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HomeMy WebLinkAboutResolution - 85-112 - Approve Refinancing Bonds for Tech Park III - $2,700,000 - 05/07/1985 BND/techref2 RESOLUTION NO . <5 4 RESOLUTION RELATING TO A $2 , 700 , 000 CITY OF EDEN PRAIRIE, 'MINNESOTA, COMMERCIAL DEVELOPMENT REFUNDING REVENUE BOND; AUTHORIZING THE ISSUANCE THEREOF PURSUANT TO MINNESOTA STATUTES , CHAPTER 474 . BE IT RESOLVED by the City Council of the City of Eden Prairie, Minnesota, as follows : Section 1 . Definitions . 1 . 01 . In this Resolution the following terms have the following respective meanings unless the context hereof or use herein clearly requires otherwise : "Act" means the Minnesota Municipal Industrial Development Act , Minnesota Statutes , Chapter 474 , as amended; "Agreement" means the Loan Agreement , dated as of May 1 , 1985 , to be entered into among the City and the Company ; "Assignment" means the Assignment of Lease and Rents , dated as of May 1 , 1985 , to be executed by the Company in favor of the Original Purchaser ; "Bond" means the $2 , 700 , 000 principal amount Com- mercial Development Refunding Revenue Bond (Technology III Project ) , issued by the City to the Owner pursuant to the Resolution; "Building" means the Building as defined in the Agreement ; "City" means the City of Eden Prairie , a municipal corporation and political subdivision of the State of Minnesota, its successors and assigns ; "Company" means BKH Limited Partnership, a Minne- sota limited partnership, its successors , and assigns ; "Disbursing Agreement " means the Disbursing Agree- ment , dated as of May 1 , 1985 , to be entered into among the City, the Company and the Original Purchaser ; "Equipment " means the Equipment as that term is defined in the'Agreement ; "Owner" means the Original Purchaser and any sub- sequent holder of the Bond ; "Land" means the real property described in Exhibit A to the Agreement ; "Original Purchaser" means First Southdale National Bark of Edina , Edina, Minnesota , its successors and assigns ; "Mortgage" means the Mortgage, Security Agreement and Fixture Financing Statement , dated as of May 1 , 1985 , to be executed by the Company in favor of the Original Purchaser ; "Payment Agreement" means the Payment and Discharge Agreement , dated as of May 1 , 1985 , to be executed among the City, the Company and the Original Purchaser ; "Pledge Agreement" means the Assignment and Pledge Agreement , dated as of May 1 , 1984 , between the City and the Original Purchaser ; r "Prior Bond" means the City ° s $ 2 , 700 , 000 Commercial Development Revenue Bond ( Technology III Project ) , dated December 26 , 1984 , the outstanding principal balance of which is $2 , 700 , 000 as of the date hereof ; "Project" means the Building and the Equipment to be acquired, constructed and installed upon the Land, as defined in the Agreement ; "Project Costs" means those costs defined as Pro- ject Costs in the Agreement ; "Resolution" means this resolution of the City . Section 2 . Findings . 2 . 01 . It is hereby found and declared that : ( a ) based upon representations made to the City by representatives of the Company as to the nature of the Project as described in the Agreement , the Project con- stitutes a project authorized by the Act ; ( b) the purpose of the Project is and the effect thereof shall be to promote the public welfare by the attraction , encouragement and development of economic- - 2 - 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; ( c ) the Pri-or Bond was issued to finance a portion of the cost of acquisition , construction and installa- tion of the Project ; used upon the representations of the Company, issuance of the Bond to refund , prepay and redeem the Prior Bond will allow the proceeds of the Prior Bond to be applied to Project Costs and is likely to result in debt service savings to the Company ; (d ) it is desirable that the Bond in the principal amount of $2 , 700 , 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 i therein to the Owner as security for the payment of the principal of , premium, .if any , and interest on the Bond; (e ) the loan payments contained in the Agreement are fixed so as to produce income and revenue sufficient to provide for prompt payment of the principal of , pre- mium, if any , and interest on the Bond when due , and the Agreement also provides that the company is required to pay all expenses of the operation and maintenance of the Project , including , but not limited to , adequate insur- ance 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 