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HomeMy WebLinkAboutResolution - 85-277 - Final Approval MIDB's -Ron-Mar Properties - $750,000 - 12/17/1985 561J FINAL NOTE RESOLUTION v;- a ell CITY' OF -"DEN PRAIRIE, MINNESOTA $750, 000 COMMERCIAL DEVELOPMENT REVENUE NOTE OF 1985 (RUN-MAR PROPERTIES PROJECT) ADOPTED: December 17, 1985 NOTE RESOLUTION (This Table of Contents is not a part of this Resolution, but is included for convenience only) TABLE OF CONTENTS Pag e ARTICLE ONE - DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 1-1 . Definitions . . . . . . . . . . . . . . . . . . . . . . 1 Section 1-2 . Legal Authorizationi. . . . . . . . . . . . . . 3 Section 1-3 . Findings . . . . . . . . . . . . . . . . . . . . . . . . . 3 Section 1-4. Authorization and Ratification ofProject . . . . . . . . . . . . . . . . . . . . . . . 5 ARTICLE TWO - NOTE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 2-1 . Authorized Amount and Form ofNote . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 2-2 . The Note . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 2-3 . Execution. . . . . . . . . . . . . . . . . . . . . . . . 6 Section 2-4. Delivery of Note . . . . . . . . . . . . . . . » . 6 Section 2-5 . Disposition of L'ot�e Proceeds . . . . . 7 Section 2-6 • Registration of Transfer. . . . . • . . • 7 Section 2-7 . Mutilated, Lost . or Destroyed • . Vote. 8 Section 2-8 . Ownership of Note. . . . . . . . . . . . . . . . 8 Section 2-9 . Limitation on Note Transfers. . . . . 9 Section 2-10 . Limitation of the tiit-y ' s Obligation. . . . . . . . . . . . . . . . . . . . . . . 9 ARTICLETHREE - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . • . . . 10 Section 3-1 . Severability. . . . . . . . . . . . . . . . . . . . . . 10 Section 3-2 . Authentication of `Pranscript. . . . . . 10 Section 3-3 . Registration of Resolution . . . . . . . . 10 Section 3-4. Authorization to Execute Agreements . . . . . . . . . . . . . . . . . . . . . . . . 10 SIGNAL'URES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 `:x NOTE RESOLU T ION 13E IT RESOLVED by the City Council of the City of Eden Prairie, Minnesota , as follows : ARrICL•E ONE DEFINI`1'IONS , LEGAL AUTHORIZATION AND FINDINGS 1-1 . Definitions. The terms used herein, unless the context hereof shall require otherwise shaLL have the fallowing meanings , and any other terms defined in the Loan Agreement shall have the same meanings 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; Bond Counsel : the firm of Briggs and Morgan, Professional Association, of St. Paul and Minneapolis , Minnesota, or any other_ firm of nationally recognized bond counsel experienced in tax-exempt industrial revenue bond financing selected by the h Lender and acceptable to the City and the Borrower, and any opinion of Bond Counsel shall be a written opinion signed by such Counsel ; Borrower : Ron-Mar Properties , a Minnesota general partnership, its successors, assigns, and any surviving, resulting or transferee business entity which may assume its obligations under the Loan Agreement City the City of Eden Prairie, Minnesota, its successors and assigns , Construction Fund: the .fund est=ablished by the City pursuant to this Resolution and into which the proceeds of the Note will be deposited; Construction Loan Agreement: th_e agreement to be executed by the City, the Borrower and the Leader, 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, Ronald L. Krueger and Marvin L . Robertson and their respective spouses; Guaranty: the personal guaranty to be executed by the r 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: First Wisconsin National Bank of Milwaukee, Milwaukee, Wisconsin , 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 thereof to the Borrower , including any amendments or supplements thereto made in accordance with its provisions ,- Mortgage: the Mortgage , Assignment of Rents and Leases , Security Agreement and Fixture Financing Statement to be executed by the Borrower, as mortgagor , to the Lender , as mortgagee, securing payment of the Note and interest thereon; Note : the $750, 000 Commercial Development Revenue Note of 1985 Ron-Mar Properties Project) , to be issued by the City pursuant to this Resolution and the Load agreement, Note Register : the records kept by the City Finance Director/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 much of the principal sum on the Note as remains unpaid at any time ; 2 Project : the Land and Improvements as they may at any time exist; Project Costs : the total of all "Construction Costs" and "Iaoan and Carrying Charges, " as these terms are defined in the Loan Agreement; Resolution: this Resolution of the City adopted December 17, 1985, together with any supplement or amendment thereto . All references in this 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, " "hereof. " and "hereunder" and other words of similar import refer to this Resolution as a whole not to any particular Article, Section or subdivision. 1-2 . Legal Authorization . 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 (_letermined , 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) the 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 Note 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_ thereof will be, to promote the public welfare by: the attraction, encouragement and develop- ment of economically sound industry and commerce so as to 3 prevent, so far as possible, the emergence of blighted and marginal lands and areas of chronic unemployment , the develop- ment of revenue-producing 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 other 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 govern- mental 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 finance the Project Costs , including 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 $750 , 000 as hereinafter provided ; ( 5 ) it is desirable , feasible and consistent with the objects anc purposes of the Act to issue the Note, for the purpose of partially financing the Project; (6 ) the Note and the interest accruing thereon do not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation and do not constitute or give rise to a pecuniary liability or a charge against the general credit or taxing powers of the City and neither the full faith and credit nor the taxing powers of the City is pledged for the payment of the Note or interest the reon; ( 7 ) the Note is an industrial. development bond within the meaning of Section 103 ( b) of the Internal Revenue Code and is to be 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 prevent the City from hereafter qualifying the Note under a different exemption if, and to the extent, such exemption is permitted by law and consistent with the objects and purposes of the Project , ( 3 ) the City has authorized by all necessary action , the execution, delivery and due performance of the Note, the Construction Loan Agreement, the Loan Agreement and the Pledge Agreement, and any and all such other agreements and documents as may be required to be executed and delivered by the City in order to carry out, give effect to and consummate the transac- tion contemplated by the Construction Loan Agreement, the Note , 4 e Loan Agreement, the