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HomeMy WebLinkAboutD-436 Econ Dev. Bond/Cool Creek A SPECIAL ORDINANCE OF THE CITY OF CARMEL, INDIANA AUTHORIZING THE ISSUANCE AND SALE OF REVENUE BONDS IN THE AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED ELEVEN MILLION TWO HUNDRED FORTY THOUSAND DOLLARS ($11,240,000) AND THE LOANING OF THE PROCEEDS DERIVED THEREFROM TO COOL CREEK ASSOCIATES, LTD., AN INDIANA LIMITED PARTNERSHIP TO FINANCE THE COSTS OF CONSTRUCTION OF AN ECONOMIC DEVELOPMENT FACILITY. WHEREAS, the City of Carmel, Indiana (the "City") is a municipal corporation and political subdivision of the State of Indiana and by virtue of Indiana Code Sections 36-7-12-1 through 36-7-12-37, inclusive, as amended (hereinafter called the "Act"), is authorized and empowered to acquire "economic development facilities' (as defined in the Act) or to make direct loans to users or developers for the cost of acquisition, constructien and equipping of economic development facilities to promote t~ general welfare of the area in and near the City and to issue its economic development revenue bonds to pay all costs of acquisition, construction and equipping of such economic development facilities, including engineering, legal fees and all other expenses relating thereto during construction, including the costs of issuing the bonds, and to secure said bonds pursuant to a Loan Agreement (the "Loan Agreement") dated as of April 1, 1985 by and between the City and Cool Creek Associates, Ltd., an Indiana limited partnership (the "Owner"), and the Trust Indenture (the "Indenture') dated as of April 1, 1985 by and between the City and Merchants National Bank & Trust Company of Indianapolis, as trustee (the "Trustee"); and WHEREAS, the Owner is an Indiana limited partnership duly organized and existing under the laws of the State of Indiana, having its principal place of business in the City of Indianapolis, Indiana; and WHEREAS, the Owner has agreed to acquire, construct, install and equip an economic development facility consisting of a 290 unit apartment complex comprised of one and two bedroom units in up to 15, two-story buildings and the construction, equipping and development of facilities functionally related and subordinate thereto including a clubhouse, tenant storage, a swimming pool and bath house and an exercise trail, all located on approximately a 33.33 acre parcel of land owned by the Owner at 1001 North Range Line Road bounded on the east by U.S. Highway 431 and North Range Line Road to the west (the "Project") if the City will lend to the Owner the proceeds from the sale of the City's Economic Development Revenue Bonds, Series 1985 (FHA Insured Mortgage Loan - Cool Creek Associates, Ltd. Project) (the "Bonds") issued in the total principal amount of $11,240,000; and -2- WHEREAS, the Common Council of the City (the "Common Council") has heretofore, by ordinance and pursuant to the Act, created the Carmel Economic Development Commission (the "Commission") and the members of the Commission have been duly appointed and qualified pursuant to law and the Commission has organized and undertaken the duties imposed upon it by the Act and has found by written resolution that the economic welfare of the City would be benefited by financing the construction and equipping of the Project for and on behalf of the Owner; and WHEREAS, the Commission has approved a report estimating the public services which would be made necessary or desirable, the expense thereof, the number of residential units developed for use on account of the construction, equipping and operation of the Project and the cost of the Project and has submitted such report to the presiding officer of the Area Plan Commission; and WHEREAS, after giving notice in accordance with the Act and Section 103(k) of the Internal Revenue Code of 1954, as amended (the "Code"), the Commission held on April 15, 1985, a public hearing on the proposed financing and adopted a resolution finding the proposed financing complies with the purposes and provisions of the Act, approving the financing and approving the form and terms of the Bonds proposed to be issued by the City for the purpose of funding a loan from the City to the -3- Owner to fund the cost of construction and equipping of the Project and approving the forms of financing documents in connection therewith (the "Financing Documents")~ copies of which resolution, the minutes of the public hearing and the Financing Documents and information pertaining to the financing have been transmitted to the Common Council Secretary of the Commission; and proposed by the WHEREAS, there have been presented to this meeting the following documents which the City proposes to enter into or accept to effectuate the proposed issuance of the Bonds: 1. The form of Loan Agreement; 2. The form of Indenture; 3. The form of Bond Purchase Agreement Agreement") among the City, the Owner and L. Unterberg, Towbin (the "Underwriter"); (the "Purchase F. Rothschild, 4. The form of Tax Regulatory Agreement and Declaration of Covenants dated as of April 1, 1985 (the "Regulatory Agreement') among the City, the Owner, the Trustee and the Monitoring Agent (hereinafter identified); 5. The form of Official Statement relating to the Bonds (the "Official Statement"); -4- 6. The form of Monitoring