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Resolution 5338 - AMENDS RESOLUTION 5322 - Glacier State Apartments Revenue NoteRESOLUTION NO.5335 RESOLUTION AMENDING RESOLUTION NO. 5322 AUTHORIZING THE ISSUANCE AND SALE OF A MULTIFAMILY HOUSING REVENUE NOTE (GLACIER STATE APARTMENTS PROJECT) SERIES 2008, IN THE ORIGINAL AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $5,000,000 The City of Kalispell, Montana (the "City") is a city and political subdivision of the State of Montana (the "State"). Pursuant to the Constitution and laws of the State, particularly Montana Code Annotated, Title 90, Chapter 5, Part 1, as amended (the "Act"), the Act authorizes the City to issue revenue bonds that are special, limited obligations of the City for the purpose of defraying the cost of acquiring or improving any land, building, other improvement, and real or personal property considered necessary in connection with an improvement that is suitable for: commercial, manufacturing, agricultural, or industrial enterprises; recreation or tourist facilities; local, state, and federal governmental facilities; multifamily housing; hospitals; long --term care facilities; community -based facilities for individuals who are persons with developmental disabilities as defined in Montana Code Annotated Title 53, Chapter 20, Part 102, as amended; medical facilities; higher education facilities; electric energy generation facilities; family service provider facilities; the production of energy using an alternative renewable energy source as defined in Montana Code Annotated, Title 90, Chapter 4, Part 102, as amended; and any combination of these projects. The City received a proposal from Glacier State Associates, L.P., a Montana limited partnership (the "Borrower"), that the City issue its Multifamily Dousing Revenue Note (Glacier State Apartments Project), Series 2009, in a principal amount not to exceed $5,000,000 (the "Note"), and loan the proceeds of the Note to the Borrower to finance: (i) the costs of the acquisition, rehabilitation, and equipping of (a) a 61-unit multifamily housing development known as "Glacier Manor" located at 506 1 st Avenue west, Kalispell, Montana and (b) a 38-unit multifamily housing development known as "Treasure State Plaza Apartments" located at 600 Liberty Street, Kalispell, Montana (collectively, the "Project"); (ii) the funding of certain reserves for the Note; and (iii) the payment of certain costs related to the issuance of the Note (including the City's administrative fee related to the original issuance of the Note). The debt service on the Note is payable solely from revenues and resources of the Borrower (primarily from the revenues derived from the Project) . The portion of the proceeds of the Note applied to the payment of costs of issuance of the Note may not exceed two percent of the principal amount of the Note. On November 17, 2008, the City adopted Resolution No. 5322 (the "Authorizing Resolution") authorizing the issuance of the Note if the City, the Borrower and Glacier Bank, a Montana banking corporation (the "Lender") agreed to mutually acceptable terms and conditions by December 31, 2008 (the "Resolution Expiration Date"). In October of 2008, the City received a grant of volume cap allocation with respect to the Note from the Department of Administration of the State of Montana (the "Department of Administration"). In mid -December 2008, the City applied to the Department of Administration to carryover the volume cap allocation with respect to the Note to calendar year 2009. On January 6, 2009, the City received confirmation that the carryover request for the Project was approved by the Department of Administration. The Note was not issued by the City on or before the Resolution Expiration Date. The Borrower is requesting the Resolution Expiration Date be extended to December 31, 2009 in order that the Project and associated costs may be financed with proceeds of the Note. The City has had discussions with the Borrower regarding the Project and the issuance of the Note in calendar year 2009 to finance the Project and associated costs. BE IT RESOLVED by the City Council of the City of Kalispell as follows: 1. Paragraph 12 of the Authorizing Resolution is hereby deleted and the following is included in its place in order to extend the Resolution Expiration Date to December 31, 2009. Paragraph 12 of the Authorizing Resolution shall now read as follows. 12. All commitments of the City expressed herein to issue the Note are subject to the condition that by December 31, 2009, the City, the Borrower and the Lender will have agreed to mutually acceptable terms and conditions of the Loan Agreement, the Note and of the other instruments and proceedings relating to the Note and its issuance and sale. If the events set forth herein do not tale place within the time set forth above, or any extension thereof, and the Note is not sold within such time, this Resolution will expire and be of no further effect. 2. In addition to the change discussed above . to paragraph 12, the Note will now be designated Series 2009 instead of Series 2008 due to the Note being issued in calendar year 2009. 3. Except as specifically amended or supplemented by the terms of this resolution, all other terms and conditions of the Authorizing Resolution are hereby confirmed and ratified. 