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HomeMy WebLinkAbout2004 23_Authorizing City Treasurer_2004.12.07WHEREAS, the City Council of the City of Owasso, Oklahoma, finds that the City presently maintains funds that have reserves which have reached a level that would allow for investments of a significant nature and for long term investments that might produce a higher yield; WHEREAS, the City Council of the City of Owasso, Oklahoma, finds that investment opportunities are problematical due to the low level of interest rates presently existing in the market as well as legal restrictions placed upon the placement of public funds in the market; WHEREAS, the City Council of the City of Owasso, Oklahoma, finds that after exploration of several investment opportunities and the discovery that the return on investments of a traditional nature would not be significant, alternatives to traditional investments that would produce a higher yield in an otherwise depressed investment climate have been ascertained; WHEREAS, the City Council of the City of Owasso, Oklahoma, has determined that the Owasso Public Works Authority, an Oklahoma Public Trust, having the City of Owasso, Oklahoma, as its beneficiary, has a present need to raise additional funds for defeasance of the Authority's 1.997 and 1998 Revenue Bonds; WHEREAS, the City Council of the City of Owasso, Oklahoma, finds that a present need in the amount not to exceed Three Million, Eight Hundred Thousand Dollars ($3,800,000) exists on the part of the Owasso Public Works Authority, and that the Owasso Public Works Authority, is desirous of obtaining such funding from the City of Owasso, Oklahoma in a manner that would produce for the City higher yield on its investments while at the same time assisting the Owasso Public Works Authority in defeasing its Revenue Bonds; and, WHEREAS, under the public finance provisions of the statutes of the State of Oklahoma, relating to municipal investment of funds, 68 O.S. Section 348.1 /Authorized Investments/Disposition of Income, the City Treasurer of the City, when authorized by the City Council by written investment policy, ordinance or resolution, is authorized to invest monies in the custody of the City Treasurer in Revenue Anticipation Notes issued by a public trust for which such City is a beneficiary thereof, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF TH CITY OF OWASSO, OKLAHOMA, THAT TO-WIT: I SECTION ONE. The City Treasurer of the City of Owasso, Oklahoma, is hereby authorized to invest certain unappropriated and unencumbered monies of the City of Owasso, Oklahoma, surplus to the present needs of said City, in the custody of the City Treasurer of the City of Owasso, Oklahoma, in a Revenue Anticipation note to be issued by the Owasso Public Works Authority, an Oklahoma Public Trust having the City of Owasso, Oklahoma as its beneficiary, in an amount not to exceed Three Million, Eight Hundred Thousand Dollars ($3,800,000). The City Council of the City of Owasso, Oklahoma, hereby approves the OPWA indebtedness as represented by the proposed Agreement and Revenue Anticipation Note to be issued by the Owasso Public Works Authority, a copy thereof being attached hereto, made a part hereof and marked as Exhibit "A". Provided however that, monies in the Capital Improvements Fund of the City of Owasso received as a result of reimbursement of expenditures with said expenditure reimbursed from the proceeds of tax exempt obligations issued by the Authority shall not be invested in this Revenue Anticipation Note within one year after receipt of the reimbursement allocation. SECTION THREE. That in accordance with public finance provisions of the Statutes of the State of Oklahoma relating to municipal investment of funds, 68 O.S. Section 34& 1(5), the income received by the City of Owasso from the investment herein contemplated shall be placed, on a pro rata basis as hereinafter set forth, in the Contributing Funds within the City of Owasso, Oklahoma Consolidated Cash Account. Such pro rata distribution of income shall be made on the percentage basis that the Contributing Fund within the Consolidated Cash Account of the City of Owasso, Oklahoma, bears to the Contributing Funds within the Consolidated Cash Account of the City of Owasso, Oklahoma. Certain monies of the Capital Improvements Fund described in Section One above will be excluded from the pro rata calculation of Contributing Funds. Any Contributing Fund within the Consolidated Cash Account of the City of Owasso, Oklahoma, subsequently closed by the City Council of the City of Owasso, Oklahoma, shall receive no further pro rata distributions of income. :> 111 1 - -! I Sherry Bishop; pity Clerk P V1,11, �=, W WATI 41M, H MW I's By Susan Kimball, Mayof-- M Copy of Revenue Anticipation Note and Loan Agreement. Original documents are located in the Mana( yerial Filing Room, Filing Cabinet marked "Agreements" under Revenue Anticipation Notes. IMMMIMA REVENUE ANTICIPATION NOTE OF L 171 f; I �1, F, 9 J I kl_" 11 1 a i M.