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HomeMy WebLinkAboutCity Council Resolution 1985-945jloQ FINAL NCYrd RESOLUTION RESOLUTION NO. 85-945 CITY OF PLYMOUTH, MINNESOTA $860,800 COMMERCIAL DEVELOPMENT REVENUE NOTE OF 1985 (OAKLAND PROPERTIES PROJECT) ADOPTED: Decenber 2, 1935 NOTE RESOLUTION (This Table of Contents is not a part of this Resolution, but is included for convenience only) TABLE OF CONTENTS SIGNATURES............................................ 14 Page ARTICLE ONE - DEFINITIONS, LEGAL AUTHORIZATION ANDFINDINGS .................................... 1 Section 1-1. Definitions ...................... 1 Section 1-2. Legal Authorization .............. 3 Section 1-3. Findings .............. ..6....... 3 Section 1-4. Authorization and Ratification of Project ....................... 4 ARTICLE TWO - NOTE....... ....... .. ...0........ 6 Section 2-1. Authorized Amount and Form Section 2-2. of Note .......................... The Note ......................... 6 6 Section 2-3. Execution ................. 6.6.... 6 Section 2-4. Delivery of Note.. ............... 6 Section 2-5. Disposition of Note Proceeds..... 7 Section 2-6. Registration of 'transfer......... 7 Section 2-7. Mutilated, Lost or Destroyed Note.. . .......... .............. 8 Section 2-8. Ownership of Note ................ 9 Section 2-9. Limitation on Note Transfers..... 9 ARTICLE THREE - GENERAL COVENANTS ..................... 10 Section 3-1. Payment of Principal and Interest. 10 Section 3-2. Performance of and Authority for Covenants ..................... 10 Section 3-3. Enforcement and Performance of Covenants..... .................. 11 Sectlon 3-4. Nature of Security ................ 11 Section 3-5. Preservation of Tax Exempt Status of the Note ....................... 11 ARTICLE FOUR - MISCELLANEOUS .......................... 13 Section 4-1. Severability ...................... 13 Section 4-2. Authentication of Transcript...... 13 Section 4-3. Registration of Resolution........ 13 Section 4-4. Authorization to Execute Agreements ........................ 13 SIGNATURES............................................ 14 NOTE RESOLUTION RESOLUTION NO. 85-945 BE IT RESOLVED by the City Council of the City of Plymouth, Minnesota, as follows: ARTICLE ONE DEFIOITIOdS, L,&GAL AUTHORIZATION AND FINUIdGS 1-1. Definitions. The terms used herein, unless the context hereof scall require otnerwise small have the following meanings, and any other terms defined in the Loan Agreement shall have the same iaeaninjs when used herein as assigned to them in the Loan Agreement unless the context or use thereof indicates another or different meaning or intent. Act: the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Chapter 474, as amended; Assignment of Leases and Rents: the agreement to be executed by the Borrower assigning all the leases, rents, issues and profits derived from the Project to the Lender to secure the repayment of the Note and interest thereon; gond Counsel: the firm of Briggs and Morgan, Professional Association, of St. Paul and Minneapolis, Minnesota, and any opinion of Bond Counsel shall be a written opinion signed by such Counsel; 3orrower: Oakland Properties, a Minnesota general partnership, its successors, assigns, and any surviving, resulting or transferee business entity wnicn may assu►ue its obligations under the Loan Agreement; City: the City of Plymouth, ,Minnesota, its successors and assigns; Construction Fund: the fund established by the City pursuant to this Resolution and into which the proceeds of the Note will be deposited; Construction Loan Agreement: the agreement to be executed by the City, the Borrower and the Lender, relating to the disbursement and payment of Project Costs out of the Construction Fund for the acquisition of the Land and the construction and installation of the Improvements; Guarantors: collectively, Richard G. Ogle and C. Edward Sheehy; Guaranty: the personal guaranty to be executed by the Guarantors in favor of the Lender; Improvements: the structures and other improvements, including any tangible personal property, to be constructed or installed by the Borrower on the Land in accordance with the Plans and Specifications; Land: the real property and any other easements and rights described in Exhibit A attached to the Loan Agreement; Lender: American National Bank and Trust Company, Saint Paul, Minnesota, its successors and assigns; Loan Agreement: the agreement to be executed by the City and the Borrower, providing for the issuance of the Note and the loan of the proceeds tnereof to the Borrower, including any amendments or supplements thereto made in accordance with its provisions; Mortgage: the Mortgage, Security Agreement and Fixture Financing Statement to be executed by the Borrower, as mortgagor, to the Leder, as mortjagee, securing payment of the Note and interest thereon; Note: the 48aU,8UU Commercial Uevel•.)pment Ravenue Note of 1985 Oakland Properties Project), to be issued by the City pursuant to this Resolution and the Loan Agreement; Note Register: the records kept by the City Clerk to provide