HomeMy WebLinkAboutCity Council Resolution 1984-059RESOLUTION NO. 84 - 59
Member Neils introduced the following
resolution and moved its adoption:
RESOLUTION RELATING TO $5,000,000 INDUSTRIAL
DEVELOPMENT REVENUE BOND (LYNDALE TERMINAL CO.
PROJECT), SERIES 1984; AUTHORIZING THE ISSUANCE
THEREOF PURSUANT TO MINNESOTA STATUTES, CHAPTER 474
BE IT RESOLVED by the City Council of the City of
Plymouth, Minnesota, as follows:
Section 1. Definitions.
1.01. In this Resolution the following terms have the
following respective meanings unless the context hereof or use
herein clearly requires otherwise:
Act: the Minnesota Municipal Industrial Development
Act, Minnesota Statutes, Chapter 474, as amended;
Bond Register: the register maintained by the City
Clerk purst+ant to Section 5.04 hereof;
Bond: the Industrial Development Revenue Bond
(Lyndale Terminal Co. Project), Series 1984, to be issued by
the City pursuant to this Resolution;
Buildings: the retail warehouse store of
approximately 125,000 square feet and related facilities and
improvements to be constructed on the Land by the Company;
City: the City of Plymouth, Minnesota, its successors
and assigns;
Company: Lyndale Terminal Co., a Minnesota
corporation, its successors and assigns, which may assume its
obligations in accordance with the Loan Agreement;
Escrow Fund: the fund established pursuant to the
Pledge Agreement;
Guaranty: the Guaranty Agreement to be executed by
the Tenant in favor of the Lender;
Holder: the Lender or any person to whom the Bond has
been assigned pursuant to Section 5.04 of this Resolution;
Land: the real estate described in Exhibit A to
the Loan Agreement, located at 4445 Nathan Lane in the City;
iLender: First National Bank of Minneapolis, its
successors and assigns;
Loan Aqreement: the Loan Agreement to be executed by
and between the City and the Company;
Organizational Documents: the following documents,
each of which shall. be in form and substance acceptable to the
Lender:
ki) copies of the Articles of Incorporation of the
Company and the Tenant, certified by the
Secretary of State of Minnesota;
(ii) an opinion or opinions of counsel reasonably
acceptable to the Lende: indicating that each of
the documents referred to in Section 3.O:1 of this
Resolution has been duly executed and delivered
and is the legal and binding obligation of the
Company, the Tenant and the City, as the case may
be, enforceable in accordance with its terms,
except to the extent to which enforceability may
be limited by state and federal laws, rulings and
decisions and principles of equity affecting
remedies and by bankruptcy, moratorium,
reorganization and other laws of general
application relating to or affecting the
enforcement of creditors' rights generally;
Pledge Agreement: the Pledge and Loan Disbursement
Agreement, among the City, the Company and the Lender,
including any amendment thereof.
Project: the Land, the Buildings and the Project
Equipment, as they may at any time exist;
Project Costs: those costs defined as Project Cost
in Section 1.01 of the Loan Agreement;
Project Equipment: all items of furniture, machinery
and equipment, or other personal property, to be acquired by
the Company for installation in the Buildings or elsewhere or
the Land and paid for in whole or in part from proceeds of the
Bond;
Resolution: this resolution of the City, adopted
January 16, 1984, authorizing the issuance of the Bond; and
Tenant: Holiday Stationstores, Inc., a Minnesota
corporation, its successors and assigns.
