of the proposed additional Parity Bonds and any necessary increase in water rates and charges shall have been approved by the Indiana Utility Regulatory Commission, or any successor body vested by law with authority to approve bonds and water rates and charges of municipal waterworks. (d) The principal of said additional Parity Bonds shall be payable on January 1 and the interest shall be payable on January 1 and.July 1 during the periods such principal and interest are payable. (e) So long as the 2000 Bonds, the 2009A Bonds or any other Parity Bonds sold to the Indiana Finance Authority through the SRF Program remain outstanding, the City shall obtain the consent of the Indiana Finance Authority to the issuance of the proposed additional Parity Bonds. SECTION 21. Further Covenants of the City. For the purpose of further safeguarding the interests of the owners of the 2012B Bonds, it is hereby specifically provided as follows: (a) The City, through the Board, shall at all times maintain the works in good condition, and operate the same in an efficient manner and at a reasonable cost. (b) So long as any of the 2012B Bonds are outstanding, the City, through the Board, 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 entities 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. As an alternative to maintaining such insurance, the City may maintain a self-insurance program with catastrophic or similar coverage so long as such program meets the requirements of any applicable laws or regulations and is maintained in a manner consistent with programs maintained by similarly situated municipalities. Insurance proceeds or self-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. (c) So long as any of the 2012B Bonds are outstanding, the City shall not mortgage, pledge or otherwise encumber the works, or any part thereof, and shall not sell, lease or otherwise dispose of any part of the same, excepting only such machinery, equipment or other property as may be replaced, or shall no longer be necessary for use in connection with said utility; provided, the foregoing restrictions shall not apply to the extent approved otherwise in writing by the owners of all 2012B Bonds then outstanding, and the City receives an opinion of nationally recognized bond counsel to the effect that the transaction will not cause the interest on the 2012B Bonds to be included in gross income for federal income tax purposes. (d) Reserved. (e) Except as otherwise specifically provided in Section 20 of this Ordinance and in the Prior Ordinances, so long as any of the 2012B Bonds are outstanding, no additional bonds or other obligations pledging any portion of the revenues of the works shall be issued by • - 24- the City, except such as shall be made junior and subordinate in all respects to the 2012B Bonds, unless all of the 2012B Bonds are defeased, redeemed or retired coincidentally with the delivery of such additional bonds or other obligations. Such subordinate obligations shall be subject to the provisions of Section 20(d). (f) The provisions of this Ordinance shall constitute a contract by and between the City and the owners of the 2012B Bonds, all the terms of which shall be enforceable by any such owner by any and all appropriate proceedings in law or in equity. After the issuance of the 2012B Bonds and so long as any of the principal thereof or interest or premium, if any, thereon remains unpaid, except as expressly provided herein, this Ordinance shall not be repealed or amended in any respect which, in the determination of the Council in its sole discretion, will materially and adversely affect the rights of such owners, nor shall the Council or any other body of the City adopt any law, ordinance or resolution which, in the determination of the Council in its sole discretion, in any way materially and adversely affects the rights of such owners. The provisions of this Ordinance shall be construed to create a trust in the proceeds of the sale of the 2012B Bonds for the uses and purposes herein set forth, and the owners of the 2012B Bonds shall retain a lien on such proceeds until the same are applied in accordance with the provisions of this Ordinance and the Act. The provisions of this Ordinance shall also be construed to create a trust in the Net Revenues herein directed to be set apart and paid into the Sinking Fund for the uses and purposes of that Fund as set forth in this Ordinance. The owners of the 2012B Bonds shall have all the rights, remedies and privileges set forth in the Act. SECTION 22. Amendments With Consent of Bondholders. Subject to the terms and provisions contained in this section and Sections 21 and 23, the owners of not less than a majority in aggregate principal amount of the 2012B Bonds and then outstanding shall have the right, from time to time, to consent to and approve the adoption by the Council of such ordinance or ordinances supplemental hereto, as shall be deemed necessary or desirable by the City for the purpose of amending in any particular any of the terms or provisions contained in this Ordinance, or in any supplemental Ordinance; provided, however, 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 2012 Bond or an advancement of the earliest redemption date on any 2012 Bond, without the consent of the holder of each 2012 Bond so affected; or (b) A reduction in the principal amount of any 2012 Bond, the redemption premium, the Reserve Requirement therefor or the rate of interest thereon, or a change in the monetary medium in which such amounts are payable, without the consent of the holder of each 2012 Bond so affected; or (c) The creation of a lien upon or a pledge of the Net Revenues ranking prior to the pledge thereof created by this Ordinance, without the consent of the holders of all 2012B Bonds then outstanding; or - 25 - (d) A preference or priority of any 2012 Bond over any other 2012 Bond, without the consent of the holders of all 2012B Bonds then outstanding; or (e) A reduction in the aggregate principal amount of the 2012B Bonds required for consent to such supplemental ordinance, without the consent of the holders of all 2012B Bonds then outstanding. 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 Record. 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 2012B Bonds. The Registrar shall not, however, be subject to any liability to any owners of the 2012B 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 2012B Bonds of not less than a majority in aggregate principal amount of the 2012B 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 2012B Bonds, whether or not such owners shall have consented thereto. No owner of any 2012 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 Council 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 his 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 2012B Bonds then outstanding shall thereafter be determined, exercised and enforced in accordance with this Ordinance, subject in all respects to such 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 2012B Bonds, and the terms and provisions of the 2012B Bonds and this Ordinance, or any supplemental ordinance, may be modified or amended in any respect with the consent of the City and the consent of the owners of all the 2012B Bonds then outstanding. SECTION 23. Amendments Without Consent of Bondholders. The Council may, from time to time and at any time, and without notice to or consent of the owners of the 2012B Bonds, adopt such ordinances supplemental hereto (which supplemental ordinances shall thereafter form a part hereof): -26 - • (a) To cure any ambiguity or formal defect or omission in this Ordinance or in any supplemental ordinance; (b) To grant to or confer upon the owners of the 2012B Bonds any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the owners of the 2012B Bonds; (c) To procure a rating on the 2012B Bonds from a nationally recognized securities rating agency designated in such supplemental ordinance, if such supplemental ordinance, in the determination of the Council in its sole discretion, will not materially and adversely affect the owners of the 2012B Bonds; (d) To obtain or maintain bond insurance with respect to the 2012B Bonds; (e) To provide for the refunding or advance refunding of the 2012B Bonds; (f) To provide for the issuance of additional bonds as provided in Section 20 hereof; or (g) To make any other change which, in the determination of the Council in its sole discretion, is not to the material prejudice of the owners of the 2012B Bonds. SECTION 24. Tax Matters. In order to preserve the exclusion of interest on the 2012B Bonds from gross income for federal income tax purposes and as an inducement to purchasers of the 2012B 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 2012B Bonds or property financed by the 2012 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 2012 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 2012 Bond proceeds will be loaned to any entity or person other than a state or local governmental unit. No 2012 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 2012 Bond proceeds. (c) The City will not take any action or fail to take any action with respect to the 2012B Bonds that would result in the loss of the exclusion from gross income for federal income tax purposes of interest on the 2012B Bonds pursuant to Section 103 of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder as applicable to the 2012B Bonds, including, without limitation, the taking of such action as is necessary to rebate or cause to be rebated arbitrage profits on 2012 Bond proceeds or other monies treated as 2012 Bond proceeds to the federal government as provided in Section 148 of the Code, and will -27 - 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 2012 Bond is outstanding hereunder which would cause any 2012 Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code and the regulations thereunder as applicable to the 2012B 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 2012B 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 2012B Bonds, has the authority to elect to issue a bond anticipation note or notes, repayable from the proceeds received from the sale of the 2012E 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 Four Million Two Hundred Thousand Dollars ($4,200,000) 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 Waterworks 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 seven (7) days' notice in whole or in part in any authorized denomination without premium or penalty, shall bear interest at a rate not exceeding eight percent (8%) 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 2012B Bonds as the procedures followed before the issuance of the BANs are for all purposes sufficient to authorize the issuance of the 2012B 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 2012B Bonds, and the interest thereon may be paid from such proceeds or from the Net Revenues or a combination thereof, and the proceeds received by the City from the sale of the 2012B 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 -28 - 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 (as defined in Section 24). 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 2012B Bonds. The BANs shall be subject to transfer or exchange in the same manner as the 2012B Bonds, as described in Section 4, and to amendment in the same manner as the 2012B Bonds, as described in Sections 22 and 23. 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. 9651-05 adopted by the Council on January 10, 2005. 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: 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 -29- 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 2012B 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 the Parity 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 or Additional 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 either the Credit Facility or Additional 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 waterworks 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 2012B Bonds or (ii) remedies which would adversely affect the owners of the 2012B Bonds. (b) This Ordinance shall not be discharged and the 2012B Bonds defeased until all Credit Facility Costs owing to the Credit Facility Issuer shall have been paid in full. (c) The Credit Facility Issuer is granted a security interest(subordinate to that of the owners of the 2012B Bonds) in all revenues and collateral pledged as security for the 2012B Bonds, for the repayment of the Credit Facility Costs. • - 30- (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 waterworks 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 2012B Bonds and any Parity Bonds when due, available moneys shall be applied, after payment of all costs and expenses associated therewith, to the 2012B Bonds and any 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 2012B Bonds and any Parity Bonds, including interest on any past due principal of any 2012 Bond or Parity Bond at the rate borne by such 2012 Bond or Parity Bond, 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 2012B Bonds or Parity 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 2012B Bonds and 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. - 31 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 Cotiticil Attest: Signing of th r opportunKy pL 2::,,ci*ing and Council action on this issue, 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. Mayor, City of South Bend,Indiana Hied SBDS02 434813v4 1 I ; 19 201/. 