4. This resolution shall be in full force and effect from and after its passage. PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL THIS 20TH DAY of JANUARY, 2009. ATTEST: Theresa White City Clerk Pamela B . Kennedy Mayor 2 Return to: City Clerk City of Kalispell P.O. Box 1997 Kalispell. MT 59903-1997 PAYMENT IN LIEU OF TAXES AGREEMENT Y.A THIS AGREEMENT is entered into thisv�4 day of January, 2009, by and between Glacier State Associates, LP, a Montana limited partnership, its successors and assigns ("GLACIER STATE ASSOCIATES"), of 1915 Morena Boulevard, San Diego, CA 92110, and the City of Kalispell, Montana (the "City"). WHEREAS, the City has agreed to participate in the issuance of multifamily housing revenue bonds (the "Bonds") for the benefit of GLACIER STATE ASSOCIATES which will apply the proceeds derived from the Bonds to the following purposes: (i) the costs of the acquisition, rehabilitation, and equipping of (a) a 61-unit multifamily housing development known as "Glacier Manor" located at 506 1 't Avenue west, Kalispell, Montana, the full legal description of which is attached hereto as Exhibit "A" and incorporated fully herein by this reference, and (b) a 3 S-unit multifamily housing development known as "Treasure State Plaza Apartments" located at 600 Liberty Street, Kalispell, Montana, the full legal description of which is attached hereto as Exhibit "B" and incorporated fully herein by this reference, (collectively, the "Prof ect"); (ii) the funding of certain reserves for the Bonds, and (iii) the payment of certain costs related to the issuance of the Bonds (including the City's administrative fee related to the original issuance of the Bonds). WHEREAS, GLACIER STATE ASSOCIATES will be exempt from certain real property taxes and personal property taxes under Section 15-6-201, Montana Code Annotated; and WHEREAS, GLACIER STATE ASSOCIATES, in recognition of the C ity' s participation in the issuance of the Bonds, agrees to make certain payments in lieu of such taxes; and WHEREAS, such payments by GLACIER STATE ASSOCIATES are being made as a business expense payable subject to the availability of cash flow and will defray the cost of certain necessary services provided by the City to GLACIER STATE ASSOCIATES as owner of above described Project. NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Payments In Lieu Of Taxes: Procedure For Calculatin GLACIER STATE ASSOCIATES agrees that it shall pay to the City annual payments in lieu of taxes ("PILOT"). Generally speaking, the amount of the PILOT will be based on the current market value of the Real Property (as defined below) and Personal Property (as defined below) comprising the Project that is subject to taxation multiplied by the current rate of taxation applicable to the class or type of property, times the current mills levied by the applicable taxing jurisdictions as more fully described in this Section. (a) Current Value of Real and Personal Property. The property constituting the Project and currently subject to property tax consists of two tracts of land with improvements (the "Real Property") and certain personal property (the "Personal Property"). For tax year 2008, the market and taxable value of each of those components is as follows. - Parcel P Market Value E Taxable Value Assessor's Number: 0972113 (Treasure State) ° $ 851,432.00 ' $ 259929.09 lAssessor's Number: 0289925 (Glacier Manor) 1 3799 928. 00 4115%' 'Personal Property No. P 189 78 (Treasure State) .��w�_�.�x,�.��� a 35,150.00 ,05 Pe rsonal � P roperty No. P 89177 �G lacier � Manor) � �$ �����,..N..�227633.00 H 2f033.00 $ �878.99 (b) Determination of Market Value of Real Property. The market value of the Real Property will only be adjusted upon reappraisal. The City shall apply the then existing rate of taxation to the taxable value of the Real Property for such tax year. No later than October 1 of each year the City shall notify GLACIER STATE ASSOCIATES of the then existing rates of taxation for the then current fiscal year and the taxable value of the Real Property for the fiscal year. (c) Determination of Market Value of Personal Property. For tax year ending December 31, 2008, the Personal Property of the Project was taxed at 3 % of its Market Value. So long as personal property is subject to taxation under Montana law, the PILOT attributable to such Personal Property shall be calculated as follows: On or before July 1 of each year, GLACIER STATE ASSOCIATES will submit to the City, on a form provided by the Department of Revenue, a sworn statement setting forth all Personal Property owned by, in possession of, or under GLACIER STATE ASSOCIATE'S control and the date of acquisition and the purchase price of such Personal Property. The City will consult with the Flathead County Assessor (the "County Assessor") to determine the value of the Personal Property, using the methodology and schedules utilized by the County Assessor to determine the market value of other personal property in the County. The City shall apply the then applicable rate of taxation to the market value of the Personal Property to determine the taxable value of the Personal Property for such tax year. No later than October 1 of each year, the City shall notify GLACIER STATE ASSOCIATES of the market value, the then existing rate of taxation to be applied for such year and the taxable value of the Personal Property. (d) Mill Rates and Taxing Jurisdictions. The City will calculate the amount of PILOT that will be due and payable for each fiscal year through the term of this Agreement by multiplying the 2 taxable value of the Real Property and Personal Property for the subject tax year, as calculated in accordance with Section 1(b) and Section. 