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that: Section 2. Findings. It is hereby found and declared
(a) the real and personal property described in the
Loan Agreement constitute a Project authorized by the Act;
(b) the purpose of the Project is, and the effect
thereof will be to promote the public welfare by the
attraction, encouragement and development of economically sound
commerce so as to prevent the emergence of blighted and
marginal lands and areas of chronic unemployment; preserving
the existing investment of the community in facilities for
public service and preserving a tax base adequate to finance
such service;
(c) the Project when completed will add to the tax
base of the City and will accordingly be of direct_ benefit to
the taxpayers of the City as well as those of the County and
School District in which the City is located. will increase
employment and the level of economic activity in the area, and
enhance the reputation of the City as a desirable location for
people and business;
(d) the Project will, prior to the delivery of the
Bond, be approved by the Energy and Economic Development
. Authority of the State of Minnesota as tending to further the
purposes and policies of the Act;
(e) the financing of the Project, the issuance and
sale of the Bond, the execution and delivery of the Loan
Agreement and the Pledge Agreement, and the performance of all
covenants and agreements of the City contained in the Bond, the
Loan Agreement and the Pledge Agreement and of all other acts
and things required under the Constitution and laws of the
State of Minnesota to make the Loan Agreement, the Pledge
Agreement and the Bond valid and binding obligations of the
City in accordance with their terms, are authorized by the Act;
(f) it is desirable that the Bond in the aggregate
principal amount of $5,000,000 be issued by the City upon the
terms set forth herein, and that the City assign its interest
in the Loan Agreement and grant a security interest therein to
the Lender as security for the payment of the principal of and
interest and premium, if any, on the Bond;
(g) the loan payments contained in the Loan Agreement
are fixed, and are required to be revised from time to time as
necessary, so as to produce income ar_d revenue sufficient to
provide for prompt payment of principal of and interest on the
Bond issued under this Resolution when due, and the Loan
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• Agreement also provides that the Company is required to pay all
expenses of the operation and maintenance of the Project
including, but without limitation, adequate insurance thereon
and all taxes and special assessments levied upon or with
respect to the Land and payable during the term of the Loan
Agreement; and
(h) under the provisions of Minnesota Statutes,
Section 474.10, and as is provided in the Loan Agreement, the
principal of and interest on the Bond are not to be payable
from nor charged upon any funds of the City other than the
revenue pledged to the payment thereof; the City is not subject
to any liability thereon; no Holder of the Bond shall ever have
the right to compel any exercise of the taxing power of the
City to pay the Bond or the interest thereon, nor to enforce
payment thereof against any property of the City; the Bond
shall not constitute a charge, lien or encumbrance, legal or
equitable, upon any property of the City; the Bond shall recite
that the Bond, including interest thereon, is payable solely
from.the revenue pledged to the payment thereof; and the Bond
shall not constitute a debt of the City within the meaning of
any constitutional, charter or statutory limitation.
Section 3. Authorization and Sale.
3.01. Authorization. The City is authorized by the
Act to issue revenue bonds and loan the proceeds thereof to
business enterprises to finance the acquisition and
construction of "projects" as defined in the Act, and to make
all contracts, execute all instruments and do all things
necessary or convenient in the exercise of such authority.
3.02. Preliminary City Approval. By Resolution
No.83-104duly adopted by the City Council on December 28, 1983,
after a public hearing duly called, noticed and held on that
date, this Council approved the sale of revenue bonds pursuant
to the Act and the loan of the proceeds to the Company for the
construction of the Project and authorized the preparation of
such documents as may be appropriate to the Project. Some or
all of the Project is to be leased by the Company to the Tenant.
3.03. Approval of Documents. Pursuant to the above
authorization, there have been prepared and presented to this
Council copies of the following documents, all of which are
now, or'shall be, placed on file in the office of the City
Clerk:
(a) Loan Agreement;
(b) Pledge Agreement; and
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'r• (c) Guaranty.
The forms of the documents listed in (a) through (c) above are
approved, with such variations, insertions and additions as are
deemed appropriate by the parties and approved by the City
Attorney.
Section 4. Authorizations. Upon the completion of
the Loan Agreement and the Pledge Agreement approved in Section
3.03 hereof, and the execution thereof by the Company and the
Lender, as the case may be, the Mayor and City Manager shall
execute the same and shall execute the Bond in substantially
the form set forth in Exhibit A hereto on behalf of the City,
and shall execute such other certificates, documents -or
instruments as bond counsel or counsel for the Lender shall
require, subject to the approval of the City Attorney, and all
certifications, recitals and representations therein shall
constitute the certificates, recitals and representations of
the City. Execution of any instrument or document by one or
more officers of the City shall constitute, and shall be deemed
conclusive evidence of, the approval and authorization by the
City and the City Council of the instrument or document so
executed.
Section 5. The Bond.
• 5.01. Form and Authorized Amount. The Bond shall be
issued substantially in the form hereinafter set forth in
Exhibit A hereto, with such appropriate variations, omissions
and insertions as are permitted or required by this Resolution
in the total principal amount of $5,000,000. The Bond shall be
dated as of the date of delivery thereof to the Lender, and
shall mature finally on January 31, 1999. The terms of the
Bond are set forth in Exhibit A hereto and such terms,
including but not limited to interest rate, dates and amounts
of payment of principal and interest and prepayment privileges,
are incorporated by reference herein.