for the registration of transfer of ownership of the Note; Plans and Specifications: the plans and specifications for the construction and installation of the Improvements on the Land, which are approved by the Lender, together with such modifications thereof and additions thereto as are reasonably determined by the Borrower to be necessary or desirable for the completion of the Improvements and are approved by the Lender; Pledge Agreement: the agreement to be executed by the City and the Lender pledging and assigning the Loan Agreement to the Lender; Principal Balance: so mucn of the principal sum on the Note as remains unpaid at any time; 2 Project: the Land and Improvements as they may at any time exist; Project Costs: the total of all "Construction Costs" and "Loan and Carrying Charges," as those terms are defined in the Loan Agreement; Resolution: this Resolution of tae City adopted December 2, 1985, together with any supplement or amendment thereto. All references iu tnis instrument to designated "Articles," "Sections" and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed. The words "herein," "nereof" and "nereunder" and other words of similar import refer to this Resolution as a whole not to any particular Article, Section or subdivision. 1-2. Legal Autnorization. The City is a political subdivision of the State of Minnesota and is authorized under the Act to initiate the revenue producing project herein referred to, and to issue and sell the Note for the purpose, in the manner and upon the terms and conditions set forth in the Act and in this Resolution. 1-3. Findings. The City Council has heretofore determined, and does hereby determine, as follows: (1) The City is authorized by the Act to enter into a Loan Agreement for the public purposes expressed in the Act; (2) Tne City has made the necessary arrangements with the Borrower for the establishment within the City of a Project consisting of certain property all as more fully described in the Loan Agreement and which will be of the character and accomplish the purposes provided by the Act, and the City has by this Resolution authorized the Project and execution of the Loan Agreement, the Pledge Agreement, the eNote and the Construction Loan Agreement, which documents specify the terms and conditions of the acquisition and financing of the Project; (3) in authorizing the Project the City's purpose is, and in its judgment the effect tnereof will be, to promote the public welfare by: the attraction, encouragement and development of economically sound industry and commerce so as 3 to prevent, su far as possiole, the ecaergence of olignted and marginal lands and areas of chronic unemployment; the develop- ment of revenue-producinj enterprises to use the available resources of the community, in order to retain the benefit of the community's existing investment in educational and public service facilities; the halting of the movement of talented, educated personnel of all ages to otner areas thus preserving the economic and human resources needed as a base for providing governmental services and facilities; the provision of acces- sible employment opportunities for residents in the area; the expansion of an adequate tax base to finance the cost of governmental services, including educational services for the school district serving the community in which the Project is situated; (4) the amount estimated to be necessary to partially 4-inance the Project Costs, in-luding the costs and estimated costs permitted by Section 474.05 of the Act, will require the issuance of the Note in the principal amount of $860,800 as r;Arsinafter providad; (.i) it is desirable, feasible and consistent with the objects and purposes of the Act to issue the Note, for the pL.rpose of partially financing tree Project; (6) the Note and the interest accruing thereon do not _oi,.stitute an indebtedness of the City within the meaning of ,%ny constitutional or statutory limitation and do not ,:,)nititute or give rise to a pecuniary liaoility or a charge ,iga;not the general credit or taxing powers of the City and nei,rier the full faith and credit nor ttua tsxing powers of the Cit- is pledged for the payment of the Note or interest tJiei eon; and (7) The Note is an industrial development pond witnin the nearing of Section 103(b) of the Internal Revenue Code and is to t,e issued within the exemption provided under subparagraph (A) of Section 103(b)(6) of the Code with respect to an issue Of $1,000,000 or less; provided that nothing herein shall provant the City from hereafter qualifying the Note under a dif,-erent exemption if, and to the extent, such exemption is permitted by law and consistent with the objects and purposes of the Project. 