Loading...
HomeMy WebLinkAboutResolution 2951 Authorizing participation in Intercap - COMMISSION RESOLUTION NO. 2951 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN. MONTANA. RELATING TO THE BOARD OF INVESTMENTS' INTERCAP REVOLVING PROGRAM; APPROVING AND AUTHORIZING PARTICIPATION THEREIN AND APPROVING EXECUTION OF THE COMMITMENT AGREEMENT. WHEREAS, the State of Montana Board of Investments (the Board) has established an INTERCAP Revolving Program (the Program) pursuant to which it proposes to issue tax-exempt bonds for the purpose of financing capital programs for Montana local government units; and WHEREAS, the Board has required that the participant evidence its intention to participate in the Program by executing and returning to the Board a Commitment Agreement (the Agreement). which has been presented to and reviewed by the governing body, and a Commitment Acceptance Fee as defined in such Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, as follows: Section 1 The participant is authorized to participate and hereby agrees to participate in the Program in the amount and subject to the terms and conditions set forth in the Agreement. The City Manager and the Administrative Services Director are hereby authorized to execute and deliver to the Board the Agreement and the Commitment Acceptance Fee. Section 2 The participant intends to undertake the project as presented in the Agreement and INTERCAP Application. Section 3 The participant hereby ratifies and approves all representations and covenants contained in the Agreement. PASSED AND ADOPTED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 24th day of January 1994. J ATTEST: ~fM~ ROBIN L. SULLIVAN Clerk of the Commission APPROVED AS TO FORM: .------..-.-.--... ---.--,,-. INTERCAP REVOLVING PROGRAM (An annual adjusting interest rate program for Montana Local Governments) COMMITMENT AGREEMENT between STATE OF MONTANA BOARD OF INVESTMENTS (herein referred to as the Board) CITY OF BOZEMAN (hereinafter referred to as the Borrower) Borrower's Address: P.O. Box 640 Bozeman, MT 59715 Principal Contact Person: Miral Gamradt Administrative Services Director Phone Number: '586-3321 --------------------------------------------------------------------------------- PROJECT COST $492,610.84 ORIGINATION FEE 9.852.22 TOT AL PROJECT AMOUNT 502,463.06 LESS: COMMITMENT ACCEPTANCE FEE( 2.463.06) TOT AL COMMITTED AMOUNT $500.000.00 --------------------------------------------------------------------------------- Term of Loan: 5 years Date of Commitment Agreement: Januarv 12. 1994 Commitment Agreement valid through: Januarv 11. 1995 Executed Commitment Agreement and Commitment Acceptance Fee (.5 % X Project Cost) of $2,463.06 must be returned to the Board by Monday, February 14, 1994 or the Commitment Agreement will expire. Please return to: Board of Investments Attn: Bond Program Office 555 Fuller A venue P.O. Box 200126 Helena, MT 59620-0126 Rev. 03/93 INTER CAP REVOLVING PROGRAM COMMITMENT AGREEMENT The Commitment Agreement, (as amended or supplemented in accordance with the terms hereof, the "Agreement") is entered into this 12th day of January, 1994, between the Board and the Borrower shown on the cover hereof. In consideration of the mutual covenants, representations and agreements contained herein, the Board and the Borrower hereby agree as follows: Section 1. Definitions. Recitals and Other Provisions of General Application. Section 1. 1. Definitions. For purposes of this Agreement, capitalized terms herein shall have the respective meanings assigned them in this paragraph 1.1 and in the initial paragraph hereof, unless the context clearly otherwise requires: "Act" shall mean Title 17, Chapter 5, Part 16, M.C.A., as amended. "Adiusted interest rate" shall mean the interest rate on the Loan determined and established pursuant to Exhibit C hereto and the Loan Agreement or Bond Resolution. "Agreement" shall mean this Commitment Agreement as the same may from time to time be amended or supplemented. "Appl ication" shall mean the completed application form executed by the Borrower and submitted to the Board. "Board" shall mean the State of Montana Board of Investments, a public body corporate organized and existing under the laws of the state of Montana and any successor of its functions hereunder. "Bond" shall mean the Bond or Note issued by the. Borrower evidencing a Loan from the Board. "Borrower" shall mean the Local Government set forth on the cover hereof. "Borrower Act" shall mean Section 7-7-4101, Montana Code Annotated. "Borrower Resolution" shall mean the resolution, in form and substance satis factory to the Board, duly enacted by the Governing Body of the Borrower, authorizing the Loan and prescribing the terms thereof and establishing the security thereof, and authorizing the execution and delivery of the Loan Agreement and the Note. "Code" shall mean the Internal Revenue Code of 1986, as amended. 