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HomeMy WebLinkAbout1982-020 CCR Member Celia Scott introduced the following resolution III and moved for its adoption: RESOLUTION NO. 82 -20 PROVIDING FOR THE ISSUANCE AND SALE OF COMMERCIAL DEVELOPMENT REVENUE BONDS PURSUANT TO CHAPTER 474, MINNESOTA STATUTES, TO PROVIDE FUNDS TO BE LOANED TO BROOKDALE OFFICE PARTNERSHIP FOR COMMERCIAL DEVELOPMENT PROJECT WHEREAS, 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 undertaking an authorized project, and to enter into contracts necessary or convenient in the exercise of the powers granted by the Act and to pledge revenues of the project and otherwise secure such bonds; and WHEREAS, the City Council hereby determines that it is desirable and expedient to authorize, and the City Council does hereby authorize, the issuance and sale of Commercial Development Revenue Bonds (BROOKDALE OFFICE PARK PARTNERSHIP PROJECT), Series 1982 (the "Bonds of the City in the aggregate principal amount of Eight Million Two Hundred Thousand Dollars ($8, 200,000) pursuant to the Act to provide money to be loaned to Brookdale Office Partnership, a Minnesota general partnership (the "Obligor to finance costs of acquiring, constructing, improving and equipping commercial buildings in the City (the "Project Buildings to be owned III by the Partnership and leased to various tenants, together with necessary equipment (the "Project Equipment to be located permanently in and become a part of the Project Buildings or the site thereof (the "Project Site and necessary site improvements (collectively, the "Project" as more fully defined in the Loan Agreement hereinafter mentioned); and WHEREAS, forms of the following documents relating to the Bonds and the Project have been submitted to and examined by the City Council and are now on file in the office of the City Clerk: (a) Loan Agreement (the "Loan Agreement dated as of January 1, 1982 by and between the City and the Obligor whereby, among other things, the City agrees to sell the Bonds to make a loan to the Obligor of the proceeds of the sale of the Bonds and the Obligor covenants to complete the Project and to pay amounts sufficient to provide for the prompt payment of the principal of and interest and premium, if any, on the Bonds; and (b) Indenture of Trust (the "Indenture dated as of January 1, 1982 from the City to First Trust Company of Saint Paul, in St. Paul, Minnesota, as trustee (the "Trustee whereby the City assigns its interests in the hereinafter mentioned Loan Agreement and loan repayments to be made by the Obligor thereunder to the Trustee; and RESOLUTION NO. 82 -20 (c) Irrevocable Letter of Credit (the "Letter of Credit dated January 1, 1982 from The First National Bank of Minneapolis (the "Bank to the Trustee securing the repayment of the principal of the Bonds (this document not to be executed by the City); and (d) Letter of Credit Agreement (the "Letter of Credit Agreement dated as of January 1, 1982 by and among the Obligor, the City, the Trustee and the Bank providing for reimbursement by the Obligor of amounts paid under the Letter of Credit and certain other covenants; and (e) Combination Mortgage, Security Agreement and Fixture Financing Statement (the "Mortgage dated as of Janauary 1, 1982 from the Obligor to the Trustee granting the Trustee a mortgage lien on and security interest in the Project Site and the Project Building (the "Project Facilities as security for the Bonds (this document not to be executed by the City); and (f) Combination Mortgage, Security Agreement and Fixture Financing Statement (the "Bank Mortgage dated as of January 1, 1982 from the Obligor to the Bank, whereby the Obligor grants a mortgage g Y g g lien on and security interest in the Project Facilities to the Bank as security for the Letter of Credit Agreement (this docu- ment not to be executed by the City); and (g) Guaranty (the "Guaranty dated as of January 1, 1982 from Harold Roitenberg, C. E. Sheehy and Gary S. Holmes (the "Guarantors to the City whereby the Guarantors unconditionally, jointly and severally guaranty the payment of all amounts payable by the Obligor pursuant to, and the performance by the Obligor of its other duties under, the Loan Agreement to the extent provided therein (this document not to be executed by the City); and (h) Guaranty (the "Bank Guaranty dated as of January 1, 1982 from the Guarantors to the Bank whereby the Guarantors unconditionally, jointly and severally guaranty the performance of the Obligor's obligations under the Bank Mortgage and the Letter of Credit Agree- ment and certain other documents (this document not to be executed by the City); and (i) Demand Promissory Note (the "Note from the Obligor to the Bank whereby the Obligor agrees to pay to the Bank the amount owing under the Letter of Credit Agreement (this document not to be executed by the City); and (j) First Assisgnment of Rents and Leases (the "Assignment dated as of January 1, 1982 from the Obligor to the Trustee whereby the Obligor assigns the Partnership's interest in leases of space in the Project Buildings and the rentals derived therefrom to the Trustee as security for the Bonds (this document not to be executed by the City); and RESOLUTION NO. 82 -20 (k) Second Assignment of Rents and Leases (the "Bank Assignment dated as of January 1, 1982 from the Partnership to the Bank whereby the Partnership assigns the Partnership's interest in leases of space in the Project Buildings and the rentals derived therefrom to the Bank as security for payment of the indebtedness represented by the Note and of the amounts required to be paid by the Letter of Credit Agreement (this document not to be executed by the City); and (1) Security Agreement (the "Security Agreement from one of the Guarantors to the Trustee and the Bank whereby the Guarantor pledges certain property as security for the payment by the Obligor to the Bank and the Trustee of the amounts owing