1-4. Authorization and Ratification of Project. The City has heretofore and does hereby authorize the Borrower, in accordance with the provisions of Section 474.03(7) of the Act and subject to the terve and conditions 4 set forth in the Construction Loan Agreement, to provide for the construction and installation of the Project pursuant to the Plans and Specifications by such means as shall be available to the Borrower and in the manner determined by the Borrower, and without advertisement for bids as may be required for the construction and acquisition of municipal facilities; and the City hereby ratifies, affirms, and approves all actions heretofore taken by the Borrower consistent with and in anticipation of such authority and in compliance witn the Plans and Specifications. 5 ARTICLE TWO NOTE 2-1. Authorized Amount and Form of Note. The Note issued pursuant to this Resolution shall be in substantially the form set forth on Exhiuit A hereto, with such appropriate variations, omissions and insertions as are permitted or required by this Resolution, and in accordance with the further provisions hereof; and the total prin,;ipal amount of the Note that may be outstanding hereunder is expressly limited to $860,800 unless a duplicate Note is issued pursuant to Section 2-7. 2-2. The Note. The Note shall be dated as of the date of delivery, shall be payable at the times and in the manner, shall bear interest at the rate, and shall be subject to such other terms and conditions as are set forth therein. 2-3. Execution. The Note shall be executed on behalf of the City by the signatures of its Mayor and City Manager and shall be scaled with the seal of the Citv. In case any officer whose signature shall appear on the Note shall cease to be such officer before the delivery of the Note, such signature shall nevertheless be valid and sufficient for all purposes, the same as it toad remained iii office until delivery. In the event of the absence or disability of the Mayor or the City Manager, such officers of the City as, in ttie opinion of the City Attorney, may act in their behalf, shall without further act or autnorization of the City Council execute and deliver the Note. 1-4. Delivery of Note. Before delivery of the Note there shall be filed with the Lender (except to the extent waived by the Lender) the following items: (1) an executed copy of each of the following documents: (A) the Loan Agreement; (3) the Pledge Agreement; n (C) the Mortgage; (D) the Assignment of Leases and Rents; (E) the Construction Loan Agreement; (F) the Guaranty; (G) a Cost Certificate signed by the Borrower certifying the use of the proceeds of the Note; (2) an opinion of Counsel for the Borrower dnd Guarantors as prescribed by Bond Counsel and Lender's Counsel; (3) the opinion of Bond Counsel as to the validity and tax exempt status of the Note; (4 ) such otner documecits acid opinions as Bond Counsel nay reasonably require for purposes of rendering its opinion requireu in subsection (3) aoove or tadt the Lender may reasonably require for the closing. Disposition of Note Proceeds. There is hereby established with the Lender a Construction Fund to be held by the Lender as a separate account of the City as provided in the Construction Loan Agreement. Upon delivery of the Note to Lender, the proceeds of the Note shall be credited to the Construetioa Fund held by the Lender o►: behalf of the City, at which time the entire principal amount of the Note shall be dee=med advanced, and the Lender shall, on behalf of the City, disburse funds from the Construction Fund for payment of Project Costs upon receipt of such supporting documentation as the Lender may deem reasonably necessary, including compliance with the provisions of the Construction Loan Agreement. The Lender or Borrower shall provide the City with a full accounting of all funds disbursed for Project Costs. 2-6. Registration of Transfer. The City will cause to be kept at the office of the City Clerk a Note Register ici which, subject to such reasonable regulations as it way prescribe, the City shall provide for the registration of transfers of ownership of the Note. The dote shall be initially registered in the name of the Lender and shall be transferaole upon the vote Register by the Lender in person or by its agent duly authorized in writing, upon surrender of the Note together with a written instrument of transfer satisfactory to the City Clerk, duly executed by the Lender or its duly authorized agent. The following form of assignment shall be sufficient for said purpose. For value received hereby sells, assigns and transfers unto the within Note of the City of Plymouth, Minnesota, and does hereby irrevocably constitute and appoint attorney to transfer said Note on the books of said City with full power of substitution in the premises. The undersigned certifies that the transfer be made in accordance with the provisions of the Final Note Resolution, dated , 1985. Dated: Registered Owner Upon such transfer the City Clerk shall note the date of registration and the name and address of the new Lender in the Note Register and in the registration blank appearing on the Note. 2-7. Mutilated, Lost or Destroyed Note. In case any Note issued hereunder shall become mutilated or be destroyed or lust, the City stiall, if not then prohibited by law, cause to be executed and deliverea, a new Y'Jte of lixe outstanding principal amount, number and tenor in