1J READING PUDLIC HEARING JOHN `• 3 rd READING - 32 - C NOT APPROVED REFERRED BARNES&TFIORNBURG LLP 600 1st Source Bank Center 100 North Michigan South Bend,IN 46601-1632 U.S.A. (574)233-1171 Fax(574)237-1125 Philip J.Faccenda,Jr. (574)237-1148 www.btlaw.com philip.faccenda@btlaw.com September 19, 2012 HAND DELIVERED Mr. John Voorde Clerk of the City of South Bend 455 County-City Building 227 West Jefferson Boulevard South Bend, Indiana 46601 Re: City of South Bend, Indiana Waterworks Refunding Revenue Bonds of 2012B Dear Mr. Voorde: Enclosed for filing are multiple copies of the Ordinance for the above-referenced City of South Bend, Indiana Waterworks Refunding Revenue Bonds of 2012B regarding the refunding of prior bonds of the Waterworks of the City of South Bend as described in the Ordinance for first reading before the Common Council on September 24, 2012 and second reading on October 8,2012. Please return a file-stamped copy to my attention. Please call me with any questions you may have. Very truly yours, BARNES & THORNBURG LLP P/tA;e Philip J. Faccenda, Jr. PJFake Enclosures °" cc: Aladean M. DeRose,Esq. (w/enc.) Mark W.Neal (w/enc.) r ra f Edward Herman(w/enc.) 5 s ` ' Gary A. Gilot, P.E. (w/enc.) SBDS02 PFACCENDA 434877v1 • Atlanta Chicago Delaware Indiana Los Angeles Michigan Minneapolis Ohio Washington,D.C. \(-)- .'v � _ - � Bill No. ORDINANCE NO. AN ORDINANCE FIXING MAXIMUM SALARIES AND WAGES OF APPOINTED OFFICERS AND NON-BARGAINING EMPLOYEES OF THE CITY OF SOUTH BEND, INDIANA, FOR THE CALENDAR YEAR 2013 STATEMENT OF PURPOSE AND INTENT This Ordinance sets forth the maximum amounts to be paid to non-bargaining personnel employed by the City of South Bend for the calendar year 2013. Salaries will be paid pursuant to the budget approved by the Common Council. The budgeted number to be paid may be less than the maximum amounts set forth herein. This Ordinance establishes such compensation for approximately all non-bargaining employees by specific position and title. The overall guidelines used in this Ordinance are consistent with the overall negotiating criteria used for all City employees. This Ordinance is in the best interest of the City and the affected non-bargaining employees. NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, as follows: Section I. Maximum Compensation (a) The maximum amounts to be paid as compensation for non-bargaining employees for the City of South Bend, Indiana are hereby established as set forth in the attachment, which is incorporated herein by reference. The amounts set forth are consistent with the recommended procedure of the State Board of Accounts dated March, 1993. Accordingly, salaries are set and paid on a Bi-Weekly basis. Amounts by alphabetical position are set forth as well as the annual salary for each position. Section II. Holidays, Vacations and Other Monetary and Fringe Benefits Incorporated by Reference. (a) Holidays. Holidays designated by the Board of Public Works shall govern non-bargaining employees for the calendar year 2013. The provisions of the City's Personnel Policies and Procedures Manual as it may be amended from time to time shall apply and are incorporated herein by reference. (b) Vacations. Vacation for non-bargaining employees shall be as set forth in the City's Personnel Policies and Procedures Manual as it may be amended from time to time, incorporated herein by reference. (c) Family Leave. The Family and Medical Leave Act Policy is, hereby, incorporated herein by reference in its entirety. (d) Insurance. (1) Comprehensive Major Medical Insurance. The City shall maintain a comprehensive major medical insurance program that all non-bargaining employees may participate in under the rules and guidelines of the plan document. All employees receive a copy of a plan document each year. (2) Short and Long Term Disability. Short and Long Term Disability shall be as forth in the City's Personnel Policies and Procedures Manual, as it may be amended from time to time, which is incorporated herein by reference. (3) Payment for Election to Leave Employer's Comprehensive Major Medical Insurance Program. The City shall pay one hundred and thirty($130) per month ($65 biweekly)to any Employee who elects to leave the City's comprehensive major medical insurance program to be covered by another program for which the City makes no contribution. This election shall not be mandatory, and the Employee who made such election may return to the City's comprehensive major medical Insurance Program, provided that the conditions of the City's Comprehensive Major Medical Insurance Program are met, and the contributions specified herein are made, but in such event said Employee shall forfeit the one hundred and thirty($130)payment per month thereafter. (4) Life Insurance. The City shall provide term life insurance coverage in an amount not less than Fifteen Thousand Dollars ($15,000)for each employee except for Police and Fire which are at set forth in the collective bargaining agreement. Such insurance shall become effective upon the award of a group life insurance bid by the Board of Public Works, or upon the beginning of the plan year, whichever is later. (5) Benefit Waiting Period. The City notes that life insurance, comprehensive major Medical Insurance, and short term disability programs require a minimum of sixty(60)day eligibility period; and that the long-term disability program requires a minimum of a ninety(90)day eligibility period which must be met. (e) Hiring Bonus. The Mayor, may, at his/her discretion, offer a Hiring Bonus to a new employee as an incentive for the employee to accept the position offered. This Bonus will be paid to the employee in addition to the salary set forth in the Salary Ordinance. The range of these monetary bonuses will be from one hundred ($100)to four thousand ($4,000). (f) Police Communication Employees. Employees working in the communications area of the Police Department will be paid stand-by beeper pay as follows: one hour of straight time pay will be paid to one employee to cover each shift each day for the one hour immediately preceding the shift change. (g) Allowances 1. Auto Allowance. At the Mayor's discretion an auto allowance may be offered to city employees in lieu of a City issued car. The allowance may range from one ($1)to five hundred ($500)dollars per month. 2. Cell Phone Allowance. At the Mayor's discretion an allowance for the business portion of an employee's cell phone may be provided to those employees whose position and job responsibilities require the ability to communicate outside of city premises or after normal city working hours. The allowance shall not exceed one-hundred ($100) per month. (h) Early Retirement Incentives. The Mayor shall have discretion to offer an early retirement incentive program that may take the form of a bonus upon retirement for years of service or assistance with health insurance for a retiree who isn't Medicare eligible. Such assistance shall not exceed one (1)year. Any such bonus or assistance must be approved by the Mayor and Controller and are subject to appropriation by the Common Council before any such bonus or assistance may be paid. I.C. 5-10.2-3-1.2 permits employers to purchase one year for every five years of service for employees in PERF covered positions under certain conditions. The Mayor shall have discretion to offer such early retirement incentive program, pursuant to statute, after consultation with the Controller and after appropriation by the Common Council. (I) Other Monetary Fringe Benefits. All other fringe benefits shall be as set forth in the City's Personnel Policies and Procedures Manual as it may be amended from time to time. (j) Definition of Full-Time Employee. Full-time employees are those employees who are not in a part time status and who are regularly scheduled to work the City of South Bend's full-time scheduled, forty(40) hours per week, or a reduced full-time schedule of thirty-two (32) hours or more per week as approved by the Mayor on a voluntary basis. Such employees are eligible for the Employer's Benefits Package subject to the terms and conditions and limitations of each benefit program. (k) Definition of Part-Time Employee. Part-time employees are those employees who are not assigned to a full-time status and who are scheduled to work less than the City of South Bend's full-time schedule, not to exceed one thousand forty(1040) hours per year. While they do receive certain mandated benefits (such as worker's compensation and social security benefits), they are not eligible for other City benefit programs with the exception of the positions listed below: All Attorneys employed in the City Attorney's Office in part-time positions as well as all elected Council members. These positions are eligible for participation in all of the Employer's Benefit Programs. (I) Policies and Procedures. Two (2) copies of the City's Personnel Policies and Procedures Manual and the Family and Medical Leave Act Policy shall be kept on file and made available for public inspection during regular hours in the office of the City Clerk on the 4th Floor of the County- City Building, South Bend, Indiana. Section III. 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(1) bb\ & f m , c � t E ) f », « '3 , © , @G ik2a '' k2 * ® kf � " $ \ E � k © # § 0 ° c = � a £$ # 2( c £ 0. kE2 / 8 as 3 » § $ ) ? 22/ » o k 1 • 0 . 02 L 2 /6 \ % » @a2c . a) cC % # « 0a) 00 .0 [ £ � � \ m . § % k \$ 2 \ oaat , A ® I 0. ¥ 2 � E ; 04 ® 0 © fk/ /] £ [\ 2E ° � C) / ) 22 > / % � »$ 2 $ k // w k k�kk� 0 ®p \ � / CO k � �\ k 9 I CO c e •Z000 o £38 £ k z 22 � 3 � � k 22 / 2 / ! 2 \ — 2 m . 2-\ . . . � ) � § k� / � z - m ■ % % E / * I ! . \ e & _rx { .__. 2 � m 00 I � / • / § § ■ 2k § t [) � � � § \$ ( \ - / $a , , , , , y ! § R . ncv- � . } may ey . .v'-',.„,,,,..:,",.. . . �! — ,...0) } `/ « 0 Tli $S43 $\�Il1i1li(,4:6�- , 1200N COUNTY-CITY BUILDING „\ /��Its PHONE 574.235.9216 � � \ .� do 227 W. JEFFERSON BLVD. PEACE /q� Fax .574.235.9928 SOUTH BEND,INDIANA 46601-1830 ` 4.a2 18655 CITY OF SOUTH BEND PETE BUTTIGIEG,MAYOR DEPARTMENT OF ADMINISTRATION AND FINANCE September 19, 2012 Mr. Derek D. Dieter, President City of South Bend Common Council 227 W. Jefferson Boulevard, 4t1i Floor South Bend, Indiana 46601 RE: 2013 Appointed and Non-bargaining Employees Salary Ordinance Dear President Dieter, Enclosed please find the following information with respect to the appointed and non- bargaining employee salary ordinance for the fiscal year beginning January 1, 2013: • 2013 Salary Ordinance • 2013 Salary Ordinance Wage Schedule I will present these bills to the Common Council at the appropriate committee and council meetings. It is requested that these bills be filed for 1st reading on September 24, 2012 with 2nd reading, public hearing and 3rd reading scheduled for October 8, 2012. Please note that all positions have been fully funded in the 2013 proposed budget at these proposed 2013 salary levels. Thank you for your attention to this request. If you should have any questions,please feel to contact me at 574-235-7500. Regards, "St :ft nix j ......,._...{,j Mark W. Neal City Controller t 1,;.i CC: Pete Buttigieg Mayors M u CLEk iaMit% Mike Schmuhl, Chief of Staff Kathryn Roos, Deputy Chief of Staff Aladean DeRose, Interim City Attorney Janice Hall, Human Resources Director John Murphy, Deputy City Controller kt 6 . BILL NO. ORDINANCE NO. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, SETTING THE ANNUAL SALARY FOR THE MAYOR FOR THE CALENDAR YEAR 2013 STATEMENT OF PURPOSE AND INTENT Pursuant to Indiana Code 36-4-7-2, the City's legislative body is required to fix the annual compensation of all elected officers. Such compensation may "not be changed in the year for which it is fixed, nor may it be reduced below the amount fixed for the previous year." The following Ordinance establishes the annual compensation for Mayor of the City of South Bend in calendar year 2013. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, as follows: Section I. The annual compensation for the Mayor of the City of South Bend in calendar year 2013 shall be and hereby is established at$100,431.00. Section II. This ordinance shall be in full force and effect from and after its passage by the Common Council, approval by the Mayor and any publication required by neftA-1- 6. 0 t jciA. Member, South Bend Common Council Attest: L City Clerk Gil lit,WOO Presented by me to the Mayor of the City of South Bend, Indiana, on the day of , 2012, at o'clock . m. Deputy City Clerk Approved and signed by me on the day of , 2012, at o'clock . m. Mayor, City of South Bend, Indiana Pike. 1st RtADlNG ``2-y'1Z. -'k; i� � , sl; 1 PUBLIC HEARING 3 rd READING f NOT APPROVED i.. :� REFERRED PASSED 1200N COUNTY-CITY BUILDJNG I ' ti\��� /�j PHONE 574/235-9216 227 W JEFFERSON BLVD. ' C J W �rFecF ji'� Fax 5741235 9928 SOUTH BEND,INDIANA 46601-1830 p 411. /865 CITY OF SOUTH BEND PETE BUTTIGIEG,MAYOR DEPARTMENT OF ADMINISTRATION AND FINANCE September 19, 2012 Derek Dieter, President South Bend Common Council County-City Building 227 W. Jefferson Blvd., 4th Floor South Bend, IN 46601 Re: Ordinance Fixing the Salary for the Mayor of South Bend for the fiscal year commencing on January 1, 2013 and ending December 31, 2013 Dear Council President Dieter: Attached herewith please find a bill for consideration by the Common Council of the City of South Bend fixing the annual salary compensation for the Mayor of the City of South Bend for the fiscal year commencing on January 1, 2013 and ending December 31, 2013. The compensation represents a 2% increase from the 2012 salary ordinance amount. Please note that Mayor Buttigieg plans to forgo this pay increase and donate$4,017 (4%) of his salary back to the General Fund. This bill is respectively submitted for 1St read filing with Common Council for the council meeting scheduled September 24, 2012; 2"d read and public hearing; 31'd read and council vote at the October 8, 2012 Common Council meeting. This bill will be presented to the Common Council by the Mayor and Controller as required at the appropriate sessions of the Personnel and Finance Committee and at the public hearing. Sincerely, Mark W. Neal - N._..._... _ City Controller c: Pete Buttigieg, Mayor { :: ., Mike Schmuhl, Chief of Staff sf•Roos, Deputy 4 Kathyrn eputy Chief of Staff � Aladean DeRose, Interim City Attorney t -y �ew+mbua_W. 1 3 vE.F 0-x;,7 RESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, APPROVING A PETITION OF THE AREA BOARD OF ZONING APPEALS OF ST. JOSEPH COUNTY,INDIANA FOR THE PROPERTIES LOCATED AT (1307 AND 1311 HICKORY ROAD, SOUTH BEND,INDIANA) 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 Area Board of Zoning Appeals of St. Joseph County, Indiana, for approval or disapproval; and WHEREAS, the Common Council must take action within sixty (60) days after the Area Board of Zoning Appeals of St. Joseph County, Indiana, makes its recommendation to the Council pursuant to I.C. 36-7-4-918.6; 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 Area Board of Zoning Appeals of St. Joseph County, Indiana, 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 Area Board of Zoning Appeals of St. Joseph County, Indiana, pursuant to Indiana Code Section 5-14-1.5-5,requesting that a Special Exception be granted for the properties located at: (1307 AND 1311 HICKORY ROAD, SOUTH BEND,INDIANA) in order to permit: The Approval of a Special Exception to allow for off-site parking lot for properties located at 1307 and 1311 Hickory Road, South Bend, Indiana per Section 21-03.02 (2)(D) of the City of South Bend Zoning Ordinance to allow for an Accessory Use(Off-site Parking). 