-Y, 1% �i I I." MIS Dated as of the 10th day of December, 2004 Owasso, Tulsa County, Oklahoma $3,800,000.00 The Borrower may prepay this Note, in whole or in part, at any time prior to the due date hereof, without penalty. If any payment shall be due on a Saturday or Sunday or upon any banking holiday of the holder hereof, such payment shall be due and payable on the next succeeding banking day and interest shall accrue to such day. This Revenue Anticipation Note is the Revenue Anticipation Note referred to in that certain Loan dated as of the 10'h day of December, 2004, by and between the Borrower and the City (the "City") given and entered into to secure this note, the proceeds of which the City is loaning to the Borrower to defease Borrower's Series 1997, Revenue Refunding Bonds and Series 1998, Revenue Bonds. Except as may be herein otherwise specifically provided, the rights and obligations of the Borrower and the City arising by virtue of this Revenue Anticipation Note as well as the Agreement above referred to, shall be governed by the Agreement as if same were specifically incorporated herein, such Agreement surviving the issuance, execution and delivery of this Revenue Anticipation Note. The City may, at any time prior to the due date of payment of this Revenue Anticipation Note call for an early pre-payment in whole, or in part, if it is determined by the City, in its sole discretion, that the funds heretofore advanced pursuant to this Revenue Anticipation Note are needed by the City for its operations, governmental or proprietary, and the Borrower is afforded a reasonable opportunity to obtain reasonably satisfactory refinancing hereof. All parties (makers, sureties, guarantors and all others now or hereafter liable for payment of all or any portion of the indebtedness evidenced by this Revenue Anticipation Note) severally waive demand, presentment, notice of dishonor, protest, notice of protest, and diligence in collecting this Revenue Anticipation Note and diligence in bringing and prosecuting suit against any party bound hereby, and agree that no extension, renewal or partial payment, or release or substitution of collateral before or after maturity, with or without notice, shall release or discharge the obligation of any party. Upon the failure to pay when due the principal and or interest, the holder hereof shall be entitled, at its option, to extend the term or declare the unpaid principal balance of this Revenue Anticipation Note to be immediately due and payable. A failure by such holder to exercise such option will not constitute a waiver of the right to exercise the same in the event of any subsequent default. After maturity (whether by extension, acceleration or otherwise), interest shall accrue hereon at a rate of interest of ten percent (10%) per annum. If this Promissory Note is placed with an attorney for collection upon any default, or to defend or enforce any rights of the holder(s) hereunder or any instrument securing payment of this Revenue Anticipation Note, or if this Revenue Anticipation Note is collected through bankruptcy or other Judicial proceeding, the Borrower agrees to pay the reasonable attorney fees of the holder(s) of this Revenue Anticipation Note and all reasonable costs and expenses incurred in connection therewith. 0 Cn EAL (D 0 Ali ATTEST: Vr"J"P?t V P-r an Oklahoma Public Trust By: A Susan Kimball, Ch an FIVIS City Clerk 11 CITY OF OWASSO, OKLAHOMA By: Susan Kimball Wr THIS LOAN AGREEMENT (the "Agreement") made and entered into as of the 10"' day of December, 2004, is by and between the Owasso Public Works Authority, an Oklahoma public trust, (the "Authority"), and the City of Owasso, Oklahoma, an Oklahoma Municipal Corporation (the "City"). WHEREAS, the City has determined to make a loan to the Authority, aggregating $3,800,000.00 to be evidenced by the Authority's Revenue Anticipation Note payable to the order of the City in the original principal amount not to exceed $3,800,000.00, (the "Note") to enable the Authority, pursuant to certain of its approvals, to defease the Authority's Revenue Bonds; and WHEREAS, pursuant to the terms and conditions hereinafter set forth, the City is wiling to make such loan to be evidenced by the Note; and WHEREAS, the payment of the Note is to be made from the general revenues of the Authority, receipts and receivables, under the conditions as set forth hereinafter. NOW, THEREFORE, in consideration of the mutual agreements herein made and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1.1 The City's Commitment. The City agrees, subject to the terms and conditions of this Agreement, to make the loan to the Authority in the amount of $3,M0,000.00. 