Agreement dated as of April 1, 1985 (the "Monitoring Agreement") among Merchants Mortgage Corporation (the "Monitoring Agent"), the City and the Trustee; 'and 7. The form of the Bonds, as set forth in the Indenture; and WHEREAS, it appears that each of the instruments above referred to, which are now before the City, is in appropriate form and is an appropriate instrument for the purposes intended: NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA AS FOLLOWS: Section 1. Public Benefits. The Common Council of the City hereby finds and determines that the Project constitutes an "economic development facility" as that phrase is used in the Act and that the construction and equipping of the Project will improve and promote the economic stability, development and the general welfare of the area in and near the City, and will encourage and promote the expansion of industry, trade and commerce in the area in and near the City and the location of other new economic development facilities in such area. -5- Section 2. Findinqs and Approval. (A) The Common Council hereby finds that the issuance of the Bonds for the Project is of public benefit to the general welfare of the City by tending to overcome the deficiencies previously found to exist and that such benefit is greater than the cost of "public facilities" (as that phrase is defined in the Act) which will be required by the Project and further that the proposed financing will be of benefit to the welfare of the City and complies with the purposes and provisions of the Act. (B) This Common Council, as the elected legislative body of the City, hereby evidences its approval of the issuance of the Bonds and the financing of the Project; which approval shall constitute the approval of an "applicable elected representative" for purposes of 103(k) of the Code. Section Section 3. Authorization of Bonds. (A) In order to provide for the financing of the Project, the Bonds are hereby authorized to be issued in the total principal amount of not to exceed $11,240,000, accordance with the terms of the Indenture. The Bonds shall be issued in any denomination or denominations in -6- authorized by terms of the Indenture, shall bear the letter "R" and the last two digits of the year of their maturity, be numbered consecutively from one (R85-1) upwards and shall be typewritten, photo-offset, printed or any combination of the foregoing. (B) The Bonds Shall be issued in fully registered form without coupons, shall be dated as of April 15, 1985, except as otherwise provided in the Indenture, shall mature on April 1, 2015 and bear interest or appreciate at a rate or rates not to exceed 11.5% per annum. (C) The Bonds shall be subject to redemption prior to maturity as provided therein and in ~he Indenture. (D) The Mayor is hereby authorized to execute, by manual or facsimile signature, each of the Bonds in the name of the City in the manner provided by the Indenture. The Clerk of the City is hereby authorized to affix the corporate seal of the City to each of the Bonds or to impress the corporate seal thereon or to provide for the engraving or other reproduction of the corporate seal on each Bond and to attest, by manual or facsimile signature, to such affixing, imprinting, engraving or other reproduction of the corporate seal, all as provided in the Indenture. -7- Section 4. Obligation of Bonds. (A) The Bonds shall be limited obligations of the City payable solely from certain payments and other amounts due pursuant to the Loan Agreement and from other moneys available to the Trustee under the Indenture. (B) Each Bond shall contain thereon a statement substantially as follows: "The Bonds are limited obligations of the Issuer. Neither the Bonds nor the interest or premium, if any, thereon constitute an indebtedness or a charge against the general credit or taxing power of the Issuer, the State of Indiana or any other political subdivision thereof, or of the United States of America or any agency or department thereof, within the meaning of any constitutional statutory limitation; and neither shall ever constitute or give rise to any pecuniary liability of the Issuer, the State of Indiana or any other political subdivision thereof, or of the United States of America or any agency or department thereof." (C) Neither the Common Council nor any person executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds. -8- Section 5. Execution and Delivery of the Indenture, the Loan Agreement, the Monitoring Agreement and the Regulatory Agreement. The Indenture, Bond Purchase Agreement, the Loan Agreement, the Monitoring Agreement and the Regulatory Agreement are hereby approved in the forms presented to this meeting with such changes, omissions and insertions as the Mayor may approve. The Mayor is hereby authorized to execute, acknowledge and deliver the same on behalf of the City (such execution to be conclusive evidence of the approval of any such changes, omissions or insertions), and the Clerk of the City is hereby authorized to impress~ imprint or otherwise affix the corporate seal of the City to the Indenture, the Bond Purchase Agreement, the Loan Agreement, the Monitoring Agreement and the Regulatory Agreement. Section 6. Sale of Bonds. The Bonds shall be sold to the Underwriter at a price of not less than ninety-eight percent (98%) of par value