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RES 1983-116 - 00005849fl 1 229 RESOLUTION NO. 116 — 1983 A RESOLUTION OF THE CITY OF FRIDLEY, AUTHORIZING THE ISSUANCE OF $7,000,000 AGGREGATE PRINCIPAL AMOUNT =STRIAL DEVELOPMENT REVENUE BONDS — SKYWOOD MALL PROJECT WHEREAS, the Municipal Industrial Development Act, Minnesota Statutes, Chapter 474, as amended (the "Act ") , declares that the welfare of the State of Minnesota (the "State ") requires active promotion, attraction, encouragement and development of economically sound industry and commerce through governmental action to prevent, so far as possible, emergence of blighted lands and areas of chronic unemployment, and it is the policy of the State to facilitate and encourage action by local government units to prevent the economic deterioration of such areas to the point where the process can be reversed only by total redevelopment through the use of local, state and federal funds derived from taxation with the attendant necessity of relocating displaced persons and of duplicating public services in other areas; and WHEREAS, the Act further finds and declares that such governmental action is required by technological change that has caused a shift to a significant degree in the area of opportunity for educated youth to processing, transporting, marketing, service and other industries, and unless existing and related industries are retained and new industries are developed to use the available resources in each community, a large part of the existing investment of the community and of the State as a whole in educational and public service facilities will be lost, and the movement of talented, educated personnel of mature age to areas where their services may be effectively used and compensated and the lessening attraction of persons and businesses from other areas for the purposes of industry, commerce and tourism will deprive the community and the State of the economic and human resources needed as a base for providing governmental services and facilities for the remaining population; and WHEREAS, the Act further finds and declares that such governmental action is required by the increase in the amount and cost of governmental services and the need for more intensive development and use of land to provide an adequate tax base to finance these costs; and WHEREAS, the City of Fridley, Anoka County, Minnesota (the "Issuer ") is authorized by the Act to enter into a revenue agreement with any person, firm or public or private corporation or federal or state governmental subdivision or agency in such manner that payments required thereby to be made by the contracting party shall be fixed and revised from time to time as necessary so as to produce income and revenues sufficient to provide for the prompt payment of the principal of, premium, if any, and interest on all bonds issued under the Act when due, and the revenue agreement shall also provide that the contracting party shall be required to pay all expenses of the operation and maintenance of a project, including, but without limitation, adequate insurance thereon and insurance against all liability for injury to persons or property arising from the operation thereof and all taxes and special assessments levied upon or with respect to the project and payable during the term of the revenue agreement; and Page 2 — Resolution No. 116 - 1983 203 0 WHEREAS, the Act further authorizes the Issuer to issue revenue bonds, in anticipation of the collection of revenues of a project, to finance, in whole or in part, the cost of acquisition, construction, installation, completion, reconstruction, improvement, betterment or extension of any such project; and WHEREAS, Skywood Mall, a general partnership duly formed and existing under the laws of the State of Minnesota (the "Borrower "), proposes to renovate an existing shopping mall and to construct and equip adjoining office and motel facilities (the "Project ") to be awned by the Borrower, and the Issuer desires ' to finance said Project upon the terms and conditions as required by the Act and as in the Agreement (as hereinafter defined) set forth; and WHEREAS, the Issuer proposes to undertake said facilities as a project authorized under the Act and to finance the cost thereof by the issuance of revenue bonds of the Issuer under the Indenture (as hereinafter defined); and WHEREAS, the Issuer proposes to enter into an Indenture of Trust, dated as of December 1, 1983 (the "Indenture ") , with F & M Marquette National Bank, in Minneapolis, Minnesota (the "Trustee "), to provide, among other things, for the issuance by the City of Fridley, Minnesota, of its Commercial Development Revenue Bonds ( Skywood Mall Project), dated as of December 1, 1983, in the aggregate principal amount of $7,000,000 (the "Bonds "), and the Issuer and the Borrower have proposed to enter into a Loan Agreement, dated as of December 1, 1983 (the "Agreement "), so as to, among other things, loan the proceeds of the Bonds to the Borrower to be used to acquire, construct and install the Project, and the Borrower and the Trustee have proposed to enter into a Mortgage, Security Agreement and Fixture Financing Statement, dated as of December 1, 1983 (the "Mortgage ") , so as to secure the performance of the Borrower's obligations under the Agreement, and the Borrower and the