2 "Committed Amount" shall mean the total dollar amount shown on the cover hereof. "Commitment Acceptance Fee" shall mean the fee equal to one-half percent (.5 %) of the total project amount shown on the cover hereof. "Governing Body" shall mean (i) with respect to a county, the Board of County Commissioners, Oi) with respect to a city, the City Council or Commission, and (Hi) with respect to a school district, county water or sewer district, hospital district, and rural fire district, the Board of Trustees. "Indenture" shall mean the Indenture of Trust, between the Board and the Trustee pursuant to which the bonds are to be issued and all supplements thereto. "Initial Interest Rate" shall mean the rate on the Loan from the date of the Loan to the first interest adjustment date. "Interest Adjustment Date" shall mean March 1. "INTERCAP Bonds" shall mean the State of Montana Board of Investments Annual Adjustable Rate Tender Option Municipal Finance Consolidation Act Bonds (INTERCAP Revolving Program). "Loan" shall mean the loan of money by the Board to the Borrower under the terms of the Loan Agreement or Bond Resolution. "Loan Agreement" shall mean the Agreement entered into between the Board and the Borrower; this Agreement may also be a Bond Resolution or a Supplemental Bond Resolution for the purpose of issuing bonds or additional parity bonds with respect to the Borrower's original revenue bond issue. "Loan Date" shall mean February, 1994 (the anticipated date of closing the Loan or twelve (12) months from the date hereof). "Local Government Unit" shall mean a city, town, school district, county or consolidated city-county, county water and sewer district, a rural fire district, a hospital district, organized and existing under the laws of the state or any other governmental entity authorized by the issuer to participate in the program. "Maximum Interest Rate" means the maximum rate of interest on the Bonds which shall not exceed fifteen percent (15%) per annum. "Origination Fee" shall mean two percent (2 %) of the project cost. "Pledged Revenues" shall mean the taxes, fees, revenues, assessments or other funds of the Borrower identified as to the source for the repayments of the Loan. "Program" shall mean the INTERCAP Revolving Program of the Board pursuant to which the Board will issue and sell the INTERCAP Bonds and use the proceeds thereof to make loans to local government units pursuant to the borrower act. 3 .-...-. .-...- .-. -...-------.-.- -.-.-.--.....-..-..--- -. "Project" shall mean the items to be financed or refinanced by the Borrower pursuant to the Program and set forth on the Application. "Proiect Contract" shall mean the contract with a vendor or contractor for the purchase, installation or construction of the Project. "Svstem" shall mean, if applicable, the utility operated by the Borrower and from which the revenues pledged to the repayment of the Loan are pledged. "Trustee" shall mean the bank or trust company from time to time acting as trustee under the indenture and its successors and assigns thereunder. Section 1.2. References and Construction. All references in this instrument to designated sections and other subdivisions are to be designated sections and other subdivisions of this instrument as originally executed. The words, "herein," and "hereunder," and other words of similar import refer to this Agreement as a whole and not to any particular section or other subdivision unless the context clearly indicates otherwise. This Agreement shall be construed in accordance with the laws of the state of Montana. Section 1. 3. Exhibits. The following exhibits are attached to and by reference made a part of this Agreement. Exhibit A: A form of resolution authorizing the execution and delivery of this Agreement by the Borrower (the Commitment Agreement Resolution). Exhibit B: Estimated Amount of Project Costs. Section 2. Representation by the Board. The Board makes the following representations as the basis for its covenants herein: Section 2.1. Board Authorized Under the Act. The Board is authorized by the Act to issue and sell its INTERCAP Bonds and apply the proceeds thereof to finance loans or refinance loans to local government units and to purchase bonds or notes. issued by local government units. Pursuant to this authorization the Board has created and implemented the Program and has authorized pursuant thereto the issuance of the INTERCAP Bonds for the purpose of financing projects by local government units pursuant to the Borrower Act. Section 2.2. Variable Rate Program. The INTERCAP Revolving Program is a variable rate program with the interest rate adjusting each March 1. 4 --..