Pledge Agreement and this Resolution; provided that this finding is made solely for the purpose of estopping the City from denying the validity of the Loan Agreement, the Pledge Agreement, the Construction Loan Agreement or the Note by reason of the existence of any facts contrary to this finding; (9 ) there is no litigation of any nature now pending , or to our knowledge, threatened seeking to restrain or enjoin the issuance, sale, execution or delivery of the Note, or any of the documents described in this Resolution , or questioning the authority or proceedings pursuant to which the Note is being issued, the validity of the Note or any provision made for the payment thereof, or the power of the City to assist in financing the Project as defined in the Loan Agreement ; and ( 10 ) neither the existence of the City nor the rights of the present officials of the City to their respective offices is being contested and no authority or proceed riy ror the issuance of the Note or the execution and delivery of the Pledge Agreement, the Loan agreement, or the Construction Loan Agreement have been modified , repealed, revoked or rescinded . 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 terms and conditions 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 with the Plans and Specifications . 5 ARTICLE TWO i. NOTE 2-1 . Authorized Ainount and Form of. Note . The Note issued pursuant to this Resolution shall be in substantially the form set forth on Exhibit A attached 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 principal amount of the Note that may be outstanding hereunder is expressly limited to $750 , 000 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 sealed with the seal of the City. In case any officer whose signature shall appear on the Note shall --ease to be such officer before the delivery of the Note, such signature shall nevertheless be valid and sufficient for all purposes, the same as if had remained in 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 the opinion of the City Attorney, may act in their behalf, shall without further act or authorization of the City Council execute and deliver the Note . 2-4. 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; (B) the Pledge Agreement; ( C) the Mortgage; 6 ( D) the Constructior_ Loan Agreement; (E) the Guaranty, ( F) a Cost Certificate signed by the Borrower certifying the use of the proceeds of the Note . ( 2 ) an opinion of Counsel for the Borrower as prescribed by Bond Counsel ; ( 3 ) the opinion of Bond Counsel as to the validity and tax exempt status of the Note; ( 4 ) such other documents and opinions as Bond Counsel may reasonably require for purposes of rendering its opinion required in subsection ( 3 ) above or that the Lender may reason- ably require for the closing. 2-5 . Disposition of Note Proceeds . There is hereby established with the Lender a Con- struction Fund to be held by the Lender as a separate account of the City as provided M the Construction Loar. Agreement . Upon delivery of the Note to Lender, the proceeds of the Note shall be credited to the Construction Fund held by the Lender on behalf of the City, at which time the entire principal amount of the Note shall be deemed advanced, and the Lender shall , on behalf of the City, disburse Eunds from the Construc- tion 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 Con- struction 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 Finance Director/Clerk a Note Register in which , subject to such reasonable regulations as it may prescribe, the City shall provide for the registration of transfers 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 transfer satisfactory to the Finance Director/ 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. Eden Prairie, Minnesota, and does hereby irr.•evocably 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 Note Resolution dated December 17 , 1985 . Dated : Registered Owner Upon such transfer the Finance Director/Clerk shall note the date of registration and the name and address of the new Lender in the vote 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 lost, the City shall, if not then prohibited by law, cause to be executed and delivered, a new Note of like 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 Vote 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 f:or redemption in accordance with its terms it shall not be necessary to issue a new Note prior to payment. 2-8 . 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 Balance, redemption price or interest and for all other _purposes whatsoever, and the City shall not be affected by any notice to the contrary. 8 2-9 . Limitation on Note Transfers . P The Note has been issued without registration under state 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 applicable exemption from such registration requirements . 2-10. Limitation of the City ' s Obligations . Notwithstanding anything contained in the Note, the Loan Agreement, the Pledge Agreement, or any other documents referred to in Section 2-4 hereof, the Note shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation, and shall not be payable from nor charged upon any funds other than the revenues pledged to the payment thereof, and no holder of the dote shall ever have the right_ to compel any exercise of the taxing power of the City to pay the Note or the premium, if any, or interest thereon, or to enforce payment thereof against any property of the City other than these rights and interests of the City under the Loan Agreement which have been pledged to the payment thereof, and the Vote shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City other than those rights and interests of the City under the Loan Agreement which have been pledged to the payment thereof. • The agreement of the City to perform the covenants and other provisions contained in this resolution or the Note, the Loan Agreement or the Pledge Agreement and the other documents listed in Section 2-4 shall be subject at all times to the availability of the revenues furnished by the Borrower 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 other than as stated above. 9 ARTICLE 'PHREE MISCELLAIIEOUS 3-1 . 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 . 3-2 . 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 all statements coritained therein. 3-3 . Registration of Resolution. The Finance Director/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 vote as a bond of the City has been duly entered upon his bond register. 3-4 . Authorization to Execute Agreements . The forms of the proposed Loan Agreement, the Pledge Agreement, the Construction Loan Agreement, the Guaranty and the Mortgage 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 10 and such modifications thereof, deletions therefrom and additions thereto as may be 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 Cons truc."Z.i;z::n Loan Agreement in the name of and on L Qhalf of the C_.ty 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 shall be conclusive evidence of the approval of such documents in accordance with the terms hereof. Adopted: December 17, 1985 - Mayor %/ '�/ City of Eden Prairie .1f Attest : `I Fin nne Director Clerk 11