Trustee have proposed to enter into an Assignment of Rents and Leases, dated as of December 1, 1983 (the "Assignment ") , whereby the Borrower assigns, grants and transfers to the Trustee all of the Borrower's right, title and interest in and to any present and future leases and rents or agreements covering all or any part of the Mortgaged Property (as hereinafter defined) as further ' security for the payment of the principal of, premium, if any, and interest on the Bonds and the performance of the Borrower's obligations under the Agreement, and the Guarantors (as defined in the Indenture) have proposed to execute and deliver to the Trustee a Guaranty, dated as of December 1, 1983 (the "Guaranty "), pursuant to which the Guarantors shall guarantee the full and prompt payment of the principal of, interest and premium, if any, on the Bonds, and the Tenants (as defined in the Agreement), and the Borrower and the Trustee have proposed to enter into Subordination, Nondisturbance, and Attornment Agreements, dated as of December 1, 1983, for the security of the Bonds; and WHEREAS, the Bonds issued under the Indenture will be secured by a pledge and assignment of the loan repayments to be paid to the Issuer by the Borrower as required by the Agreement (the "Loan Repayments ") and other revenues derived by the Issuer from the Mortgaged Property and the Issuer's rights (except certain rights as to indemnification and reimbursement of expenses) under the Agreement and the Mortgaged Property under the Mortgage (the "Mortgaged Property "), and, pursuant to the Assignment, all present and future leases, rents, and profits of the Mortgaged Property, and the principal of, premium, Page 3 — Resolution No. 116 - 1983 231 if any, and interest on the Bonds shall be payable solely from the revenues pledged therefor, and the Bonds shall not constitute a debt of the Issuer within the meaning of its Home Rule Charter or within the meaning of any constitutional or statutory limitation nor shall constitute or give rise to a pecuniary liability of the Issuer or a charge against the Issuer's general credit or taxing powers and shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the Issuer other than its interest in said Project; and ' WHEREAS, the Issuer proposes to loan the proceeds of the Bonds to the Borrower to acquire, construct and install the Project, and the Borrower desires to borrow the proceeds from the Issuer to finance the Project upon the terms and conditions as required by the Act and as set forth in the Agreement; and WHEREAS, under the Agreement, the Borrower is to pay to the Issuer sufficient moneys each year to pay the principal of, premium, if any, and interest on the Bonds issued to finance the Project, and the Borrower is to provide the cost of maintaining said Project in good repair, the cost of keeping the Project properly insured and any payments required for taxes; and WHEREAS, Miller Securities Incorporated and Piper, Jaffray & Hopwood Incorporated, in Minneapolis, Minnesota (the "Original Purchasers ") , have proposed to purchase the Bonds; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY, MINNESOTA, THAT: 1. The City Council of the Issuer acknowledges, finds, determines and declares that the welfare of the State requires active promotion, attraction, encouragement and development of economically sound industry and commerce throught governmental action to prevent, so far as possible, emergence of blighted lands and areas of chronic unemployment, and it is the policy of the State to facilitate and encourage action by local government units to prevent the economic deterioration of such areas to the point where the process can be reversed only by total redevelopment through the use of local, state and federal funds derived from taxation with the attendant necessity of relocating displaced persons and of duplicating public services in other areas. 2. The City Council of the Issuer further finds, determines and declares that such governmental action is required by technological change that has caused a shift to a significant degree in the area of opportunity for educated youth to processing, transporting, marketing, service and other industries, and unless existing and related industries are retained and new industries are developed to use the available resources in the community, a large part of the existing investment of the community and of the State as a whole in educational and public service facilities will be lost, and the movement of talented, educated personnel of mature age to areas where their services may be effectively used and compensated and the lessening attraction of persons and businesses from other areas for purposes of industry, commerce and tourism will deprive the community and the State of the economic and human resources needed as a base for providing governmental services and facilities for the remaining population. C Page 4 — Resolution No. 116 - 1983 3. The City Council of the issuer further such governmental action is required by th e governmental services and the need for more land to provide an adequate tax base to fi 232 finds, determines and declares that increase in the amount and cost of intensive development and use of Hance these costs. 