2 SECTION II. Following a presentation by the Petitioner, and after proper public hearing,the Common Council hereby approves the petition of the Area Board of Zoning Appeals of St. Joseph County, Indiana, 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 finds 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; all of which is requested by the South Bend Municipal Code§ 21-09.03 (i). SECTION IV. Approval is subject to the Petitioner complying with the reasonable conditions established by the Area Board of Zoning Appeals of St. Joseph County, Indiana, 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. Member of the Common Council Filed In o w.m -Office n 13 LW PRESENTED CITY CLERK,SOUTH SEND,IN AREA BOARD OF ZONING APPEALS OF ST. JOSEPH COUNTY, INDIANA NO. FILED , 20 NOTIFIED , 20 HEARING , 20 • APPEAL Applicant's Name(s) : TM Investment Corp. Taddeo Holdings C/O Uniconr Management 623 East La Salle Street P.O. Box 8195 South Bend, Indiana 46617 South Bend, Indiana 46660 Address of Properties: PARCEL "A": 1307 & 1311 HICKORY ROAD, SOUTH BEND, INDIANA 46615 Present Zoning of Properties: SF1" SINGLE FAMILY AND TWO FAMILY RESIDENTIAL DISTRICT Counsel or Consultant:DANCH, HARNER & ASSOCIATES, INC. Phone 234-4003 Address: 1643 COMMERCE DRIVE, SOUTH BEND, INDIANA 46628 TO THE AREA BOARD OF ZONING APPEALS OF ST. JOSEPH COUNTY, INDIANA Appeal is hereby taken from the decision of the Building Commissioner in the matter of erecting, occupying, building, addition at 1307 & 1311 Hickory Road, South Bend, Indiana 46615 NATURE OF APPEAL: SPECIAL EXCEPTION USE: 1) . Approval of a Special Exception Use as allowed under Section 21-03.02 (2) (D) of the City of South Bend Zoning Ordinance to allow for an Accessory Use (Off-site Parking) ; REQUESTED VARIANCES: 1) . A Variance from the 25-Foot Front-yard setback along Hickory Road (East property line) to a minimum of 15 feet for a proposed parking area; 2 2) . A Variance from the required 20 ft. Side Yard Setback for non-residential uses along the South property line to a minimum of 15 feet and from the required 20 ft. Side Yard Setback for non-residential uses along the North property line to a minimum of 0 feet. 3) . A Variance from the requirement of providing a screening hedge of plants along the south 20 ft. wide Side Residential Bufferyard of the proposed parking area consisting of shrubs 3 ft. on-center along the length of the parking area to no additional screening. The Petitioners are the owners of the real estate parcels shown on the attached site plan and as shown in the records of the St. Joseph County, Indiana Auditor's office. The Petitioners have been approached by an adjacent owner, who desires to purchase the real estate shown on the attached site plan. That owner would like to take a portion of the front of the property and create an additional parking area that would be used by their employees and for their patrons who use the adjacent commercial center located at the Southwest corner of Hickory road and Edison Road. The Petitioners representatives have had discussions with the Building Department and Area Plan Commission staffs concerning this project. Based on those discussions it decided that the best option was to request a Special Exception Use for the proposed parking area as permitted under the "SF1" single family and Two Family Residential Zoning District classification. This approach would allow for the parking area and also allow for the two existing single-family homes to remain. Those two homes are presently occupied. The Petitioners and contingent purchaser would like to have those homes remain for the present time. Based on the proposed layout of the parking area, a few variances are required to be approved. These variances would allow for the proposed parking to be in line with the adjacent parking on the commercial center property and would allow for an interior access driveway to connect the parking areas together. This would help to reduce the number of driveway openings onto Hickory Road. Based on the proposed plan the Petitioners would ask for the following Special Exception Use and Variances: The Petitioners are asking for approval of a Special Exception Use for Parcel "A" shown on the attached site plan, which is proposed for off-site parking for the adjacent commercial center located north of the petition site. The request for approval of the Special Exception Use is due to the fact that these properties are presently zoned "SF1" Single family and Two Family Residential District. The Ordinance states that parking lots are allowed on such property if approved as a Special Exception Use. This would also keep the property zoned as "SF1" instead of changing the zoning to a more intense use classification. More 3 specifically, the Petitioners are requesting that Parcel "A" be approved as a Special Exception Use as allowed under Section 21- 03.02 (2) (D) of the City of South Bend Zoning Ordinance to allow for an Accessory Use (Off-site Parking) . The Petitioners and the contingent purchasers would ask the Board Members to agree that approval of the Special Exception Use to allow for off-site parking lot for the adjacent commercial center, would not be injurious to the public health, safety, comfort, community moral standards, convenience or general welfare, or injure or adversely affect the use of the adjacent area or property values therein, and that the proposed use will be consistent with the character of the district in which it is located and the land uses authorized therein, and that the proposed use is compatible with the recommendations of the City of South Bend Comprehensive plan, all of which is requested by the South Bend Municipal Code § 21-09.03 (i) . The Petitioners believe that approval of the above Special Exception Use for the proposed parking area will not be detrimental to adjacent properties, nor will it adversely affect the surrounding property values. Concerning the required Variances, the Petitioners would request a Variance from the 25-Foot Front-yard setback along Hickory Road (East property line) to a minimum of 15 feet for a proposed parking area. This request is to allow for the parking to be in line with the adjacent parking to the north. As shown the parking area would be screened from Hickory Road as required by the City's Zoning Ordinance. The Petitioners do not believe approval of this Variance would be detrimental to any surrounding property. The second Variance request is from the required 20 ft. Side Yard Setback for non-residential uses along the South property line to a minimum of 15 feet and from the required 20 ft. Side Yard Setback for non-residential uses along the North property line to a minimum of 0 feet. The Petitioners are asking to be allowed to place the access driveway and one parking space into the side yard setback area along the south boundary. This location allows for the efficient layout of spaces and maximizes the distance between driveway openings. The Petitioners will still place evergreen screening as required per the City's Zoning Ordinances along the south property line adjacent to the vacant property. The Petitioners would state that the land use in this area is changing and the property to the south will most likely become either an office and smaller retail use. The properties on the east side of Hickory in the City of Mishawaka already have a zoning classification of C-1 Commercial for retail use and C-6 Commercial for office uses. The Petitioners do not believe approval of this Variance would be detrimental to any surrounding property. 4 The last Variance request is from the requirement of providing a screening hedge of plants along the south 20 ft. wide Side Residential Bufferyard of the proposed parking area consisting of shrubs 3 ft. on-center along the length of the parking area to no additional screening. The request for this variance is due to the fact that the Petitioners plan to provide an evergreen screen along the entire south side of the proposed parking area as shown. The Ordinance would require an additional screen of small shrubs behind the proposed evergreen screen which would not be needed to provide a visual buffer between the parking area and the adjacent property. The petitioners would not to be required to have two screening buffers in the same area. The Petitioners do not believe approval of this variance would adversely affect any surrounding property. The Petitioners and contingent purchasers would ask the Board Members to agree that approval of the above described Variances and the Special Exception Use will not have a detrimental affect for this area, nor would the property values, public's health, safety, morals, or general welfare be adversely affected. The Petitioners contends that the strict application of the terms of the Zoning ordinance will constitute an unusual and unnecessary hardship as applied to the property for which the Variances and the Special Exception Use are sought: that the need for the Variances and the Special Exception Use arises from such condition peculiar to the property in the same Zone: and that the use or value of the area adjacent to the property described in the petition for the Variances and Special Exception Use will not be injurious to the public health, Safety, morals, or general welfare of the community. I attest, under the penalties for perjury, that the foregoing representations are true. _4 -, Michael J. Danch President Danch, Harner & Associates, Inc. • RESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, APPROVING A PETITION OF THE AREA BOARD OF ZONING APPEALS OF ST.JOSEPH COUNTY,INDIANA FOR THE PROPERTIES LOCATED AT (1307 AND 1311 HICKORY ROAD,SOUTH BEND,INDIANA) 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 Area Board of Zoning Appeals of St. Joseph County, Indiana, for approval or disapproval; and WHEREAS, the Common Council must take action within sixty(60) days after the Area Board of Zoning Appeals of St. Joseph County, Indiana, makes its recommendation to the Council pursuant to I.C. 36-7-4-918.6; 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 Area Board of Zoning Appeals of St. Joseph County, Indiana, 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 Area Board of Zoning Appeals of St. Joseph County, Indiana, pursuant to Indiana Code Section 5-14-1.5-5, requesting that a Special Exception be granted for the properties located at: (1307 AND 1311 HICKORY ROAD, SOUTH BEND,INDIANA) in order to permit: The Approval of a Special Exception to allow for off-site parking lot for properties located at 1307 and 1311 Hickory Road, South Bend, Indiana per Section 21-03.02 (2)(D) of the City of South Bend Zoning Ordinance to allow for an Accessory Use(Off-site Parking). 2 SECTION II. Following a presentation by the Petitioner, and after proper public hearing,the Common Council hereby approves the petition of the Area Board of Zoning Appeals of St. Joseph County, Indiana, 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 finds 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; all of which is requested by the South Bend Municipal Code§ 21-09.03 (i). SECTION IV. Approval is subject to the Petitioner complying with the reasonable conditions established by the Area Board of Zoning Appeals of St.Joseph County,Indiana, 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. Member of the Common Council Filed an Clerk's Office r-----1AUG 13 2012 JONN CITY CLERK,sOuTN BEND,IN Property Owners Within 300 Feet Rogelio Guzman Owen & Barbara Lamarche Paula Frye 2239 Cromwell Cir 3514 Hickory Rd 1243 Ebeling Dr Austin, TX. 78741 Mishawaka, IN. 46545 South Bend, iN. 46615 Tax Key#018 5187 7197 Tax Key#027 1069 1588 Tax Key#018 5187 7217 Miguel&Jaqueline Torres Latricia May Harley& Elizabeth Sargent 1334 Ebeling 3505 Rexford Dr 17500 Arbor Dr South Bend, IN.46615 South Bend, IN. 46615 South Bend, iN. 46635 Tax Key#018 5187 7203 Tax Key#018 5187 7193 Tax Key#018 518.7 7220 Richard &Patricia Dukeshire RL Jr. & Sharon Conway Richard & Patricia Dukeshier 30711 CR 16 3623 Rexford Dr 30711 CR 16 Elkhart, IN. 46516 South Bend, IN. 46615 Elkhart, IN. 46516 Tax Key#018 5187 7199 Tax Key#018 5187 7186 Tax Key#018 5187 7194 Sara Marvin Community Wide Federal Credit Saybani Al Alia 1307 Ebeling Dr Union 1246 Ebeling South Bend, IN 46615 1555 W Western Ave South Bend, IN. 46615 Tax Key#018 5187 7213 South Bend, IN. 46619 Tax Key#018 5187 7195 Tax KPV it 027 1 f1R9 1585f11 Susan Mathews Gary&Juanita Donaldson Kathy Niblick PO Box 6894 3513 Rexford Dr 3519 Rexford Dr South Bend, IN. 46660 South Bend, IN. 46615 South Bend, IN.46615 Tax Key#01851877218 Tax Key#01851877192 Tax Key#01851877191 Randall Yoho James& Mary Lee Spencer Mary Margaret Neenan 3525 Rexford 3605 Rexford Dr 18506 Spring Mist Crt South Bend, IN. 46614 South Bend, IN. 46615 South Bend, IN. 46617 Tax Key#018 5187 7190 Tax Key#018 5187 7189 Tax Key#018 5187 7188 Nancy Remke Community Wide Federal Credit Community Wide Federal Credit 3617 Rexford Dr Union Union South Bend, IN.46615 1555 W Western Ave 1555 W Western Ave Tax Key#018 5187 7187 South Bend, IN. 46619 South Bend, IN. 46619 Tax KPV it 027 10Ag 1587 Tax KPV it f127 1(18P 1588 Owen E Jr.&Owen Sr.&Edith Sessler Dale& Marcia Kokot Yvonne McCaige Edith Mae Shewchuk 15347 Roscommon Ln 1249 Ebeling 1245 N Hickory Granger, IN. 46530 South Bend, IN. 46615 South Bend, IN.46615 Tax Key#018 8187 7221 Tax Key#018 5187 7216 rax KPV it MR 5201 772R )aniel&Sharon Harman Taddeo Holdings LLC Taddeo Holdings LLC 556 N Oakland Av 623 E LaSalle 623 E LaSalle Jlishawaka, IN. 46544 South Bend, IN. 46617 South Bend, IN. 46617 rax Key#018 5201 7724 Tax Key#018 5201 7724 Tax Key*018 5201 7725 TM Investments Corp. Miriam Lopez&Gustavo Quijada Robert& Earnestine Ellis PO Box 8195 1322.Ebeling 1252 Helmen South Bend, IN. 46660 South Bend, IN. 46615 South Bend, IN. 46615 Tax Key#018 5201 7723 Tax Key#018 5187 7201 Tax Key#018 5187 7222 Michael Genetti 1255 Ebeling Land Trust Trisha Metz PO Box 311161 117 1/2 N Main St 1304 Helmen Dr Saint Louis, MO. 63131 South Bend, IN. 46601 South Bend, IN. 46615 Tax Key#018 5187 7196 Tax Key#018 5187 7215 Tax Key#018 5187 7223 Michael& Edith Mathis Andrea &Troy Ross Patricia Barrera 53222 Martin Ln 1308 Helmen 1313 Ebeling Dr South Bned, iN. 46635 South Bend, IN. 46615 South Bend, IN. 46615 Tax Key#018 5187 7198 Tax Key#018 5187 7224 Tax Key#018 5187 7212 William Enriqueta Cano&Virginia Claire Etter Sharon Marvin Gilreath 1312 Helmen Dr 1316 Ebeling Dr 1301 Ebeling South Bend, IN. 46615 South Bend, IN. 46615 South Bend, IN. 46615 Tax Key#018 5187 7225 Tax Key#018 5187 7200 Tax Kav#111R 51R7 7214 Johnnie Williams Phillipe Gary Raczka Marcia Kokot Kovas & Dale Kokot 1328 Ebeling Dr 1316 Helmen 15347 Roscommon Ln South Bend, IN. 46615 South Bend, IN. 46615 Granger, IN. 46530 Tax Key#018 5187 7202 Tax Key#018 5187 7226 Tax Key#018 5187 7211 William Blauvelt William Blauvelt Housing Authority of South Bend 17631 Cobblestone Court 17631 Cobblestone Court 501 S Scott South Bend, IN. 46635 South Bend, IN. 46635 South Bend, IN. 46601 Tax Key#018 5187 7210 Tax Key#018 5187 7209 Tax Key#018 5200 7708 Seneff Hickory Plaza LLC MJ Investments LLC Timothy& Donna Jean Benedict 1635 E Main St 2400 Miracle Lane 1925 Westwood Circle Waukesha, WI. 53186 Mishawaka, IN. 46545 Mishawaka, IN. 46545 Tax Key#018 5200 7715 Tax Key#027 1001 060503 Tax Key#027 1001 060501 Rans Real Estate LLC 54401 26th St South Bend, IN. 46635 Tax Key#0271069 1581 AREA BOARD OF ZONING APPEALS 125 S. Lafayette Blvd. Suite 100 South Bend, Indiana 46601 (574) 235-9554 FAX: (574) 235-5541 September 6,2012 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 T M Investment Corp. ABZA 9/5/12 Dear Council Members: The above referenced petition of T M Investment Corp. was legally advertised on August 16,2012. The Area Board of Zoning Appeals gave it a public hearing on September 5, 2012, at which time the following action was taken: Upon a motion by Mr. Velleman, being seconded by Mr. Hawley and unanimously carried, the petition for Special Exception to allow an off site parking lot in a"SF1"District,on property located at 1307& 1311 Hickory Road, 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 Mark A. Lyons Assistant Zoning Administrator MAL/cah • SPECIAL EXCEPTION PURSUANT 21-09.3(D) • AREA BOARD OF ZONING APPEALS T. NI. INVESTMENT CORP. 