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HomeMy WebLinkAbout11-02 - ADMIN Resolution - Economic Development Authority - 2011/02/22AUTHORIZING RESOLUTION ST. LOUIS PARK ECONOMIC DEVELOPMENT AUTHORITY EDA RESOLUTION NO. 11-02 RESOLUTION AWARDING THE SALE OF, AND PROVIDING THE FORM, TERMS, COVENANTS AND DIRECTIONS FOR THE ISSUANCE OF ITS TAX INCREMENT REVENUE NOTES TO ELLIPSE ON EXCELSIOR LLC. BE IT RESOLVED BY the Board of Commissioners ('Board") of the St. Louis Park Economic Development Authority, St. Louis Park, Minnesota (the "Authority") as follows: Section 1. Authorization: Award of Sale. 1.01. Authorization. The Authority and the City of St. Louis Park have heretofore approved the establishment of its Ellipse on Excelsior Tax Increment Financing District (the "TIF District") within Redevelopment Project No. 1 ("Project'), and have adopted a tax increment financing plan for the purpose of financing certain improvements within the Project. Pursuant to Minnesota Statutes, Section 469.178, the Authority is authorized to issue and sell its bonds for the purpose of financing a portion of the public development costs of the Project. Such bonds are payable from all or any portion of revenues derived from the TIF District and pledged to the payment of the bonds. The Authority hereby finds and determines that it is in the best interests of the Authority that it issue and sell its Tax hicrement Revenue Notes, Series 2011A and Series 2011B (the "Notes"), for the purpose of financing certain public redevelopment costs and environmental remediation costs of the Project. 1.02. Issuance, Sale, and Terms of the Notes. (a) The Authority hereby authorizes the President and Executive Director to issue the Notes in accordance with the Contract for Private Redevelopment dated as of February 2, 2009, between the Authority and Ellipse on Excelsior LLC, as amended (the "Agreement'), approved by the Authority on February 2, 2009. All capitalized terms in this resolution have the meaning provided in the Agreement unless the context requires otherwise. (b) The Notes shall be issued in the aggregate principal amount of $1,450,000 to Ellipse on Excelsior LLC (the "Owner") in consideration of certain eligible costs incurred by the Owner under the Agreement, shall be dated the date of delivery thereof, and shall bear interest at the rate of 6.0% from the date of issue per annum to the earlier of maturity or prepayment. The Notes will be issued in two series: (i) Series 2011A (hereafter the "Series 2011A Note"), issued in the principal amount of Public Redevelopment Costs submitted and approved in accordance with Section 3.4 of the Agreement; and (ii) Series 2011B (hereafter the "Series 2011B Note"), issued in the principal amount of Environmental Costs submitted and approved in accordance with Section 3.4 of the Agreement. The Notes are secured by Available Tax Increment, as further described in the form of the Notes herein. The Authority hereby delegates to the Executive Director the determination of the date on which the Notes are to be delivered, in accordance with the Agreement. Each series of the Notes may be issued in the denominations described in Section 3.4 of the Agreement, provided that the principal amount of the Series 2011A Note is subject to later adjustment in accordance with Section 3.5 of the Agreement, as further described in the form of the Notes herein. EDA Resolution No. 11-02 -2- Section 2. Form of Notes. The Notes shall be in substantially the following form, with the blanks to be properly filled in and the principal amount adjusted as of the date of issue: EDA Resolution No. 11-02 -3- UNITED STATE OF AMERICA STATE OF MINNESOTA COUNTY OF HENNEPIN ST. LOUIS PARK ECONOMIC DEVELOPMENT AUTHORITY No. R-1 TAX INCREMENT REVENUE NOTE SERIES 2011 Rate 6.0% Date of Original Issue The St. Louis Park Economic Development Authority ("Authority) for value received, certifies that it is indebted and hereby promises to pay to Ellipse on Excelsior LLC or registered assigns (the "Owner"), the principal sum of $ and to pay interest thereon at the rate of 6.0% per annum, solely from the sources and to the extent set forth herein. Capitalized terms shall have the meanings provided in the Contract for Private Redevelopment between the Authority and the Owner, dated as of February 2, 2009 (the "Agreement'), unless the context requires otherwise. 1. Payments. Principal and interest ("Payments") shall be paid on August 1, 2011 and each February 1 and August 1 thereafter to and including August 1, 2021 ("Payment Dates") in the amounts [set forth in Exhibit A hereto] and from the sources set forth in Section 3 herein. Payments shall be applied first to accrued interest, and then to unpaid principal. Interest shall accrue from the date of issue. Payments are payable by mail to the address of the Owner or such other address as the Owner may designate upon 30 days written notice to the Authority. Payments on this Note are payable in any coin or currency of the United States of America which, on the Payment Date, is legal tender for the payment of public and private debts. 