4. The City Council further finds, determines and declares that the existence of the Project within the corporate limits of the Issuer shall provide for more intensive development and use of land to increase the tax base of the Issuer and overlapping taxing authorities and maintain and provide for additional opportunities for employment for residents of the Issuer and that while conventional, commercial financing to pay the capital cost of the Project is available at such costs of borrowing that the economic feasibility of operating the Project would be significantly reduced, with the aid of municipal financing and its resulting lower borrowing cost, the Project is economically more feasible. 5. The loan to the Borrower under the Agreement to finance the acquisition, construction and installation of the Project (as such term is defined in the Agreement), be and the same is hereby authorized. 6. For the purpose of financing the cost of the acquisition, construction and installation of the Project, there is hereby authorized the issuance of $7,000,000 aggregate principal amount City of Fridley, Minneosta, Industrial Develoment Revenue Bonds (Skywood Mall Project), dated as of December 1, 1983 (the "Bonds "). The Bonds shall be issued in fully registered form, shall be in such denominations, shall be numbered, shall be dated, shall mature, shall be subject to redemption prior to maturity, shall be in such form and shall have such other details and provisions as are prescribed by the Indenture. The interest rate on the Bonds shall not exceed thirteen percent (13.00 %) per annum, and the rate of interest shall be approved by the Mayor, the City Clerk- Treasurer and the City Manager. 7. The Bonds shall be special obligations of the Issuer, payable solely from the revenues received by the Issuer from the Agreement, in the manner provided in the Indenture. As security for the payment of the principal of, premium, if any, and interest on the Bonds, pro rata and without preference of any one Bond over any other Bond, the City Council of the Issuer hereby authorizes and directs the Mayor and the City Manager to execute and the City Clerk-Treasurer to attest under the corporate seal of the Issuer the Indenture and to deliver to the Trustee the Indenture and does hereby authorize and direct the execution of the Bonds by the facsimile signatures of the Mayor and the City Manager and does hereby provide that the Indenture shall provide the terms and conditions, covenants, rights, obligations, duties and agreements of the holders of the Bonds, the Issuer and the Trustee as set forth therein. All of the provisions of the Indenture, when executed, and delivered as authorized herein, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and shall be in full force and effect from the date of execution and delivery thereof. The Indenture shall be substantially in the form on file in the office of the City Clerk- Treasurer with such necessary and appropriate variations, omissions and insertions as permitted or required or as the Mayor, in his discretion, shall determine, and the execution thereof by the Mayor shall be conclusive evidence of such determination. Page 5 — Resolution No. 116 - 1983 233 8. The Mayor, the City Manager and the City Clerk - Treasurer are hereby authorized and directed to execute, attest and deliver the Agreement by and between the Issuer and the Borrower. All of the provisions of the Agreement, when executed and delivered as authorized herein, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and shall be in full force and effect from the date of execution and delivery thereof. The Agreement shall be substantially in the form on file in the office of the City Clerk- Treasurer with such necessary and appropriate variations, omissions and insertions as permitted or required or as the Mayor, in his discretion, shall determine, and the execution thereof by the Mayor shall be conclusive evidence of such determination. 9. The Mayor, the City Manager and the City Clerk- Treasurer are hereby authorized and directed to accept and confirm the Bond Purchase Agreement, respecting the Bonds (the "Bond Purchase Agreement ") , from Miller Securities Incorporated and Piper, Jaffray & Hopwood Incorporated, as Original Purchasers, and accepted by the Issuer, the Borrower and the Guarators. All of the provisions of the Bond Purchase Agreement, when accepted and confirmed as authorized herein, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and shall be in full force and effect from the date of execution and delivery thereof. The Bond Purchase Agreement shall be in the form on file in the office of the City Clerk- Treasurer. 10. All covenants, stipulations, obligations and agreements of the Issuer contained in this resolution and contained in the Indenture, the Agreement and the Bond Purchase Agreement shall be deemed to be the covenants, stipulations, obligations and agreements of the Issuer to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations and agreements shall be binding upon the Issuer. Except as otherwise provided in this resolution, all rights, powers and privileges conferred and duties and liabilities imposed upon the Issuer or the City Council thereof by the provisions of this resolution or the Indenture, the Agreement or the Bond Purchase Agreement shall be exercised or performed by the Issuer or by such members of the City Council or by such officers, board, body or agency thereof as may be required by law to exercise such powers and to perform such duties. No covenant, stipulation, obligation or agreement herein contained or contained in the Indenture, the Agreement or the Bond Purchase Agreement shall be deemed to be a covenant, stipulation, obligation or agreement of any member of the City Council or any officer, agent or employee of the Issuer in that person's individual capacity, and neither the City Council of the Issuer nor any officer executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. 