Bond 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 Owner of the Bond shall ever have the right to compel any exercise of the taxing power of the City to pay the Bond or the interest thereon nor to enforce payment thereof against any pro- perty of the City; the Bond , premium, if any, and in- terest thereon shall not constitute an indebtedness of the City within the meaning of any constitutional , char- ter 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 Bond, the Agreement , the Disbursing Agreement , the Payment Agree- ment and the Pledge Agreement shall not conflict with or constitute , on the part of the City, a breach of or a default under any existing agreement , indenture , mort- gage , 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 denying the validity of the Bond, the Agreement , the Disbursing Agreement , the Pay- ment Agreement or the Pledge Agreement by reason of the existence of any facts contrary to this finding ; ( h) all acts and things required under the Consti- tution and the laws of the State or Minnesota to make the Bond, the Agreement , the Disbursing Agreement , the Payment Agreement and the Pledge Agreement the valid and binding obligations of the City in accordance with their terms shall, have been done upon adoption of this Resolu- tion and execution of the Bond, the Agreement , the Dis- bursing Agreement , the Payment Agreement and the Pledge Agreement ; provided that this finding is made solely for the purpose of estopping the City from denying the validity of the Bond, the Agreement or the Pledge Agree- ment by reason of the existence of any facts contrary to this finding; and ( i ) 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 Bond in accordance with the Act . ( j ) to the best knowledge of the undersigned, the consummation of the transactions contemplated by the Bond Resolution and compliance by the City with the pro- / visions thereof and of the Bond , the Pledge Agreement , the Disbursing Agreement , the Payment Agreement and the Agreement has not resulted in and will not result in the creation or imposition of any lien , charge or encum- brance ( other than the Agreement , the Bond Resolution , the Disbursing Agreement , the Payment Agreement and the Pledge Agreement ) upon any properties or assets of the City other than its interest in the Project ; provided that this finding is made solely for the purpose of estopping the City from denying the validity of the Agreement , the Bond , the Disbursing Agreement , the Pay- - 4 - ment Agreement or any other document executed by the City by reason of the existence of any Facts contrary to this finding . ( k ) to the best knowledge of the undersigned , the City is not and upon the issuance of the Bond will not be in default in the performance and observance of any of the terms or conditions of the Bond Resolution , the Pledge Agreement, the Disbursing Agreement , the Payment Agreement and the Agreement on its part to be performed or observed , and all conditions precedent provided in the Bond Resolution relating to the issuance of the Notes have been complied with; provided that this finding is made solely for the purpose of estopping the City from denying the validity of the Agreement , the Bond, the Disbursing Agreement , the Payment agreement or any other document executed by the City by reason of the existence of any facts contrary to this finding . Section 3 . Authorization and Sale . 3 . 01 . Authorization . The City is authorized by the Act to issue revenue bonds and loan the proceeds thereof to business enterprises to refund its revenue bonds previously issued to finance the acquisition, construction and in- stallation of facilities constituting a "project , " as de- fined in the Act, and to make all contracts, execute all instruments and do all things necessary or convenient in the exercise of such authority. 3 . 02 . Preliminary City Approval . By preliminary re- solution duly adopted by the City Council, on December 20 , 1984 , after a public hearing held on that date , this City Council approved the acquisition, construction and installa- tion of the Project and authorized the preparation of such documents as may be appropriate to the acquisition, con- struction and installation of the Project . 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 Loan Agreement ; ( b) the Pledge Agreement ; ( c) the Disbursing Agreement ; (d) the Payment Agreement ; - 5 - ( e ) the Mortgage ; and ( f ) the Assignment . The forms of the documents listed in ( a ) through ( f ) above are approved, with such variations , insertions and additions as are deemed appropriate by the parties and approved by the City Attorney . Section. 