5.02. Execution. The Bond shall be executed on
behalf of the City by the signatures of the Mayor and the City
Manager, and shall be sealed with its corporate seal. In case
any officer whose signature shall appear on the Bond shall
cease to be such officer before the delivery thereof, such
signature shall nevertheless be valid and sufficient for all
purposes.
5.03. Mutilated, Lost or Destroyed Hond. In case the
Bond shall become mutilated, or be destroyed or lost, the City
shall cause to be executed and delivered a new Bond of like
outstanding principal amount and tenor in exchange and
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substitution for and upon cancellation of the mutilated Bond,
or in lieu of and in substitution for such Bond destroyed or
lost, upon the Holder's paying the reasonable expenses and
charges of the City in connection therewith, and, in case the
Bond is destroyed or lost, its filing with the City evidence
satisfactory to the City of such loss or destruction.
5.04. Reaistration of Transfer. The City will cause
to be kept, at the office of the City Clerk, a Bond Register in
which, subject to such reasonable regulations as it may
prescribe, the City shall provide for the registration or
transfers of ownership of, the Bond. The Bond shall be
transferable upon the Bond Register by the Holder thereof in
person or by its attorney duly authorized in writing, upon
surrender of the Bond, together with a written instrument of
transfer in the form attached to the Bond or otherwise
satisfactory to the City Clerk and the City Attorney, duly
executed by the Holder or its duly authorized attorney. Upon
any such transfer, the City Clerk shall note the date of
registration and the name and address of the new Holder in the
Bond Register and in the registration blank appearing on the
Bond. The City may deem and treat the person in whose name the
Bond is last registered in the Bond Register and by notation on
the Bond as the absolute owner thereof, whether or not the
• principal balance or any part thereof is overdue, for the
purpose of receiving payment of or on account of the principal
balance, redemption price or interest and for all other
purposes.
5.05. Delivery and Use of Proceeds. Prior to
delivery of the Bond, the documents referred to in Section 3.03
hereof shall be completed and executed in the form and
substance as approved by the City Attorney and an original,
executed counterpart of each such document shall be delivered
to the Lender, together with the Organizational Documents. The
City shall thereupon deliver to the Lender the Bond in the
principal amount of $5,000,000, together with a copy, duly
certified by the City Clerk, of this Resolution and such
closing certificates as are required by bond counsel.
Upon delivery of the Bond and the above items to the
Lender, the Lender shall deposit the proceeds of the Bond in
the Escrow Fund to be disbursed to the Company in reimbursement
of Project Costs, pursuant to the provisions of the Loan
Agreement and Pledge Agreement. The Company shall provide the
City with a full accounting of all funds disbursed for Project
Costs.
Section 6. Limitation of City's Obli!ations.
Notwithstanding anything contained in the Bond, the Loan
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Agreement, the Pledge Agreement or any other documents referred
to in Section 3.03 hereof, the Bond shall not constitute a debt
of the City within the meaning of any constitutional or
statutory limitation and shall not be payable from nor charged
upon any funds other than the revenue pledged to the payment
thereof and the City shall not be subject to any liability
thereon, and no Holder of the Bond shall ever have the right to
compel any exercise of the taxing power of the City to pay the
Bond or the interest thereon, or to enforce payment the_eof
against any property of the City, and the Bond shall not
constitute a charge, lien or encumbrance, legal or equitable,
upon any property of the City. The agreement of the City to
perform the covenants and other provisions contained in this
Resolution or in the Bond, the Loan Agreement or the Pledge
Agreement shall be subject at all times to the availability of
revenues furnished by the Company sufficient to pay all costs
of such performance by the enforcement thereof, and the City
shall not be subject to any personal or pecuniary liability
thereon.
Adopted: January 16, 1984.
Attest:
City Clerk
The motion for the adoption of the foregoing
resolution was duly seconded by Member Moen , and upon
vote being taken thereon, the following voted in favor thereof:
Councilmembers Moen, Neils and Crain
..and the following voted against the same: Mayor Davenport, Councilmember
Schneider
whereupon the resolution was declared duly passed and adopted.
