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HomeMy WebLinkAboutResolution - 79-103 - VOID See 79-162 - ? A RESOLUTION PROVIDING FOR THE ISSUANCE AND SALE OF REVENUE BONDS PURSUANT TO CHAPTER. 474 , MINNESOTA STATUTES, TO PROVIDE FUNDS TO BE LOANED TO RUBEN ANDEREGG FOR INDUSTRIAL PROJECT AND APPROVING MORTGAGE, ASSIGNMENT OF RENTS , LOAN AGREEMENT, CONSTRUCTION LOAN AGREEMENT AND PLEDGE AGREEMENT BE IT RESOLVED by the City Council of the City of Eden Prairie , Minnesota , as follows : 1 . Authority . The City is, by the Constitution and Laws of the State of Minnesota, including Chapter 474 , Minnesota Statutes , as amended (the "Act" ) authorized to issue and sell its revenue bonds for the purpose of financing the cost of construc- tion of authorized projects and to enter into contracts necessary or convenient in the exercise of the powers granted by the Act. 2 . Documents Presented. This Council. proposes that the City shall issue and sell its City of Eden Prairie Industrial Development Revenue Bond (Ruben Anderegg Project) in substantially the form set forth in Exhibit A hereto (the "Bond" ) pursuant to the Act and loan the proceeds thereof to Ruben Anderegg (the "Borrower" ) to pay the cost of constructing a warehouse-office building, together with necessary equipment, exterior utilities and site improvements (the "Project") , all pursuant to the Act. Forms of the following documents relating to the Bond and the Project have been submitted to the City Council and are now on file in the office of the City Clerk: (a) Loan Agreement, dated as of May 1, 1979 , between the City and Ruben Anderegg whereby the City agrees to make a loan to the Borrower and the Borrower agrees to complete the Project and to pay amounts sufficient to provide for the prompt payment of the principal of and interest on the Bond; (b) Assignment and Pledge Agreement (the "Pledge Agreement " ) , dated as of May 1 , 1979 from the City to the Mortgagee whereby the City assigns its interest in the, Loan Agreement to the Mortgagee as security for the Bond; (c) Construction Loan Agreement, dated as of Mav 1 , 1979 , by and among the City, the Mortgagee and the Borrower, providing for the purchase of the Bond by making advances thereunder; (d) Combination Mortgage and Security Agreement, dated as of May 1 , 1979 , between the Borrower and Ronald Saxon (the "Mortgagee" ) by which the Borrower will grant to the Mortgagee a mortgage lien on and security interest in the Project and all improvements thereto as security for the Bond (this document will not be executed by the City ) ; (e ) Assignment of Rents , dated May 1, 1979 , from the Borrower to the Mortgagee assigning the Borrower' s interest in leases of the Project to the Mortgagee as additional security for. the Bond (this document will not be executed by the City) ; 3 . F:indinas . It is hereby found, determined and declared that : (a) The Project , comprised of the buildings, improvements and equipment described in the Loan Agree- ment and the Mortgage constitutes a project authorized by and described in Section 474 . 02 , Subd. la of the Act. (b) The purpose of the Project is and the effect thereof will be to promote the public welfare by : preventing the emergence of blighted and marginal lands and areas of chronic unemployment, preventing economic deterioration; the development of sound industry and commerce- to use the available resources of the commu- nity , in order. to -retain the benefit of the community' s existing investment in educational and public service facilities; halting the movement of talented, educated personnel to other areas and thus preserving the eco- nomic and human resources needed as a base for providing governmental services and facilities; and increasing the tax base of the city and the county and school district in which the Project is located. (c ) The Project has been approved by the Commis- sioner of Securities of the State of Minnesota as tending to further the purposes and policies of the Act . (d) The issuance and sale of the Bond, the execu- tion and delivery of the Loan Agreement, the Construc- tion Loan Agreement and the Pledge Agreement and the performance of all covenants and agreements of the City contained in the Bond, the Loan Agreement, the Construc- tion Loan Agreement and the Pledge Agreement and of all other acts of the City and the State of Minnesota to make the Loan Agreement; the Construction Loan Agreement and the Pledge Agreement and Bond valid and binding obligations of the City in accordance with their terms , are authorized by the Act. -2- $, (e ) It is desirable that the City of Eden Prairie Industrial Development Revenue Bond (Ruben Anr_ieregg Project) in the amount of $550 , 000 be issued by the City upon the terms set forth herein, and that the City " s interest in the Loan Agreement be assigned to the Mortgagee as security for the payment of principal and interest on the Bond. (f) The Loan Agreement provides for payments by the Borrower to the Mortgagee for the account of the City of such amounts as will be sufficient to pay the principal of and interest on the Bond when due . No reserve funds are deemed necessary for this purpose . The Loan Agreement obligates the Borrower to provide for the operation and maintenance of the Project , including adequate insurance, taxes and special assess- ments . (g) Under the provisions of Section 474 . 