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 its 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 5TH Day of SEPTEMBER,2012. YES NO MICHAEL URBANSKI ABSENT RANDALL MATTHYS © JACK YOUNG GERALD PHIPPS ROBERT HAWLEY JOE VELLEMAN BRENDAN CRUMLISH )10 , RESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, APPROVING A PETITION OF THE AREA BOARD OF ZONING APPEALS FOR THE PROPERTY LOCATED AT WEST OF AND ADJACENT TO 1441 N. MICHIGAN STREET SOUTH BEND, INDIANA 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 Area 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 Area 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 west of and adjacent to 1441 N. Michigan Street, South Bend, Indiana, in order to permit the continued use of such property as off-street parking serving the building and athletic fields adjacent to such property. SECTION II. Following a presentation by the Petitioner, and after proper public hearing, the Common Council hereby approves the petition of the Area 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 finds 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; and 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 Area Board of Zoning Appeals, if any, 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. Member of the Common Council Filed in 64-, ;office SBDS02433890v1M•'? ° ZO1 JOHN f'.f au1"1Ti3 CITY CLERK,SOUTH 9 SEND,IN 1031' APPROVEll CD BARNES&THOR BURG LLP 600 1st Source Bank Center 100 North Michigan South Bend,IN 46601-1632 U.S.A. (574)233-1171 Richard J.Deahl Fax(574)237-1125 (574)237-1240 www.btlaw.com richard.deahl@btlaw.com August 13, 2012 VIA HAND DELIVERY Area Board of Zoning Appeals of St. Joseph County, Indiana 125 S. Lafayette Blvd., Ste. 100 South Bend, Indiana 46601 • Attn: Carolyn A. Henry,Executive Secretary RE: Saint Joseph High School(Existing Site) Petition for Special Exception Use for Off-Street Parking(South Bend) Dear Ms. Henry: We are pleased to submit this letter as a "Petition for Special Exception" on behalf of University of Notre Dame du Lac ("Notre Dame") and Brothers of Holy Cross, Inc. ("BHC") to be considered by the Area Board of Zoning Appeals (the "Board"). This Petition is filed to request the Board's favorable recommendation for approval of a "special exception"to allow the existing off-street parking area (located West of the existing Saint Joseph High School building) to continue to serve the building and adjacent athletic fields in the event any portion of such property is rezoned from"R" Single Family to the "U"University zoning district. The location and continued use of the subject property as off-street parking is permitted as a "special exception" within the "U" Zoning District under Section 21-07.04 of the Zoning Ordinance of the City of South Bend (the "Zoning Ordinance"). The following information is provided in accordance with Section 21-09.03 of the Zoning Ordinance and the Board's filing instructions: 1. INFORMATION REGARDING PETITION. a. Identification of Petitioner. The petitioners' names, addresses and telephone numbers are: University of Notre Dame du Lac do Richard J. Deahl Barnes& Thornburg LLP 100 N. Michigan Street, 6`"Floor South Bend, Indiana 46601 Atlanta Chicago Delaware Indiana Los Angeles Michigan Minneapolis Ohio Washington,D.C. Area Board of Zoning Appeals of St. Joseph County August 13, 2012 Page 2 Telephone: (574)233-1171 Brothers of Holy Cross, Inc. c/o Richard A. Nussbaum Sopko, Nussbaum, Inabnit&Kaczmarek 210 South Michigan Street 5th Floor, Plaza Building South Bend, IN 46601 (574)234-3000 b. Location of Property. The subject property consists of approximately 1.20+/- acres of parking area within the corporate limits of the City of South Bend, generally located west of/adjacent to the existing Saint Joseph High School building (the "Parking Area"). The legal description and a general depiction of the Parking Area are attached hereto as Exhibit A. c. Statement of Request. In connection with the relocation of Saint Joseph High School from its existing site on the corner of State Road 933 and Angela Boulard ("Existing Site") to a newly constructed high school facility in South Bend, the petitioners are (1) purchasing the remainder of the Existing Site from the Diocese of Fort Wayne-South Bend, Inc. ("Diocese"), and (2) together with the Diocese, seeking approval from the Area Plan Commission of St. Joseph County and Common Council of the City of South Bend, to rezone the Existing Site (including the Parking Area) to the "U" University zoning district (the "Rezoning"). The petitioners respectfully submit this Petition(and a proposed Ordinance to the Common Council of the City of South Bend)to enable the Parking Area to continue to be used as off-street parking to serve their uses of the building and athletic fields from and after any Rezoning. Notre Dame currently anticipates that its use of the existing building would be far less intense (i.e., far fewer occupants) than the historic use as a high school, as it contemplates using a portion as "flex" administrative offices and/or classes (to accommodate the temporary relocation of offices and/or classes from its primary campus to the building during periods of construction on its main campus), a portion for storage and, potentially, a small portion for limited research activities. BHC currently anticipates that its athletic fields may be used from time to time by students of Holy Cross College for intramural activities. The petitioners desire to share the Parking Area to serve their needs and have agreed to terms and conditions of a certain General Access and Parking Easement Agreement ("Parking Agreement") regarding their shared use and maintenance of the Parking Area. A copy of the Parking Agreement is attached hereto as Exhibit B. d. Standards for Special Exception Use. The relevant items identified in Section 21-09.03 of the Zoning Ordinance are addressed as follows: (1) As noted above, this petition is filed to seek permission for the Parking Area to continue to be used, as it has in the past, to serve the building and athletic fields at the former Saint Joseph High School BARNES&THORNBURG LLP Area Board of Zoning Appeals of St. Joseph County August 13, 2012 Page 3 property. Use of this Parking Area will enable the petitioners as well as their employees, guests and/or invitees to safely access and utilize the Existing Site and will not be injurious to public health, safety, comfort, community standards or convenience. (2) The Parking Area has been historically used as parking and its use will not change. However, the petitioners currently anticipate that the intensity/utilization and traffic (ingress/egress and parking) at the Existing Site will be far less than when the Parking Area was used as parking for teachers, employees and students of Saint Joseph's High School. The continued use of this Parking Area for parking serving the Existing Site is compatible with the paved access and adjacent on-site parking areas, as well as compatible with the immediate area, and not adversely impact the use or values of any other property. (3) The Parking Area has historically been used for parking. It is intended that the Parking Area (as well as the Existing Site), from and after any Rezoning, would be used to serve the adjacent land and building which will be used for university related purposes. This use is consistent with the character of the University's zoning district and other land uses authorized therein, and not conflict with the Comprehensive Plan of the City of South Bend. e. Persons Representing Petitioner. The information regarding Petitioners' representatives are: Richard J. Deahl Barnes & Thornburg LLP 100 N. Michigan Street, 6th Floor South Bend, Indiana 46601 Telephone: (574) 233-1171 Richard A. Nussbaum Sopko,Nussbaum, Inabnit& Kaczmarek 210 South Michigan Street 5th Floor, Plaza Building South Bend, IN 46601 (574)234-3000 f. Zoning Classification. The Parking Area is currently zoned "SF-2" Single Family and Two Family Distrcit, is located within Portage Township, City of South Bend, Indiana and is subject to a Petition for Rezoning seeking a rezoning of the same to "U"University. BARNES&THORNBURG LLP Area Board of Zoning Appeals of St. Joseph County August 13, 2012 Page 4 2. SITE PLAN. We are pleased to enclose with Letter Petition a survey/site plan detailing the boundaries of the Parking Area and property lines (as well as adjacent building structures)attached as Exhibit C. 3. PROPERTY WITHIN 300 FEET. We are pleased to also attach, at Exhibit D, an aerial view of all properties within 300' feet of the Parking Area and list of the names and addresses of all owners of property located within such 300 foot area. The petitioners kindly requests the Board's favorable recommendation to the Common Council of the City of South Bend to approve the special exception requested herein. Such approval will permit the continued use of the Parking Area to serve the site. Please feel welcome to contact me directly at (574) 237-1240 if you would like any additional information or would like to discuss this Petition in more detail. Very truly yours, B S &THORNBURG ` L 4�...i. 112--a^- Richard J. Deahl RJD'sr cc: Richard A. Nussbaum Enclosures: EXHIBIT A: Legal Description of Property EXHIBIT B: General Access and Parking Easement Agreement EXHIBIT C: Survey of Parking Area EXHIBIT D: Aerial View and List of Property Owners (300' Search) SBDS02 433887v1 BARNES&THORNBURG LLP EXHIBIT A LEGAL DESCRIPTION OF PARKING AREA (WITHIN CORPORATE LIMITS OF CITY OF SOUTH BEND) That Part of the Southwest Quarter of Section 36, Township 38 North, Range 2 East, Portage Township, St. Joseph County, Indiana which is described as: Beginning at a point that is North 69°52'17" East, 147.42 feet and North 89°41'49" East, 28.06 feet from the Southwest corner of said Section 36; thence North 89°41'49" East, 499.59 feet; thence North 00°4626" West, 638.08 Feet; thence South 89°41'49" West, 3.34 feet; thence South 00°35'46" East, 325.59 feet; thence South 89°42'46" West, 255.46 feet; thence South 27°30'49" West, 62.01 feet; thence South 32°29'12" East, 40.88 feet; thence South 00°18'11" East, 223.14 feet; thence North 89°41'49" East, 121.72 feet to the point of beginning and a forty (40) foot wide parcel of ground described as beginning at a point of the North line of Angela Blvd. North 89°41'49" East 28.06 feet and North 69°52'17" East 147.42 feet and. North 89°41'49" East 499.59 feet from the Southwest corner of Section 36; thence North 00°46'26" East 638.08 feet; thence North 89°41'49" East 40.00 feet; thence South 00°46'26" West 638.08 feet to the North line of Angela Blvd; thence South 89°41'49" West along said North line 40.00 feet to the point of beginning; excluding that portion of the above- referenced property located outside of the corporation limits of the City of South Bend. • RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Mr. Gregory P. Hakanen Director of Asset Management&Real Estate Development University of Notre Dame 910 Flanner Hall Notre Dame IN 46556-5611 SPACE ABOVE THIS LINE RESERVED FOR RECORDERS USE GENERAL ACCESS AND PARKING EASEMENT AGREEMENT THIS GENERAL ACCESS AND PARKING EASEMENT AGREEMENT (this "Agreement") is made and entered into effective as of the day.of ,201 ,by and between the BROTHERS OF HOLY CROSS, INC., an Indiana non-profit corporation (the "BHC") and UNIVERSITY OF NOTRE DAME DU LAC, an Indiana non-profit corporation ("ND"). In this Agreement, the BHC and ND are referred to together as the"Parties". Background A. The DIOCESE OF FORT WAYNE-SOUTH BEND, INC., an Indiana non-profit corporation (the "Diocese"), owns certain parcels of real estate including (i) approximately 5.6+/- acres of land located on the Northwest corner of State Route 933 and Angela Boulevard, together with improvements thereon generally known as Saint Joseph's High School as more particularly described on Exhibit A attached hereto (the"School Parcel"), and (ii) approximately 14 acres of land and certain parking and other improvements located West of the School Parcel as more particularly described on Exhibit B attached hereto (the "Back 14 Acres"),which is also West of an approximately 40 foot wide strip of property (containing approximately .59 acres) owned by the BHC extending North-South, along the western side of the School Parcel (the "Access Strip"). B. Each of the Diocese and BHC, as a grantor has created certain easements benefitting or encumbering the School Parcel, Back 14 Acres or Access Strip, including easements, rights and obligations created by (i) BHC under Instrument No. 9630308 entitled "Corrective Grant of Easement" recorded with the Office of the St. Joseph County Recorder ("Recorder") involving the Access Strip (the "Existing Access Easement"), and (ii)BHC and the Diocese under Instrument Nos. 9630309 and 9630310, respectively (together, the "Former Easements"), recorded with the Recorder, both of which automatically terminate by their terms upon the transfer of the Back 14 Acres. C. The Diocese is a party to two (2) separate Real Estate Purchase Agreements entered into with (i) BHC, pursuant to which the Diocese agreed to sell, and BI-IC agreed to purchase, the Back 14 Acres (the "BHC Agreement"), and (ii) ND, pursuant to which the GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 1 • Diocese agreed to sell, and ND agreed to purchase,the School Parcel (the"ND Agreement," and • together with the BHC Agreement, the "Purchase Agreements"). D. The Parties have agreed that, as of the date the transactions contemplated in the Purchase Agreements close (which closings are to occur on the same date, which date shall be the "Effective Date"herein), BHC as the fee owner of the Back 14 Acres (the "Grantor")would grant for the benefit of the School Parcel, certain access and parking rights (subject to obligations), including (i) ingress/egress rights over the area described on Exhibit C attached hereto (the "Access Easement Area"), and (ii) ingress/egress and parking rights over the area described on Exhibit D attached hereto(the"Parking Easement Area"). E. The Parties enter into this Agreement to memorialize the grant of rights and obligations with respect to the continued and future use of the Access Easement Area and Parking Easement Area. NOW, THEREFORE, in