exchange and substitution for and upon cancellation of such :mutilated Note, or in lieu of and in substitution for such Note destroyed or lost, upon the Lender's paying the reasonable expenses and charges of the City in connection therewith, and in the case of a Note destroyed or lost, the filing with the City of evidence satisfactory to the City with indemnity satisfactory to it. If the mutilated, destroyed or lost Note has already matured or been called for redemption in accordance with its terms it shall not be necessary to issue a new Note prior to payment. d s 2-d ownership of Note. The City may deem and treat the person in whose name the Note is last registered in the Note Register and by notation on the Note whether or not such Note shall be overdue, as the absolute owner of such Note for the purpose of receiving payment of or on account of the principal BaUnce, redemption price or interest and for all other purposes whatsoever, and the City shall not be affected by any notice to tfie contrary. 2-9. Limitation on Note Transfers. The Note has been issued without registration under stdte or other securities laws, pursuant to an exemption for such issuance; and accordingly the Note may not be assigned or transferred in whole or part, nor may a participation interest in the Note be given pursuant to any participation agreement, except in accordance with an applicaole exemption from such registration requirements. ARTICLE THREE GENERAL COVENANTS 3-1. Payment of Principal and Interest. The City covenants that it will promptly pay or cause to oe paid the principal of and iaiterest on the Jute at the place, on the dates, solely from the source and in the manner provided herein and in the Note. The principal and interest are payable solely from and secured by revenues and proceeds derived frwn the Loan Agree meat, the Pledge Agreement, the Mortgage, the Construction Loan Agreement, the Gjaranty and the Assignment of Leases and Rents, which revenues and proceeds are hereby specifically pledged to the payment thereof in the manner and to the extant specified in the Note, the Loan Agreement, the Pledge Agreement, the Mortgage, the Construction Loan Agreement, the Guaranty and the Assignment of Leases and Rents; and nothing in the Note or in this Resolution shall be ir�ansidered as assigning, pledging or otherwise encumbering any athei,Tunds or assets of the City. 3--c. -Performance of and Authority for Covenants. The City covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Resolution, in the Note executed, authenticated and delivered hereunder and in all proceedings of the City Council pertaining thereto; that it is duly authorized under the Constitution and laws of the State of Minnesota including particularly and without limitation the Act, to issue the vote authorized hereby, pledge the revenues and assign the Loan Agreement in the manner and to the extent set forth in this Resolution, the Vote, the Loan Agreement and tnea Pledge Agreement; that all action on its part for the issuance of the Note and for the execution and delivery thereof has been duly and effectively taken; and that the Note in the hands of the Lender is and will be a valid and enforceable special limited obligation of the City according to the terms thereof. 3-3. Enforcement and Performance of Covenants. The City agrees to enforce all covenants and obligations of the Borrower under the Loan Agreement and Construction Loan Agreement, upon request of the Lender and being indemnified to the satisfaction of the City for all expenses and claims arising therefrom, and to perform all covenants and other provisions pertaining to the City contained in the Note, the Loan Agreement and the Construction Loan Agreement and subject to Section 3-4. 10 3-4. Nature of Security. Notwithstanding anything contained in the Note, the Mortgage, the Assignment of Leases and Rents, the Loan Agreement, the Pledge Agreement or any other document referred to in Section 2-4 to the contrary, under the provisions of the Act the Note may not be payable from or be a charge upon any funis of the City other than the revenues and proceeds pledged to the payment thereof, nor shall the City be subject to any liability thereon, nor shall the Note otherwise contribute or give rise to a pecuniary liability of the City or, to the extent permitted by law, any of the City's officers, employees and agents. No holder of the Note shall ever have the right to compel any exercise of the taxing power of the City to pay the Note or the interest thereon, or to enforce payment thereof against any property of the City other than the revenues pledged under the Pledge Agreement; and the Note shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City; and the Note shall not constitute a debt of the City within the meaning of any constitutional or statutory lirnitation; but nothing in the Act impairs the rights of the Lender to enforce the covenants mauve for the security thereof as provided in this Resolution, the Loan Agreement, the Pledge Agreement, the Mortgage, the Assigiunent of Leases and Rents, the Construction Loan Agreement, the Guaranty and in the Act, and by authority of the Act the City has made the covenants and agreements herein for the benefit of the Lender; provided tnat in any event, the agreement of the City to perform or enforce the covenants and other irovisions contained in the Note, the Loan Agreement, the Pledge Agreement and the Construction Loan Agreement shall be subject at all times to the availability of revenues under the Loan Agreement sufficient to pay all costs of such performance or the enforcement thereof, and the City shall not be subject to any personal or pecuniary liability thereon. 