---... Section 2.3. Board ReceiPt of Application. The Board has received an application from the Borrower to participate in the Program for the purpose of obtaining financing for the items shown on Exhibit B hereto in a principal sum not to exceed that shown on the cover of this Agreement. Section 2.4. Board to Have Sufficient Funds. The Board will finance the INTERCAP Revolving Program by issuing and selling its INTERCAP Bonds, from time to time, in amounts sufficient to finance the estimated capital equipment needs of local government units participating in the Program. Section 2.5. Covenants in Loan Agreement. The covenants and collateral, if any, securing the Loan shall be contained in the Loan Agreement and such other security instruments, if any, as the Board shall require. Forms of such documents (and the forms of other documents that are required to be delivered by the Borrower to the Board with the Bond or Note as specified herein) will be provided the Borrower and its counsel by the Board. Section 3. Representation bv the Borrower. The Borrower makes the following representations as the basis for its covenants herein: Section 3.1. Borrower Authorized to Borrower. ~ The Borrower is a duly organized and existing local government unit in the state of Montana, has power to enter into this Agreement, and by proper action of its governing body has authorized the execution and delivery of this Agreement. Section 3.2. Borrower Authorized to Undertake Proiect. The Governing Body has duly authorized the undertaking of the Project. The Borrower has obtained or made all permits, findings and approvals required to the date hereof by any governmental agency or authority, including the Department of Health and Environmental Sciences (DHES) and the Environmental Protection Agency (EP A), for the Project. Construction of the Project has complied and will comply with all federal and state regulations, including, without limitation, DHES, EP A and MEP A regulations and standards, and competitive bidding requirements. Section 3.3. Legal Debt Limits. The undertaking of the Project and the issuance of the Bond or Note in a principal. amount equal to the Committed Amount to finance Project Costs and to evidence the Loan is authorized under the Borrower Act and the issuance of the Bond or Note in a principal amount equal to the Committed Amount will not (i) cause the indebtedness of the Borrower to exceed any constitutional or statutory limitation or (ii) violate any term, condition or provision of or constitute a default under any resolution, contract or agreement to which the Borrower is a party or by which the Borrower is bound. S Section 3.4. Accuracv and Timeliness of Information. The information contained in the Application was true, accurate, complete, and not misleading on the date of its original delivery to the Board and as of the date hereof. Any financial information furnished as part of the Application was true and complete as of the dates and for the periods indicated, and there has been no material adverse change in the financial position of the Borrower, the pledged revenues or the enterprise fund to which the information relates since the last such date or period nor has there been any material change in the character or the number of users of an enterprise, if the Pledged Revenue are derived from user fees or charges, which has not been disclosed to the Board in writing. The Borrower covenants that it will advise the Board of any material adverse change in the Pledged Revenues or the Borrower's ability to repay the Loan that may occur between the date hereof and the Loan Date. Section 3.5. Execution of Agreement. The execution of this Agreement has been duly authorized by the Governing Body of the Borrower, as evidenced by a certified copy of the resolution in substantially the form of Exhibit A hereto. Section 3.6. Misrepresentations. Any misrepresentation determined by the Board acting in good faith on representation made by the Borrower may be cause for cancellation of this Commitment Agreement. (The Board will refund the commitment fee in the event of such cancellation.) Section 3.7 Borrower Acting on Al!reement. The Borrower recognizes that the closing of the Loan is dependent upon the Borrower's satisfaction of the terms and conditions of the Commitment Agreement and the Loan Agreement and that any action taken by the Borrower with respect to entering into a contract for the acquisition or construction of the Project, prior to the closing of the Loan is at its own risk and agrees to hold the Board harmless from any loss, damage or claim arising as a result from its doing so. Section 4. Covenants of the Borrower and the Board. Section 4.1. Borrower's A~reement to Undertake Proiect. The Borrower agrees to undertake construction or acquisition of the Project and to comply with all pertinent provisions of applicable federal, state and local law, including DHES and EP A regulations and standards relating to the Project. Section 4.2. Withdrawal of Loan Request. If, prior to closing the Loan and within the one year commitment period, the terms or conditions contained in the loan closing documents are deemed unacceptable by the Borrower, it may withdraw its loan request and the commitment fee will be refunded. 6 -----.--- .._on __ __.___ ---.