1.2 Issuance of the Authority Note. Subject to the terms and conditions hereof and in reliance on the representations and covenants made herein, the Authority agrees to issue the Note to the City. The loan shall be repaid with interest in accordance with the terms of the Note. The Note shall be delivered to the City at a closing (the "Closing") which will occur at such time and place as may be agreed on by the Authority and the City. Upon the issuance and delivery of the Note, and the satisfaction of all the conditions precedent of this Agreement, the City shall advance the proceeds of the loan to the Authority to defease the Revenue Bonds. 1.3 Terms of the Note. The Note shall be in substantially the form set forth in Exhibit Aattached hereto. Interest shall accrue, be payable and subject to adjustment, as provided for in the Note on the outstanding and unpaid principal balance thereon from the date of first advance thereon until payment in full thereof as set forth and provided therein. 1.5 Payments, etc. Payment of principal and interest on the Note and other charges under this Agreement to be made to the City shall be made in lawful money of the United States of America, and shall be made at City's principal office in Owasso, Oklahoma, not later than 11:00 o'clock a.m. on the date due. If any such payment falls on a Saturday, Sunday or public holiday at the place of payment thereof, then such due date shall be extended on the next succeeding full business day at such place and interest shall be payable in respect of such extension. av -A 2.1 Conditions. The obligations of the City Nmake the loan pursuant to this - are � subject tothere bnouo Event of Default hereunder oruo event which with notice or lapse oftime would b0000e an Event of Default hereunder and the City having received in form and substance satisfactory to it: 6J A duly certified copy of the resolutions of the �zeonboo and delivery uf�daA/�eenzent, and related iuxboo�co1a'and the issuance, nxeu delivery of the Note; (b) Original duly executed counterparts of this Agreement, (c) Such certificates, documents and certificates respecting the Authority, as City counsel shall reasonably require; `G& Such opinions - - ofuuuoaclfbrtbe "^"~"^o, ooCdvuounuclabuD reasonably require; (e) A detailed description and cost breakdown analysis of the [\efeaouooe as the City may hD Such other and further materials and/or information as the City may reasonably request. lI The Note shall constitute u limited and special of the Authority. The principal ufuud iotczeu1 on the Note shall he payable by the ' uo}�lv ~` �d shall he enforceable only o[1bc ��no �r hv1bc ' ' ` �� -- ���~ /^uuu/n�y -'" u�rouy p/�g�o� ' Authority to such puyzuoo1. The Note and all other obligations of the Authority hereunder shall not he construed oc considered tobc an indebtedness ofthe City of Owasso, Oklahoma, or any municipality, county or political subdivision of the State of Oklahoma nddbbu the meaning of any constitutional or statutory provision of the State of Oklahoma, under any circumstances. 3� - b w anything to the 000barycontained berc�oziuthe Note, or document executed by or on behalf of the Authority in connection herewith, -- stipulation, omvoouot, agreement orobligation contained herein mrtherein shall be deemed o« construed toh- - stipulation, uuveoom1` agreement or obligation of any present or future uouhor, trustee, offiocr" employee or agent or any successor to the Authority, in any such person's individual capacity, and no such person, in his individual capacity, abuD be liable personally for any breach or non-observance of or for any failure to perform, fulfill or comply with any such stipulations, ourcuuo1a` agreements, or interest ou the Note or for any claim based thereon or on any such stipulation, covenant, agreement orobligation, against such person, in his individual oupucity, either diroctly or through the Authority or any 0000eoaoz