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HomeMy WebLinkAbout1983-400 ,- , < San Bernardino 60,009-9A-3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 r> 17 18 19 20 RESOLUTION NO. 83-400 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORINA, AUTHORIZNG AN INCREASE OF ITS CITY OF SAN BERNARDINO, INDUSTRIAL DEVELOPMENT REVENUE NOTE, TRI-CITY INDUSTRIAL PARK, LTD. PROJECT, 1981 SERIES (CONSTRUCTION LOAN), FOR THE PURPOSE OF PROVIDING FUNDS FOR THE ACQUISITION AND CONSTRUCTION OF SUCH PROJECT; AUTHORIZING SUCH FURTHER ACTION AS MAY BE NECESSARY TO CONCLUDE THE INCREASE OF SUCH NOTE; AND MAKING CERTAIN FINDINGS AND DETERMINATIONS IN RELATION THEREWITH (TRI-CITY PROJECT) WHEREAS, the City of San Bernardino (the "City") is a "home rule city" duly organized and existing under and pursuant to a Charter adopted under the provisons of the Constitution of the State of California; and 21 WHEREAS, pursuant to its home rule powers, the 22 City duly and regularly enacted Ordinance No. 3815 (the 23 "Ordinance") to finance various types of projects, as defined 24 in the Ordinance, and to issue its special revenue notes for" 25 the purpose of paying the cost of financing such projects; 26 and #343.1(et) 11/5/83 Ln . 10 11 12 13 14 15 16 17 18 19 20 . , San Bernardino 60,009-9A-3 1 WHEREAS, there was filed with the City an Applica- 2 tion (the "Application") pursuant to the provisions of the 3 Ordinance by Tri-City Industrial Park, Ltd., a California Limited Partnership (reffered to herein as the "Company"), 4 5 requesting the issuance of a revenue note for the purpose of 6 financing the cost and expense of the acquisition and con- 7 8 struction of a certain Project, as more particularly described in said Application; and 9 WHEREAS, the Application was reviewed and the plan of financing was found to comply with the spirit, intent and provisions of the Ordinance, as amended, and it was determined that the City should proceed with the financing; and WHEREAS, the City issued its "City of San Bernardino, Industrial Development Revenue Note, Tri-City Industrial Park, Ltd. Project, 1981 Series (Construction Loan) (the "Note"), in the amount of $1,750,000, dated as of October 1, 1981, pursuant to Resolution No. 81-479, adopted October 5, 1981 (the "Resolution of Issuance"); and WHEREAS, Resolution No. 81-479 may be modified by supplemental Resolutions; and 2 #343.l(et) 11/5/83 . , San Bernardino 60,009-9A-3 1 WHEREAS, completion of the Project requires an 2 increase of $75,000 in the amount of the Note; and 3 WHEREAS, the Mayor and Common Council must now 4 approve and authorize the increase of the Note. 5 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF 6 THE CITY OF SAN BERNARDINO DO HEREBY FIND, RESOLVE, DETERMINE 7 AND ORDER AS FOLLOWS: . . 8 Section 1. The recitals set forth hereinabove are 9 true and correct in all respects. 10 Section 2. The City hereby determines that the 11 increase, as proposed by Tri-City Industrial Park, Ltd., a 12 California Limited Partnership, is in compliance with the 13 purposes of the Ordinance and with the criteria established 14 pursuant thereto. 15 Section 3. It is likely that the increase of the 16 Note by the City will be a substantial factor in the accrual 17 of public benefits from the use of the Company's facilities 18 as proposed in the Application. 3 #343.l(et) 11/5/83 San Bernardino 60,009-9A-3 1 Section 4. Resolution No. 81-479 is hereby modified 2 to reflect an increase by the City of San Bernardino, Cali- 3 fornia, of the "City of San Bernardino, Industrial Development 4 Revenue Note, Tri-City Industrial Park, Ltd. Project, 1981 5 Series (Construction Loan)" in an amount of $75,000. The 6 increase shall be evidenced by a City Note (the "Second 7 Note") in substantially the same form and in accordance with 8 the terms of the original Note between the City and Lloyds 9 Bank of California attached hereto as "Exhibit A" and incor- 10 porated herein by reference, with such corrections, changes, 11 modifications, additions or deletions as may be approved and 12 recommended by the City's Bond Counsel, James Warren Beebe, 13 A Law Corporation, to the Mayor, or, in his absence or 14 disability the Mayor Pro Tem, and approved by him, his 15 execution thereof to be conclusive evidence of his approval; 16 and the Mayor, or, in his absence or disability the Mayor 17 Pro Tem, and City Clerk are hereby authorized and directed 18 to execute such Note when the same shall have been prepared 19 for execution, with the seal of the City to be affixed 20 thereto. 