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HomeMy WebLinkAboutCity Council Resolution 1985-991RESOLUTION NO. 85-991 RESOLUTION AUTHORIZING THE ISSUANCE OF THE CITY'S $2,500,000 INDUSTRIAL DEVELOP- MENT REVENUE NOTE (TURCK MULTIPROX, INC. PROJECT) 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: "Act" means the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Chapter 474, as amended; "Agreement" means the Loan Agreement, dated as of December 1, 1985, between the City and the Borrower; "Assi =ent" means the Assignment of Rents and • Leases, dated as of December 1, 1985, given by the Bor- rower in favor of the Lender; "Borrower" means Turck Multiprox, Inc., a Minnesota corporate—'on, Its successors and permitted assigns; "Building" means the Building as defined in the Agreement; "City" means the City of Plymouth, Minnesota, its successors and assigns; "Costs of Construction" means those costs defined as Costs of Construction in the Agreement; "Disbursement Agreement" means the Disbursement Agreement, datedas of December 1, 1985, by and between the City, the Borrower and the Lender; BE i ment" means the Equipment as that term is define in t e Agreement; "Holder" means the Lender and any subsequent owner(s) o–the Note; - 1 - "Land" means the real property described in the Mortgage; "Lender" means National City Bank of Minneapolis, in Minneapolis, Minnesota, its e!iccessors and assigns; "Mor��tcca,ge�e" means that certain Mortgage, Security Agreements Fixture Financing Statement, dated as of December J., 1985, given by the Borrower in favor of the Lender; "Note" means the $2,500,000 pzincipal amount In- dustri—af—Development Revenue Note (Turck Multiprox, Inc. Project), dated as of the date of delivery thereof, issued by the City to the Lender pursuant to the Reso- lution; "Pled e Agreement" means the Pledge Agreement, dated as o December 1, 1985, between the City and the Lender; "Project" means the Land, the Building and the Equipment to be acquired, constructed, and installed; "Resolution" means this resolution of the City Council. Section 2. Findings. 2.01. I't is ht_ eby found and declared that: (a) based upon representations made to the City by representatives of the Borrower as to the nature of the Project as described in the Agreement, the Project con- stitutes a project authorized by the Act; (b) the purp^se of the Project is and the effect thereof shall be to promote the public welfare by the attraction, encouragement, and development of economic- ally sound industry and commerce so as to prevent the emergence of or to rehabilitate, so far as possible, blighted and marginal lands and areas of chronic un- employment, the retention of industry to use the avail- able resources of the community in order to retain the benefit of its existing investment in educational and public service facilities, halting the movement of tal- ented, educated personnel of mature age to other areas and thus preserving the economic and human resources needed as a base for providing governmental services and facilities and more intensive development of land avail- able in the community; OWM (c) the financing of the Project, the issuance and sale of the Note, the execution and delivery of the Agreement, the Pledge Agreement, and the Disbursement Agreement, and the performance of all covenants and agreements of the City contained in the Note, the Agree- ment, the Pledge Agreement, and the Disbursement Agree- ment and of all other acts and things required under the Constitution and laws of the State of Minnesota to make the Note, the Agreement, the Pledge Agreement, and the Disbursement Agreement valid and binding obligations of the City in accordance with their teras are authorized by the Act; (d) it is desirable that the Note in the principal amount of $2,500,000 be issued by the City upon the terms set forth herein and that the City pledge its interest in the Agreement and grant a security interest therein to the Lender as security for the payment of the principal of, premium, if any, and interest on the Note; (e) the Loan Repayments provided in the Agreement are fixed and are required to be revised from time to time as necessary, so as to produce income and revenue sufficient to provide for prompt payment of the princi- pal of, premium, if any, and interest on the Note when due, and the Agreement also provides that the Borrower is required to pay all expenses of the operation and maintenance of the Land and the Project, including, but not limited to, adequate insurance thereon and all taxes and special assessments levied upon or with respect to the Land and payable during the term of the Agreement; (f) under the provisions of Minnesota Statutes, Section 474.10, the Note is not to be payable from nor charged upon any funds of the City other than the reve- nue pledged to the payment thereof; the City is not subject to any liability thereon= 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 nor to enforce payment thereof against any pro- perty of the City; the Note, premium, if any, and in- terest thereon shall not constitute an indebtedness of the City within the meaning of any constitutional, or statutory limitation and shall not constitute or give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers and shall not constitute a charge, lien, or