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;
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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