07. Resolution 4299 - Outlaw Inn Bond Refunding RequestBACKGROUND/CONSIDERATION: At the last council meeting, you
approved a Resolution of Intent to refund the Outlaw Inn's
outstanding bonds. At this council meeting, we will need to
approve the Resolution to Refund those bonds. Dorsey & Whitney
should have the resolution available to us by the council meeting.
RECOMMENDATION: Since this action is not a City obligation and we
get reimbursed for the refunding costs, I recommend the approval of
the refunding resolution.
ACTION REQUIRED: Approval of the Refunding RESOLUTION is required
to further process this action.
RESOLUTION NO. 4299
RESOLUTION RELATING TO INDUSTRIAL DEVELOPMENT
REVENUE REFUNDING BONDS IN THE PRINCIPAL AMOUNT OF
$2,680,000 FOR OUTLAW INN; MAKING FINDINGS, AUTHORIZING
THE SALE AND ISSUANCE OF THE BONDS AND ESTABLISHING
THE SECURITY THEREFOR, AND AUTHORIZING THE EXECUTION
OF DOCUMENTS
BE IT RESOLVED by the City Council (the "Council") of the City of Kalispell,
Montana (the "City"), as follows:
Section 1. Recitals.
1.01. The City is authorized by Montana Code Annotated, Title 90, Chapter
5, Part 1, as amended (the "Act"), to enter into agreements upon terms the
governing body considers advantageous and not in conflict with the provisions of
the Act to issue its revenue bonds and sell such bonds at public or private sale in
such manner and at such times as may be determined by this body to be most
advantageous; and to loan the proceeds of its revenue bonds for the purpose of
defraying the cost of acquiring or improving commercial, manufacturing,
agricultural or industrial enterprises, recreational or tourist facilities, multifamily
housing, hospitals, long-term care facilities or medical facilities, or to refund bonds
or notes issued under the Act. Such revenue bonds may be secured by a pledge of
the revenues to be derived by the City from a loan agreement with the borrower, by
a mortgage on the project and by such other security devices as may be deemed
advantageous. Under the provisions of the Act, any bonds so issued by the City
shall be limited obligations of the City, and the bonds shall not constitute nor give
rise to a pecuniary liability of the City or a charge against its general credit or taxing
powers.
1.02. Pursuant to the Act, the City has issued its Industrial Development
Revenue Refunding Mortgage Bonds (Outlaw Inn Project), Series 1986, dated as of
December 15, 1986, in the original aggregate principal amount of $2,680,000, of which
$2,680,000 in aggregate principal amount are now outstanding (the "Refunded
Bonds"), which were issued to redeem and refund the outstanding principal balance
of the $2,900,000 City of Kalispell Industrial Development Revenue Mortgage Note
(Outlaw Inn Project) (the "Original Bonds") issued originally to provide funds for
the acquisition, construction and equipping of a 45,000 square foot addition to the
Outlaw Inn (the "Facility") and related improvements (the "Project"). The Facility
comprises a motel and convention center facility known as the Outlaw Inn,
including the land, building, and improvements.
1.03. Representatives of the Borrower have requested that the City, acting
under and pursuant to the Act, issue and sell to D. A. Davidson & Co., in Great Falls,
Montana (the "Underwriter"), its City of Kalispell, Montana, Industrial
Development Revenue Refunding Bonds in the principal amount of $2,680,000 for
the Outlaw Inn Project, to be dated as of November 15, 1996 (the "Bonds"), to be used
to refund, with other available funds of the Borrower, in advance of their maturities
the Refunded Bonds. Pursuant to the proposal, the proceeds of the Bonds would be
loaned to the Borrower pursuant to a Loan Agreement between the City and the
Borrower; the Borrower would agree to apply the proceeds, and other funds
available to them, to redeem the Refunded Bonds on January 1, 1997, and to repay
the loan of such proceeds at such times and in such amounts sufficient in the
aggregate to provide for the prompt payment of the principal of, premium, if any,
and interest on the Bonds; the City would pledge and assign to a Trustee, pursuant
to an Indenture of Trust, certain of the City's interests in and to the Loan Agreement
including all loan repayments thereunder (but excluding the rights of the City to
reimbursement of expenses and to indemnification), to secure the full and prompt
payment of the principal of, premium, if any, and interest on the Bonds; the
payment of the principal of, premium, if any, and interest on the Bonds would be
further secured by an irrevocable letter of credit (the "Letter of Credit") issued by
First Interstate Bank of Commerce, a Montana banking corporation, with its
principal place of business in Billings, Montana, through its Missoula, Montana
office (the "Bank"); and the Borrower will, pursuant to a Letter of Credit
Reimbursement Agreement (the "Reimbursement Agreement") among other
things, agree to repay a draw under the Letter of Credit, which obligation will be
evidenced by a promissory note (the "Note") and be secured by a mortgage on and
security interest in certain real and personal property comprising the Facility
pursuant to a Trust Indenture and Security Agreement executed by the Borrower in
favor of the Bank.
The Bonds would be special, limited obligations of the City payable
principally from and secured by the payments to be made by the Borrower and other
security as described hereafter and would not constitute or give rise to a pecuniary
liability of the City or a charge against its general credit or taxing powers.
