Explanation
This ordinance will serve as a technical correction for language inadvertently omitted from Ordinance 0178-2004 and the Project Acquisition Agreement thereto.
Title
To authorize the Director of Development to execute the amendment of the City's Project Acquisition Agreement dated February 1, 2004 with National Church Residences; and to declare an emergency.
Body
WHEREAS, in accordance with Sections 5709.40, 5709.42 and 5709.43 of the Ohio Revised Code, the City of Columbus, Ohio (the "City"), pursuant to its Ordinance No. 1721-02, passed November 25, 2002 (as the same may he amended or supplemented, the "TIF Ordinance"), has among other things, (i) declared the increase in the assessed value of certain real property described in the TIF Ordinance (the "Property") subsequent to the date of the TIF Ordinance to be a public purpose; (ii) exempted 100% of such increase in assessed value from taxation for a period of thirty (30) years; (iii) required the current and future owners of the Property to make annual service payments in lieu of real property taxes (the "TIF Payments"); (iv) determined that certain public improvements (the "Improvements") would benefit or serve the Property; and (v) established the Waggoner Road Tax Increment Equivalent Fund (the "TIF Fund") into which the TIF Payments (other than amounts required by the TIF Ordinance to he paid to the Columbus City Council) are to he deposited and from which costs of the Improvements may be paid; and
WHEREAS, National Church Residences, an Ohio nonprofit corporation having its principal office in Columbus, Ohio (the "Developer"), for itself and on behalf of its affiliates, Waggoner Senior Housing Limited Partnership, National Church Residences of Waggoner Road and Waggoner Woods Limited Partnership, was or is the owner, or is the affiliate of the owner, of certain parcels of real property constituting a portion of the Property; and
WHEREAS, in order to implement the acquisition of the Improvements, the City, pursuant to its Ordinance No. 0177-04, passed January 26, 2004, authorized a Project Acquisition Agreement (the "Agreement") which provides for payment of costs of the Improvements upon the terms provided therein; and
WHEREAS, the Columbus City Council on January 26, 2004 passed Ordinance No. 0178-04 (the "Bond Ordinance"), and pursuant to the authority granted in the Bond Ordinance, the City has issued its Adjustable Rate Tax Increment Financing Bonds (Waggoner Road Project) dated February 12, 2004 in the original principal amount of $1,700,000 (the "Bonds"), the proceeds of which Bonds were used to acquire the Improvements and to pay the Developer for the Cost of Improvements, as defined in the Agreement; and
WHEREAS, the City entered into the Agreement with the Developer on February 1, 2004, which Agreement required the Developer to provide a letter of credit to provide security for the Bonds (the "Letter of Credit"); and
WHEREAS, an emergency exists in the usual daily operation of the City in that it is immediately necessary for passage as the property is generating TIF Payments in excess of the amount of TIF Payments required to be held within the TIF Fund (the "Excess TIF Revenues"), and the City desires to use these permissible Excess TIF Revenues to reimburse the Developer for the costs it has incurred and will incur to maintain the Letter of Credit; all for the immediate preservation of the public health, peace, property, safety and welfare;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF COLUMBUS:
Section 1. Section 4.4 of the Agreement, which currently reads:
"Section 4.4 Additional Payments to the Developer. No later than each January 15, the City shall provide a written statement to the Developer setting forth the amount of monies that were on deposit in the TIF Fund on the immediately preceding December 15. The City and Developer agree that to the extent (i) the Developer has made or caused to be made payments to the provider of the Letter of Credit to reimburse draws made by the City under the Letter of Credit from sources other than moneys in the TIF Fund (the "Developer LOC Payments") and (ii) the amount of payments in lieu of taxes required to be deposited into the TIF Fund for the then current Fiscal Year is at least equal to 130% of the principal and interest payable on the Bonds in the then current Fiscal Year, the Developer may request the City to pay to the Developer, but solely from monies remaining on deposit in the TIF Fund as of the immediately preceding December 15, an amount equal to the difference between (x) the aggregate Developer LOC Payments, and (y) the aggregate amounts theretofore paid to the Developer pursuant to this Section 4.4. In making such calculation, interest payable on the Bonds shall be assumed to be the Maximum Interest Rate, as defined in the Bond Ordinance. The City shall make such payments to the Developer within twenty-one (21) days of that request. The City shall continue to make payments to the Developer as requested until the Developer has received payments pursuant to this Section 4.4 in the aggregate amount equal to the aggregate of all Developer LOC Payments. Any payments to the Developer pursuant to this Section shall be made by wire transfer in immediately available funds to the Developer's Wire Transfer Address. The City shall take no action to terminate the TIF Payments until all Developer LOC Payments have been repaid to the Developer as provided in this Section 4.4. The rights of the Developer to be repaid for Developer LOC Payments is subject and subordinate to the rights of the Bank under the Bond Ordinance and under the reimbursement agreement pursuant to which the Letter of Credit was issued."
Shall be amended in its entirety to read as follows:
"Section 4.4 Additional Payments to the Developer. No later than each January 15, the City shall provide a written statement to the Developer setting forth the amount of monies that were on deposit in the TIF Fund on the immediately preceding December 15. The City and Developer agree that to the extent (i) the Developer has made or caused to be made payments to the provider of the Letter of Credit to reimburse draws made by the City under the Letter of Credit from sources other than moneys in the TIF Fund or has paid fees associated with the Letter of Credit, including but not limited to, amounts constituting drawing fees or commitment fees associated with a Letter of Credit (the "Developer LOC Payments") and (ii) the amount of payments in lieu of taxes required to be deposited into the TIF Fund for the then current Fiscal Year is at least equal to 130% of the principal and interest payable on the Bonds in the then current Fiscal Year, the Developer may request the City to pay to the Developer, but solely from monies remaining on deposit in the TIF Fund as of the immediately preceding December 15, an amount equal to the difference between (x) the aggregate Developer LOC Payments, and (y) the aggregate amounts theretofore paid to the Developer pursuant to this Section 4.4. In making such calculation, interest payable on the Bonds shall be assumed to be the Maximum Interest Rate, as defined in the Bond Ordinance. The City shall make such payments to the Developer within twenty-one (21) days of that request. The Developer shall provide any written documentation that the City may require in connection with the reimbursement of Developer LOC Payments. The City shall continue to make payments to the Developer as requested until the Developer has received payments pursuant to this Section 4.4 in the aggregate amount equal to the aggregate of all Developer LOC Payments. Any payments to the Developer pursuant to this Section shall be made by wire transfer in immediately available funds to the Developer's Wire Transfer Address. The City shall take no action to terminate the TIF Payments until all Developer LOC Payments have been repaid to the Developer as provided in this Section 4.4. The rights of the Developer to be repaid for Developer LOC Payments is subject and subordinate to the rights of the Bank under the Bond Ordinance and under the reimbursement agreement pursuant to which the Letter of Credit was issued."
Section 2. The Director of Development is hereby authorized to execute an amendment to the Agreement consistent with the provisions authorized in Section 1.
Section 3. That for the reasons stated in the preamble hereto, which is hereby made a part hereof, this ordinance is hereby declared to be an emergency measure and shall take effect and be in force from and after passage and approval by the Mayor or ten days after passage if the Mayor neither approves nor vetoes the same.