21 Section 5. The Mayor, or, in his absence or 22 disability, the Mayor Pro Tem, the City Clerk, the Project 23 Coordinator and such other City officers and employees as 4 #343.l(et) 11/5/83 . . San Bernardino 60.009-9A-3 1 are appropriate are authorized and directed to execute such 2 other documents and take such further action as shall be 3 consistent with the intent and purpose of this Resolution 4 and shall be needed to conclude the increase of the Note. , 5 #343.1(et) 11/5/83 San Bernardino 60,009-9A-3 1 I HEREBY CERTIFY that the foregoing resolution was 2 duly adopted by the Mayor and Common Council of the City of 3 San Bernardino at a regular meeting thereof, held on the 4 21st day of November , 1983, by the following vote, to 5 wit: 6 7 8 9 10 11 12 13 AYES: Council Members Castaneda, Reilly, Hernandez, Quiel, Frazier, Strickler. NAYS: None ABSENT: None ABSTAIN: None ~J?/I/J///a~ /City Clerk The foregoing resolution is hereby approved this 14 af'd day of November , 1983. 15 16 17 Approved as to form: /1~~ ty Attorney . 18 19 20 6 #343.1(et) 11/5/83 c ( ( . . , , ( San Bernardino (Tri-City) 60,009-9-3 ( EXHIBIT A "CITY NOTE" City of San Bernardino Industrial Development Revenue Note, Tri-City Industrial Park, Ltd. Project, 1981 Series (Construction Loan) to L10yds Bank California, a California Corporation, Purchaser , 1981 r The city of San Bernardino (hereinafter sometimes called the "city") a public body, corporate and politic, organized and existing under, and by virtue of, its Charter and the laws of the State of California, for value received, hereby promises to pay, from the sources of funds herein- after described, to Lloyds Bank California, a California Corporation, or order, the principal sum of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00), or such lesser amount as may be advanced hereunder on , 1982, upon the presentation and surrender hereof at the office of Lloyds Bank California, a California Corpora- tion, 1666 North Main Street, Suite 500, Santa Ana, California 92701, or its successors as trustee (herein called the "Trustee") under a Resolution of Issuance entitled: "A Resolution of the Mayor and Common Council of the City of San Bernardino, California, Constituting its Trust Agreement and Indenture; Creating a Trust Estate and Making Certain provisions Therefor; Authorizing the Issuance of its Industrial Development Revenue Note, Tri-city Industrial Park, Ltd. Project, 1981 Series (Construction Loan), for the Purpose of Providing Funds for the Construction of Multi- Tenant Industrial Buildings; and Making Certain Findings and Determinations in Connection Therewith," dated as of October 1, 1981 (herein called the "Resolution"), adopted by the Mayor and Common Council of the City on , 1981, and #201.1(jb) 9/25/81 58 San Bernardino '. , (Tn-C~ty) 60,009-9-4 ( hereby promises to pay on the first day of each calendar month on the amounts outstanding for the preceding months commencing , 1981, interest thereon at the rate ("Basic Rate") per annum calculated as one-half (1/2) of the Prime Interest Rate plus three percent (3%). Said Basic Rate is to be adjusted on the day the Prime Interest Rate changes and is to be computed on the basis of a 360-day year, but accrued on the actual number of days elapsed; and the "Prime Interest Rate" is that rate of interest being charged by Lloyds Bank California on ninety (90) day unsecured loans to said Bank's most substantial and most responsible borrowers as of the date of deli very of the city Note and the Company Note, and, thereafter, as of each day that Lloyds Bank California may adjust such Prime Interest Rate. In the event that Lloyds Bank California shall fail to establish or publish a Prime Interest Rate, then, for purposes hereof, the Prime Interest Rate shall be deemed to be the average prime interest rate for each calendar month of the three (3) largest (total assets) banking institutions in the continental united States then publishing a prime interest rate. ie Notwithstanding the foregoing, if the interest on this Note becomes subject to federal income taxation pursu- ant to an "Official Determination," as that term is defined below, the then Basic Rate shall be immediately increased to three percent (3%) above the Prime Interest Rate,computed as above provided, and the City forthwith shall pay to the Trustee the aggregate difference between (1) the monthly payments actually made on this Note from the "Taxable Date," as that term is defined below, to the effective date of the rate increase, and (2) the monthly payments which would have been made during such period had the interest on this Note been at the rate of three percent (3%) above the Prime Interest Rate as so defined. The