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HomeMy WebLinkAbout1998 06_Apply surplus money where it's needed_1998.08.04RESOLUTION NUMBER WHEREAS, 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 low level of interest rates presently ex, '' f'f - isting 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 inves-1--ment cD-ortun-ities 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 it's beneficiary, has a present need to raise additional funds for the Elm Creek Sewer Interceptor Project; WHEREAS, the City Council of the City of Owasso, Oklahoma, finds that a present need in the amount not to exceed One Million, Eight Hundred Thousand Dollars ($1,800,000) exists on the part of the Owasso Public Works Authcrity, and that the Owasso Public Works Authority, is desirous of obtaining such funding from the City of Owasso, Oklahoma, _Li a -manner that would produce for the City higher yield on it's investments while at the same time assisting the Owasso Public Works Authority in: completing the Elm Creek Sewer Interceptor Project., a community enhancement project; 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 Citv, 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 Anticioat -on Notes Issued by a public trust for which such city is a beneficiary thereof; NOW, THERREFORE, BE 1T RESOLVED BY THE CXTY COT-W.C11, OF THE CITY OF OWASSO, OKLAHOMA, THAT TO-WIT., SECTION ONE. The City Treasurer of the City of Owasso, Oklahoma, is hereby authorized to invest certain unappropriated and unencumbered monies o--'*',: the City of Owasso, Oklahoma, surplus to the present needs cf said City, 4- 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 it's beneficiary, in an amount not to exceed one Million, Eight Hundred Thousand Dollars ($1,800,000). The C.-,-v Council of the City of Owasso, Oklahoma, hereby approves the proposed Agree tent 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". SECTION TWO. The Mayor, or Vice -Mawr as the case the may be, the City Clerk or the Deputy City Clerk as the case may be, and the City Treasurer or Deputy Treasurer as the case may be, of the City of Owasso, be and they hereby are, authorized and empowered for and on behalf of the City of Owasso, Oklahoma, to execute, deliver and receive the Agreement and Revenue Anti. _4 pation Note c-� the Owasso Public Works Authority ex h 4 bited hereto and such further agreements and documents and to -i-_ake such actions as such officer or officers may deep, necessary or desirable in order to carry out and perform the investment and to effect the purposes thereof and to consummate the transaction contemplated thereby. SECTION THREE. That in accordance with public finance provisions of -+,-he Statutes of the State of Oklahoma relating to municipal investment of -funds, 68 O.S. Section 348.115), 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, 'M 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 end within the Consol ,, dated Cash Account of the City of Owasso, F- Oklahoma, bears to the Contributing Funds within the Consolidated Cash Account of *.-kle City of Owasso, Oklahoma, on an average monthly basis, as dete--mined semi-annually, on July 1, and January 1, for distribution of the income earned in the 'preceding six (6) month period. Anv 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. PASSED AND APPROVED this 4th day of August, 1998. Aarcla Boutwell, amity Clerk LIILOM*1190� �11 �*' I nald D. Cates, Cit7j Attorney C ' " T Y OF OWASSN, 0 K�MH 0 M A By, Denise Bode, Mayor 0 Exhibit "A" TO CITY OF OWASSO, OKLAHOMA RESOLUTION NUMBER LOAN AG EI?1l luNT TICS LOAN AGREEMENT (the "Agreement ") made and entered into as of the 4th day of ,August, 1998 by and among the Owasso Public Works Authority, an Oklahoma public trust, (the "Authority "), and the City of Owasso, Oklahoma, an Oklahoma Municipal Corporation (the "City")- ITNESSETH: WHEREAS, the City has determined to make a loan to the Authority, aggregating $1,800,000.00 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 $1,800,000.00, (the "Note ") to enable the Authority, pursuant to certain of its approvals, to finance costs of the construction of the Elm Creek Sewer Interceptor Project (the `Project "). WT-IEREAS, pursuant to the term and conditions hereinafter set forth, the City is willing to make such loan to be evidenced by the Note; and WHEREAS, the payment of the Note is to be secured by a subordinate security interest in the revenues of the Authority, recelpts 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: THE AUTHGLIUIY 11TOTES ? 1 The Ci,t s �oznmitment. The City agrees. subject w the terms and conditions of this Agreement, to make the loan to the Authority in the amount not to exceed $1,800,000.00. 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 conditions precedent of this Agreement, the City shall, upon receipt and approval of requisitions therefor, advance the proceeds of the loan to the Authority to pay the costs of the Project. 