2. Interest. Interest at the rate stated herein shall accrue on the unpaid principal, commencing on the date of original issue. Interest shall be computed on the basis of a year of 360 days consisting of twelve 30 -day months and charged for actual days principal is unpaid. [Series 2011A Note: Insert the following] 3. Available Tax Increment. (a) Payments on this Note are payable on each Payment Date solely from and in the amount of Available Tax Increment, which shall mean 95% of the Tax Increment attributable to the Minimum Improvements and Redevelopment Property that is paid to the Authority by Hennepin County in the six months preceding each Payment Date on the Note. (b) The Authority shall have no obligation to pay principal of and interest on this Note on each Payment Date from any source other than Available Tax Increment and the failure of the Authority to pay scheduled Payments on any Payment Date shall not constitute a default hereunder as long as the Authority pays principal and interest hereon to the extent of Available Tax Increment. If on any Payment Date the Available Tax Increment is insufficient to make the Payment due on EDA Resolution No. 11-02 -4- that date, the deficiency will be deferred and paid, without interest thereon, to the extent possible on any subsequent Payment Date on which the Authority has Available Tax Increment in excess of the Payment due on such date. The Authority shall have no obligation to pay unpaid balance of principal or accrued interest that may remain after the final Payment on August 1, 2021. [Series 2011B Note: Insert the following:] 3. Available Tax Increment. (a) Payments on this Note are payable on each Payment Date solely from and in the amount of Available Tax Increment, which shall mean 95% of the Tax Increment attributable to the Minimum Improvements and Redevelopment Property that is paid to the Authority by Hennepin County in the six months preceding each Payment Date on the Note and remains on hand after payment or provision for payment on such Payment Date of the principal and interest then due on the Authority's Tax Increment Revenue Note, Series 2011A dated 2011 ("Series 2011A Note"). (b) The pledge of Available Tax Increment hereunder is subordinate to the pledge of Available Tax Increment to the Series 2011A Note as and to the extent described in this section. The Authority shall have no obligation to pay principal of and interest on this Note on each Payment Date from any source other than Available Tax Increment and the failure of the Authority to pay principal and interest on this Note on any Payment Date shall not constitute a default hereunder as long as the Authority pays principal and interest hereon to the extent of Available Tax Increment. The Authority shall have no obligation to pay unpaid balance of principal or accrued interest that may remain after the final Payment on August 1, 2021. 4. Default. If on any Payment Date there has occurred and is continuing any Event of Default under the Agreement, the Authority may withhold from payments hereunder under all Available Tax Increment. If the Event of Default is thereafter cured in accordance with the Agreement, the Available Tax Increment withheld under this Section shall be deferred and paid, without interest thereon, within 30 days after the Event of Default is cured. If the Event of Default is not cured in a timely manner, the Authority may terminate this Note by written notice to the Owner in accordance with the Agreement. 5. Pregayment. [(a)] The principal sum and all accrued interest payable under this Note is prepayable in whole or in part at any time by the Authority without premium or penalty. No partial prepayment shall affect the amount or timing of any other regular Payment otherwise required to be made under this Note. [Series 2011A Note, insert the following:] (b) Upon receipt by Redeveloper of the Authority's written statement of the Participation Amount as described in Section 3.5 of the Agreement, fifty percent of such Participation Amount will be deemed to constitute, and will be applied to, prepayment of the principal amount of this Note. Such deemed prepayment is effective as of the date of delivery of such statement to the Owner, and will be recorded by the Registrar in its records for the Note. The Authority will thereupon deliver to the Owner a replacement Note in the principal amount of the outstanding principal balance of the Note after application of the deemed prepayment under this paragraph, and a revised payment schedule reamortizing such outstanding principal balance over the remaining term of this Note. EDA Resolution No. 11-02 -5- 6. Nature of Obligation. This Note is one of an issue in the total principal amount of $ issued to aid in financing certain public redevelopment costs and administrative costs of a Project undertaken by the Authority pursuant to Minnesota Statutes, Sections 469.001 through 469.047, and is issued pursuant to an authorizing resolution (the "Resolution") duly adopted by the Authority on February 22, 2011, and pursuant to and in full conformity with the Constitution and laws of the State of Minnesota, including Minnesota Statutes, Sections 469.174 to 469.179, as amended. This Note is a limited obligation of the Authority which is payable solely from Available Tax Increment pledged to the payment hereof under the Resolution. This Note and the interest hereon shall not be deemed to constitute a general obligation of the State of Minnesota or any political subdivision thereof, including, without limitation, the Authority. Neither the State of Minnesota, nor any political subdivision thereof shall be obligated to pay the principal of or interest on this Note or other costs incident hereto except out of Available Tax Increment, and neither the full faith and credit nor the taxing power of the State of Minnesota or any political subdivision thereof is pledged to the payment of the principal of or interest on this Note or other costs incident hereto. 