consideration of the background provisions, the mutual covenants contained herein and for other good and valuable consideration, the Parties agree as follows: 1. Background. The background provisions above are incorporated into the body of this Agreement as if fully set forth herein. The Parties agree (a) upon execution by both Parties, this Agreement and Deed (as defined in Section 3 below) shall be submitted to and held by Meridian Title Corporation, 202 S. Michigan Street, Suite 300, South Bend, Indiana 46601 (the "Title Company")pending the transfers of property under the Purchase Agreements, (b)the Title Company is fully authorized to date this Agreement and Deed as of the Effective Date, and (c) the Title Company shall record this Agreement and Deed with the Office of the Recorder only on or after the Effective Date. 2. Access Easement. As of the Effective Date, the rights, obligations and encumbrances created under Instrument No. 9630308 shall terminate. Specifically, as of the Effective Date, the Grantor conveys to the owner of the School Parcel ("Grantee") and its successors and assigns,a permanent and non-exclusive ingress,egress and use easement over the Access Easement Area for the benefit of the School Parcel, to allow unrestricted pedestrian and vehicular access onto, from and between the School Parcel, the Parking Easement Area and any adjoining public rights of way for use by Grantee, its students, employees, agents, licensees and invitees(the"Access Easement"). With respect to the Access Easement Area: (a) Private Drive. Except as otherwise provided herein, until such time as either (i) the asphalt private driveway located within the Access Easement Area (the "Private Driveway") is connected to a newly constructed, paved private driveway located North of the Access Easement Area by, or with the permission of BHC, to serve as another access route to property owned by BHC and/or Holy Cross College, Inc. ("HCC"), (ii) a new building improvement is constructed within the Back 14 Acres to be served by the Private Driveway, or(iii) the Grantor widens the Private Driveway to more than twenty (20) feet in width (with such earliest date being the "Expanded Use Date"); the Grantee, at its own expense, shall keep in good structural repair and generally maintain (including snow removal) the entire Private Driveway (the "Maintenance GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 2 Obligations") extending in a general North-South direction the total length of the Access Easement Area. From and after the Expanded Use Date, Grantor and Grantee shall share equally (or in such other proportion as the Parties may then agree based on their respective use of the Private Driveway) the Maintenance Obligations for the continued maintenance and repair of the Private Driveway. • (b) Use. The Private Driveway and any related access cut connecting the same to Angela Boulevard, shall be dedicated to the sole use of Grantor and Grantee, their successors and assigns and their respective students, agents, employees and invitees, including without limitation, the students, agents, employees, invitees and affiliates of Grantor and HCC. The foregoing Access Easement is also conveyed for the benefit of, and granted in favor of, all police, fire protection, ambulance, delivery vehicles, and all similar persons to enter upon the Access Easement Area in the performance of their duties. The Grantor and Grantee agree to meet to discuss and attempt, in good faith, to resolve any traffic control matter raised by either party related to their respective use of the Private Driveway. (c) Parking within Access Easement Area. Grantor agrees that all parking spaces currently located within the Access Easement Area shall be designated for the exclusive use by Grantee(and its employees,students, licensees and invitees) to serve the parking needs of the School Parcel until both (i) the Expanded Use Date is realized, and (ii) Grantor gives notice that such parking rights within the Access Easement Area terminate (or the parking spaces which are fully or partially within such area are otherwise removed as part of the widening or improvements made within the Access Easement Area). (d) Expansion by Grantor or Grantee. In the event either Grantor or Grantee desires to widen the Private Driveway to more than twenty(20)feet in width or otherwise realign and further improve the Private Driveway within the Access Easement Area, such Party shall be allowed, at its sole cost and expense, to construct such additional driveway area within the Access Easement Area for use as permitted hereunder and, thereafter, such additional/realigned driveway area shall be made part of and incorporated in the Access Easement without further action by the Parties. The Parties agree, however, that the construction of any such improvements (i) by Grantee shall be subject to the prior approval of Grantor which shall not be unreasonably withheld, and (ii) by Grantor(when Grantee is solely responsible for Maintenance Obligations) will not involve the transport of heavy equipment or construction vehicles over the existing Private Driveway except as may be permitted by Grantee, which permission shall not be unreasonably withheld, and (iii) will include a physical separation (unless otherwise agreed to between Grantor and Grantee)between the Private Driveway and the Parking Easement Area. (e) Safety. From and after the Expanded Use Date, the Parties agree to cooperate in good faith to take reasonable measures to integrate a safe pedestrian crossing point as part of any improvement of the Private Driveway("Pedestrian Crossing") across the Access Easement Area (connecting the Parking Easement Area and School Parcel). The Parties also agree that prior to the Expanded Use Date, Grantee shall have the right to design and install at its expense (subject to Grantor's approval which will not be GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 3 • unreasonably withheld), one or more Pedestrian Crossings to help facilitate safe pedestrian crossing to and from the School Parcel. 3. Reciprocal Easement. As of the Effective Date (and prior to the grant of rights under this Agreement),BHC conveys to ND by quit-claim deed(the"Deed"),approximately .23 acres of property located between the School Parcel and Access Easement Area which is legally • described on Exhibit E (the ".23 Acre Section"). As of the Effective Date, ND grants to BHC and its successors and assigns, a non-exclusive ingress, egress and use easement over the .23 Acre Section, to allow unrestricted pedestrian and vehicular access onto, from and between the Back 14 Acres, property to the North of the Back 14 acres, the Parking Easement Area and any adjoining public rights of way for use by BHC and HCC and their respective successors and assigns, affiliates, students, employees, agents, licensees and invitees,until such time (if ever) as the Private Driveway within the Access Easement Area is connected directly to Angela Boulevard by a curb-cut access point which Grantee will support in any reasonable way requested by BHC. The Grantee covenants and agrees that it will fully approve the closing of the curb-cut/access point located within the .23 Acre Section if required or otherwise requested by BHC in connection with such closure and realignment or improvement of the Private Driveway by BHC, at its expense, which connects the same to Angela Boulevard. In addition,the Grantee is permitted to close such curb-cut/access point located within the .23 Acre Section (and the use of the .23 Acre Section), at its expense, in the event it relocates the same within the Access Easement Area to connect the Private Driveway to Angela Boulevard. The Grantee, at is sole expense shall repair and maintain the .23 Acre Section in good and safe condition for so long as it is used for ingress/egress to Angela Boulevard. 4. Parking Easement. As of the Effective Date, subject to the limitations contained herein, Grantor grants to Grantee and its successors and assigns, for use by Grantee, its employees, students, agents, licensees and invitees (in common with use shared by Grantor and HCC except as otherwise provided below), a permanent and non-exclusive ingress, egress and parking use easement, over, through and across the Parking Easement Area to access the Parking Easement Area from the Access Easement Area and/or any public right of way and to use the same for general parking purposes(the"Parking Easement"). (a) Use. The Parties agree that with respect to the Parking Easement: (1) Prior to the Expanded Use Date, all parking spaces located within the Parking Easement Area (and outside of the Access Easement Area) will be available for shared use by Grantee, Grantor and HCC;and (ii) Unless otherwise agreed by the parties, from and after the Expanded Use Date, the (1) row of parking spaces (totaling approximately 21 spaces) located on the western-most portion of the Parking Easement Area shall be reserved for the exclusive use to serve the Back 14 Acres; and (2)remainder of the parking spaces located within the Parking Easement Area shall be reserved for the exclusive use to serve the School Parcel. (b) Termination of Parking Easement. The Parties agree that the Parking Easement granted hereunder shall remain in effect for the benefit of the School Parcel so GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 4 long as the School Parcel is used (or is held for redevelopment and thereafter used) for educational, religious or charitable purposes in furtherance of the educational, religious and charitable missions of BHC or ND (the "Intended Use"). In the event the School Parcel is used for a commercial use outside of the scope of the Intended Use,the Grantor shall have the right, at its option, to terminate the Parking Easement upon written notice to Grantee in the event Grantee and Grantor are unable to agree on mutually acceptable terms for the continued use of the Parking Easement. (c) Restrictions on Use during Home Notre Dame Football Games. Notwithstanding the foregoing or anything to the contrary contained herein, Grantee acknowledges and agrees that Grantor and HCC shall have the exclusive use of the entire Parking Easement Area for ingress, egress and parking purposes during the Exclusive Parking Period (as defined below) on weekends during which University of Notre Dame football games are played at "home" (on the ND campus). For purposes of this section, the Exclusive Parking Period shall be from 6:00 a.m. on the day of each home Notre Dame football game to 8:00 a.m. on the following day. Grantor agrees that it shall be responsible for the collection and disposal of trash and other debris (if any) generated during the Exclusive Parking Period within the Parking Easement Area. (d) Maintenance & Repairs. At all times from and after the Effective Date (unless Grantee's parking rights have terminated or it has otherwise ceased use of and released its rights to use the Parking Easement Area), the Grantee, at its own expense, shall be responsible for all Maintenance Obligations (general repair, surface coating, striping and snow removal)of the Parking Easement Area. (e) Lighting (Utilities). As part of the Parking Easement, Grantor grants Grantee the permanent, non-exclusive right and easement to locate (at Grantee's expense) on, under and across the Access and Parking Easement Areas, electrical utilities and lighting to serve the Parking Easement Area ("Lights") and the right to lay, install, erect, service,repair and maintain such Lights and any such electrical utilities. (f) ADA Accessible. Grantor and Grantee shall have the right to designate (subject to the prior consent of Grantor, when requested by Grantee, which will not be unreasonably withheld)a number of"ADA Accessible only"parking spaces to serve their respective parcels as may be required to comply with applicable zoning ordinances and/or to provide reasonable parking for handicapped use. 5. Real Property Taxes. Grantor agrees to use commercially reasonable efforts to file appropriate applications, and take such other commercially reasonable actions to seek (if the Access and Parking Easement Areas so qualify) a full exemption of the Access and Parking Easement Areas from real property taxes. Grantee agrees to cooperate, in good faith, to provide any information which may be necessary regarding its use of the Access and Parking Easement Areas which may assist in support of such applications. 6. Mutual Insurance and Indemnity Obligations. After the Effective Date and for so long as BHC (as Grantor)owns either the Access Easement Area or Parking Easement Area and the same are used by the owner of the School Parcel (as Grantee): GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 5 (a) Insurance. Both Grantor and Grantee shall each maintain, during the use :.'. of the easements hereunder,liability insurance in amounts sufficient to adequately protect their respective use of either the Access Easement Area and/or the Parking Easement Area. Insurance shall include worker's compensation, employer's liability, automobile liability, general liability and excess liability insurance with minimum limits of $1,000,000 each person/$1,000,000 each accident automobile liability, $1,000,000 per occurrence/aggregate general liability and $5,000,000 per occurrence/aggregate excess liability. Each party shall name the other as additional insured under each policy (excepting the worker's compensation and employer's liability policies). (b) Mutual Indemnity. Grantor and Grantee shall indemnify, defend and hold harmless each other from any liability, claims, suits, losses or damages to any person, including their respective invitees, officers, directors, employees or students resulting from their respective use of the above described easement property. 