under the Letter of Credit Agreement, the Bank Mortgage, the Bank Guaranty, the Loan Agreement, the Mortgage and the Guaranty (this document not to be executed by the City); and (m) Bond Purchase Agreement (the "Bond Purchase Agreement dated as of January 19, 1982 from Miller Schroeder Municipals, Inc. (the "Underwriter to the City and the Obligor, providing for the purchase of the Bonds by the Underwriter; and (n) Preliminary Official Statement dated January 4, 1982 and Official Statement dated January 11, 1982 (collectively, the "Official Statement describing the offer of the Bonds, certain terms and provisions of the foregoing documents and certain information con- cerning the Bank and the Obligor as deemed material by the Bank and the Obligor; and WHEREAS, it is hereby found, determined and declared that: (a) The Project, as described herein and in the Loan Agreement, based upon the representations of the Obligor, constitutes a revenue producing enterprise and is 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 community, 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 economic and human resouces needed as a base for providing governmental services and facilities; adding to the tax base of the City and the county and school district in which the Project Facilities will be located. RESOLUTION NO. 82 -20 (c) The Project has been approved by preliminary resolution of the Council duly adopted March 23, 1981, after a public hearing thereon, duly called and held and has been approved by the Commissioner 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 Bonds, the execution and delivery of the Loan Agreement, the Letter of Credit Agreement, the Bond Puchase Agreement and the Indenture and the performance of all covenants and agreements of the City contained in the Bonds, the Loan Agreement, the Letter of Credit Agreement, the Bond Purchase Agreement and the Indenture and all other acts and things required under the Charter of the City and the Constitution and laws of the State of Minnesota to make the Bonds, the Loan Agreement, the Letter of Credit Agreement and the Indenture valid and binding obligations of the City in accordance with their terms, are permitted by the Act. (e) There is no litigation pending or, to the best of its knowledge threatened, against the City relating to the Project or to the Bonds, the Loan Agreement, the Letter of Credit Agreement or the Indenture, or questioning the organization of the City or its power or authority to issue the Bonds or execute and deliver the Loan Agreement, the Letter of Credit Agreement, the Bond Purchase Agreement and the Indenture. (f) The execution and delivery of and the performance of the City's obligations under the Bonds, the Loan Agreement, the Letter of Credit Agreement, the Bond Purchase Agreement and the Indenture have been fully authorized by all requisite action and do not and will not violate any law, any provision of the City Charter, any order of any court or other agency of government, or any indenture, agreement or other instrument to which the City is a party or by which it or any of its property is bound, or be in conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument. (g) The Loan Agreement provides for payments by the Obligor to the Trustee for the account of the City of such amounts as will be sufficient to pay the principal of, interest and premium, if any, on the Bonds when due. The Loan Agreement obligates the Obligor to provide for the operation and maintenance of the Project Facilities, including adequate insurance, taxes and special assessments. (h) As required by the provisions of Section 474.10 of the Act, the Bonds shall recite that the Bonds are not to be payable from nor charged upon any funds other than amounts payable by the Obligor pursuant to the Loan Agreement which are pledged to the payment thereof, and, in event of default, moneys derived from the Letter RESOLUTION NO. 82 -20 I III of Credit or foreclosure or other enforcement of the Guaranty, the Security Agreements, the assignment or the Mortgage; the City is not subject to any liability thereon; no Holder of the Bonds shall ever have the right to compel the exercise of the taxing power of the City to pay the Bonds or the interest thereon, nor to enforce payment thereof against any property of the City; the Bonds shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City; and such Bonds do not constitute an indebtedness of the City within the meaning of any constitutional, statutory or charter limitation. (i) Nothing has come to the attention of the City Council to indicate that any member of the City Council (i) has a direct or indirect interest in the Project, the Loan Agreement, the Mortgage, the Guaranty, the Security Agreements, the Assignment or the Bonds, (ii) owns any capital stock of or other interest in the Project, (iii) will be involved in supervising the completion of the Project on behalf of the Obligor, or (iv) will receive any commission, bonus or other remuneration for or in respect of the Project, the Loan Agreement or the Bonds. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center: III 1. Approval and Execution of Documents. The forms of Loan Agreement, Indenture, Letter of Credit, Letter of Credit Agreement, Mortgage, Bank Mortgage, Guaranty, Bank Guaranty, Note, Assignment, Bank Assignment, Security Agreements, Bond Purchase Agreement and Official Statement referred to above are approved. The Loan Agreement, Letter of Credit Agreement, Bond Purchase Agreement and Indenture shall be executed in the name and on behalf of the City by the Mayor and the City Manager 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 Letter "of Credit, Bank Mortgage, Mortgage, Guaranty, Bank Guaranty, Note, Assignment, Bank Assignment and Security Agreements may contain such revisions as may be approved by the Bank and the Obligor. 