1.04. Draft forms of the following documents relating to the Bonds have
been prepared and submitted to this Council, and are hereby directed to be filed with
the City Clerk:
(a) a Loan Agreement (the "Loan Agreement") to be dated as of
November 15, 1996 to be entered into by and between the City and the
Borrower, whereby the City agrees to lend the proceeds of the Bonds to the
Borrower and the Borrower agrees to apply the proceeds, and other funds
available to it, to redeem the Refunded Bonds on January 1, 1997;
(b) an Indenture of Trust (the "Indenture") to be dated as of
November 15, 1996 to be entered into between the City and First Trust
Company of Montana National Association, in Billings, Montana, as
Trustee (the "Trustee"), whereby the terms and conditions for the Bonds are
specified, and the City pledges and assigns to the Trustee the City's interest
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in and to the Loan Agreement, including all loan repayments thereunder
(but excluding the rights of the City to reimbursement of expenses and to
indemnification), to secure the full and prompt payment of the principal of,
premium, if any, and interest on the Bonds;
(c) a Bond Purchase Agreement (the "Bond Purchase Agreement") to
be entered into by and between the Borrower, the City and the Underwriter,
whereby the City agrees to sell and the Underwriter agrees to buy the Bonds
on the terms and conditions therein specified;
(d) an Irrevocable Letter of Credit (the "Letter of Credit"), to be dated
as of November 15, 1996, by the Bank for the account of the Borrower in
favor of the Trustee;
(e) a Letter of Credit Reimbursement Agreement (the
"Reimbursement Agreement"), to be entered into between the Borrower
and the Bank;
(f) a Trust Indenture and Security Agreement (the "Trust Indenture")
to be executed by the Borrower, as grantor, and First Interstate Bank of
Commerce, Missoula office (the "Bank"), as beneficiary, whereby the
Grantor grants the Trust Indenture trustee a mortgage lien on and security
interest in the properties comprising the Facility;
(g) an Official Statement (the "Official Statement"), in the form of a
Preliminary Official Statement (the "Preliminary Official Statement"), to be
used in connection with the offer and sale of the Bonds by the Underwriter;
(h) a Continuing Disclosure Agreement between the Borrower and
the Trustee (the "Continuing Disclosure Agreement").
Section 2. Findings.
It is hereby found, determined and declared that:
(a) The Facility comprises real and personal property which are suitable for
use in connection with a commercial enterprise as contemplated by the Act.
(b) The refinancing of the Facility, the issuance and sale of the Bonds, the
execution and delivery of the Loan Agreement, the Indenture, and the Trust
Indenture, the Bond Purchase Agreement and the performance of all covenants and
agreements of the City contained in the Loan Agreement, the Indenture, the Trust
Indenture, and the Bond Purchase Agreement and all other acts and things required
under the Constitution and laws of the State of Montana to make the Loan
Agreement, the Indenture, the Trust Indenture, the Bond Purchase Agreement, and
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the Bonds valid and binding special, limited obligations of the City in accordance
with their terms, are authorized by the Act.
(c) The issuance and sale of the Refunded Bonds and the financing of the
Facility by the City were and are in the public interest of the City and its citizens.
(d) It is desirable that the Bonds be issued by the City upon the terms set
forth in this resolution and the Indenture, under the provisions of which certain of
the City's interests in the Loan Agreement and its interests in all loan repayments
thereunder will be assigned and pledged to the Trustee as security for the payment
of principal of, interest and redemption premiums on the Bonds.
(e) The loan repayments and other amounts to be paid by the Borrower
under the Loan Agreement are calculated to be sufficient (1) to pay the total
principal of, premium, if any, and interest on the Bonds when due, (2) to pay any
taxes on the Facility, which Facility during the term of the Loan Agreement shall be
subject to taxation to the same extent, in the same manner, and under the same
procedures as privately owned property in similar circumstances, and (3) to pay all
other costs and expenses of the City in connection with the Facility and the issuance
of the Bonds; and the Loan Agreement also provides that the Borrower is required
to pay or cause to be paid all expenses of maintenance of the Facility, including, but
without limitation, adequate insurance thereon and insurance against all liability
for injury to persons or property arising from the operation thereof, and special
assessments levied upon or with respect to the Facility and payable during the term
of the Loan Agreement.
(f) Based on representations of the Underwriter, no reserves are deemed
necessary in connection with the Facility or the Bonds.
(g) Under the provisions of Montana Code Annotated, Sections 90-5-103
and 90-5-105, and as provided in the Loan Agreement, the Indenture and the Bonds,
the Bonds are limited obligations of the City payable solely from loan repayments
made by the Borrower (except to the extent payable from payments made under the
Letter of Credit) and do not constitute a pecuniary liability of the City or a charge
against its general credit or taxing powers.
Section 3. Authorization and Approval of the Loan Agreement, Indenture
and Bond Purchase Agreement.