1.3 Loan Advances. The loan advances on the Note shall be made pursuant to a Loan Schedule to be executed after final approval of the construction contracts for the Project. Each request for an advance shall be accompanied by a certificate signed by the project manager describing the invoices for which the loan advances are sought, certifying that the work, labor or materials for which the loan advance is sought have been performed according to the plans and specifications or as approved by the City, and certifying that sufficient funds are available under the Note to complete the construction of the Project in accordance with the plans and specifications. Lien waivers from all contractors and subcontractors shall be provided by the Authority with each loan advance. 1.4 Terms of the Note. The Note shall be in substantially the form set forth in Exhibit A attached 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 due 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. ARTICLE 11 2.1 Conditions. The obligations of the City to make the loan pursuant to this Agreement are subject to there being no Event of Default hereunder or an event which with notice or lapse of time would become an Event of Default hereunder and the City having received in form and substance satisfactory to 1-C (a) A duly certified copy of the resolutions of the Authority authorizing execution and delivery of this AUIFCcnient, anti related instruments, and the issuance, execution and delivery of the Note-, (b) Original duly executed counterparts of (1) this Agreement, (ii) such financing staternent(s) as respect the foregoing, (c) Such certificates, documents and certificates respecting the Authority, as City counsel shall reasonably require" (d) Such opinions of counsel for the Authority, as City counsel shall reasonably require-, (e) A detailed description and cost breakdown analysis of the Project (the "Breakdown") and all amendments thereto, all for approval by City, 2 Such other and further materials and/or information as the City may reasonably request; and ARTICLE III SPECIAL OBLIGATION; PLEDGE; SATISFACTION 3.1 Special Obligation. The Note shall constitute a limited and special obligation of the Authority. The principal of and interest on the Note shall be payable by the Authority solely from, and shall be enforceable only out of the revenues of the Authority being hereby pledged by the Authority to such payment. The Note and all other obligations of the Authority hereunder shall not be construed or considered to be an indebtedness of the City of Owasso, Oklahoma, or any municipality, county or political subdivision of the State of Oklahoma within the meaning of any constitutional or statutory provision of the State of Oklahoma, under any circumstances. 3.2 Satisfaction of Debt. Notwithstanding anything to the contrary contained herein or in the Note, or in any instrument or document executed by or on behalf of the Authority in connection herewith, no stipulation, covenant, aureement or obligation contained herein or therein shall be deemed or construed to be a stipulation, covenant, agreement or obligation of any present or future member, trustee, officer, employee or agent or any successor to the Authority, in any such person's individual capacity, and no such person, in his *Individual capacity, shall be liable personally for any breach or non-observance of or for any failure to perform, fiilfill or comply with any such stipulations, covenants, agreements, or interest on the Note or for any claim based thereon or on any such stipulation, covenant, agreement or obligation, against such person, in his individual capacity, either directly or through the Authority or any successor to the Authority, under any rule of law or equity, statute or constitution or by the etifbrcement of any assessment or penalty or otherwise, and all such liability of any such person, in his individual capacity is hereby expressly waived and released. The Authority and the City expressly recognize and agree that this Agreement, the Note and any Z_ documentation issued, executed and delivered therewith, are subordinate and Junior to all Revenue Bond obligations of the Authority. COVENANTS OF THE AUTHORITY The Authority hereby agrees with the City that, so Ion- as the Note remains outstanding: 4.1 Performance of ALreernents. The Authority shall take all action and do all things which it is authorized by law to take and do in order to per-form 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. The Authority shall not create or suffer to exist any additional assignment, pledge, security interest or other lien, encumbrance or charge on any revenues of the Authority to be pledged- 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 M 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 OF 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 undertakino, 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. ARTICLE V 4 5.1 Events oMefault. 