11. Except as herein otherwise expressly provided, nothing in this resolution or in the Indenture, express or implied, is intended or shall be construed to confer upon any person or firm or corporation other than the Issuer, the holders of the Bonds issued under the provisions of this resolution and the Indenture and the Trustee any right, remedy or claim, legal or equitable, under and by reason of this resolution or any provision hereof or of the Indenture or any provision thereof; this resolution, the Indenture and all of their provisions being intended to be and being for the sole and exclusive benefit of the Issuer and the holders from time to time of the Bonds issued under the provisions of this resolution and the Indenture. 1 Page 6 — Resolution No. 116 - 1983 234 12. In case any one or more of the provisions of this resolution, the Indenture, the Agreement, the Bond Purchase Agreement or any of the Bonds issued hereunder shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provision of this resolution, the Indenture, the Agreement, the Bond Purchase Agreement or the Bonds, but this resolution, the Indenture, the Agreement, the Bond Purchase Agreement and the Bonds shall be construed and endorsed as if such illegal or invalid provision had not been contained therein. The terms and conditions set forth in the Indenture, the Agreement and the Bond Purchase Agreement, the pledge of revenues and other sums payable under the Agreement, the creation of the funds provided for in the Indenture, the provisions relating to the handling of the proceeds derived from the sale of the Bonds pursuant to and under the Indenture and the handling of said revenues and other moneys are all commitments, obligations and agreements on the part of the Issuer contained in the Indenture, and the invalidity of the Indenture, the Agreement and the Bond Purchase Agreement shall not affect the commitments, obligations and agreements on the part of the Issuer to create such funds and to handle said revenues, other moneys and proceeds of the Bonds for the purposes, in the manner and according to the terms and conditions fixed in the Indenture, it being the intention hereof that such commitments on the part of the Issuer are as binding as if contained in this resolution separate and apart from the Indenture, the Agreement and the Bond Purchase Agreement. 13. The Bonds shall contain a recital that the Bonds are issued pursuant to the Act, and such recital shall be conclusive evidence of the validity of the Bonds and the regularity of the issuance thereof, and all acts, conditions and things required by the Hcme Rule Charter of the Issuer, the Constitution and the laws of the State relating to the adoption of this resolution, to the issuance of the bonds and to the execution of the Indenture, the Agreement and the Bond Purchase Agreement to happen, to exist and to be performed precedent to and in the enactment of this resolution and precedent to the issuance of the Bonds and precedent to the execution of the Indenture, the Agreement and the Bond Purchase Agreement have happened, do exist and have been performed as so required by law. 14. The officers of the Issuer, attorneys, engineers and other agents or employees of the Issuer are hereby authorized to do all acts and things required of them by or in connection with this resolution, the Indenture, the Agreement and the Bond Purchase Agreement for the full, punctual and complete performance of all the terms, covenants and agreements contained in the Bonds, the Indenture, the Agreement, the Bond Purchase Agreement and this resolution. 15. The Issuer hereby approves the form of the preliminary Official Statement, dated November 10, 1983, on file in the office of the City Clerk- Treasurer, and hereby ratifies and confirms its use and distribution by Miller Securities Incorporated and Piper, Jaffray & Hopwood Incorporated, the Original Purchasers, in connection with the sale of the Bonds and consents to the distribution of the final Official Statement to prospective purchasers of the Bonds; however, the Issuer assumes no responsibility for the contents of said Official Statement. 16. The Trustee is hereby designated as the paying, authenticating and transfer agent and registrar for the Bonds. Page 7 — Resolution No. 116 - 1983 235 17. The City Manager of the Issuer is hereby designated and authorized to act on behalf of the Issuer as the Issuer Representative (as defined in the Agreement). The City Clerk - Treasurer of the Issuer is hereby designated and authorized to act on behalf of the Issuer as an alternate Issuer Representative. 18. This resolution shall be in full force and effect from and after its passage. PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS 12TH DAY OF SEPTEMBER, 1983. WILLIAM J. - MAYOR ATTEST: SIDNEY C. INMAN - CITY CLERK