10 , Minnesota Statutes , and : r)rovided in the Loan Agree- ment, the Bond is not to be payable from nor charged upon any funds other than amounts payable by the Borrower pursuant to the Loan Agreement which are 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 the exercise of the taking power of the City to pay the Bond or the in- terest 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, other than its rights under the Loan Agreement ; the Bond shall recite that the F3oad, including interest thereon, shall not constitute nor give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers and that the Bond does not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation. (h) The Municipality is a duly organized and existing municipal corporation under the laws of Minne- sota and has power to issue the Bond under the Act. (i ) The Project, the issuance and sale of the Bond, the execution and delivery of the Loan Agreement and the Pledge Agreement, the performance of all cove- nants and agreements of the Municipality contained in the Loan Agreement and Pledge Agreement are valid and binding obligations of the Municipality in accordance with their terms , and the loan of money thereunder are a -3- { author-ized and have been duly authorized by this reso- lution . (j ) There is no litigation_ pending or, to the best of its knowledge threatened, against the Municipality relating to the acquisition, construction and financing of the Project or to the Bond, the Construction Loan Agreement or this :Loan Agreement or questioning the organization, powers or authority of the Municipality. (k) The execution, delivery and performance by the City of the Resolution, the Construction Loan Agreement , the Bond, tine Pledge Agreement and the Loan Agreement will not conflict with or result in any breach of, any provisions of, or constitute a default under, any agreement or instrument to which the City is a .arty or by which it is bound; provided, however, that this finding i s made solely for the purpose of estopp.ing the City from denying the validity of the Bond, or of any of the documents referred to in this paragraph, by reason of the existence of any facts contrary to this finding. 4 . Approval and Execution of Documents . The forms of Loan Agreement, Pledge Agreement, Construction Loan Agreement, Combination Mortgage and Security Agreement and Assignment of Rents referred to in paragraph 2 are approved. The Loan Agree- ment and Construction Loan Agreement shall be executed in the name and on behalf of the City by the Mayor and City Manager, upon execution thereof_ by the Borrower , in substantially the form on file, but with all such changes therein, not inconsistent with the Act or other law, as may be approved by the officers executing the same, which approval shall be conclusively evidenced by the execution thereof. The Pledge Agreement shall also be executed in the name and or. behalf of the City by the Mayor and City Manager in substantially the form on file, but with all such changes therein, not inconsistent with the Act or other laws , as may be approved by the officers executing the same , which approval shall be conclusively evidenced by the execution thereof . Copies of all documents shall be delivered and filed as provided therein. The Mortgage and Assignment of Rents may contain such revisions as may be approved by the Mortgagee and the parties executing the same. 5 . Approval, Execution and Delivery of Bond. The City shall proceed .forthwith to issue its City of Eden Prairie Indus- trial Development Revenue Bond (Ruben Anderegg Project) , to be dated the elate of delivery, in the principal amount of $550, 000 in the form and containing the terms set forth in the form of -4- Bond attached hereto as Exhibit A, which terms are for this purpose incorporated in this resolution and made a :art hereof . The proposal of the Mortgagee to purchase such Bond at a price of $550 , 00C (100% of its par value) by making advances in accordance with the Construction Loan Agreement is hereby found and determined to be reasonable and is