encumbrance, legal or equitable, upon any property of the City other than its interest in the Project; (g) the execution and delivery of the Note, the Agreement, the Pledge Agreement, and the Disbursement - 3 - Agreement shall not conflict with or constitute, on the part of the City, a breach of or a default under any existing agreement, indenture, mortgage, lease, or other instrument to which the City is subject or is a party or by which it is bound; provided that this finding is made solely for the purpose of estopping the City from deny- ing the validity of the Note, the Agreement, the Pledge Agreement, or the Disbursement Agreement by reason of the existence of any facts contrary to this finding; (h) no litigation is pending or, to the best know- ledge of the members of this City Council, threatened against the City questioning the organization or boun- daries of the City or the right of any officer of the City to hold his or her office or in any manner ques- tioning the right and power of the City to execute and deliver the Note or otherwise questioning the validity of the Note or the execution, delivery, or validity of the Agreement, the Pledge Agreement, or the Disbursement Agreement or questioning the pledge of revenues to pay- ment of the Note or the right of the City to loan the proceeds of the Note to the Borrower; (i) all acts and things required under the Consti- tution and the laws of the State of Minnesota to make the Note, the Agreement, the Pledge Agreement, and the Disbursement Agreement the valid and binding obligations of the City in accordance with their terms shall have been done upon adoption of this Resolution and execution of the Note, the Agreement, the Pledge Agreement and the Disbursement Agreement; (j) the City, a municipal corporation and poli- tical subdivision of the State of Minnesota, is duly organized and existing under the Constitution and the laws of the State of Minnesota and is authorized to issue the Note in accordance with the Act; and (k) the City shall allocate $2,500,000 of its bonding authority to the issuance of the Note and fur- ther certifies that the allocation of bonding authority to the Note was not made in consideration of any bribe, gift, gratuity, or direct or indirect contribution to any political campaign. The foregoing allocation of $2,500,000 of bonding authority shall be composed of $665,959 of the City's 1985 entitlument allocation and $1,834,041 of the 1985 entitlement allocation of the City of Golden Valley, Minnesota, as transferred to the City pursuant to a certain joint powers agreement be- tween the Cities of Plymouth and Golden Valley, dated September 18, 1985. - 4 - Section 3. Authorization and Sale. 4W 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, construc- tion, and installation of facilities constituting a "proj- ect," as defined in the Act, and to make all contracts, execute all instruments, and do all things necessary or con- venient in the exercise of such authority. 3.02. Preliminary City Approval. By resolution duly adopted by the City council on September 9, 1985, after a public hearing held on that date, this City Council gave preliminary approval to financing the the acquisition, con- struction, and installation of the Project through the issu- ance of the Note. 3.03. Approval of Documents. Pursuant to the fore- going, there have been prepared and presented to the City 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) the Agreement; (b) the Mortgage and the Assignment; (c) the Pledge Agreement; and (d) the Disbursement Agreement. The forms of the documents listed in (a) through (d) above are approved, and the officers of the City are hereby autho- rized to execute the same with such variations, insertions, and additions as are deemed appropriate by such officials, as evidenced by their execution thereof. The documents listed in (b) above, being documents to which the City is not a party, will not be executed by the City. Section 4. Authorisations. 4.01. Upon the completion of the Agreement, the Pledge Agreement, and the Disbursement Agreement approved in Sec- tion 3.03 hereof and the execution thereof, the City offi- cials are authorized to execute and deliver the Note, in substantially the form approved in paragraph 5.01 hereof, and the officers of the City are authorised to execute such other certifications, documents, or instruments as Bond Counsel shall require, 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 appropriate officers - 5 - of the City shall constitute and shall be deemed the con- clusive evidence of the approval and authorizatioit by the City and the City Council of the instrument or document so executed. Section 5. The Note. 5.01. Form and Authorized Amount. The Note in hereby authorized to be issued and shall e issued substantially in the form presented to the City Council and set forth as Exhibit A to this Resolution, with such appropriate varia- tions, omissions, and insertions as are permitted or re- quired by this Resolution, in the principal amount of $2,500,000. The offer of the Lender to purchase the Note at a price of par is found reasonable and is hereby accepted. The terms of the Note are set forth therein, and such terms, including, but not limited to, provisions as to interest rate, dates and amount of payment of