Trustee or the holder of this Note may protest or contest any "Official Determination." If an "Offical Determination" is protested or contested, interest and principal shall continue to be payable as if calculated at an interest rate of three percent (3%) above the Prime Interest Rate while such protest or contest is pending. But if such protest or contest is successful the Trustee shall refund all interest collected in excess of the Basic Rate to the Company. Said excess shall be refunded with any interest received from the Internal Revenue Service or at the highest rate available under Trustee's normal banking rules. without in any way limiting the survival of other provisions of this Note, the city hereby expressly agrees that the obligations imposed upon it by this paragraph shall survive payment and discharge of this Note. c :il201.1(ph) 10/27/81 --l , -. / 59 . -, ( ( ( ( c san Bernardino (Tri-City) 60.009-9-3 The term "Official Determination" shall mean (and for all purposes of this Note shall be deemed to have occurred as' of) a change in the Internal Revenue Code of 1954. as amended, the issuance of a statutory notice of deficiency or ruling by the Internal Revenue Service or a ruling by any court of competent jurisdiction or any other occurrence the effect of which is to make the interest payable on this Note includable in the gross income of a holder hereof (except to the extent that such interest is so includable because the holder is a "substantial user" of the Project or a "related person" as such terms are defined in section 103 of the Internal Revenue Code of 1954, as amended). The term "Taxable Date" shall mean the date as of which interest payable on this Note is includable in the gross income of a holder of this Note by reason of Official Determination. r. All principal, interest, and other amounts payable under the terms of this Note are payable in lawful money of the United States of America which at the time of payment is legal tender for the payment of public and private debts. This Note is a special obligation of the city whose issuance is duly authorized by the City in the prin- cipal amount of $1,750,000.00 under and pursuant to the Charter of the City of San Bernardino and the City's Ordinance No. 3815, entitled "Ordinance of the City of San Bernardino Relating to the Financing of projects for the Encouraging of Increased Employment Within the city and certain Amendments Thereto," as now or hereafter amended (herein called the "Ordinance"), and under and pursuant to the Resolution. A copy of the Resolution is on file at the office of the City Clerk of the city and at the aforesaid office of the Trustee, and reference to the Resolution and any and all supplements thereto and modifications and amendments thereof and to the Ordinance is made for a description of the pledges and covenants securing this Note; the nature. extent and manner of enforcement of such pledges; the rights and remedies of the holder of this Note with respect thereto and the terms and conditions upon which the Note is issued and may be issued thereunder. To the extent and in the manner permitted by the terms of the Resolution, the provisions of the Resolution or any document amendatory thereof or supple- mental thereto, may be modified or amended by the City with the written consent of the holder of this Note. 4t201.1(jb) 9/25/81 60 . ' c (' San Bernardino (Tri-City) 60,009-9-3 . ( This Note is issued by the city pursuant to the Resolution to fund a construction loan by the Trustee on behalf of the City to Tri-city Industrial Park, Ltd., a California Limited Partnership (the "Company"), for the purpose of financing the cost of constructing and equipping multi-tenant industrial buildings and improvements thereon (collectively, the "Project"), under the provisions of a certain Project Agreement dated as of October 1, 1981, by and among the City, the Company and the Agent (the "Project Agreement") and for the purpose of paying necessary expenses incidental to the Project and to this Note. By the Resolu- tion, the City has pledged and assigned to the Trustee, as security for this Note, collateral described in the Resolu- tion and the Project Agreement. By the Project Agreement the Company (1) has agreed to construct and equip the Project; (2) has agreed to repay the construction loan for the Project made by the City and evidenced by a Promissory Note secured by Deed of Trust (herein called the "Company Note"); and (3) has executed and delivered to the city a Deed of Trust and Assignment of Rents on the Project securing repayment of the Company Note and this Note. ( Any interest on