hereby accepted. The Mayor and City Manager are authorized and directed to prepare the Bond in type- written form substantially in the .form set forth in Exhibit A. The Bond shall be executed by the manual signatures of the Mayor and City Manager and the official seal of the City shall be affixed thereto . When so prepared and executed the Bond shall be delivered to the Mortgagee upon receipt of the purchase price therefor, which may be paid to the parties entitled to receive the loan proceeds in accordance with the Construction Loan Agreement and the Loan Agreement. The Bond shall contain a recital that it is issued pursuant to the Act, and such recital shall be conclusive evidence of the validity and regularity of the issuance thereof. 6 . Registration Records . The City Clerk, as Bond Registrar, shall keep a Bond Register in which the City shall provide for the registration of the Bond and for transfers of the Bond. The principal of and interest on the Bond shall be payable to the Mortgagee or registered assigns in lawful money of the United States of America at the address of the Mortgagee or ( registered assigns as shown on the Bond Register . 7 . Mutilated, Lost, Stolen or Destroyed Bond . If the Bond is mutilated, lost, stolen or destroyed, the City may exe- cute and deliver to the registered owner a new Bond of like date , number, maturity and tenor as that mutilated, lost, stolen or destroyed; provided that, in the case of mutilation, the mutilated Bond shall first be surrendered to the City, and .in the case of a lost, stolen or destroyed Bond, there shall be first furnished to the City and the Borrower evidence of such loss , theft or destruc- tion satisfactory to the City and the Borrower together with indemnity satisfactory to them. The City may charge the Bond- holder with its reasonable fees and expenses in this connection. 8 . Transfer of Bond; Person Treated as Owner . The .Bond shall be transferable by the registered owner on the Bond Register of the City, upon presentation of the Bond for notation of such transfer thereon at the office of the City Clerk, as Bond Registrar, accompanied by a written instrument of transfer in forgo. satisfactory to the Bond Registrar duly executed by the rec?iste.red owner or its attorney duly authorized in writing . The registered owner seeking to transfer ownership of the Bond shall also give written notice thereof to the Borrower_ The Bond shall continue to be subject to successive transfers at the option of the registered owner of the Bond. No service charge shall be made for any such transfer, but the Bond Registrar may require payment of a sum sufficient to cover any tax or other governmental -5- charge payable in connection therewith. The Bond Registrar shall give written notice to the Borrower of any transfer of ownership recorded on the Bond Register immediately upon effectuating same . The person in whose name the Bond shall be registered from time to time shall be deemed and regarded as the absolute owner thereof for all purposes, and payment o_f or on account of the principal of and interest on -the Bond shall be made only to or upon the order of the owner thereof, or its attorney duly authorized in writing, and neither the City, the Bond Registrar nor the Borrower shall be affected by any notice to the contrary. All such payments shall be valid and effectual. to satisfy and discharge the liability upon the Bond to the extent of the sum or sums so paid . 9 . Amendments , Changes and Modifications to Loan Agreement, Construction Loan Agreement and Bond Resolution. The City shall not, without the written consent of the Mortgagee, enter into any agreement, change, modification, alteration or termination of the Loan Agreement, the Construction Loan Agree- ment , the Pledge Agreement or this Bond Resolution. 10 . The Mayor, City Manager and City Clerk and other officers of the City are authorized and directed to prepare and furnish to the purchaser of the Bond, certified copies of all proceedings and records of the City relating to the Bond, and subject to the approval of the City Attorney, such other affi- davits and certificates as may be required to show the facts appearing from the books and records in the officers ' custody and control or as otherwise known to them; and all such certified copies, certificates and affidavits , including any heretofore furnished, shall constitute representations of the City as to the truth of all statements contained therein. Approved Mayor Attest Cyty" Clerk i i 4 � 2 1 -6- �r STATE OF MINNFSOTA ) SS. COUNTY OF HENNEPIN ) I, the undersigned, being the drily qualified and acting City Clerk of the City of. Eden Prairie, Minnesota, do hereby certify that the attached extract of minutes of