principal and interest, and prepayment privileges, are incorporated by reference herein. The Note shall in all events contain a recital that it is issued pursuant to and in accordance with the Act. 5.02. Execution. The Note shall be executed on behalf of the City by the manual signatures of the Mayor and the City Manager, which shall be attested by the manual signa- ture of the City Clerk, and shall be sealed with the City's corporate seal, and the Certificate of Registration shall be signed by the Note Registrar. In case any officer whose signature shall appear on the Note 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, and Destroyed Note. In ease the Note shall become mutilated or be lost or destroyed, the City shall cause to be executed and delivered a new Note of like outstanding principal amount and tenor in exchange and substitution for and upon cancellation of the mutilated Note or in lieu of and in substitution for such Note lost or destroyed, upon the Holder's paying the reasonable expenses and charges of the City in connection therewith and: in case the Note is destroyed or lost, filing with the City evidence satisfactory to it of such loss or destruction. 5.04. Assignment. The Lender is hereby designated as Note Registrar (the RNote Registrar") and shall keep a Note Register in which, subject to such reasonable regulations as it may prescribe, the Note Registrar shall provide for the registration of transfer of ownership of the Note. The Note shall be initially registered in the name of the Lender and shall be transferable upon the Note 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 - 6 - transfer duly executed by the Lender or its duly authorized • agent in the following form: For value received hereby sells, assigns and transfers unto - the within Note of the City of Plymout , Minnesota, and does hereby irrevocably constitute and appoint attorney to transfer said Note on the books -of the Note Registrar with full power of substitution in the premises. The undersigned certifies that the transfer be made in accordance with the provisions of the Note Resolu- tion of the City. Upon such transfer the Note Registrar shall note the date of registration and the name and address of the new Holder of the Note in the Note Register and in the regi- stration blank appearing on the dote. 5.05. Delivery and Use of Proceeds. Prior to delivery of the Note, the documents referred to in Section 3.03 here- of shall be completed and executed, and an original, exe- cuted counterpart of each such document shall be delivered to the Lender. The City shall thereupon deliver to the Lender the Note in the principal amount of $2,500,000 to- gether with a copy, duly certified by the City Clerk, of this Resolution and such closing certificates as are re- quired by Bond Counsel. Upon delivery of the Note aad the above items to the Lender, the proceeds of the Note shall be deposited in a Construction Fund hereby created, to be maintained by the Lender and the Lender shall, on behalf of the City, advance funds for payment of Costs of Construction cpon receipt of such supporting documentation as the Lender may deem reason- ably necessary, including compliance with the provisions of the Disbursement Agreement and the Agreement. Any surplus in the Construction Fund shall be applied toward prepayment of the Note as provided in the Agreement and shall not be invested to produce a yield greater than the yield on the Note as required by Internal Revenue Ser- vice Revenue Procedures 79-5 and 81-22 and any regulations amendments or modifications thereto; provided that if the Lender receives an opinion of Bond Counsel that the exemp- tion from federal income taxation of the interest on the Note will not be jeopardized, the surplus funds may be in- vested at a yield greater than the yield on the Note. 5.06 Issuance of New Note. The City shall, at the request and expense of the Lender, issue new Notes, in an aggregate outstanding principal amount equal to that of the - 7 - Note surrendered, and of like tenor except as to number, principal amount, and the amount of the monthly payment payable thereunder, and be registered by the Note Registrar in the name of the Lender or such transferee as may be des- ignated by the Lender. Section 6. Limitations of the City's Obligations. 6.01 Notwithstanding anything contained herein or in the Note, the Agreement, the Pledge Agreement, or the Dis- bursement Agreement or any other documents referred to in Section 3.03 hereof, the Note, the prispipal thereof, pre- mium thereon, if any, and interest thereon and the Agree- ment, the Pledge Agaaement, and the Disbursement Agreement shall not constitute any indebtedness of the City within the meaning of any constitutional or statutory limitation and shall not constitute or give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers and shall not constitute a charge, lien, or encum- brance, legal or equitable, upon any property of the City other than its interest in the Project, and no Owner 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 its interest in the Project. The agreement of the City to perform the covenants and other provisions contained in this Resolution or the Note, the Agreement, the Pledge Agreement, or the Disbursement Agree- ment and the other documents listed in Section 3.03 hereof shall be subject at all times to the availability of reve= hues furnished by the Borrower sufficient to pay all costs of such performance or the enforcement thereof, and neither the City nor any of its officers, employees, or agents shall be subject to any personal or pecuniary liability thereon. Section 7. City Representative. 