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 beiric, contested in such a manner as to prevent execution on the Property,* or (C) The entry against the Authority or Lessee of (1) any judgment in an amount of Z_� $25,000 or more o.-I a claim not covered by insurance which is not discharged within thirty (30) days Of SUChju"gement becoming a final judgment, of C judgment; (d) If the Authority shall (1) apply for or consent to the appointment of a received, a trustee or liquidator of themselves or itself, or of all or a substantial part of its assets, or (11) file a petition OF anSWO.F seeking reorganization or admit (by answer, default or otherwise) the material allegations of a petition filed against them in any reorganization proceeding, or Z, (e) If the Authority shall (1) become insolvent, generally fall to pay, or admit in writing their respective Inability to pay their respective debts as the fall due, (ii) make a general assignment for the benefit oftheir or its respective creditors, (111) be adjudicated a bankrupt OF Insolvent, or (w) 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 (bv answer, default or otherwise) the material allegations of a petition filed against any of them In any bankruptcy, arrangement or insolvency proceeding, or take or omit to take any action for the Z:> In purpose or with the result of effecting any of the foregoing, or (f) If a petition in bankruptcy is filed against the Authority and is not dismissed within thirty (30) days, or if an order, judgment or decree by any court of competent Jurisdiction shall be entered, adjudicating tl-xe 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 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 fall 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 Failure ofithe Security interests (I)Farited in the Agreement to constitute a duly perfected, valid security into; e-,t in the Revenues; or (h) The breach of, or default Linder, any covenant, agreement, term, condition, provision, representation or warran'y contained in thA*s 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 (1) 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; or Agreement; (;) The Project cannot be completed in accordance with the plans and specifications approved by the City with the funds remaining to be advanced on the Note. 5.2 Remedies on Default. Wheneve., any Event of Default referred to in Section 5. hereof shall have occurred, the City may take any one or more of the following remedial steps: Z�' (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) Realize upon its rights under tone security agreement and such other collateral documentation as may from ti-me to time inure to the, benefit of the City* or 11 kc) 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 or covenants of the Authority under the Note, this Agreement, or otherwise. ARTICLE VI MISCELLANEOUS 7.1 Defeasance. If the Authority shall pay or cause to be paid or other-wise 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, and the security interest created by the Assignment, shall thereupon terminate and be discharged and satisfied, and thereupon all the moneys of the Authority then subject to such security interest shall be free and clear thereof 7.2 Waivers, etc. No fa.liure on the par, of the City to exercise and no delay in with exercisinZ;' g, and no course of dealing with respect to, any right under this Agreement, or any other Z:1 agreement or instrument referred to in this Agreement, shall operate as a waiver thereof, nor shall Z_ 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- 7. ') Successors, etc. This Agreement shall be binding upon and inure to the benefit of the parties hereto and arly subsequent holder of the Notes and its successors and assigns. -7 1.4 Governing Law. Thl's Agreement shall be construed in accordance with, and governed by the laws of the State of Oklahoma. 7,5 Amendments. This Agreement may not be amended, modified or waived except with the written consent of the parties hereto. 7.6 Notices. All requests and notices under the Agreement shall be hand delivered or sent by United State 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 c, hereunder: given Owasso Pubhc Works Authority 207 South Cedar 0dvasso, Oklahoma 74055 Attention: Denise Bode, Chairman w ith a- cony _to: Ronald D. Cates Authority Attorney. Suite 680, Park Centre 525 South Mall-I Tulsa. Oklahoma 7,1103 City: City of Owasso 207 South Cedar Owasso, Oklahoma 74055 Attn� Denise Bode, Mayor Ronald D. Cates City Attorney Suite 680, ParkCentre 525 South Main Tulsa, Oklahoma 74103 7 Notice given hereunder shall be deemed given upon receipt by the principal addressee. 7.8 SeveFabilit . 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. 7.9 Execution in Counterparts. This Agreement may be executed in several counterparts, each of1which shall be an original and all of which shall constitute one and the same instrument. 0210W By- aoutwell, S (SEAL) ATTEST� By: �aia �outwel'l, 40tylerk&e& Owasso Public Works Authority By:— Denise Bode, Chairman "Authority" City of Owasso, Oklahoma By: Denise Bode, Mayor tI- M