7. Registration and Transfer. This Note is issuable only as a fully registered note without coupons. As provided in the Resolution, and subject to certain limitations set forth therein, this Note is transferable upon the books of the Authority kept for that purpose at the principal office of the City Finance Director, by the Owner hereof in person or by such Owner's attorney duly authorized in writing, upon surrender of this Note together with a written instrument of transfer satisfactory to the Authority, duly executed by the Owner. Upon such transfer or exchange and the payment by the Owner of any tax, fee, or governmental charge required to be paid by the Authority with respect to such transfer or exchange, there will be issued in the name of the transferee a new Note of the same aggregate principal amount, bearing interest at the same rate and maturing on the same dates. Except as otherwise provided in Section 3.4(d) of the Agreement, this Note shall not be transferred to any person or entity, unless the Authority has provided written consent to such transfer and the Authority has been provided with an opinion of counsel or a certificate of the transferor, in a form satisfactory to the Authority, that such transfer is exempt from registration and prospectus delivery requirements of federal and applicable state securities laws. IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things required by the Constitution and laws of the State of Minnesota to be done, to exist, to happen, and to be performed in order to make this Note a valid and binding limited obligation of the Authority according to its terms, have been done, do exist, have happened, and have been performed in due form, time and manner as so required. IN WITNESS WHEREOF, the Board of Commissioners of the St. Louis Park Economic Development Authority have caused this Note to be executed with the manual signatures of its President and Executive Director, all as of the Date of Original Issue specified above. Executive Director ST. LOUIS PARK ECONOMIC DEVELOPMENT AUTHORITY President EDA Resolution No. 11-02 -6- REGISTRATION PROVISIONS The ownership of the unpaid balance of the within Note is registered in the bond register of the City Finance Director, in the name of the person last listed below. Date of Signature of Registration Registered Owner City Finance Director Ellipse on Excelsior LLC Federal Tax I.D. No. EDA Resolution No. 11-02 -7- Exhibit A Scheduled Payments Payment Date Principal Interest Total Payment August 1, 2011 February 1, 2012 August 1, 2012 February 1, 2013 August 1, 2013 February 1, 2014 August 1, 2014 February 1, 2015 August 1, 2015 February 1, 2016 August 1, 2016 February 1, 2017 August 1, 2017 February 1, 2018 August 1, 2018 February 1, 2019 August 1, 2019 February 1, 2020 August 1, 2020 February 1, 2021 August 1, 2021 * *Maturity EDA Resolution No. 11-02 -8- Section 3. Terms, Execution and Delivery. 3.01. Denomination, Payment. The Notes shall be issued as single typewritten notes numbered R-1. The Notes shall be issuable only in fully registered form. Principal of and interest on the Notes shall be payable by check or draft issued by the Registrar described herein. 3.02. Dates: Interest Payment Dates. Principal of and interest on the Notes shall be payable by mail to the owner of record thereof as of the close of business on the fifteenth day of the month preceding the Payment Date, whether or not such day is a business day. 3.03. Registration. The Authority hereby appoints the City Controller to perform the functions of registrar, transfer agent and paying agent (the "Registrar"). The effect of registration and the rights and duties of the Authority and the Registrar with respect thereto shall be as follows: (a) Register. The Registrar shall keep at its office a bond register in which the Registrar shall provide for the registration of ownership of the Notes and the registration of transfers and exchanges of the Notes. (b) Transfer of Notes. Upon surrender for transfer of a Note duly endorsed by the registered owner thereof or accompanied by a written instrument of transfer, in form reasonably satisfactory to the Registrar, duly executed by the registered owner thereof or by an attorney duly authorized by the registered owner in writing, the Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, a new Note of a like aggregate principal amount and maturity, as requested by the transferor. Notwithstanding the foregoing, the Notes shall not be transferred to any person other than an affiliate, or other related entity, of the Owner unless the Authority has been provided with an opinion of counsel or a certificate of the transferor, in a form satisfactory to the Authority, that such transfer is exempt from registration and prospectus delivery requirements of federal and applicable state securities laws. The Registrar may close the books for registration of any transfer after the fifteenth day of the month preceding each Payment Date and until such Payment Date. (c) Cancellation. A Note surrendered upon any transfer shall be promptly cancelled by the Registrar and thereafter disposed of as directed by the Authority. (d) Improper or Unauthorized Transfer. When a Note is presented to the Registrar for transfer, the Registrar may refuse to transfer the same until it is satisfied that the endorsement on such Note or separate instrument of transfer is legally authorized. The Registrar shall incur no liability for its refusal, in good faith, to make transfers which it, in its judgment, deems improper or unauthorized. (e) Persons Deemed Owners. The Authority and the Registrar may treat the person in whose name the