Loading...
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. -2- 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 -3- • 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 -4- '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 -5- 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 -6- 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. -7- 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") A-1 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: A-2 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. A-3 .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. A-4 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) A -S 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.