7.01. The City Clerk and the City Manager of the City are hereby designated and authorized to act on behalf of the City as the City Representative and alternate City Repre- sentative, respectively (as defined in the Agreement); Adopted by the Plymouth City Council on Decer wr 16 1985. Attest: Laurie Houk, City Clerk Davi Davenport, Mayor - 8 - (Form of Note) UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF EMEPIN CITY OF PLYMOUTH Industrial Development Revenue Note (Turek Multiprox, Inc. Project) Exhibit A $2,500,000 FOR VALUE RECEIVED the CITY OF PLYMOUTH, Hennepin County, Minnesota (the "City") hereby promises to pay National City Bank of Minneapolis, in Minneapolis, Minne- sota, its successors or registered assigns (the "Lender"), on February 1, 1986, and on the !first day of each month thereafter to and including December 1, 2006 (the "Payment Dates"), from the source, and in the manner hereinafter pro- vided, the principal sum of Two Million Five ■unfired Thou- sand Dollars ($2,500,000), or so much thereof as unpaid from time to time (the "Principal Balance") and to pay interest . thereon, until paid, at the rate or rates of interest here- inafter provided, all such principal and interest being payable in any coin or currency which at the time or times of payment thereof is legal tender for the psyment of public or private debts in the United Btates of America. (1) All payments due on this Note are payable at the principal office of the Lender,, or at such other place or places as the Lender may specify to the City a nd the Bor- rower in writing from time to time. Any capitalised term which is used but not defined in this Mote hL°,s the same meaning given to that term in the hereinafter defined Agree- ment. (2) The principal of this Note shall be payable on January 1, 1967, and on the first day of each month there- after in the respective amounts set forth in f6ahibit A attached to and made a part hereof. (3) The Principal Balance of this Mote shall accrue interest, payable on each Payment hate, at the interest rates determined as follows: (a) From the date hereof through January 31, 1986, at 80% of the rate established from time to time by National City Bank of Minneapolis as its Base Rate (the A - 1 "Base Rate") in effect at the end of the last day prior to the date hereof. (b) For the month of February 1986 and each month thereafter, at 80% of the Base Rate in effect at the end of the 15th day of the prior month. (c) The rates determined pursuant to (a) and (b) above shall not be less than 9% and shall not be more than 11%. (d) Notwithstanding (a), (b) and (c) above, if a Determination of Taxability occurs, from and after the corresponding Date of Taxability, at a varaible rate equal to the Base Rate plus 2.50%. (e) All interest shall be computed on the basis of a 360 day year of 12 30 -day months. (4) If a Determination of Taxability occurs, the City shall immediately pay to the Lender and to each prior Lender effected by such Determination of Taxability an amount equal to the amount by which the interest accrued retroactively at such interest rate from the Date of Taxability to the date of payment exceeds the amount of interest actually accrued and paid to the Lender during said period. The obligation of the City to pay such amounts shall survive the payment in full of the princi*>al amount of this Note. (5) This Nate is subject to mandatory redemption in whole and not in part, at a redemption price of the Prin- cipal Balance plus accrued interest to the date of such redemption, on January 1, 1997, in the sole discretion and at the election of the Lender, upon 180 days prior written notice to the City and the Borrower. (6) The Principal Balance of this Note is prepayable at the option of the Borrower in whole or in part, in inverse order of the due dates thereof, on any Payment Date at a redemption price of par plus accrued interest. (7) This Note is subject to mandatory redemption upon the occurrence of an Event of Default (as defined in the Loan Agreement), upon the Borrower's failure to comply with its obligations following a Casualty to the Project (as provided in the Loan Agreement), upon the occurrence of certain transfers or encumbrances of the Project (as pro- vided in the Loan Agreement), and in the event that excess proceeds of this Note remain following completion of the Project. Each such mandatory redemption shall be at a price of the Principal Balance of this Note and all accrued inter- est to the date of redemption, except that a prior re - A - 2 demption arising due to the availability of excess Note proceeds shall be a redemption in part, to the extent of such proceeds. (8) This Note is the sole obligation of a duly autho- rized issue designated as "Industrial Development Revenue Note (Turck Multiprox, Inc. Project)," dated as of the date of delivery thereof (the "Note"), issued as a fully regis- tered Note without interest coupons in the principal amount of $2,500,000 