3-5. Preservation of Tax Exempt Status of the Note. In order to preserve the tax exempt status of the Note, the City covenants that it shall take such actions as are required and within their reasonable control to prevent the interest on the Note from becoming taxable for federal income tax purposes for the owners thereof (other than any owner who is a "substantial user" or "related person tnereto" within the meaning of Section 103(b) of the Code) including but not limited to taking all actions required of it under Section 103(c)(6) of the Code. To this end, the City shall: 11 (A) cause the Borrower to maintain records indentifying all "gross proceeds" attributable to the Note, the yield at which such gross proceeds are invested, any arbitrage profit derived therefrom, and any earnings derived from the investment of such arbitrage profit; (B) make and maintain on file all annual determinations of the amount, if any, of excess arbitrage required to be rebated to the United States; (C) rebate to tae United States at least once every five years the amount, if any, which is required to be rebated to the United States, including the last installment which shall be made no later than 30 days after the day on which the Nate is paid in full; (U) not invest "gross proceeds" in any acquired nonpurpose obligations so as to deflect arbitrage otherwise payable to the United States as a "prohibited payment" to a third party; (E) refrain from investing any "gross proceeds" allocable to the Note in acquired nonpurpose obligations at a yield in excess of the yield on the Note to the extent such gross proceeds exceed in any calendar year more than 150% of the debt service requirements for the Note in that calendar year; and (F) retain on file all records of the annual determination of the rebate amount until six (6) years after tate retirement of the Note. 12 ARTICL & FUDR MISCELLANEOUS 4-1. Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions or in all jurisdictions or in all. cases because it conflicts with any provisions of any constitution or statute or rule or public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatever. The invalidity of any one or more phrases, sentences, clauses or paragraphs in this Resolution contained shall not affect the remaining portions of this Resolution or any part thereof. 4-2. Authentication of Transcript. The officers of the City are directed to furnish to Bond Counsel certified copies of this Resolution and all documents referred to herein, and affidavits or certificates as to all other matters which are reasonably necessary to evidence the validity of the Note. All such certified copies, certificates and affidavits, including any heretofore furnished, shall constitute recitals of the City as to the correctness of ali statements contained therein. 4-3. Registration of Resolution. The City Clerk is authorized and directed to cause a copy of this Resolution to be filed with the County Auditor of Hennepin County, and to obtain from said County Auditor a certificate that the Note as a bond of the City has been duly entered upon his bond register. 4-4. Authorization to Execute Agreements. The forms of the proposed Loan Agreement, the Pledge Agreement and the Construction Loan Agreement are hereby approved in substantially the form heretofore presented to the City Council, together with such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be 13 necessary and appropriate and approved by Bond Counsel prior to the execution of the documents, and the Mayor and City Manager of the City are authorized to execute the Loan Agreement, the Pledge Agreement and the Construction Loan Agreement in the name of and on behalf of the City and such other documents as Bond Counsel consider appropriate in connection with the issuance of the Note. In the event of the absence or disability of the Mayor or the City Manager such officers of the City as, in the opinion of the City Attorney, may act in their behalf, shall without further act or authorization of the City Council do all things and execute all instruments and documents required to be done or, executed by such absent or disabled officers. The execution of any instrument by the appropriate officer or officers of the City herein authorized stidll be conclusive eviulence of the approval of such documents in accordance with the terms hereof. Adopted: Decemoer 2, 11:185 Mayor of tiie City of Plymouth, Minnesota . Attest: City Manager 14