a regular meeting of the City Council of the City held , 1979, is a full, true and correct transcript therefrom insofar as the same relates to a $550, 000 Industrial Development Revenue Bond of the City. WITNESS My hand officially and seal officially as said City Clerk this day of , 1979 . City Clerk (Seal) r" t _7 EXHIBIT A (Form of Bond) UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF HENNEPIN CITY OF EDEN PRAIRIE No . R--1 $ 550, 000 Industrial Development Revenue Bond (Ruben Anderegg Project) The City of Eden Prairie , Minnesota, a municipality in the County of Hennepin and State of Minnesota, being a body corporate and politic (hereinafter sometimes called the "City" ) , for value received, hereby promises to pay to Ronald Saxon , or registered assigns , solely from the revenues derived by the City from the Loan Agreement hereinafter described, the principal sum of FIVE HUNDRED FIVE THOUSAND DOLLARS ($550 , 000 ) , or such portion thereof as may be advanced under the Construction Loan Agreement hereinafter described, and to pay interest on the unpaid princi-- pal amount thereof at the rate of Eight and one-half percent (8 . 50% ) per annum (computed on the basis of a 360-day year, 30-day month) . Interest only accruing on said principal amount from the date of the delivery of this Bond shall be paid June 1, 1979 , and the first day of each month thereafter to and including the first day of the montP: fol•�.owing the month in which the Assign- ment Date , as defined in the Loan Agreement, occurs. Thereafter principal and interest shall be due and payable in 299 equal consecutive monthly installments of principal and interest in the amount of $4 , 432 . 08 each on the first day of each month, com- mencing on the first day of the second month following the month in which the Assignment Date occurs , and one final installment of all unpaid principal and interest shall be paid on the first day of the following month., which final payment shall in no event occur later_ than December 1, 2004 . In the event of a Determination of Taxability, as defined in the Loan Agreement, the rate of interest hereon shall be increased to 11 . 00% per annum effective as of the Date of Taxability , as defined in the Loan Agreement , unless the Date of Taxability occurs before the Assignment Date , in which case the Bond shall bear interest from the Date of Taxability until the Assignment Date at an annual rate (calcu- lated on the basis of the actual number of days elapsed in a 360- day year) of 12% . In the event of a Determination of Taxability, monthly payments of principal and interest from and after the Dato of Taxability shall be recomputed at the applicable rate or rates set forth above and the Municipality shall promptly pay to the registered owner and to any prior registered owner the aggregate: difference between ( i ) the amounts actually paid here- under between the Date of Taxability and the effective date of such rage increase and (ii ) the amounts which would have been paid. to such registered owner during such period if the increased rate or rates had been in effect and -this Bond had been amortized at the rate of 11. 00% per annum from the Date of Taxability to maturity. This Bond is issued under the Minnesota Municipal Industrial Development Act, Chapter 474 , Minnesota Statutes , as amended (herein. called the "Act" ) , and in conformity with the provisions, restrictions and limitations thereof. This Bond does not represent a debt or pledge the faith or credit of the City or grant to the owner of this Bond. any .right to have the City levy any taxes or appropriate any funds for the payment of the princi- pal hereof or interest hereon, nor_ is this Bond a general obliga- tion of the City or the individual officers or agents thereof. This Bond and interest hereon are payable solely and only out of the moneys received under the Loan ?'agreement or realized from the enforcement of the security hereinafter described. This Bond :is issued pursuant to a resolution of the City adopted by its City Council on , 1979 (the "Bond Resolution" ) for the purpose of acquiring, constructing and equipping a warehouse-office building, together with appurtenant equipment and site improvements (hereinafter called the "Project" ) and pursuant to a Loan Agreement dated as of May 1 , 1979 (herein called the " Loan Agreement" ) between the City and Ruben Anderegg (hereinafter called the "Borrower" ) . Under the Loan Agreement, the Borrower has agreed to construct and equip the Project and has agreed to make certain Loan Repayments in amounts and at times sufficient to pay the principal of , premium, if any, and interest on this Bond when due . Pursuant to an Assignment and Pledge Agreement dated as of May 1, 1979 between the City and the Mortgagee (the "Pledge Agreement" ) , the City has pledged and assigned its interest in the Loan Agreement (except its rights under Sections 4 . 