7. Other Agreements. (a) Reservation. Each of the Parties retains, reserves, and shall continue to enjoy the use of the surface and subsurface of its respective property outside of the Access and/or Parking Easement Areas for any and all purposes which do not interfere with or prevent the use of the Access and/or Parking Easement Areas for the purposes as provided herein. (b) Modification. Any oral representations or modifications concerning this Agreement shall be of no force and effect. Any modification of this Agreement must be in writing and must be signed by the Parties (or their successors in title to the properties subject to easements granted herein). (c) Binding Nature. This Agreement and the covenants and undertakings herein by each of the Parties, shall run with the land and shall not be affected by a conveyance of all or any part of the Access Easement Area, Parking Easement Area, Back 14 Acres or School Parcel. (d) Governing Law. This Agreement shall be construed and interpreted under the laws of the State of Indiana, without regard to conflict of law principles. (e) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original with counterparts signed by one party when combined with counterparts signed by other parties to this Agreement constituting an original contract. (f) Reference. Pursuant to I.C. §32-23-2-5, the original recorded Plat (or if no plat for the respective parcel is recorded, the most recent deed of record) from which (i) the Parking Easement Area is referenced, is Doc. # recorded on in the Office of the Recorder of St. Joseph County, Indiana, and(ii) the Access Easement Area is referenced, is Doc. # recorded on in the Office of the Recorder of St.Joseph County, Indiana. GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 6 IN WITNESS WHEREOF, the undersigned execute this Agreement on the date or dates indicated below effective as of the date first written above. "BHC" BROTHERS OF HOLY CROSS,INC. By: � ( CS Printed: Brother Chester Freel,C.S.C. Title:Provincial Date: September 14,2011 STATE OF INDIANA ) ) SS: COUNTY OF ST. JOSEPH ) Before me, a Notary Public in and for said County and State,personally appeared Brother Chester Freel, C.S.C., the Provincial of the Brothers of Holy Cross, Inc., an Indiana non-profit corporation, who acknowledged the execution of the foregoing document for and on behalf of said entity and stated that the facts contained therein are true and correct. Witness my hand and Notarial Seal this 14th day of September,2011. AfJuvfra4jP My Commission Expires: (Signature) Notary Public Residing in St.Joseph County, 2/18/16 Indiana Richard A.Nussbaum,H (Printed Name) 1. GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 7 • "ND" • UNIVERSITY OF NOTRE DAME DU LAC jte (//i By: 11e0111111P Printed: John F.Affleck-Graves Title: Executive Vice President • Date: September l4,2011 STATE OF INDIANA ) ) SS: COUNTY OF ST.JOSEPH ) • Befo e ,-, . Nom: Public in and for said aunt and State, personally appeared . i = L' ' - _i s,_/the di ' Jr, ,� � �.%f the University of Notre Dame u ac, an .iana non-profit corporation, who acknowledged the execution of the foregoing document for and on behalf of said entity and stated that the facts contained therein are true and correct. Witness my hand and Notarial Seal this /PS da of September,2011. • My Commission Expires: (Signature° Notary Public Residing ink #_CountY, 42, if Indiana / 1 (Printed ame) /r ! 4111 111.,, ANGELA S. TOMPKINS y Public,State of Indiana :WougY ,NotarSt.Joseph County • Commission#627866 ''sipmr0r, My July 12,Commission This instrument prepared by Richard J.Dealt!,BARNES&THORNBURG LLP,600 l st Source Bank Center, 100 North Michigan Street,South Bend,Indiana 46601. 1 affirm,under the penalties for perjury,that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Richard J.Deahi GENERAL ACCESS AND PARKING EASEMENT AGREEMENT • PAGE 8 EXHIBIT A LEGAL DESCRIPTION OF SCHOOL PARCEL THAT PART OF THE SOUTHWEST QUARTER OF SECTION 36, TOWNSHIP 38 NORTH, RANGE 2 EAST, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA WHICH IS DESCRIBED AS: BEGINNING AT A 5/8" CAPPED REBAR SET ON THE NORTH LINE OF ANGELA BOULEVARD WHICH IS N. 89°41'49" E., 592.13 FT. FROM A POINT ON SAID NORTH LINE WHICH IS N. 68°5T17" E., 147.42 FT. FROM A POINT ON THE SOUTH LINE OF SECTION 36 WHICH IS N. 89°41'49" E., 28.06 FT. FROM THE SOUTHWEST CORNER OF SECTION 36; THENCE ALONG THE NORTH LINE OF ANGELA BOULEVARD N. 89°41'49" E., 292.36 FT. TO A 5/8" CAPPED REBAR SET ON THE WEST LINE OF MICHIGAN STREET(U.S.#31);THENCE ALONG SAID WEST LINE AND A 2950.53 FT. RADIUS CURVE TO THE RIGHT AN ARC DISTANCE OF 652.18 FT. TO THE END OF A CHORD WHICH BEARS N. 11°03'53" E. AND HAVING A DISTANCE OF 650.83 FT. TO A FOUND 3/4" IRON PIPE; THENCE S. 89°41'49" W., 478.43 FT. TO A FOUND 3/4" IRON PIPE; THENCE AROUND A 3274.04 FT RADIUS CURVE TO THE LEFT AN ARC DISTANCE OF 641.70 FT. TO THE END OF A CHORD WHICH BAERS S. 05°28'41" E. AND HAVING A DISTANCE OF 640.67 FT. TO THE POINT OF BEGINNING. CONTAINING 5.62 ACRES. • GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 9 EXHIBIT B LEGAL DESCRIPTION OF BACK 14 ACRES THAT PART OF THE SOUTHWEST QUARTER OF SECTION 36 AND PART OF THE SOUTHEAST QUARTER OF SECTION 35, T 38 NORTH, RANGE 2 EAST, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA WHICH IS DESCRIBED AS: BEGINNING AT THE SOUTHWEST CORNER OF SECTION 36; THENCE ALONG THE SOUTH LINE OF SAID SECTION N. 89°41'49" E., 28.06 FT. TO A 5/8" CAPPED REBAR SET ON THE NORTH RIGHT-OF-WAY LINE OF ANGELA BOULEVARD; THENCE ALONG SAID NORTH LINE AND AROUND 217.34 FT. RADIUS CURVE TO THE RIGHT AN ARC DISTANCE OF 150.41 FT. TO THE END OF A CHORD WHICH BEARS N. 69°52'17" E. AND HAVING A DISTANCE OF 147.42 FT.;THENCE N. 89°41'49"E. 499.59 FT.;THENCE N. 00°46'26" W. 638.08 FT.; THENCE S. 89°41'49" W.; 1093.92 FT.; THENCE S. 00°46'26" E., 215.00 FT.; THENCE S. 49°55'49" E., 313.51 FT.; THENCE N. 89°41'49" E., 115.00 FT.; THENCE S. 00°46'26" E., 270.00 FT. TO THE SOUTH LINE OF SECTION 35; THENCE ALONG SAID SOUTH LINE N. 89°41'49" E., 75.00 FT. TO THE POINT OF BEGINNING. CONTAINING 13.86 ACRES. • GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 10 EXHIBIT C LEGAL DESCRIPTION OF ACCESS EASEMENT AREA A FORTY(40)FOOT WIDE PARCEL OF GROUND,BEING THAT PART OF THE SOUTHWEST QUARTER OF SECTION 36, TOWNSHIP 38 NORTH, RANGE 2 EAST, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA,WHICH IS DESCRIBED AS: BEGINNING AT A POINT OF THE NORTH LINE OF ANGELA BLVD. NORTH 89°41'49" EAST 28.06 FEET AND NORTH 69°52'17" EAST 147.42 FEET AND NORTH 89°41'49" EAST 499.59 FEET FROM THE SOUTHWEST CORNER OF SECTION 36; THENCE NORTH 00°46'26" EAST 638.08 FEET; THENCE NORTH 89°41'49" EAST 40.00 FEET; THENCE SOUTH 00°46'26" WEST 638.08 FEET TO THE NORTH LINE OF ANGELA BLVD; THENCE SOUTH 89°4P49" WEST ALONG SAID NORTH LINE 40.00 FEET TO THE POINT OF BEGINNING. • GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE I EXHIBIT D DIAGRAM AND/OR LEGAL DESCRIPTION OF PARKING EASEMENT AREA THAT PART OF THE SOUTHWEST QUARTER OF SECTION 36, TOWNSHIP 38 NORTH, RANGE 2 EAST, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA WHICH IS DESCRIBED AS: BEGINNING AT A POINT THAT IS NORTH 69°52'17" EAST, 147.42 FEET AND NORTH 89°41'49" EAST, 28.06 FEET FROM THE SOUTHWEST CORNER OF SAID SECTION 36; THENCE NORTH 89°41'49" EAST, 499.59 FEET; THENCE NORTH 00°46'26" WEST, 638.08 FEET; THENCE SOUTH 89°41'49" WEST, 3.34 FEET; THENCE SOUTH 00°35'46" EAST, 325.59 FEET; THENCE SOUTH 89°42'46" WEST, 255.46 FEET; THENCE SOUTH 27°30'49" WEST, 62.01 FEET; THENCE SOUTH 32°29'12" EAST, 40.88 FEET; THENCE SOUTH 00°18'11" EAST, 223.14 FEET; THENCE NORTH 89°4I'49" EAST, 121.72 FEET TO THE POINT OF BEGINNING. GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 12 • EXHIBIT E LEGAL DESCRIPTION OF .23 ACRE PARCEL THAT PART OF THE SOUTHWEST QUARTER OF SECTION 36, TOWNSHIP 38 NORTH, RANGE 2 EAST, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA WHICH IS DESCRIBED AS: BEGINNING AT A 5/8" CAPPED REBAR SET ON THE.NORTH LINE OF ANGELA BOULEVARD WHICH 1S N. 89°41'49" E., 539.59. FT. FROM A POINT ON SAID NORTH LINE WHICH IS N. 69°6217" E., 147.42 FT. FROM A POINT ON THE SOUTH LINE OF SECTION 36 WHICH IS N. 89°41'49" E., 28.06 FT. FROM THE SOUTHWEST CORNER OF SAID SECTION; THENCE ALONG THE NORTH LINE OF ANGELA BOULEVARD N. 89°41'49" E., 52.54 FT.; THENCE AROUND A 3274.04 FT. RADIUS CURVE TO THE RIGHT AN ARC DISTANCE OF 641.70 FT. TO THE END OF A CHORD WHICH BEARS N. 05°28'41" W. AND HAVING A DISTANCE OF 640.67 FT TO A FOUND 3/4" IRON PIPE; THENCE S. 00°46'26" E. 638.08 FT TO THE POINT OF BEGINNING. CONTAINING 0.23 ACRES. • SBDS02 420494 GENERAL ACCESS AND PARKING EASEMENT AGREEMENT PAGE 13 .N\ IrTsTh W..•a w.,•„.. .doom.., MAO u•••1a•3 n•m.•Wd•.,.,....1 a+1 g' H $ 4 e $ y P . O p s d ? liiid 1 if iii -fiai Lu i . N x ' . �___ `--.--_ ---- ` \ \ ` \ P \ fie—N ' _ ' - i \ N• /p Z J i As;11!IIIN= , ',- ''' ' r I CZ Pli "--',0 f; V1 t S.--1) rl Ni. \ ' .:‘,g ° Nr_.gl. . i la 0 V. 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EXHIBIT D AERIAL MAPS OF 300' SEARCH & NAMES AND ADDRESSES OF PROPERTY OWNERS Diocese of Fort Wayne South Bend, Brothers of the Holy Cross St. Joseph Catholic High School Inc. P.O. Box 460 1441 N. Michigan St. 1441 N. Michigan St. Notre Dame, IN 46556 South Bend, IN 46617 South Bend, IN 46617 F. Geoffrey Samora Mary H. Becker Erik &Deanna Hines 150 W. Angela Blvd. 111 Oakwood Dr. 4418 S. King Ct. South Bend, IN 46617 Canonsburg, PA 15317 Chicago, IL 60612 John E. &Josephine M. Broden MHENNIG Properties LLC Series 1 Lindborg Real Estate LLC 1319 Ostego St. 1439 Semar Ct. 138 N. Angela South Bend, IN 46617 Mount Prospect, IL 60056 South Bend, IN 46617 Brian John Carlson LUPRESTO ROCCO JOHN 650 WEST GOLF LLC 1315 Ostego Ave. 217 W Pokagon 110 W Golf Rd South Bend, IN 46617 South Bend, IN 46617 Schaumburg, IL 60195 ROWLAND ANTHONY F& Memorial Health Systems, Inc. COLETTE RES LIFE EST& LA DOLCE VITA PROPERTIES 615 N. Michigan Ave. REMAINDER TO RACHEL F LLC South Bend, IN 46601 DAVIES&JESSICA MARY FELTES 35 W 33rd Street Apt#14D 1302 Hillcrest New York, NY 10001 South Bend, IN 46617 SMITH RANDALL BRIAN 1310 Hillcrest Rd South Bend, IN 46617 AREA BOARD OF ZONING APPEALS 125 S. Lafayette Blvd. Suite 100 South Bend, Indiana 46601 (574) 235-9554 FAX: (574) 235-5541 September 6, 2012 The Honorable Common Council of the City of South Bend 4th Floor, County-City Building South Bend, Indiana 46601 RE: Petition for Special Exception ABZA 9/5/12 Dear Council Members: The above referenced petition of the University of Notre Dame and the Brothers of the Holy Cross was legally advertised on August 24, 2012. The Area Board of Zoning Appeals gave it a public hearing on September 5, 2012, at which time the following action was taken: Upon a motion by Mr. Phipps, being seconded by Mr. Velleman and unanimously carried, the petition for Special Exception to allow an off site parking lot in a"U" University District, on property located at 1441 N. Michigan Street, 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. Sincereel A41i� ` h1 Mark A. Lyons Assistant Zoning Administrator MAL/cah UNIV. NOTRE DAME/ BROTHERS OF THE HOLY CROSS CONDITIONAL USE PURSUANT S.J.C.C.CHAPTER 8 AREA BOARD OF ZONING APPEALS FINDINGS OF FACT 1. The public convenience and welfare will be substantially served by the CONDITIONAL USE 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 nature, location,size and site layout of the CONDITIONAL USE will be compatible with the immediate area because: The variance or use shall improve the appearance of the neighborhood and will not devalue the surrounding properties. 3. Adequate water,sanitary,ingress/egress,drainage and other necessary facilities have been or are being provided to assure safe and sanitary conditions in the vicinity of the request because: Conditions on the property predate the Zoning Ordinance,which creates a different condition for this property. 4. The proposed CONDITIONAL USE does not conflict with the Comprehensive Plan or any other•plan duly adopted by St.Joseph County because: It is the feeling of the Board that the variance is blending into the overall Comprehensive Plan and is not deviating from its intent. CONDITIONS OR REVISIONS: DECISION IT IS THEREFORE the decision of this Board that this CONDITIONAL USE is GRANTED, subject to any conditions stated in the Minutes(which conditions are incorporated herein by reference and made part of this decision). ADOPTED this 5t Day of September,2012 YES NO © MICHAEL URBANSKI RANDALL MATTHYS JACK YOUNG BRENDAN CRUMLISH GERALD PHIPPS • ROBERT HAWLEY © JOE VELLEMAN JOHN W. BYO RNI EXECUTIVE DIRECTOR LARRY MAGLIOZZI DEPUTY DIRECTOR. AREA PLAN COMMISSION OF ST. JOSEPH COUNTY, IN 227 W.JEFFERSON BLVD. ROOM 1 140 COUNTY-CITY BLDG. SOUTH BEND,INDIANA 46601 (574)235-9571 September 19,2012 `J S V. A 1 o v '37 t ' T The Honorable Council of the City of South Bend 4th Floor,County-City Building South Bend, IN 46601 RE: A proposed ordinance of Diane J. Erdman and Verl Sheets, Sr.to zone from MF1 Multifamily Urban Corridor District to MU Mixed Use District, property located at 621 and 625 Lincolnway East, City of South Bend-APC#2644-12 Dear Council Members: I hereby Certify that the above referenced ordinance of Diane J. Erdman and Verl Sheets, Sr. was legally advertised on Thursday, September 6, 2012 and that the Area Plan Commission at its public hearing on Tuesday, September 18,2012 took the following action: Upon a motion by John McNamara,being seconded by Karl King and unanimously carried, the proposed ordinance of Diane J. Erdman and Verl Sheets, Sr.to zone from MF 1 Multifamily Urban Corridor District to MU Mixed Use District,property located at 621 and 625 Lincolnway East,City of South Bend is sent to the Common Council with a favorable recommendation. Lincolnway East is a major traffic corridor,with a mix of residential and business uses in the immediate vicinity.This rezoning is compatible with the goals of City Plan. PLEASE NOTE that the Ordinance has been amended by the petitioner and is different than that used for the Common Council's first reading.The amended Ordinance was legally advertised and heard by the Area Plan Commission. The deliberations of the Area Plan Commission and points considered in arriving at the above decision are shown in the minutes of the public hearing, and will be forwarded to you at a later date to be made a part of this report. Sincerely, �. )titkviAL 4W. B o Y Attachment Diane J. Erdman Verl Sheets,Sr. SERVING:ST JOSEPH COUNTY.SOUTH BEND,LAKEVILLE,NEW CARLISLE,NORTH LIBERTY.OSCEOLA&ROSELAND www.stjosephcountyindiana.com/Areaplan Staff Report APC# 2644-12 Owner: Diane J.Erdman&Yeti Sheets,Sr. Location: 621 and 625 Lincolnway East Jurisdiction: City of South Bend Requested Action: The petitioners are requesting a zone change from MF1 Multifamily Urban Corridor District to MU Mixed Use District to allow retail sales and service of sewing machines and a residential unit with the appropriate parking. Land Uses and Zoning: On site: On site is a single family home and a vacant lot. North: To the north are single family homes zoned SF2 Single Family and Two Family District. East: To the east is a vacuum cleaner sales and service business zoned MU Mixed Use District. South: To the south, across Lincolnway East are single and two family homes zoned MF 1 Urban Corridor Multifamily District. West: To the west is a vacant office building zoned LB Local Business District. District uses and development standards: The "MU" Mixed Use District is established to promote the development of the a dense urban village environment. The regulations are intended to encourage all the elements of a traditional urban village, including: storefront retail; professional offices; and, dwelling units located either in townhouse developments or in the upper stories of mixed-use buildings. The development standards in this district are designed to encourage a pedestrian oriented design throughout the district,and maintain an appropriate pedestrian scale,massing and relationship between buildings and structures within the district. Site plan description: The total area is 9,240 square feet. There is an existing house and garage covering 1,220 square feet or 13% of the site. In addition to the space in the garage,four parking spaces are provided, covering 17% of the site. The remaining 70% is open space. Access will be from Lincolnway East. Zoning and land use history&trends: The apartment building at 709-711 Lincolnway East is currently going through the rezoning process to allow for conversion to a single family home. This section of Lincolnway East has a mixed land use pattern of businesses,homes and duplexes. Traffic and transportation considerations: Lincolnway East has four lanes. Utilities: The site is served by city water and sewer. Diane J. Erdman& Verl Sheets, Sr. #2644-12 Page 1 of 2 Additional information:(Agency comments) The Department of Community and Economic Development comments this rezoning would support a neighborhood commercial use and would still be keeping with the zoning of surrounding properties and the mixed-use character of the neighborhood. The Office of Historic Preservation Commission does not have any objections to the change in zoning. The City Engineer had no comments. . Staff Comments: The property is located within the Edgewater Place Local Historic District. Commitments: No commitments are proposed. 