to the Authority, under any rule of law or equity, statute " orouoatitutiouorbythe enforcement of any assessment or penalty or otherwise, and all such liability of any such pormmn�iubia individual capacity is hereby expressly waived and released. The Authority and the City expressly zeoo�u�e and agree that dda Agreement, �e Note and any d0000�cntudoo issued, executed and delivered tbcrondtb' are subordinate and junior to all Revenue Bond obligations or Promissory Notes of the Aohori-- currently outstanding mrtobe issued in the future. '' W B"MyraT95M The Authority hereby agrees with the City that, so long as the Note remains outstanding: 4.1 Performance of Agreements. The Authority shall take all action and do all things which it is authorized by law to take and do in order to perform and observe all covenants and agreements on its part to be performed and observed under this Agreement and the Note and in order to provide for and to assure payment of the principal of the Note and interest thereon when due. 4.2 Creation of Charges on Revenues. Left blank intentionally. 4.3 Amendment. The Authority shall not alter, amend or repeal the resolutions described in Section 2.1(a) hereof, or, without the prior written consent of the City, agree to any alteration or amendment of any of the instruments described in Sections 2.1(b) and 2.1(c) hereof, or take any action impairing any authority, right or benefit given or conferred by such resolution or instruments. 4.4 Payment. The Authority shall pay or cause to be paid the principal of and the interest on the Note as the same becomes due, whether by acceleration or otherwise, but solely from the sources referred to in Article III hereof. 4.5 Representations and Warranties of Authority. The Authority represents and warrants to the City as follows: (a) The Authority is an Oklahoma public trust duly organized, validly existing and in good standing under the laws of the State of Oklahoma and all other states in which it is necessary that the Authority be qualified to do business. (b) The Authority and the Owasso City Council have taken all necessary actions to authorize entering into this Agreement and to authorize the execution and delivery of the Note, and the other documents contemplated hereby. (c) The execution and delivery of this Agreement and, the Note, will not cause, constitute or result in a breach of any agreement, contract or other undertaking to which the Authority is a party. (d) The Authority shall deliver to the City copies, certified by the Authority's Secretary, of all resolutions and actions undertaken by the Authority or the Owasso City Council to authorize this transaction. (e) The Authority shall maintain its existence in Oklahoma. (f) The Authority shall deliver to the City, within one week after they are prepared, copies of the Authority's quarterly financial statements. VVIANUT9111M I 5.1 Events of Default. Any one or more of the following shall constitute and "Event of Default" hereunder; (a) Nonpayment when due of interest and principal in accordance with the terms of the Note-, or (b) The attachment of any involuntary lien in the sum of $25,000 or more, of any kind or character, upon the Revenues, or any portion thereof, except for taxes due but not in default and liens being contested in such a manner as to prevent execution on the Property; or (C) The entry against the Authority of any judgment in an amount of $25,000 or more on a claim not covered by insurance which is not discharged within thirty (30) days of such judgment becoming a final judgment; or (d) If the Authority shall apply for or consent to the appointment of a receiver, a trustee or liquidator of themselves or itself, or of all or a substantial part of its assets, or (ii) file a petition or answer seeking reorganization or admit (by answer, default or otherwise) the material allegations of a petition filed against them in any reorganization proceeding; or (e) If the Authority shall (1) become insolvent, generally fall to pay, or admit in writing its inability to pay its respective debts as they fall due, (1i) make a general assignment for the benefit of its creditors, (iii) be adjudicated as bankrupt or insolvent, or (iv) file a voluntary petition in bankruptcy or file a petition or answer seeking an arrangement with creditors or to take advantage of any insolvency laws or admit (by answer, default or otherwise) the material allegations of a petition filed against it in any bankruptcy, arrangement or insolvency proceeding, or take or omit to take any action