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HomeMy WebLinkAbout08-459NOVEMBER 25, 2008 08 -459 RESOLUTION (CARRIED 5 -2 LOST LAID OVER WITHDRAWN ) A RESOLUTION AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $2,150,264 TAXABLE TAX INCREMENT REVENUE BOND OF THE CITY OF OSHKOSH, WISCONSIN TO 1900 JACKSON STREET LLC OR ASSIGNS WHEREAS the City of Oshkosh, Wisconsin (the "City ") has created Tax Increment District No. 22 ( "TID No. 22 ") for the purpose of promoting revitalization and mixed -use development in the City; and WHEREAS the commercial and residential development projects in TID No. 22 constitute a revenue - producing enterprise of the City which is operated for a public purpose, and constitute a "public utility" within the meaning of Section 66.0621 of the Wisconsin Statutes; and WHEREAS in order to further its revitalization and mixed -use development efforts in TID No. 22, the City proposes to enter into a Development Agreement with 1900 Jackson Street LLC or its assigns (the "Developer ") in substantial conformity with a Term Sheet dated November 25, 2008 (collectively, the "Development Agreement "); and WHEREAS pursuant to Section 66.0621 of the Wisconsin Statutes and the terms of the Development Agreement, the City is to issue to the Developer a tax increment revenue bond payable solely from certain tax increments generated from the Development Site /Parcel (as defined in the Development Agreement) located within TID No. 22 which are appropriated by the City Council; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Oshkosh, Wisconsin, as follows: Section 1. Authorization of Revenue Bond For the purpose of financing mixed - use development projects in TID No. 22, as provided for under the Development Agreement, the City shall issue its "Taxable Tax Increment Revenue Bond (1900 Jackson Street LLC Project) (the "Bond ") to the Developer in consideration for the obligations undertaken by the Developer under the Development Agreement. The Bond shall be in the principal amount of not to exceed $2,150,264 or such lesser amount as is provided in the Development Agreement. The principal amount evidenced by the Bond may be drawn by the Developer from time to time upon completion of each Phase of the Development Project (as defined in the Development Agreement) and submission by the Developer of documentation sufficient to allow calculation of the Phase NPV (defined below) for the completed Phase. The amount of principal drawn shall equal the Phase NPV for the completed Phase. The Bond shall be dated its date of issuance and shall bear interest at a rate per annum equal to 4.50 %, which interest shall begin to accrue on the date of issuance of the Bond, but only on principal amounts drawn under the Bond. The Bond shall mature and the City's obligation to repay all or any portion of the Bond shall terminate on November 1, 2029. Installments of principal of and interest on the Bond shall be due and payable on November 1 of each year during the term of the Bond, commencing on November 1 of the year interest begins to accrue through and including the maturity date (each, a "Bond Payment Date "). The amount of the annual payment of principal and interest due on each Bond Payment Date shall be equal to the amount set forth on the schedule attached hereto as Attachment I, as adjusted by the City from time to time based on the Phase NPV established for each Phase of the Development Project. Each payment of principal and interest shall be applied first to interest, then to principal. The Bond shall be issued upon final negotiation and execution of the Development Agreement in substantial conformity with the Term Sheet dated November 25, 2008, and shall be held in escrow by the City and delivered to the Developer only upon (i) completion of the Phase I Development Project (as defined in the Development Agreement) by no later than December 31, 2009 and (ii) submission of documentation satisfactory to the City evidencing actual costs expended by the Developer on those TO No. 22 project costs for which reimbursement is being provided and documentation satisfactory to the City sufficient to allow calculation of the Phase NPV for the Phase I Development Project. "Available Tax Increment" means an amount equal to the annual gross tax increment revenues actually received and retained by the City which is generated in the immediately preceding calendar year by improvements made after January 1, 2009 to the Development Site /Parcel, less up to $5,000 for the City's administrative expenses in connection with the Development Agreement and the Bond. "Phase NPV" means the net present value, as calculated by the City's financial advisor, of the tax increment revenues projected to be generated during the remaining term of the Bond by the Phase I Site, Phase II Site or Phase III Site, as applicable, based on property values determined by the City's assessor. The Phase NPV calculated for each Phase shall be the principal amount the Developer is entitled to draw on the Bond upon completion of each Phase, and the aggregate of the Phase NPV amounts shall establish the maximum amount of principal that the Developer is entitled to draw on the