1(c) respectively, or as provided by Montana Department of Revenue, by the number of mills levied for the fiscal year by the City and notify GLACIER STATE ASSOCIATES of such amount no later than November 30 of each year. For fiscal year 2008-2009, the following number of mills was levied against the Project by the City: 170.63 (e) Special Assessments: GLACIER STATE ASSOCIATES acknowledges and agrees that it will continue to pay the City's special assessments currently assessed or that may be assessed in the future, regardless of any property tax exemption GLACIER STATE ASSOCIATES may receive, provided that any such special assessments shall be paid from the available cash flow of GLACIER STATE ASSOCIATES, represented as gross rental income less operating expenses and required reserves, and shall not constitute a forecloseable or executable lien against the Project until such time as available Cash Flow would allow for such payment and then only to the extent that available Cash Flow would allow for such payment. Any such special assessments that are not paid when otherwise due and owing shall accrue and earn interest at the same rate, calculated in the same manner, as delinquent property taxes under the laws of the State of Montana. At this time GLACIER STATE ASSOCIATES pays special assessments for Kalispell Garbage, Kalispell Storm Sewer, Kalispell Special Maintenance District, Kalispell Lighting 50 and Kalispell Turban Forestry. 2. Procedure For Parrnent GLACIER STATE ASSOCIATES agrees to pay the City each fiscal year during the term of this Agreement, commencing with the fiscal year beginning July 1, 2009, the amount calculated as a PILOT, reduced by the amount of any such property tax actually paid (not including special assessments) with respect to the Project by GLACIER STATE ASSOCIATES or its general partners with respect to such tax year. Fifty percent (50%) of the PILOT shall be due and payable semiannually on the fifteenth day of December and June of each year, beginning December 15, 2009, and shall be paid by GLACIER STATE ASSOCIATES directly to the City. GLACIER STATE ASSOCIATES may, to the extent allowed by law, seek reimbursement from federal and/or state agencies of the amount so calculated as the PILOT. Any portion of the PILOT not paid when due shall bear interest at the same rate, calculated in the same manner, as delinquent property taxes under the laws of the State of Montana and such delinquent amounts will become liens on the property in the same manner as delinquent taxes shall become a lien against the Project to the extent permitted by law. 3. Reimbursement The City acknowledges that GLACIER STATE ASSOCIATES may, to the extent allowed by law, seek reimbursement from federal and/or state agencies for the required PILOT. The City agrees to cooperate fully with GLACIER STATE ASSOCIATES, without expense to the City, in the efforts of GLACIER STATE ASSOCIATES to apply for and collect such reimbursement. 3 4. Term This Agreement shall continue in effect until the final maturity or final payment, including refunding bonds or repayment, of the Bonds. 5. Governing Law This Agreement shall be governed and construed in. accordance with the laws of the State of Montana. 6. Notices All notices, reports or other communications relating to this Agreement shall be sent to the parties at the following addresses, unless otherwise provided by one party to the other party in writing: To GLACIER STATE ASSOCIATES Glacier State Associates, L.P. Attn-. Chief Manager 1915 Morena Boulevard San Diego, CA 92110 To the City: City of Kalispell Attn: City Manager P.G. Box 1997 Kalispell, Montana 59903 -1997 7. Recordin.g The document shall be recorded in the office of the Flathead County, Montana Clerk and Recorder. 8. S everab ilit�r In the event any provision of this Agreement shall be held invalid or unenforceable by any court or competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 9. Amendments Changes, and Modifications This Agreement may be amended or any of its terms modified only by written amendment authorized and executed by the City and GLACIER STATE ASSOCIATES. 1 O. Further Assurances and Corrective Instruments GLACIER STATE ASSOCIATES and the City agree that they will, if necessary, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Project or for carrying out the expressed intention of this Agreement. 11. Execution in Counterparts This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 12. Captions The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Agreement. 13. No Assignment GLACIER STATE ASSOCIATES may not assign its rights under this Agreement without the written consent of the City to any such assignment. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: Theresa white City Clerk CITY OF KALIS PELL LIM Pamela B. Kennedy, Mayor GLACIER STATE ASSOCIATES, L.P. By John Grady Its Chief Manager 61 Exhibit " A " Lots 1, 2, 3, 4, 5, 61 7, S, and 9, Block 87 of Kalispell, Montana, according to the map or plat thereof on file and of record in the Office of the Clerk and Recorder of Flathead County, Montana. TOGETHER WITH all water, water rights and appurtenances thereto, TOGETHER WITH all improvements and fixtures thereto, SUBJECT TO all easements, zoning ordinances, building and use restrictions, reservations, restrictive covenants, Special Improvement Districts (including rural S ID's ) and reservations in federal patents. rel Exhibit "B" Treasure State Plaza Addition No. 147, according to the map or plat thereof on file and of record in the office of the Clerk and Recorder of Flathead County, Montana. EXCEPTING THEREFROM those portions of Liberty Street and Justice Street shown on the above plat as being dedicated to the public for street purposes . TOGETHER WITH all Water, Water rights and appurtenances thereto; TOGETHER WITH all improvements and fixtures thereto; SUBJECT TO all easements, zoning ordinances, building and use restrictions, reservations, restrictive covenants, Special Improvement Districts (including rural SID's) and reservations in federal patents. 7