Notes are at any time registered in the bond register as the absolute owner of the Notes, whether the Notes shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such Notes and for all other purposes, and all such payments so made to any such registered owner or upon the owner's order shall be valid and effectual to satisfy and discharge the liability of the Authority upon such Notes to the extent of the sum or sums so paid. EDA Resolution No. 11-02 -9- (t) Taxes, Fees and Charges. For every transfer or exchange of the Notes, the Registrar may impose a charge upon the owner thereof sufficient to reimburse the Registrar for any tax, fee, or other governmental charge required to be paid with respect to such transfer or exchange. (g) Mutilated, Lost, Stolen or Destroyed Notes. hi case any Note shall become mutilated or be lost, stolen, or destroyed, the Registrar shall deliver a new Note of like amount, maturity dates and tenor in exchange and substitution for and upon cancellation of such mutilated Note or in lieu of and in substitution for such Note lost, stolen, or destroyed, upon the payment of the reasonable expenses and charges of the Registrar in connection therewith; and, in the case the Note lost, stolen, or destroyed, upon filing with the Registrar of evidence satisfactory to it that such Note was lost, stolen, or destroyed, and of the ownership thereof, and upon furnishing to the Registrar of an appropriate bond or indemnity in form, substance, and amount satisfactory to it, in which both the Authority and the Registrar shall be named as obligees. The Note so surrendered to the Registrar shall be cancelled by it and evidence of such cancellation shall be given to the Authority. If the mutilated, lost, stolen, or destroyed Note has already matured or been called for redemption in accordance with its terms, it shall not be necessary to issue a new Note prior to payment. 3.04. Preparation and Delivery. The Notes shall be prepared under the direction of the Executive Director and shall be executed on behalf of the Authority by the signatures of its President and Executive Director. hi case any officer whose signature shall appear on the Notes shall cease to be such officer before the delivery of the Notes, such signature shall nevertheless be valid and sufficient for all purposes, the same as if such officer had remained in office until delivery. When the Notes have been so executed, it shall be delivered by the Executive Director to the Owner thereof in accordance with the Agreement. Section 4. Security Provisions. 4.01. Pledge. The Authority hereby pledges to the payment of the principal of and interest on the Notes all Available Tax Increment as defined in the Notes. The pledge of Available Tax Increment to the Series 2011B Note is subordinate to the pledge of Available Tax Increment to the Series 2011A Note as and to the extent described in the form of Note set forth in Section 2 of this resolution. Available Tax Increment shall be applied to payment of the principal of and interest on the Notes in accordance with the terms of the form of Note. 4.02. Bond Fund. Until the date the Notes are no longer outstanding and no principal thereof or interest thereon (to the extent required to be paid pursuant to this resolution) remains unpaid, the Authority shall maintain a separate and special "Bond Fund" to be used for no purpose other than the. payment of the principal of and interest on the Notes. The Bond Fund shall contain a Series 2011A Note subaccount and a Series 2011B Note subaccount. The Authority irrevocably agrees to appropriate to the Series 2011A Note subaccount of the Bond Fund on or before each Payment Date the Available Tax Increment in an amount equal to the Payment then due, or the actual Available Tax Increment, whichever is less. The Authority irrevocably agrees to appropriate to the Series 2011B Note subaccount of the Bond Fund any actual Available Tax Increment in excess of the Available Tax Increment required to pay the Payment then due. Any Available Tax Increment remaining in either subaccount of the Bond Fund shall be transferred to the Authority's account for the TIF District upon the termination of the Notes in accordance with their terms. EDA Resolution No. 11-02 -10- 4.03. Additional Obligations. The Authority may apply or pledge Available Tax Increment in excess of the amount needed to make Payments due on the Series 2011A Note on each Payment Date and to fully pay the Series 2011B Note, to any other obligations (including without limitation any interfund loan). Any such pledge or expenditure is subordinate to the Notes, including the requirement to pay any accumulated deficiency in meeting scheduled Payments on the Series 2011A Note. Section 5. Certification of Proceedings. 5.01. Certification of Proceedings. The officers of the Authority are hereby authorized and directed to prepare and furnish to the Owner of the Notes certified copies of all proceedings and records of the Authority, and such other affidavits, certificates, and information as may be required to show the facts relating to the legality and marketability of the Notes as the same appear from the books and records under their custody and control or as otherwise known to them, and all such certified copies, certificates, and affidavits, including any heretofore furnished, shall be deemed representations of the Authority as to the facts recited therein. Section 6. Effective Date. This resolution shall be effective upon approval. Attest Secretary Adopted by the Economic Development Authority February( ,22',,22011 —ZP �lJL President