5 Criteria(per IC 36-7-4-603): 1. Comprehensive Plan: Policy Plan: City Plan,South Bend Comprehensive Plan(November 2006). Objective LU 1: Plan for the future of the community's districts, neighborhoods, and corridors. Objective LU 2.2 Pursue a mix of land uses along major corridors and other locations indentified on the Future Land Use Map. Land Use Plan: The Future Land Use Map identifies this area as a mix of uses. Plan Implementation/Other Plans: There are no other plans in effect for this area. 2. Current conditions and character: Along Lincolnway East is a mix of houses and businesses. Some of the structures are in poor condition. • 3. Most desirable use: The most desirable use is one that is compatible with the mix of uses located in the area. 4. Conservation of property values: The rehabilitation of this property may have a positive effect on neighboring property values. 5. Responsible development and growth: It is responsible development and growth to encourage the rehabilitation of a building with a use that is compatible with the character of the area. Recommendation: Based on information available prior to the public hearing the staff recommends that the petition be sent to the Common Council with a favorable recommendation. Analysis: Lincolnway East is a major traffic corridor, with a mix of residential and business uses in the immediate vicinity.This rezoning is compatible with the goals of City Plan. Diane J. Erdman& Verl Sheets, Sr. #2644-12 Page 2 of 2 hhhh• l> ' + { LB LB ti g � '� ;MU , 9 d O° •a� 1 - - - /1 COKI South South ;_ c .e Ail i .. ,,..,.___,,„ ,‘.,_:„ . .-, . , ‘ „„, ,,,_,, E3 r,-,-,,'',," ' afr-,1 , ' Rezoning from: "MF1" URBAN CORRIDOR MULTIFAMILY DISTRICT to "MU" MIXED USE DISTRICT ZONING CLASSIFICATION N oNSO SOUTH BEND"S F2" SINGLE FAMILY AND TWO FAMILY DISTRICT' SOUTH BEND"M Fl" URBAN CORRIDOR MULTIFAM ILY DISTRICT E .....4...,...7,-' ,;;I SOUTH BEND"M U' MIXED USE DISTRICT I�SOUTH BEND, CBD S 1 SOUTH BEND"LB" LOCAL BUSINESS DISTRICT inch = feet SOUTH BEND"CB" COMMUNITY BUSINESS DISTRICT APC # 2644-12 I support a retail sewing machine shop at 621 Lincolnway East in South Bend IN. Name address phone number 1. Ja' i �� 02 7 / faZ:tt,',/ 02 7e/ 1/d29 2. /1. � 6 - 3. ,L,u t 3 i5 -Se? 49-7 4. Da.NA-Ala s, - a so-0 34... 5. ,JeA . - 630 --t 6 5 -35,,s-- 6. a RCl/ a- 671, -02 / 7 - 0o_ 7. ?annv 6o rut 76,5- '153- Toc:2 8. 579 &7y - ( 2zt' 9. ems°' s-74 - 301 - 4' e C 571 229 9 E 11. Joey q,oZ1 A/sPV �71 2 72-a 94 12. gae A Aae, v J " 07c3 -1 902 9 1-3c1- (A;1_ - /35;/ 14. 4 6-'7q- co-7a - 7e0/7 15a - ''L 16. geerflui4t4iPmAtort_ 0-74. Z64.96 94 17. ( I 5-7y31537e 18.E 0.-4>cf-5see �3 se 19. q' P ove (d)3_ d 33 Ai'C. 2604-12- CA/6 20. LynK.:e, Jc.co bs ztq /573-6 378 21. skok.A- rya d a i 0- do S79- 8535 V 22. ZoAmm /ie g_j - 5 74'- ge9- 3 a cp.P. 23. F6-2N ees:t«a 5Y - 78d - 0 .33 24. ka ' & i" 5744-081 - 76.t. V 5-7 cf- 7 1 _ 83?(F) 25. Y3 F 26. s.Q, _ . 0Aft.. r 3 ,11_ 27. 6?0,3amanc el il s. -4?a-/s S , 28. eta,ta (2o9) 5ql -2378` 29. ,ePaiQQ„ge_ Id /, 3"24c2' 1 =-&od 30. ,-, , _- __-_ ! _ i/r� ��1i �' D 31. ) h 41fr d 467- �, G,;�.�,iii.; `' 32. S7 - 2- 33 -go C s ? Via? E _ a0 33. ar (6?10 i) C% -'n 9 - 3 41/4,- -&- L. ) 4Z h 35. 6.7 ? 7 70 C. c 36. c d,,,, o ._, c.),., 7 if 0 63_ 4j 0 _ 37. O-x.`Lie ( z��� Z f 2 ,4l- -7Sih 38. 5-17 - 4 7.5,E P 3 7 1 f5 /. ' 5W- 40. - "� , • 57cq_761 - /gel 41. —v, 'cM Smu - a.:7:?,r\--oc\ci\ 42. sr( - 01A -/a77 Aft 0644-/a au7 °'15 2- ORDINANCE NO. AN ORDINANCE AMENDING THE ZONING ORDINANCE FOR PROPERTY LOCATED AT 621 AND 625 LINCOLNWAY EAST, COUNCILMANIC DISTRICT 2 IN THE CITY OF SOUTH BEND, INDIANA STATEMENT OF PURPOSE AND INTENT Change to Mixed Use District from present zoning of MF1 Urban Corridor Multifamily District. Retail sales and repair of sewing machines. NOW THEREFORE BE IT ORDAINED by the Common Council of the City of South Bend, Indiana as follows: SECTION 1. Ordinance No. 9495-04, is 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: 17 ft. southeast side of Lot 6 Andrew Fuerbringer Addition and 16ft northernly side lot 7 Andrew Fuerbringer addition and 33 ft Southeasternly side lot 7 Andrew Fuerbringers addition be and the same is hereby established as MU Mixed Use District. SECTION II. 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 Council 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. City Clerk Approved and signed by me on the day of 2 , at o'clock . m. Mayor, City of South Bend, Indiana iiied in Cginles MILK HEARING AV° 3 j 61: 3 rd READING ;N;OT APPROVED'. ! EFERRED errY CLERK, - PASSED. _ , PETITION TO REZONE Unincorporated St.Joseph County I(we)the undersigned make application to the St.Joseph County Council to amend the zoning ordinance as herein requested. 1) The property sought to be rezoned is located at: (621 Lincolnway east and 625 Lincolnway east) • 2) The property Tax Key Number(s)is/are: (18-3030-1096) (18-3030-1097) (Key#3) 3) Name and address of property owner(s)of the petition site: Diane Erdman Verl Sheets Sr 10186 Charles st 801 Bronson Osceola,IN 46561 South Bend,IN 46601 ((574)(340-8841) ( (574))(220-7867) (erdmand @comcast.net) dreamwestt@aol.com) For additional owners,reprint additional pages with signatures 4) Name and address of contingent purchaser(s), if applicable: (Name) (Name) (Address) (Address) (City),(State) (Zip Code) (City),(State) (Zip Code) ((Area Code))(Phone number) ((Area Code))(Phone Number) (E-Mail Address) (E-Mail Address) For additional owners,reprint additional pages with signatures 5) It is desired and requested that this property be rezoned: From: (MF1 District To: (MU)District 6) This rezoning is requested to allow the following use(s): (Retail sales and service of sewing machines)) 7) Attached,and made a part of this PETITION,is: (a)a copy of a 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)six(6)site plans;and (d)addressed,stamped envelopes for all property owners within 300 feet of the petition property. PETITION PREPARED BY: S. 'ature(s)of All Property owner(s),or signa re of Attorney for a I roperty owner(s): Diane Erdman 10186 Charles st Osceola, IN 46561 � � � ((574))(340-8841) Mai d- erdmand @comcast.net �—r ` E Pilau i =Ft - CONTACT PERSON: (If different) �:. :? P (Name) (Address) (City), (State) (Zip Code) LIO 3 0 2012 ((Area Code))(Phone number) L. (E-Mail Address) G1Ty C k = . r� 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 August 30, 2012 Honorable Common Council Of The City of South Bend 4th Floor, County-City Building South Bend, Indiana 46601 RE: Bill # 37-12 A bill of the Common Council of the City of South Bend amending Chapter 21 of the zoning ordinance. Dear Council Members: The following changes have been made to the Ordinance for the above-referenced petition: Ordinance: 1) The title added address "625" and owner "Vert Sheets Sr". 2) The legal description has changed to include additional property. Petition: 1) Item #1: Address 625 Lincolnway was added. 2) Item #2:Tax Key number 18-3030-1097 was added. 3) Item #4: Owner Verl Sheets Sr was added. 4) Verl Shets Sr signed the petition. If you have any further questions, please call me at 574-235-9571. Sincerely, Christa Nayder Planner SERVING ST. JOS€PH COUNTY. SOUTH BEND, LAKEVILLE. NEW CARLISLE. NORTH LIBERTY. OSCEOLA. & ROSELAND WW W.STJOSEPHCOUNTYINDIANA.COM JOHN W. BYORNI EXECUTIVE DIRECTOR LARRY MAGLIOZZI DEPUTY DIRECTOR AREA PLAN COMMISSION OF ST. JOSEPH COUNTY, IN 227 W.JEFFERSON BLVD. ROOM 1 140 COUNTY-CITY BLDG. SOUTH BEND.INDIANA 46601 (574)235-9571 September 19,2012 $,& The Honorable Council of the City of South Bend 0 '+ 4th Floor,County-City Building South Bend,IN 46601 RE: A proposed ordinance of Parwinder Kaur&Singh Harjinder and Barbara Dockery to zone from MU Mixed Use District to LB Local Business District,property located at 3529 and 3527 Western Avenue,City of South Bend -APC#2645-12 Dear Council Members: I hereby Certify that the above referenced ordinance of Parwinder Kaur&Singh Harjinder and Barbara Dockery was legally advertised on Thursday,September 6,2012 and that the Area Plan Commission at its public hearing on Tuesday, September 18,2012 took the following action: Upon a motion by Karl King,being seconded by John McNamara and unanimously carried, the proposed ordinance of Parwinder Kaur,Singh Harjinder and Barbara Dockery to zone from MU Mixed Use District to LB Local Business District,property located at 3529 and 3527 Western Avenue,City of South Bend is sent to the Common Council with a favorable recommendation.Western Avenue is a major east/west traffic corridor,with a wide variety of well established business and commercial uses in the immediate vicinity. The expansion of this site will provide additional neighborhood services and upgrade Kenmore Street with safer traffic control and pedestrian access. The proposed ordinance of Parwinder Kaur,Singh Harjinder and Barbara Dockery for a Special Exception Use for a gasoline service station on property located at 3527 and 3529 Western Avenue,City of South Bend,is sent to the Common Council with a favorable recommendation. The Special Exception Use meets the standards for approval of a Special Exception Use in that new curbing and sidewalks will support public safety;the expansion of an existing business should not affect the adjacent property values;the general character of Western Avenue is a commercial corridor with a mix of business and commercial uses;and that City Plan objectives are being met in providing for a range of mixed uses. PLEASE NOTE that the Ordinance has been amended by the petitioner and is different than that used for the Common Council's first reading.The amended Ordinance was legally advertised and heard by the Area Plan Commission. The deliberations of the Area Plan Commission and points considered in arriving at the above decision are shown in the minutes of the public hearing,and will be forwarded to you at a later date to be made a part of this report. Sincerely, w <144.111 , W.Byorni Attachment CC:Parwinder Kaur&Singh Harjinder Barbara Dockery Danch,Hamer&Associates SERVING:ST.JOSEPH COUNTY.SOUTH BEND,LAKEVILLE,NEW CARLISLE,NORTH LIBERTY,OSCEOLA&ROSELAND www.stjosephcountyindiana.com/Areaplan Staff Report APC# 2645-12 Owner: Parwinder Kaur&Singh Harjinder Location: 3529 and 3527 Western Avenue Jurisdiction: City of South Bend Requested Action: The petitioner is requesting a zone change from MU Mixed Use District to LB Local Business District; a Special Exception Use to allow a gasoline service station; and eleven variances to allow a convenience store with a gasoline service station facility. Land Uses and Zoning: On site On site is an existing convenience store and a single family home. North: To the north across the alley are single family homes and a church zoned SF2 Single Family and Two Family District. East: To the east is a vacant house with a business front zoned MU Mixed Use District, and a body shop zoned LB Local Business District. South: To the south, across Western Avenue, is a parking lot zoned LB Local Business District.To the southwest is a vacant commercial business zoned MU Mixed Use District. West: To the west is a convenience store zoned LB Local Business District. District uses and development standards: The "LB" Local Business District is established to provide for small business groupings located outside of the village style mixed use concept and which provide for the full range of convenience uses necessary to meet the daily needs of nearby residential neighborhoods. Permitted uses within the "LB" Districts are regulated in character to assure harmonious development with the nearby residential districts served and are limited in size and scale to promote pedestrian access. Site plan description: The total area of the two lots is approximately 1/4 of an acre. There is an existing 1,733 square foot convenience store building covering 17% of the site. Gasoline pumps and nine parking spaces are proposed,covering 73%of the site. Zoning and land use history&trends: The property at the northeast corner of Western and Wellington was rezoned to CB Community Business District for automotive related uses in 2010. Prior to the map change in 2004 the north side of Western,.from Chicago to Meade,was all zoned C Commercial. Traffic and transportation considerations: Western has four lanes. Kenmore has two lanes. Utilities: The property is currently served by public water and public sewer. Additional information: (Agency comments) The City Engineer commented the parking spaces and aisles were not the correct width (see variances.) The Department of Community and Economic Development supports the expansion of an existing business and the redevelopment of Western Avenue property. Parwinder Kaur& Singh Harjinder #2645-12 Page 1 of 4 Staff Comments: This is a combined public hearing procedure, which includes a rezoning, a special exception use and a number of variances from the development standards. The Commission will forward the rezoning and the Special Exception Use to the Council with or without a recommendation, and either approve or deny the variances. The rezoning is from MU Mixed Use District to LB Local Business District. The Special Exception Use is for a gasoline service station. In addition the rezoning and special exception, the petitioner is also requesting the following 11 variances: 1) from the requirement of providing perimeter trees at a minimum rate of one over- story deciduous tree every forty feet to providing a minimum of two trees in the parkway of Kenmore on the west side of the site and one tree along the north property line; 2) from the requirement of providing a minimum of a six foot wide