for the purpose or with the result of effecting any of the foregoing; or (f) If the petition in bankruptcy is filed against the Authority and is not dismissed within thirty (3 0) days, or if an order, judgment or decree by any court of competent jurisdiction shall be entered, adjudicating the Authority to be bankrupt or insolvent, without the application, approval or consent of the Authority or if the Authority shall seek or consent to or fall to timely contest of any order, judgment or decree appointing a custodian of all or a substantial part of its assets, or if the Authority shall seek or consent to, or fail to timely contest any order, judgment or decree approving a petition seeking reorganization or appointing a receiver, trustee or other custodian or liquidator of all or a substantial part of its assets; or (g) The breach of, or default under, any covenant, agreement, term, condition, provision, representation or warranty contained in this Agreement, the Note, not specifically referred to in this Section, if such breach or default is not cured within thirty (30) days of the occurrence thereof, or (h) In any event of default shall occur and shall continue for more than the period of grace, if any, provided with respect thereto, under this Agreement. 5.2 Remedies of Default. Whenever any Event of Default referred to in Section 5.1 hereof shall have occurred, the City may take any one or more of the following remedial steps: 11 (a) Declare all amounts payable hereunder and pursuant to the Note or any renewal thereof, to be immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor, or other notices or demands of any kind whatsoever, whereupon the same, together with the accrued interest thereon, shall become immediately due and payable; or (b) 'Take whatever action at law or in equity may appear necessary or desirable to collect the amount then due and thereafter to become due, or to enforce performance or observance of any obligations, agreements, covenants of the Authority under the Note, this Agreement, or otherwise. ' n-yffffff Wn 6.1 Defeasance. If the Authority shall pay or cause to be paid or otherwise provide for, or there shall otherwise be paid or provided for, the principal and the interest on the Note and all other amounts payable by the Authority at the times and in the manner stipulated in this Agreement or the Note, then all covenants, agreements and other obligations of the Authority hereunder shall thereupon terminate and be discharged and satisfied. 6.2 Waivers, etc. No failure on the part of the City to exercise and no delay in exercising, and no course of dealing with respect to, any right under this Agreement, or any other agreement or instrument referred to in this Agreement, shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein and therein provided are cumulative and not exclusive of any remedies provided by law. 6.3 Successors, etc. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any subsequent holder of the Note and its successors and assigns. 6.4 Governing Law. This Agreement shall be construed in accordance with, and governed by the laws of the State of Oklahoma. 6.5 Amendments. This Agreement may not be amended, modified, or waived except with the written consent of the parties hereto. 6.6 Notices. All requests and notices under the Agreement shall be hand delivered or sent by United States Mail, postage prepaid, addressed as follows, except that either party may be written notice change of address, its counsel or its counsel's address for subsequent notices to be given hereunder: Authority Owasso Public Works Authority 111 N. Main Owasso, Oklahoma 74055 Attention: Susan Kimball, Chairman With a copy to: Rodney J. Ray Authority Manager 111 N. Main Owasso, Oklahoma 74055 City City of Owasso 1 1 1 N. Main Owasso, Oklahoma 74055 Attn: Susan Kimball, Mayor WAUt Rodney J. Ray City Manager 1 1 1 N. Main Owasso, Oklahoma 74055 Notice given hereunder shall be deemed given upon receipt by the principal addressee. 6.8 Severability. If any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 6.9 Execution in Couterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. By: —2 Sherry B/i2shVop, 4Lcretary I-S-0, �U By: Sherry Bishop, ity Clerk Owasso Public Works Authority By: Susan imball, Chairma "Authority" City of Owasso, Oklahoma , By: Susan Kimball, Mayor' I Vo� ATTEST: By: —2 Sherry B/i2shVop, 4Lcretary I-S-0, �U By: Sherry Bishop, ity Clerk Owasso Public Works Authority By: Susan imball, Chairma "Authority" City of Owasso, Oklahoma , By: Susan Kimball, Mayor' I