on the terms and conditions set forth in the Bond Purchase Agreement submitted to this meeting, with such changes, omissions and insertions as the Mayor may approve. The Mayor is hereby authorized to execute and deliver the Bond Purchase Agreement on behalf of the City (such execution to be conclusive evidence of the approval of any such changes, omissions or insertions), and the authorized to impress, imprint or seal of the City to said document Clerk of the City is hereby otherwise~affix the corporate and attest to the impressing, -9- imprinting or otherwise affixing of the corporate seal document. The proceeds of the sale of the Bonds shall applied as provided in the Indenture. to said be Section 7. Official Statement. The Official Statement of the City relating to the Bonds is hereby approved in the form presented to this meeting with such changes, omissions and insertions as the Mayor may approve. The Mayor is hereby authorized to execute and deliver the Official Statement on behalf of the City (such the approval of any such The City hereby ratifies execution to be conclusive evidence of changes, omissions or insertions). and approves the use and distribution of a Preliminary Official Statement and an Official Statement, in substantially the fQrm submitted to this meeting, in connection with the issuance, sale and delivery of the Bonds. Any such distribution made prior to the passage of this Bond Ordinance is hereby ratified and approved. Section 8. Effect of Agreements. (A) Ail covenants, stipulations, obligations and agreements of the City contained in this Bond Ordinance and contained in each of the agreements or other documents authorized by this Bond Ordinance shall be deemed to be the covenants, stipulations, obligations and agreements of the City to the full extent authorized or permitted by law, and -10- such covenants, stipulations, obligations and agreements shall be binding upon the City and its successors from time to time and upon any body to which any powers or duties affecting such covenants, stipulations, obligations and agreements shall ~e transferred by or in accordance with law. Except as otherwise provided in this Bond Ordinance, all rights, powers and privileges conferred and duties and liabilities imposed upon the City by the provisions of this Bond Ordinance, and by each of the agreements or other documents authorized by this Bond Ordinance shall be exercised or performed by the City or by such officers, board or body as may be required by law to exercise such powers and to perform such duties. (B) Ail covenants, stipulations, promises, agreements, and obligations of the City contained herein and in each of the agreements and other documents authorized by this Bond Ordinance shall be deemed to be covenants, stipulations, promises, agreements and obligations of the City and not of any member, officer or employee of the City in his individual capacity. Section 9. Further Authority. The Mayor and the Clerk of the City are hereby designated the authorized representatives of the City, and each of them i~ hereby authorized and directed to execute and deliver any and all papers, instruments, -11- opinions, certificates, affidavits and other documents and to do and cause to be done any and all acts and things necessary, desirable or convenient for carrying out this Bond Ordinance, the agreements and other documents authorized by this Bond Ordinance and the issuance or reoffering of the Bonds. Section 10. Repeal, Amendment and Modification of this Bond Ordinance. This Bond Ordinance shall be part of the contract with the owners from time to time of the Bonds and from and after the delivery of the Bonds shall not be repealed, amended or modified except to the extent and in the manner permitted for supplemental agreements to the Indenture. Section~ 11. Effective Date and Repeal of Conflicting Ordinances or Resolutions. This Bond Ordinance shall take effect immediately upon adoption by the Common Council and the execution hereof by the Mayor. All ordinances or resolutions inconsistent with this Bond Ordinance are hereby repealed to the extent of such inconsistency. Section 12. Severability. If any provision of this Bond Ordinance shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, the same shall not affect any other render the same extent whatever; provision or provisions herein contained or invalid, ~noperative or unenforceable to any provided however, that if the limitation on -12- the source of revenues to pay principal, interest and premium, if any, on the Bonds is held invalid, the City shall have no obligation to pay the Bonds from other sources. Section 13. Incorporation by Reference. The substantially final forms of the Indenture, Loan Agreement, Regulatory Agreement, Monitoring Agreement and Bond Purchase Agreement presented to this Common Council are, by this reference, incorporated herein to the same extent as if set forth herein in their entirety. PASSED AND APPROVED this /j day of April, 1985. [SEAL] Attest: By: C l~e r k /~ Presented bY me to the Mayor this /~ day of 1985. Clerk -13- The undersigned, chief elected executive officer of the City, hereby approves (i) the foregoing ordinance (ii) the issuance of the Bonds and (iii) the lending of the proceeds of the Bonds to the Owner to finance the Project. Signed this /~ day of -14-