02 , 6 . 01, 7. 04 and 7 . 05 thereof) to the regis- tered holder hereof. This Bond is further secured by a Combina- tion Mortgage and Security Agreement dated as of May 1, 1.979 (the "Mortgage" ) by which the Borrower has granted to Ronald Saxon a mortgage lien on and security interest in the Project and an Assignment of Rents dated as of May 1 , 1979 (hereinafter called the: "Assignment " ) by which the Borrower has assigned to Ronald Saxon its interests in all leases with respect to the Mortgaged Property. Advances of funds for the Project are being made pursuant to a Construction Loan Agreement dated as of May 1 , 1979 by and among the City, the Mortgagee and the Borrower. Reference is hereLy made to the Bond Resolution, the Loan Agreement, the Construction Loan Agreement, the Mortgage and the Assignment for a complete description of the covenants and agreements therein �( contained, the nature and extent of the security thereby created and the rights , duties and immunities of the City thereunder. -2- This Bond is subject to prepayment prior to maturity at the option of the City upon direction of. the Borrower, in whole or in part, on any installment payment date on or of ter May 1, 1.990 , at the redemption prices (expressed as percentages of the unpaid principal amount of the Bond to be prepaid) set forth in the table below plus accrued interest to the redemption date : Redemption Redemption Dates Price May 1, 1990 to April 1, 1991 1.04% May 1, 1991 to April 1, 1992 1030 May 1, 1992 to April 1, 1993 102% May 1 , 1993 to April 1, 1994 101% but without premium if rederramed thereafter. Notice of any such prepayment shall be deemed sufficient if mailed by the Borrower to the registered owner of this Bond at least 30 days prior to the redemption date. This Bond is also subject to prepayment without premium in certain instances of damage to or destruction or condemnation of the Project as provided in the .Loan Agreement and Mortgage. All prepayments , whether voluntary or otherwise, shall be applied in inverse order of maturity. This Bond is transferable , as provided in the Bond Resolution, only upon the books of the City kept for that purpose at the office of the City Clerk, by the registered owner hereof in person or his duly appointed attorney and similarly noted hereon. By acceptance of this Bond, the registered owner agrees to provide to the City Clerk, at the Clerk' s request , a verified statement of the dates and amounts of all payments of principal, premium and interest received in respect to this Bond. In the event of default in the payment of principal of interest hereon or if an Event of Default as defined in the Mortgage or Loan Agreement occurs , or if for any reason the Assignment Date does not occur before December 31 , 1979, the unpaid principal of this Bond together with all interest then due thereon may be declared or may become immediately due in the manner and with the effect and subject to the conditions provided there i_n . It is hereby certified and recited and the City Council has found : That the Project is an eligible "project" defined in Section 474 . 02 , Subd. la of the Act; that the issuance of this Bond and the acquisition and construction of the Project will Promote the public welfare and carry out the purposes of the Act; that the Project has been approved by the Commissioner of Securi- ties as tending to further the purposes and policies of the Act; that all acts . conditions and things required to be done precedent -3- kr, to and in the issuance of this Bond have been properly done, have happened and have been performed in regular and due time , form and manner as required by law; and that this Bond does not exceed or constitute a debt of the City within the meaning of any constitutional, statutory or charter limitation. TN WITNESS WHEREOF, the CITY OF EDEN PRAIRIE , by its City Council, has caused this Bond to be signed in its behalf by the signature: of the Mayor and attested by the City Clerk and sealed with the corporate seal of the City, all as of the �� day of ,' ,�- 1979. CITY OF EV/PRAIRIE / By ✓%Ma � And B y Manager Att,P •t:\ (Seal) i�Tty e r k ij ` Certificate of Registration It. is hereby certified that, at the request of the holder of the within Bond , the City of Eden Prairie has this day registered it as to principal and .interest, in the name of such holder , as indicated in the registration blank below, on the books kept by the undersigned for such purpose : Name of Authorized Registered Date of Signature Owner Registration of City Clerk -4-