2. Approval of Terms and Sale of Bonds. The City shall proceed forthwith to issue its City of Brooklyn Center Commercial Development Revenue Bonds (BROOKDALE OFFICE PARK PARTNERSHIP PROJECT), Series 1982, in the authorized principal amount of $8,200,000, of which $4,240,000 in principal amount shall mature on January 1, 1985 and bear interest at the rate often one fourth percent 101 per annum and $3,960,000 in principal amount shall mature on January 1, 1987 and bear interest at the rate of eleven percent 11 per annum and which shall be substantially in the form, payable in the installments and otherwise containing the provisions set forth in the form of Bond contained in the Indenture, which terms and provisions are hereby approved and incorporated in this Bond Resolution and made a part hereof. The Bonds, numbered 1 to 1,640 in order of maturity, RESOLUTION NO. 82 -20 shall be issued and delivered to the Underwriter in the authorized principal amount of $8,200,000 and as authorized by the Act, principal of and interest on the Bonds shall be payable at the main office of the Trustee or its successor as paying agent under the Indenture in lawful money of the United States of America. The proposal of the Underwriter to purchase such Bonds at a price of $8,016,200 is hereby found and determined to be reasonable and is hereby accepted. 3. Execution, Delivery and Endorsement of Bonds. The coupon Bonds shall be executed by the facsimile signatures of the Mayor and City Manager and a facsimile of the official seal of the City shall be imprinted thereon, and the appurtenant coupons shall be executed by the facsimile signatures of the Mayor and City Manager. When so prepared and executed, the Bonds shall be delivered to the Underwriter upon payment of the purchase price therefore, and upon receipt of the signed legal opinion of Kutak Rock Huie, bond counsel, pursuant to the Bond Purchase Agreement. Each of the Bonds 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. 4. Registration Records. The City Clerk and City Manager are authorized and directed to deliver a certified copy of this Bond Resolution to the County Auditor of Hennepin County, together with such other information as the County Auditor may require, and obtain the certificate of the County Auditor as to entry of the Bonds on his bond register as required by the Act and Section 475.63, Minnesota Statutes. 5. $10 Million Election. The City hereby elects that the $10 million limitation of capital expenditures set forth in Section 103 (b) (6) (D) of the Internal Revenue Code of 1954, as amended, shall be applicable to the Project and the Bonds, and the Mayor or City Manager shall execute and file on behalf of the City the form of election required by said Section and the regulations thereunder. 6. Amendments, Changes and Modifications to Loan Agreement, Indenture and Bond Resolution. The City shall not enter into or make any change, modification, alteration or termination of the Loan Agreement, the Indenture or this Bond Resolution without the written consent of the Trustee. 7. Pledge to Holder. Pursuant to the Indenture, the City shall pledge and assign to the Trustee all interest of the City in the revenues of the Project and the Project Facilities, including all loan re- payments to be made by the Obligor under the Loan Agreement (except for certain rights to indemnification and the payment of fees and expenses). All collections of moneys by the City in any proceeding for enforcement of the obligations of the Obligor under the Loan Agreement shall be received, held and applied by the City for the benefit of the Holders of the Bonds. RESOLUTION NO. 82 -20 III 8. Covenants with Holders; Enforceability. All provisions of the Bonds and of this Bond Resolution and all representations and undertakings by the City in the Loan Agreement are hereby declared to be covenants between the City and the Holders of the Bonds and shall be enforceable by the Holder in a proceeding brought for that purpose; provided that no such covenant, representation or undertaking shall ever give rise to any pecuniary liability of the City, its employees, officers or agents or constitute a charge against its general credit or taxing powers. 9. Definitions and Interpretation. Terms not otherwise defined in this Bond Resolution but defined in the Loan Agreement shall have the same meanings in this Bond Resolution and shall be interpreted herein as provided therein. Notices may be given as provided in Section 11.1 of the Loan Agreement. In case any provision of this Bond Resolution is for any reason illegal or invalid or inoperable, such illegality or invalidity or inoperability shall not affect the remaining provisions of this Bond Resolution, which shall be construed or enforced as if such illegal or invalid or inoperable provision were not contained herein. 10. Authorized Representative. The City Manager is hereby designated as an authorized representative of the City for purposes of signing any III Issuer Request, Issuer Order or Issuer Consent (as defined in the Loan Agreement). 11. Certifications. The Mayor, City Manager, City Clerk and other officers of the City are authorized and directed to prepare and furnish to Kutak Rock Huie, bond counsel, to the Obligor, to the Trustee, to the Bank and to counsel for the Obligor and the Bank, certified copies of all proceedings and records of the City relating to the Project and the Bonds, and such other affidavits 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. 12. Official Statement. The City hereby approves and consents to the use by the Underwriter in the marketing of the Bonds of the Official Statement. January 11, 1•:2 L 1,G6 Date Mayo r �i Mari ATTEST: I/ f III erk The motion for the adoption of the foregoing resolution was duly seconded by member Bill Hawes and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Bill Hawes, Celia Scott, and Rich Theis; and the following voted against the same: Gene Lhotka whereupon said resolution was declared duly passed and adopted.