4 . Authorizations . 4. 01 . Upon the completion of the Agreement , the Dis- bursing Agreement , the Payment Agreement and the Pledge Agreement approved in Section 3 . 03 hereof, the Mayor and the City Manager shall execute the same on behalf of the City and the Mayor and the City Manager shall execute the Bond, in substantially the form approved in paragraph 5 . 01 hereof , on behalf of the City , and the Mayor , the City Manager , the City Clerk and other officers of the City shall execute such other certifications , documents or instruments as bond coun- sel or counsel for the Original Purchaser shall require , subject to the approval of the City Attorney, and all cer- tifications , recitals and representations therein stall constitute the certificates , recitals and representations of the City. Execution of any instrument or document by one or more appropriate officers of the City shall constitute and shall be deemed the conclusive evidence of the approval and authorization by the City and the City Council of the in- strument or document so executed . Section 5 . The Bond . 5 . 01 . Form and Authorized Amount . The Bond shall be issued substantially in the form presented to the City Coun- cil and set forth as Exhibit A to this Resolution, with such appropriate variations , omissions and insertions as are permitted or required by this Resolution, in the principal amount of $2 , 700 , 000 . The offer of the Original Purchaser to purchase the Bond at a price of par is found reasonable and is accepted . The terms of the Bond 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 . 5 . 02 . Execution_. The Bond shall be executed on behalf of the City by the manual signatures of the Mayor and the City Manager . In case any officer whose signature shall appear on the Bond shall cease to be such officer before the delivery thereof , such signature shall , nevertheless , be valid and sufficient for all purposes . 6 - 5 . 03 . Mutilated, Lost and Destroyed Bond . In case the Bond shall become mutilated or be lost or destroyed , the City shall cause to be executed and delivered a new Bond of like outstanding principal amount and tenor in exchange and substitution for and upon cancellation of the mutilated Bond or in lieu of and in substitution for such Bond lost or destroyed, upon the Owner ' s paying the reasonable expenses and charges of the City in connection therewith and, in case the Bond is destroyed or Lost , filing with the City evidence satisfactory to it of such loss or destruction. 5 . 04 . Bond Registrar ; Assignment . The City Clerk is hereby designated as Bond Registrar ( the "Bond Registrar " ) and shall keep a Bond Register in which the Bond Registrar shall provide for the registration of transfers of ownership of the Bond. The Bond shall be initially registered in the name of the Original Purchaser and shall be transferable upon the Bond Register by the registered owner of the Bond at any time in person or by its agent duly authorized in writing , upon surrender of the Bond together with a written instrument of transfer duly executed by the Owner or its duly authorized agent in the following form: For value received hereby sells , assigns and transfers unto ( Tax Identification or Social Security No . ) the within Bond of the City of Eden Prairie, Minnesota , and does hereby irrevocably constitute and appoint attorney to transfer said Bond on the books of the Bond Registrar with full power of substitution in the premises . Upon such transfer the Bond Registrar shall note the date of registration and the name, address and tax identifi- cation number or social security number of the new Owner of the Bond in the Bond Register and in the registration blank appearing on the Bond . 5 . 05 . Delivery and Use of Proceeds . Prior to delivery of the Bond, the documents referred to in Section 3 . 