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0 ,- EXHIBIT A
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
CITY OF PLYMOUTH
Industrial Development Revenue Bond
(Lyndale Terminal Co. Project)
Series 1084
No. R-1
$5,000,000
FOR VALUE RECEIVED, the CITY OF PLYMOUTH, MINNESOTA, a
municipal corporation of the State of Minnesota (the "City"),
hereby promises to Fay to FIRST NATIONAL BANK OF MINNEAPOLIS,
or registered assigns (the "Holder"), at its principal office
in Minneapolis, Minnesota, or such other place as the Holder
may designate in writing, but solely from the source and in the
manner hereinafter provided, the principal sum of FIVE MILLION
DOLLARS ($5,000,000), on January 31, 1999, and to pay interest
thereon on the outstanding principal balance of this Bond from
. the date hereof a rate equal to 65% of the Prime Rate (for the
purpose of this Bond, the Prime Rate shall be the rate publicly
announced from time to time by First National Bank of
Minneapolis as its prime rate of interest), which interest rate
shall change when and as such Prime Rate shall change, all
except as the provisions below with respect to the redemption
of this Bond before maturity may become applicable hereto.
Interest is payable on each January 31, April 30, July 31 and
October 31, commencing April 30, 1984. All interest hereon
shall be computed on the basis of the actual number of days
elapsed and a year of 360 days. Both principal and interest
are payable in any coin or currency which at the time or times
for payment is legal tender for the payment of public or
private debts in the United States of America.
This Bond constitutes all of an issue in the total
authorized face amount of $5,000,000, issued by the City
pursuant to the authority granted by Minnesota Statutes,
Chapter 474, as amended (the "Act"), for the purpose of
providing funds for a project, as defined in Minnesota
Statutes, Section 474.02, Subdivision la, consisting of the
construction of a commercial retail facility within the City,
and paying necessary expenses incidental thereto, such funds to
be loaned by the City to Lyndale Terminal Co. (the "Company")
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pursuant to Resolution No. , duly adopted by the City
Council on January 16, 1984 (the "Resolution") and a Loan
Agreement, of even date herewith (the "Loan Agreement"),
between the City and the Company, thereby assisting activities
in the public interest and for the oublic welfare of the City.
This Bond is secured by a Pledge and Loan Disbursement
Agreement, of even date herewith (the "Pledge Agreement"),
among the City, First National Bank of Minneapolis and the
Company. The payment of the principal hereof, premium, if any,
and interest hereon is further secured by a Guaranty Agreement,
of even date herewith (the "Guaranty") from Holiday
Stationstores, Inc. to First National Bank of Minneapolis.
The principal of this Bond is subject to redemption
and prepayment, in whole or in part, at the option of the lity
at the direction of the Company, on any date at a price equal
to the principal amount being so prepaid with accrued interest
to the date of redemption. Any such prepayments shall be
applied against the principal installments of this Bond in
inverse order of their due dates. Notice of prepayment of any
principal of the Bond shall be mailed, at least thirty days
prior to the date set for prepayment, to the Holder of the Bond
at its address as it appears on the Bond Register maintained by
the City Clerk.
• The principal of this Bond is subject to mandatory
redemption and prepayment upon a Determination of Taxability
(as defined in the Loan Agreement), at a price equal to the
principal amount hereof then outstanding plus accrued interest
plus a premium equal to the aggregate difference between (i)
the payments actually made hereon from the Date of Taxability
(as defined in the Loan Agreement) and (ii) the payments which
would have been made hereon during such period if the Taxable
Interest Rate described in this paragraph had been in effect.
The Taxable Interest Rate shall be equal to a rate per annum
which is, from time to time, equal to the lower of the Prime
Rate or 1.25% per annum above the Base Rate (which, for the
purpose of th'.s Bond, shall mean the rate posted daily by First
National Bank of Minneapolis as said bank's base rate), which
Taxable Interest Rate shall change when and as such Prime Rate
or Base Rate shall change.