this Note not paid when due shall thereafter bear interest at a rate equal to five percent (5%) per annum in excess of the Prime Interest Rate, unless interest becomes taxable to payee, in which case it shall be calculated at five percent (5%) per annum in excess of payee's Prime Interest Rate. In addition to such interest, the undersigned promises to pay upon demand all reasonable late or collection charges incurred by the holder hereof in connection with such late payment. If principal of or interest on this Note is not paid when due or if default is made under this Note or under the Company Note secured by the Deeds of Trust, the Resolu- tion or the Project Agreement, the city and Lloyds Bank California, a California Corporation, of even date herewith, then or at any time thereafter the holder of this Note may, without notice, declare immediately due and payable all unpaid principal, interest and charges owing on this Note, and also all unpaid principal, interest and charges owing on the Company Note secured by the Deeds of Trust. . Upon sale, transfer, hypothecation, assignment or encumbrance, whether voluntary, involuntary or by operation of law, of all or any part of the property described in the ( #201.1(jb) 9/25/81 61 . ' .' . ( ( ( ( San Bernardino (Tri-City) 60,009-9-3 ( Deeds of Trust securing the Company Note or any interest in said property, then at its sole option, the holder of this Note may, by written notice to the undersigned, declare all unpaid principal, interest and charges owing on this Note immediately due and payable, except to the extent that such acceleration is prohibited by law. The undersigned shall notify the holder hereof promptly in writing of any trans- action or event which may give rise to such right of accelera- tion. All capitalized terms used herein shall have the meanings attributed to them in the Resolution or the Project Agreement. ," This Note shall not constitute a debt or liability of the City, nor a pledge of the faith and credit of the city, but shall be payable solely from the Revenues and other funds, if any, provided therefor in the proceedings for the issuance of this Note. The issuance of this Note shall not directly or indirectly or contingently obligate the city to levy or to pledge any form of taxation whatsoever therefor or to make any appropriation for its payment. Neither the faith and credit nor the taxing power of the city of San Bernardino is pledged to the payment of the principal of or interest on this Note, nor is the City of San Bernardino in any manner obligated to make any appro- priation for payment. Neither the Mayor and Common Council nor any persons executing this Note shall, in any event, be subject to any personal liability or accountability by reason of the issuance of such Note. This Note shall be a special Obligation of the City, and the city shall, under no circumstances, be "obligated to pay this Note or Project costs (other than Administrative Expenses), except from Revenues and other funds received under the Project Agreement for such purposes, nor to pay Administrative Expenses except from funds received under the Project Agreement for such purposes, or from funds which are made available as otherwise authorized by law. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required by the constitution and statutes of the State of California, the Charter of the city, the Ordinance, and the Resolution to exist, to have happened and to have been performed precedent to and in the issuance of this Note, exist, have happened and have been performed in due time, form and manner as required by law and that the issuance of this Note, together with all other indebtedness of the city, is wi thin every debt and other limit prescribed by law. #201.l(jb) 9/25/81 62 , . .- . ( c ( c (' San hmardino ('.l'ri-City) 60,009-9-3 This Note shall not be entitled to any benefits under the Resolution or become valid or Obligatory for any purpose until it shall have been authenticated by the certi- ficate of the Trustee endorsed hereon. IN WITNESS WHEREOF, the City has caused this Note to be executed in its name- by the manual or facsimile signa- ture of the Mayor and the seal of the city to be affixed ~ereon, and attested by the manual or facsimile signature of its City Clerk all as of the date set forth below. THE CITY OF SAN BERNARDINO SAN BERNARDINO, CALIFORNIA By: (SEAL) Mayor ATTEST: City Clerk (Form of certificate of Authentication) This Note is one of an issue described in the Resolution within mentioned. LLOYDS BANK CALIFORNIA, a California Corporation, as Trustee DATED: By Authorized Officer #201.1 (jb) 9/25/81 63