The City is hereby authorized to refund the Refunded Bonds and to pledge
and assign the Loan Agreement and the loan repayments due thereunder, all as
provided in the Loan Agreement and the Indenture. It is acknowledged that the
purchase price of the Bonds and the interest rates on the Bonds have not been
determined as of the date of adoption of this resolution and are not reflected in the
Indenture, the Loan Agreement, the Trust Indenture or the Bond Purchase
Agreement. The Bonds will be issued in the principal amount of $2,680,000 and will
be payable on the estimated maturity schedule shown on Exhibit A hereto. The
Mayor or, in the event of his absence or disability, the Finance Director is hereby
authorized to approve: (1) the purchase price of the Bonds; provided that the
purchase price is not less than 98% of the principal amount of the Bonds; (2) the
provisions for redemption of the Bonds; and (3) the interest rates on the Bonds;
provided that no interest rate shall exceed 6% per annum. The approval of such
officer of the terms of the Bonds shall be conclusively presumed by the execution of
the Bond Purchase Agreement by authorized officers of the City.
The forms of the Loan Agreement, the Indenture, the Reimbursement
Agreement, the Trust Indenture, the Letter of Credit, the Bond Purchase Agreement,
the Continuing Disclosure Agreement and the Bonds referred to in Section 1.04 are
approved, subject to such modifications as are deemed appropriate and approved by
the City Attorney and the Mayor, which approval shall be conclusively evidenced by
execution of the Loan Agreement, the Indenture, and the Bond Purchase
Agreement by the Mayor and the City Clerk -Treasurer. The Bond Purchase
Agreement as so approved is directed to be executed forthwith in the name and on
behalf of the City by the Mayor, City Manager and the City Clerk -Treasurer following
the execution thereof by the Borrower and the Underwriter. The Loan Agreement
as so approved is directed to be executed in the name and on behalf of the City by the
Mayor, the City Manager and City Clerk -Treasurer and delivered to the Trustee
upon execution thereof by the Borrower. The Indenture as so approved is directed
to be executed in the name and on behalf of the City by the Mayor, City Manager and
the City Clerk -Treasurer. Copies of all the documents shall be delivered, filed or
recorded as provided therein. The Mayor, the City Manager and the City Clerk -
Treasurer are also authorized and directed to execute such other instruments as may
be required to give effect to the transactions herein contemplated.
Section 4. Official Statement.
The City hereby consents to the use of the Preliminary Official Statement by
the Underwriter in connection with the offer and sale of the Bonds to potential
investors, and consents to the preparation and use of a final Official Statement, in
substantially the form of the Preliminary Official Statement; provided, however,
that the City has not reviewed the Preliminary Official Statement and takes no
responsibility for, and makes no representations or warranties as to the accuracy or
completeness of the information contained therein, or in the final Official
Statement. The Finance Director is hereby authorized and directed to determine
that the Preliminary Official Statement is deemed "final" as of its date for purposes
of SEC Rule 15c2-12.
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Section 5. The Bonds.
5.01. In anticipation of the receipt of the loan repayments from the
Borrower, the City shall proceed forthwith to issue its Industrial Development
Revenue Refunding Bonds (Outlaw Inn Project), Series 1996, dated, as originally
issued, as of November 15, 1996, in the aggregate principal amount of $2,680,000, in
the form and upon the terms set forth in the Indenture and this resolution.
5.02. The Mayor, the City Manager and the City Clerk -Treasurer are
authorized and directed to prepare and execute the Bonds as prescribed herein and
in the Indenture and to deliver them to the Trustee, together with a certified copy of
this resolution, the other documents required in the Indenture, and such other
certificates, documents and instruments as may be appropriate to effect the
transactions herein contemplated.
Section 6. Modifications Absence of Officers. The approval hereby given to
the various documents referred to above includes an approval of such
modifications thereto, deletions therefrom and additions thereto as may be
necessary and appropriate and approved by the Mayor and the City Attorney. 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. In the absence or disability of the Mayor or City
Manager, any of the documents authorized by this resolution to be executed, may be
executed by the acting Mayor and in the absence or disability of the City Clerk -
Treasurer by such officer of the City who, in the opinion of the City Attorney, may
execute such documents.
Section 7. Authentication of Proceedings.
The Mayor, the City Manager and the City Clerk and other officers of the
City are authorized and directed to furnish to the Trustee, the Underwriter and bond
counsel certified copies of all proceedings and records of the City relating to the
Bonds, and such other affidavits and certificates as may be required to show the facts
relating to the legality and marketability of the Bonds as such facts appear 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 of fact contained therein.
Section 8. Fee. The Borrower shall pay to the City for the costs and expenses
it has incurred and will incur in connection with the issuance of the Bonds a fee of
$6,712.50, payable on the date of issuance of the Bonds.
M
Section 9. Effective Date.
This resolution shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED by the City Council of the City of Kalispell,
Montana, this _th day of November, 1996.
Attest:
City Clerk -Treasurer
(SEAL)
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Mayor
EXHIBIT A
ESTIMATED
Maturity Schedule
January 1
Principal
January 1
Principal
Year
Amount
Year
Amount
1998
$185,000
2003
$275,000
1999
220,000
2004
290,000
2000
230,000
2005
305,000
2001
245,000
2006
325,000
2002
255,000
2007
350,000
A-1