The principal of this Bond is subject to mandatory
redemption on January 31 of the years set forth below, in
amounts equal to the per--entages of the principal amount of
this Bond outstanding as of the close of business on
January 31, 1987, respective, as follows:
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Percentage of
Principal Amount Hereof
January 31 Outstanding as of
of the Year January 31, 1987
1992 11.00%
1994 17.00%
1996 22.00%
As provided in the Resolution, and subject to certain
limitations set forth therein, this Bond is transferable upon
the books of the City at the office of the City Clerk, by the
Holder hereof, in person, or by its attorney duly authorized in
writing, upon surrender hereof together with a written
instrument of transfer in the form attached hereto or otherwise
satisfactory to the City Clerk and the City Attorney, duly
executed by the Holder or its duly authorized attorney. Upon
any such transfer, the City Clerk will note the date of
registration and the name and address of the new Holder in the
registration blank appearing below. The City may deem and
treat the person in whose name this Bond is last registered
upon the books of the City, with such registration noted on
this Bond, as the absolute owner hereof, whether or not
overdue, for the purpose of receiving payment of or on account
of the principal, redemption price or interest and for all
• other purposes, and all such payments so made to the Holder or
upon its order shall be valid and effectual to satisfy and
discharge the liability upon this Bond to the extent of the sum
or sums so paid, and the City shall not be affected by any
notice to the contrary.
All of the agreements, conditions, covenants,
provisions and stipulations contained in the Resolution and
Pledge Agreetrent are hereby made a part of this Bond to the
same extent and with the same force and effect as if they were
fully set forth herein, if a default occurs under this Bond,
or if an event of default occurs under the Loan Agreement, the
Pledge Agreement or the Guaranty, then the Holder may, at its
right and option declare immediately due and payable the
principal balance of this Bond and interest accrued thereon to
the date of declaration of such default, together with any
reasonable attorneys' fees incurred by the Holder in collecting
or enforcing payment thereof, whether suit be brought or not,
and all other sums due hereunder or under the Loan Agreement,
and payment thereof may be enforced and recovered in whole or
in part, at any time by one or more of the remedies provided in
this Bond or in the Loan Agreement, the Pledge Agreement or the
Guaranty. The Holder may extend the time of payment of
interest and/or principal of this Bond, without notice to or
consent of any party liable hereon and without releasing any
such party.
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.This Bond and the premium, if any, and interest hereon
shall never constitute a debt of the City within the meaning of
any constitutional provision or statutory limitation, and shall
never constitute or give rise to a pecuniary liability of the
City or a charge against its general credit or taxing powers.
This Bond and the premium, if any, and interest hereon are
payable solely from the revenues pledged to the payment thereof
pursuant to the Loan Agreement and secured by the provisions of
the Pledge Agreement and the Guaranty, and the Holder of this
Bond shall never have the right to enforce payment thereof
against any property of the City. This Bond does not
constitute a charge, lien or encumbrance, legal or equitable,
upon any property of the City, and the agreement of the City to
perform or cause the performance of the covenants and other
provisions herein referred to shall be subject at all times to
the availability of revenues from the Loan Agreement or the
Pledge Agreement sufficient to pay all costs of such
performance or the enforcement thereof.
The remedies of the Holder, as provided herein, and in
the Pledge Agreement, the Loan Agreement and the Guaranty,
shall be cumulative and concurrent and may be pursued singly,
successively or together and, except as provided in the Loan
Agreement, at the sole discretion of the Holder, and may be
exercised as often as occasion therefor shall occur; and the
failure to exercise any such right or remedy shall in no event
be construed as a waiver or release thereof.
The Holder shall not be deemed, by any act of omission
or commission, to have waived any of its rights or remedies
hereunder unless such waiver is in writing and signed by the
Holder, and then only to the extent specifically set forth in
the writing. A waiver with reference to one event shall not be
construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event.
IT IS HEREBY CERTIFIED AND RECITED that all
conditions, acts and things required to exist, happen and be
performed precedent to or in the issuance of this Bond do
exist, have happened and have been performed in regular and due
form as required by law.
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IN WITNESS WHEREOF, the City has
be duly executed by the signatures of its
and to be sealed with its official seal,
this _ day of 1984.
(Seal)
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caused this Bond to
Mayor and City Clerk,
and to be dated
CITY OF PLYMOUTH, MINNESOTA
By: (Signature)
Mayor
And: (Signature)
City Manager
• CERTIFICATE OF REGISTRATION
Note: There must be no writing in the space below
except by the City Clerk.
n
U
1984 First National Bank
of Minneapolis
mmi
ure o
Clerk
4
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
the within Bond and all rignts there
irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the
premises.
Dated:
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
rm
NOTICE: The signature to
this assignment must
correspond with the name
as it appears upon the
face of the within Bond
in every particular,
without alteration or
enlargment or any charge
whatsoever.