landscape planting area along the Western Avenue façade of the existing building to no landscaping and to a minimum of ten shrubs along the Kenmore Street facade (the revised site plan shows additional shrubs to the southeast of the building); 3) from the requirement of providing Type"B"residential buffer yard screening along the north and east property lines to providing a minimum six foot high landscape screening fence along said property lines to the required ten foot sight triangle at the°'northwest corner of the site and ten foot sight triangle at the southeast corner of the site;4) to allow parking spaces, pavement and a dumpster and dumpster enclosure to be placed in the twenty foot wide Residential Buffer yard along the north property line and east property line to a minimum of one foot along the north property line and to a minimum of two foot along the east property line as show; 5) from the requirement of providing a minimum of 24 foot aisle way in the shown north parking area to a minimum of twenty two feet;6) from the requirement of providing a minimum twenty foot in length of their parking spaces from the minimum required twenty foot length to 10 foot; 7) to allow a canopy over the gasoline pumps to encroach a maximum of thirteen feet into the twenty foot wide residential buffer yard along the east property line and to a maximum of fifteen feet into the thirty foot front yard building setback along Western Avenue; 8) from the requirement of providing a minimum of a ten foot wide drive-thru lane and twelve foot wide bailout lane for the proposed gasoline dispensing facility to providing a minimum of nine foot wide drive thru- and bailout lanes; 9) from the minimum fifteen foot parking setback along Kenmore Street to a minimum of six foot for proposed parking spaces; 10) from the minimum thirty foot front yard setback along Western Avenue to a minimum of nine feet and from the minimum of thirty foot front yard building setback along Kenmore Street to a minimum of 8 feet for an existing building; and 11) from the requirement of providing foundation landscaping on three sides of the dumpster enclosure to no additional screening(the site plan has been revised to show two evergreen trees to the north of the dumpster). State statutes and the South Bend Zoning Ordinance require that certain standards must be met before a variance or Special Exception Use can be approved. These standards are attached and made part of the Staff Report. Commitments: No commitments are proposed. Parwinder Kaur& Singh Harjinder #2645-12 Page 2 of 4 5 Criteria(per IC 36-7-4-603): 1. Comprehensive Plan: Policy Plan: City Plan,South Bend Comprehensive Plan(November 2006) Objective LU 1: Plan for the future of the community's districts, neighborhoods, and corridors. Objective LU 2.2: Pursue a mix of land uses along major corridors and other locations identified on the Future Land Use Map. Objective LU 2.4:Provide buffer spaces between non-compatible uses. Land Use Plan: City Plan identifies the areas along Western as Commercial and Mixed Use. Plan Implementation/Other Plans: Western Avenue Commercial Corridor Revitalization Action Plan(June 1999) The Market Development objectives include attracting developers, merchants, and small business owners,and encouraging new development. A Vision Plan for the Commercial Corridor of The Western Avenue of South Bend,Indiana (February 2003) Items in the Mission Statement include improve the business climate and improve the appearance of property and infrastructure on Western. 2. Current conditions and character: Western Avenue is a busy and traditional commercial corridor. Changing business patterns have negatively affected the properties, but new businesses are making an effort to locate within the corridor. 3. Most desirable use: The most desirable use along this commercial corridor is a commercial use. 4. Conservation of property values: The expansion of the existing business, when properly buffered, should have a minimal effect on surrounding property values. 5. Responsible development and growth: It is responsible development and growth to allow for a variety of adaptive reuses along a commercial corridor. Recommendation: Based on information available prior to the public hearing, the staff recommends that the rezoning petition be sent to the Common Council with a favorable recommendation; Based on information available prior to the public hearing, the staff recommends that the special exception use petition be sent to the Common Council with a favorable recommendation; The staff recommends approval of variances#1, and 3-10 as referenced in Staff Comments, and would recommend variance#2 be amended to include additional shrubs on Western,and #11 be amended to refer to the additional landscaping as shown on the site plan for the Special Exception Use. Parwinder Kaur& Singh Harjinder #2645-12 Page 3 of 4 Analysis: Western Avenue is a major east/west traffic corridor, with a wide variety of well established business and commercial uses in the immediate vicinity. The expansion of this site will provide additional neighborhood services and upgrade Kenmore Street with safer traffic control and pedestrian access. In the Staffs opinion,because of the positive redevelopment of this site and its existing configuration, the variances as recommended by the Staff meet the standards for approval. In addition, the Special Exception Use meets the standards for approval of a Special Exception Use in that new curbing and sidewalks will support public safety; the expansion of an existing business should not affect the adjacent property values;the general character of Western Avenue is a commercial corridor with a mix of business and commercial uses;and that City Plan objectives are being met in providing for a range of mixed uses. Parwinder Kaur& Singh Harjinder #2645-12 Page 4 of 4 Variances A variance from any of the development standards of the Zoning Ordinance may only be approved upon the Board of Zoning Appeals making a written determination and adopting appropriate Findings of Fact, based upon the evidence presented at a public hearing, that: (1) The approval will not be injurious to the public health, safety, morals and general welfare of the community; (2) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;and, (3) The strict application of the terms of this Chapter would result in practical difficulties in the use of the property. Special Exception/Special Use A special use may only be granted upon making a written determination and adopting appropriate Findings of Fact, based upon the evidence presented at a public hearing, 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 Comprehensive Plan. 6 I . ,.:1-- &) .., ..:• 1 6 x Lit o w S 4:1-4 1 6 cg ... R/W UNE .........1 , 1:t 14.0' PUBUC ALLEY 10.00' rPgi.E ,.,* •• .- , 1, .■--.■ramma-ama-A..._-imila-A=rissa-mt.-47)tr- Rni Lc----7-4E----711 I' 0 I 1 / 0 I I' , .4c:4.. ■,. 6.00.-- 1 I--- 0 . II. .. 1:4 b D ..:•;&. el w c4 DW :1 PETITION SITE 2.00' • I ..,..4. "I 0.24 AC* 11 LI CO o 9.00' 0 (5" T e 0 T.p.4 PI 0 ._. t c.T4 4. 0 6, POLE ?..1 ri4 • C4 r" (11 .... ) F. 717 3.1c.c- 7-1,,T.1 i 4 ely 34.60Z 18.00!-•••.• 1.•:.'.1:?"7.1 t 1"' I/ ' , •:).4:' Ci) -j■-■ -1111 .. t... .1'.• 0 : ,•t...! • -...:::-/ Bilirdag 1 . g : N EXIS NG 1.1:44...iv.. ou,k.„..:. ...,..1.1 rg A • Eii-sPt'D . ....4/Pi 7411. . .1 ...t / N. ......... .. I ; OV1733 SQ.FT. •-. gr. .- ,.-. ;. .-..'... •s' rt/jr) -IF • • ..• 1 fll . 0 •*- • • • 0 •°••• :1 t : W 0 [taw %ill 0 w--7". .69' EXISTING a R/W LINE CONC. WALK ddipi7r. : "* .. : :0 S •.. - I a 1:1 to \-..... .conc walk v 111 GRASS AREA •-■ GRASS AREA EXISTING LIGHT SIGN POLE Z C/L WESTERN AVENUE 63' R/W .... ., . /Li conc walk i� ` _____J ',s ,'-' ' ' ' :- ' - - ' - ''", r: - -': - -` , .' '- ' ' , -7-±--- ,. 1 (' �1 [ - 1 o I 1i = 1 1 a i c Ill LE LB T37N•R2E :SOUTH BENDA Western IMU LB tiGB N 1 i 1 ,;261 I i i I i - .. ,all L - _ f 1 I EI r _ — i — _ 1 I -� l Rezoning from: "MU" MIXED USE DISTRICT to "LB" LOCAL BUSINESS DISTRICT ZONING CLASSIFICATION N ''_ SOUTH BEND"SF2" SINGLE FAMILY AND TWO FAMILY DISTRICT / ,, SOUTH BEND"M F1" URBAN CORRIDOR MULTIFAM ILY DISTRICT W ! E SOUTH BEND"M U' MIXED USE DISTRICT `T` S SOUTH BEND"LB" LOCAL BUSINESS DISTRICT 1 inch = 100 feet SOUTH BEND"CB" COMMUNITY BUSINESS DISTRICT SOUTH BEND"GB" GENERAL BUSINESS DISTRICT AP 2645-12 September 16.2012 Area Plan Commission of St.Joseph County (Public hearing Tuesday,September 18, 2012 at 3:30 p.m.) I am the property owner of 318 South Wellington Street and am writing to express my opinion about a rezoning issue being proposed at 3529 and 3527 Western Avenue. I am strongly against this rezoning taking place in the neighborhood. This address already has prior incidents of loitering, criminal activity and violence by said loiters. The police have been dealing with these issues for some time and the problems still exists. If this property is allowed to rezone fora gasoline services station facility this will bring more criminal activity to the neighborhood. Please keep in mind there is already a service station on the corner of Falcon and Western which is one street over. Sincere Thanks from a Concern Homeowner, Mr. and Mrs.Timothy Bond 574-287-0408 • 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 NO. 6 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 DISPENSING 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 Dispensing 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. 2 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. Member of the Common Council 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 day of 20 , at o'clock .m. Mayor of the City of South Bend, Indiana Filed in :JIG& 1 st READING 0 °PUBLIC HEARING JOI"#N9 rd READING CITY CLERK,SOO T HOT APPROVED « ! REFERRED. —C 3-v L PASSED 1400 COUNTY-CITY BUILDING . PHONE 574/235-9241 227 W.JEFFERSON BOULEVARD FAX 574/235-7670 SOUTH BEND,INDIANA 46601-1830 CITY OF SOUTH BEND PETE BUTTIGIEG,MAYOR DEPARTMENT OF LAW ALADEAN M. DEROSE CrrYATrORNEY,AD INTERIM September 18, 2012 Mr. Derek Dieter, President M YJO � °.. South Bend Common Council Y 4th Floor County-City Building South Bend, IN 46601 RE: Bill No. 35-12 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,AMENDING THE ZONING ORDINANCE AND ESTABLISHING HISTORIC LANDMARK STATUS FOR THE STRUCTURE AND REAL PROPERTY KNOWN AS THE AVON THEATRE AND LOCATED AT 307 SOUTH MICHIGAN, IN THE CITY OF SOUTH BEND, INDIANA Dear President Dieter: On July 12, 2012, the Historic Preservation Commission of South Bend and St. Joseph County (the "Commission") held a public hearing to consider landmark status for the Avon Theatre located at 307 South Michigan, South Bend, IN 46601. At the meeting, the Commission placed the Avon Theatre under interim protection under the authority granted by the Municipal Code of the City of South Bend, Indiana, (the "Code") Section 21-13.02(d)(5). Bill 35-12 was introduced by the Common Council on July 23, 2012. Pursuant to the Code, Section 21-13.02(d)(4), the matter was referred to the Commission to hold a public hearing for the purpose of making a recommendation to the Common Council concerning Bill No. 35-12. On September 17, 2012, the Commission held a public hearing after publication of notice of the time, date and place of the public hearing. At the public hearing, the Commission heard public comments both for and against the designation of the Avon Theatre as a Local Historic Landmark. After hearing all comments offered by the public, and after giving the owner of the Avon Theatre an opportunity to make a final statement, and after discussion by the members of the Commission,the Commission adopted a Resolution making a favorable recommendation to the CHERYL A. GREENE ANN-CAROL DASH ANDREA L.BEACHKOFSKY LAWRENCE J.METEWER JEFFREY L.SANFORD RESOLUTION NO. 12- A RESOLUTION OF THE HISTORIC PRESERVATION COMMISSION OF SOUTH BEND AND ST. JOSEPH COUNTY, INDIANA MAKING A RECOMMENDATION TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND ON ESTABLISHING THE AVON THEATRE AS A HISTORIC LANDMARK WHEREAS,the Historic Preservation Commission of South Bend and St.Joseph County, Indiana (the "Commission") exists and operates under the provisions of ordinances enacted by the Common Council of the City of South Bend,Indiana,and the County Council of St.Joseph County, Indiana(the "Enabling Ordinances"); and WHEREAS,the Commission is empowered,pursuant to the Enabling Ordinances,to make recommendations to the Common Council of the City of South Bend,Indiana for the establishment of historical landmarks; and WHEREAS,on July 12,2012,the Commission held a meeting to consider land mark status for the Avon Theatre located at 309 South Michigan Street, in the city of South Bend,Indiana; and WHEREAS, at that meeting, the Commission adopted a proposal to recommend to the Common Council of the City of South Bend (the "Common Council") that the Avon Theatre be designated as a historic landmark pursuant to South Bend City Ordinance No. 5565-73,as amended; and WHEREAS, at that meeting, the Commission further declared that the Avon Theatre be place under interim protection pursuant to the Municipal Code of the City of South Bend, Section 21-13.02(d)(5); and WHEREAS, on July 23, 2012, the Common Council introduced its Bill No. 35-12, proposing to establish the Avon Theatre as a historical landmark within the City of South Bend;and WHEREAS,pursuant to Section 21-13.02(d)(4),the Common Council has referred Bill No. 35-12 to the Commission to hold a public hearing to hear comments on the establishment of the Avon Theatre as a historic landmark and to make a recommendation back to the Common Council; and WHEREAS,the Commission has heard and considered the comments made at said public hearing at the Commission's regularly scheduled meeting on September 17,2012,at 7:00 p.m.; and WHEREAS, the Commission now desires to make a recommendation to the Common Council concerning Bill No. 35-12 on the establishment of the Avon Theatre as a historic landmark. NOW, THEREFORE, BE IT RESOLVED BY THE HISTORIC PRESERVATION COMMISSION OF SOUTH BEND AND ST. JOSEPH COUNTY AS FOLLOWS: 1. On Bill No. 35-12, concerning the establishment of the Avon Theatre as a historic landmark,the Commission makes the following recommendation to the Common Council: Favorable Recommendation. [ ] Unfavorable Recommendation. [ ] No Recommendation. 2. The Staff of the Commission is directed to forward a copy of this Resolution to the Common Council. 3. This Resolution shall take effect immediately upon its adoption by the Commission. ADOPTED at a meeting of the Historic Preservation Commission of South Bend and St. Joseph County, Indiana, held on September 17, 2012, in the Council Chambers, 4th Floor, 227 W. Jefferson Blvd., South Bend, Indiana 46601. HISTORIC PRESERVATION COMMISSION OF SOUTH BEND AND ST JOSEPH C UNTY C. it. 44r - Timothy SA a t K vin Buccellato Pa,� ' zgo.ski avid Steinhauer Sandra L. Rossow Mi e Voll Alice McLane 2