03 hereof shall be completed and executed in form and substance as approved by the City Attorney, and an original , executed counterpart of each such document shall be delivered to the Original Purchaser . The City shall thereupon deliver to the Original Purchaser the Bond in the principal amount of $2 , 700 , 000 together with a copy, duly certified by the City Clerk , of this Resolution and such closing certificates as are required by bond counsel . Upon delivery of the Bond and the above items to the ' Original Purchaser , the proceeds of the Bond shall be paid - 7 - to the Original Purchaser as payment in full of the prin- cipal amount of the Prior Bonds , as further provided in the Purchase Agreement . Any surplus in the Construction Pund shall be applied toward prepayment of the Bond as provided in the Agreement and shall not be invested to produce a yield greater than the yield on the Bond ( within the meaning of Section 103 ( c ) of the Internal Revenue Code of 1954 , as amended ) , as re- quired by Internal Revenue Service Revenue Procedures 79-5 and 81-22 and any regulations promulgated thereunder and amendments or modifications thereto; provided that if the Owner receives an opinion of bond counsel that the exemption from federal income taxation of the interest on the Bond will not be jeopardized, the surplus funds may be invested at a yield greater than the yield on the Bond. 5 . 06 Issuance of New Bond . The City shall , at the request and expense of the Owner , issue new Bonds , in an aggregate outstanding principal amount equal to that of the Bond 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 Bond Registrar in the name of the Owner . Section 6 . Limitations of the City ' s Obligations . 6 . 01 Notwithstanding anything contained in the Bond , the Agreement or the Pledge Agreement or any other documents referred to in Section 3 . 03 hereof, the Bond, premium, if any , and interest thereon shall not constitute an indebted- ness of the City within the meaning of any constitutional , charter 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 equit- able, upon any property of the City other than its interest in the Project , and no Owner of the Bond shall ever have the right to compel any exercise of the taxing power of the City to pay the Bond or the interest thereon or to enforce pay- ment thereof against any property of the City other than its interest in the Project . The agreement of the City to per- form the covenants and other provisions contained in this Resolution or the Bond , the Agreement or the Pledge Agree- ment and the other documents listed in Section 3 . 03 hereof shall be subject at all times to the availability of reve- nues furnished by the Company 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. No i, failure of the City to comply with any terms , conditions , or agreement therein shall subject the City or its officers , - 8 - employees or agents to liability for any claim for damages , costs or other financial or pecuniary charges except to the extent that the game can be paid or recovered from the Agreement or revenues therefrom or proceeds of the Bond. Section 7 . City Representative ; Statement of Election. 7 . 01. The City Manager and the Mayor and City Clerk of the City are hereby designated and authorized to act on behalf of the City as the City Representative and alternate City Representatives , respectively (as defined in the Agree- ment ) . 7 . 02. The principal amount of the Bond being in excess of $1 , 000 , 000 , the Mayor is hereby authorized and directed on behalf of• the City to execute and cause to be filed with the Internal Revenue Service a statement of election to issue its obligations in excess of $1 , 000 , 000 as provided by Section 103 ( b ) ( 6 ) ( 10 ) of the Internal Revenue Code of 1954 , as amended, and Section 1 . 103 ( b) ( 2 ) (vi ) of the regulations promulgated thereunder . Adopted by the Eden Prairie City Council on May 7 , 1985 . �3 - 9 - Clerk ' s Certificate I , the undersigned , being the duly qualified and acting Clerk of the City of Eden Prairie , Minnesota, hereby certify that I have carefully compared the attached and foregoing resolution with the original thereof on file in my office and further certify that the same is a full , true and ccm- plete transcript therefrom, insofar as the same relates to the approval of the issuance of a bond of the City to refund the City ' s outstanding $2, 700 , 000 Commercial Development Revenue Bond (Technology III Project ) , dated December 26 , 1984 . I certify that Councilmember intro- duced said resolution, Councilmember -' moved its adoption, which motion was duly seconded by Council- member J. and upon roll call, the "Ayes , " "Abstains " and "Nays " were as follows : AYES ABSTAINS NAYS Whereupon the resolution was declared duly passed and adopted . I further certify that said resolution was duly adopted by the Eden Prairie City Council at a duly called and regu- larly held regular or special meeting thereof . WITNESS my hand officially as such Clerk and the corpor- ate seal of the City this 7th day of May, 1985 . City Clerk-Finance Director Eder! Prairie, Minnesota ( SEAL) - 10 -