--- -- Section 5. Modification of Project: Adjustment of Committed Amount. Section 5.1. Project Conforms with DescriPtion and Cost. Unless modified or adjusted pursuant to paragraph 5.2 hereof, the Borrower acknowledges and agrees that the Project shall conform substantially to the description thereof in Exhibit B hereto, the estimated Project Costs as of the date of issuance of the Bond shall not exceed the total amount of Project Costs stated on Exhibit B hereto, and the maximum principal amount of the Loan, and the maximum principal amount of the Bond evidencing the Loan, shall be equal to the Committed Amount. Section 5.2. Board Mav Increase Loan Amount. After the date of this Agreement and before the date specified in paragraph 4.2 hereof, the Borrower may request that the Board consent to a modification of the Project, an increase in the costs thereof or an adjustment in the Committed Amount. If the Board, in its absolute and sole discretion, determines to consent to a modification in the Project, an increase in the costs thereof or an increase or decrease in the Committed Amount, such consent shall be evidenced in a written amendment to this Agreement executed by the Board and the Borrower. Section 6. Loan Closing.' Section 6.1. Loan Closing Submission. After all the conditions of this Agreement have been met and the Borrower is ready to receive financing, the Board, upon notice from the Borrower, shall prepare the following loan closing documentation for the Borrower's execution: 1. Certified copy of the Borrower Resolution and Loan Agreement; 2. The Note duly and validly authorized, issued, and executed by the Borrower; 3. An opinion of Borrower's Counsel in a form acceptable to the Board; and 4. Such other certificates, documents, opinions and information as are required under the Loan Agreement to be delivered to the Board as of the date of issuance of the Note and such other opinions and certificates as the Board may reasonably request to demonstrate compliance with its representations, covenants and agreements contained in the Loan Agreement. Section 6.2. Covenants in Loan Agreement. The covenants and collateral, if any, securing the Loan shall be contained in the Loan Agreement and such other security instruments, if any, as the Board shall require. Forms of such documents (and the forms of other documents that are required to be delivered by the Borrower to the Board with the Bond or Note as specified herein) will be provided the Borrower and its counsel by the Board. 7 _..'-'-.---'.. Section 6.3. Adovtion of Documents. The Borrower hereby agrees to cause its Governing Body to adopt the Borrower Resolution and to cause the Loan Agreement and Note to be executed and delivered to the Board and the Loan made on or before September 1, 1994, a date not more than twelve months after the date hereof. Section 7. Refund of Commitment Accevtance Fee The Commitment Acceptance Fee will be refunded in full with interest thereon if the Board is unable to make the Loan by the Loan Date. Section 8. Miscellaneous. Section 8.1. Notices. All notices or other communications hereunder shall be sufficiently sent or given and shall be deemed sent or given when delivered or mailed by certified mail, postage prepaid, to the parties at the following addresses: Board: Board of Investments of the State of Montana Attn: Bond Program Officer 555 Fuller Avenue P.O. Box 200126 Helena, Montana 59620-0126 Borrower: City of Bozeman Attention: Miral Gamradt P.O. Box 640 Bozeman, MT 59715 Section 8.2. Binding Effect: Assignment. This Agreement shall inure to the benefit of the parties hereto and shall be binding upon the Board and the Borrower and their respective successors. The Borrower may not assign its interest in this Agreement without the prior written ~onsent of the Board. Section 8.3. Severabilitv. If any provision of this Agreement shall be determined to be unenforceable at any time, it shall not affect any other provision of this Agreement or the enforceability of that provision at any other time. Section 8.4. Amendments. This Agreement may be amended only by a written amendment executed by the Board and the Borrower. 8 -....---------- ---..-- - Section 8.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Montana. Section 9. Conditions Specific to this Commitment Agreement. These conditions are specific to this Agreement and Loan. If the general language seems to conflict with the specific conditions, the specific conditions supersede the general language. a. The Borrower must furnish to the Board for its review and approval a copy of the lease agreement for a law and justice center between the City and Gallatin County before loan funds are disbursed. BOARD OF INVESTMENTS OF THE STATE OF MONTANA , CITY OF BOZEMAN ~~"-'o, 2, la~7\k^ 1 A thorized Official "-.: - JAMES E. WYSOCKI (type or print name) r.ity MRnR~pr Title January 25. 1994 Date Signed . 9 __.n .____._..___...___ ..____... _ _ __. ~_ ----.----- -"":.- ,"h EXHIBIT 1 TO COMMITMENT AGREEMENT RESOLUTION CERTIFICATE OF AUTHORIZED REPRESENTATIVES The following officers of the City of Bozeman are authorized to act on behalf of the Local Government with respect to the execution and delivery of all documents, certificates, or materials necessary to be provided to the Board of Investments in order to close the Loan. Name (Please Print) Title (Please Print) g:;ture~ ~ ' . James E. Wysocki City Manager .o,Z. L ~~ . ""'" Mir~l D. Gamr~dt Administrativ~ s~rv. Dir. ~p~~ !Robln L. Sulllvan Clerk of CommlSSlon Dated this 24th day of January , 19.2!L. BY~':-~...:r- - Its Ma or . 11 --- .----...- ------ ---.-. - ,- ~~ """" .' EXHIBIT B ESTIMA TED AMOUNT OF PROJECT COSTS Proiect Description Amount Prepay lease between the City and Gallatin County. $492,610.84 Remaining origination fee 7.389.16 Total $500,000.00 , 12 --.-