pursuant to and in full conformity with Minne- sota Statutes, Chapter 474 (the "Act"), and a resolution of the City Council of the City, adopted on December 16, 1985 (the "Note Resolution"). The Note is..Aqually and ratably secured by a Mortgage, Security Agreement, and Fixture Financing Statement, dated as* of December 1, 1985 (the "riortgage"), and an Assignment of Rents and Leases, dated as of December 1, 1985 (the "Assignment"), both executed by Turck Multiprox, Inc., a Minnesota corporation (the "Bor- rower"), in favor of the Lender. The Note has been issued to provide funds to the Borrower to finance a portion of the cost of acquiring land and constructing thereon an approxi- mately 45,000 square foot office/sfanufacturing facility in the City (the "Project"), pursuant to a Loan Agreement, dated as of December 1, 1985, between the City and the Bor- rower (the 'Agreement"). All right, title, and interest of the City in the Agreement, except for the City's rights to indemnification and reimbursement of expenses, have been pledged to the Lender pursuant to a Pledge Agreement, dated as of December 1, 1985 (the "Pledge Agreement"). The pro- ceeds of the Note are required to be disbursed in accordance with the terms and conditions of a Disbursement Agreement, dated as of December 1, 1985, by and between the Borrower, the City, the Lender and North Star Title, Minneapolis, Minnesota (the "Disbursement Agreement"). (9) The City, for itself, its successors, and assigns, hereby waives demand, presentment, protest, and notice of dishonor. (10) The remedies of the Lender, as provided herein and in the Mortgage, the Assignment, the Agreement, the Pledge Agreement, and the Disbursement Agreement, are not exclusive and shall be cumulative and concurrent and may be pursued singly, successively, or together, at the sole discretion of the Lender, and may be exercised as often as occasion there- for 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 Lender 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 Lender and then only to the extent specifi- cally set forth in the writing. A waiver with reference to A - 3 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. (11) This Note may be transferred or exchanged, as pro- vided in the Note Resolution, only upon the Note Register kept by National City Bank of Minneapolis, as Note Regis- trar, for such purpose, by the Lender in person or by its attorney duly authorized in writing, upon surrender hereof together with a written instrument of transfer or exchange in the form specified in the Note Resolution duly executed by the Lender or such duly authorized attorney, and there- upon, at the request and expense of the Lender, the City shall issue and deliver in the name of the designated trans- feree or transferees a new Note or Notes of the same aggre- gate principal amount, designation, maturity, and interest rate as the surrendered Note and in any authorized denomina- tion, all as provided in the Note Resolution. The City and the Note Registrar may treat and consider the Lender of this Note as the holder and absolute owner hereof for the purpose of receiving payment of or on account of the principal or redemption price hereof and interest due hereon and for all other purposes whatsoever. (12) The City and its authorized officials or agents shall not be personally liable on this Note or for any act or omission related to the authorization or issuance hereof. (13) The Note is a special and limited obligation of the City, is payable solely from the revenues pledged therefor pursuant to the Agreement and the Pledge Agreement, does not constitute a debt of the City within the meaning or of any constitutional or statutory limitation whatsoever, does not constitute or give rise to a pecuniary liability of the City or a charge against the general credit or taxing powers of the City, and does not constitute a charge, lien, or encum- brance, legal or equitable, upon any property of the City other than the City's interest in the Project pledged to the Lender pursuant to the Pledge Agreement. Neither the Lender nor any other person shall ever have the right to compel any exercise of the taxing power of the City to pay the prin- cipal of or interest on the Note or to enforce payment against any property of the City other than the property pledged to the Lender as security for the Note pursuant to the Pledge Agreement. (14) It is hereby certified and recited that the Project constitutes a project within the meaning of Section 474.02, Subdivision la, of the Act and that all conditions, acts, and things required by the Constitution and laws of the State of Minnesota to exist, to have happened, and to be performed precedent to or in the issuance of this Note do A - 4 exist, have happened, and have been performed in regular and • due form, time, and manner as required by law. IN WITNESS WHEREOF, the City of Plymouth, Minnesota, has caused this Note to be duly executed by the manual signa- tures of its Mayor and City Manager; has caused said signa- tures to be attested by the manual signature of the City Clerk; has caused the official seal of the City to be omitted herefrom, as permitted by law; and has caused this Note to be dated December , 1985. CITY OF PLYMOUTH, MINNESOTA Mayor ATTEST: City Manager City Clerk A - 5