Bond. The Bond shall be subject to prepayment in whole or from time to time in part at any time, at the option of the City. The schedule of payments on the Bond is found to be such that the amount of annual debt service payments is reasonable in accordance with prudent municipal utility practices. The Bond shall be signed by the manual or facsimile signatures of the City Manager and City Clerk of the City (provided that, unless the City has contracted with a fiscal agent to authenticate the Bond, at least one of such signatures shall be manual), and sealed with the corporate seal of the City, or a facsimile thereof. The Bond, together with interest thereon, shall be payable only out of the Special Redemption Fund hereinafter provided, and shall be a valid claim of the owner thereof 2 only against the Special Redemption Fund and the revenues pledged to such Fund pursuant to this Resolution. Section 2. Form of Bond The Bond shall be in substantially the form set forth on Attachment II hereto. Section 3. Payable Solely From Revenues The Bond, together with interest thereon, shall be payable only out of the Special Redemption Fund as hereinafter provided, and shall be a valid claim of the owner thereof only against the Special Redemption Fund and from the revenues pledged to such fund, and shall be payable solely from Available Tax Increment which has been received and retained by the City in accordance with the provisions of Section 66.1105 of the Wisconsin Statutes, and appropriated by the City Council to the payment of the Bond (hereinafter referred to as "Revenues "). As stated above, the application of Available Tax Increment to payment of the Bond is subject to future annual appropriation by the City Council. However, the City fully expects and anticipates that to the extent Available Tax Increment is generated and received by the City, it will appropriate such Available Tax Increment to the payment of the principal of and interest on the Bond. The City shall have no obligation to make any payments on the Bond while the Developer is in default under the Development Agreement. Section 4. Special Redemption Fund For the purpose of the application and proper allocation of the Revenues, and to secure the payment of the principal of and interest on the Bond, the Special Redemption Fund is hereby created and shall be used solely for the purpose of paying principal of and interest on the Bond in accordance with the provisions of the Bond and this Resolution. Uninvested money in the Special Redemption Fund shall be kept on demand deposit with such bank or banks as may be designated from time to time by the City as public depositories under the laws of Wisconsin. Such deposits of Special Redemption Fund money shall be secured to the fullest extent required by the laws of Wisconsin and the general investment policy of the City. Money in the Special Redemption Fund, if invested, shall be invested in direct obligations of, or obligations guaranteed as to principal and interest by, the United States of America, or in certificates of deposit secured by such obligations and issued by a state or national bank which is a member of the Federal Deposit Insurance Corporation and is authorized to transact business in the State of Wisconsin, maturing not later than the date such money must be transferred to make payments on the Bond, or in the local government pooled- investment fund. All income from such investments shall be deposited in the Special Redemption Fund. Such investments shall be liquidated at any time when it shall be necessary to do so to provide money for any of the purposes for the Special Redemption Fund. All Revenues shall be deposited in the Special Redemption Fund, and no other fund is created by this Resolution. 3 Section 5. Application of Revenues to Payment of the Bond On each Bond Payment Date, the City shall apply to the payment of the principal and interest due on the Bond the Available Tax Increment which has been appropriated by the City Council to the payment of the Bond. Revenues shall be applied first to the payment of any interest due on the Bond Payment Date and then to the payment of principal due on that Bond Payment Date. If on any Bond Payment Date there shall be insufficient Revenues to pay the principal or interest due on the Bond, the amount due but not paid shall accumulate and be payable on the next Bond Payment Date until the final Bond Payment Date. If on the final Bond Payment Date, there remain amounts outstanding and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance of principal of the Bond shall be deemed paid in full, it being understood that upon the final Bond Payment Date, the obligation of the City to make any further payments on the Bonds shall terminate. The City shall have no obligation to pay any amount of principal or interest on the Bond which remains unpaid after the final Bond Payment Date and the owner of the Bond shall have no right to receive payment of such amounts. If for any reason (other then voluntary resolution of the City Council) TID No. 22 terminates prior to the final Bond Payment Date, and there remain amounts outstanding and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance of principal of the Bond shall be deemed paid in full, it being understood that upon such termination of TID No. 22, the obligation of the City to make any further payments on the Bond shall also terminate. The City shall have no obligation to pay any amount of principal or interest on the Bond which remains unpaid upon termination of TID No. 22 and the owner of the Bond shall have no right to receive payment of such amounts. Section 6. Persons Treated as Owners; Transfer of Bond The City Finance Director shall keep books for the registration and for the transfer of the Bond. The person in whose name the Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes and payment of either principal or interest on the Bond shall be made only to the registered owner thereof. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. The Bond may be transferred or assigned by the registered owner thereof only with the consent of the City, by surrender of the Bond at the office of the City Finance Director accompanied by an assignment duly executed by the registered owner or his attorney duly authorized in writing. Upon such transfer or assignment, the City Finance Director shall record the name of the transferee or assignee in the registration book and note such transfer or assignment on the Bond and re -issue the Bond (or a new Bond or Bonds of like aggregate principal amount and maturity). The Bond may be exchanged for a new Bond or Bonds of like aggregate principal amount and maturity. Section 7. General Authorizations The City Manager and City Clerk and the appropriate deputies and officials of the City in accordance with their assigned responsibilities are hereby each authorized to execute, deliver, publish, file and record such other documents, instruments, notices and records and to take such other actions as shall be necessary or desirable to accomplish the purposes of this Resolution and to comply with and perform the obligations of the City under the Development Agreement and the Bond. In the event that said officers shall be unable by reason of death, disability, absence or vacancy of office to perform in timely fashion any of the duties specified herein (such as the execution of the Development Agreement or the Bond), such duties shall be performed by the officer or official succeeding to such duties in accordance with law and the rules of the City. Section 8. Severability of Invalid Provisions If any section, paragraph or provision of this Resolution shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining sections, paragraphs and provisions of this Resolution. Section 9. Effective Date This Resolution shall be effective immediately upon its passage and approval. Adopted this 25th day of November, 2008. Mayor Attest: City Clerk Wi ATTACHMENT I (Schedule of Payments on Bond) ATTACHMENT II (Form of Tax Increment Revenue Bond) UNITED STATES OF AMERICA STATE OF WISCONSIN COUNTY OF WINNEBAGO CITY OF OSHKOSH TAXABLE TAX INCREMENT REVENUE BOND (1900 JACKSON STREET LLC PROJECT) Interest Date of Principal Number Rate Original Issue Amount R -1 4.50% 1 20_ $2,150,264 FOR VALUE RECEIVED, the City of Oshkosh, County, Wisconsin (the "City "), promises to pay to , or registered assigns, but only in the manner, at the times, from the source of revenue and to the extent hereinafter provided, an amount not to exceed the Principal Amount stated above together with interest thereon, but only on principal amounts which have been drawn hereunder, from , 20_, or the most recent payment date to which interest has been paid, to the stated due dates of the principal installments of this Bond, at a rate per annum equal to the Interest Rate stated above. This Bond is issued to finance projects which are a part of the City's mixed -use development utility, pursuant to Article XI, Section 3 of the Wisconsin Constitution and Section 66.0621, Wisconsin Statutes and acts supplementary thereto, and is payable only from the income and revenues herein described, which income and revenues have been set aside as a special fund for that purpose and identified as the "Special Redemption Fund." This Bond is issued pursuant to a resolution adopted on , 2008 by the City Council of the City (the "Bond Resolution ") and the Development Agreement dated , 2008 between the City and (the "Development Agreement "). This Bond does not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation or provision. The principal of and interest on this Bond shall be payable solely from Available Tax Increment (as defined below) received by the City with respect to its Tax Increment District No. 22 (the "TID ") which is appropriated by the City Council to the payment of this Bond (the "Revenues "). Reference is hereby made to said Development Agreement and resolution for a more complete statement of the revenues from which and conditions under which this Bond is payable, and the general covenants and provisions pursuant to which this Bond has been issued. The principal amount evidenced by this Bond may be drawn by the registered owner hereof from time to time in accordance with the Bond Resolution and the Development Agreement. This Bond shall mature and the City's obligation to repay all or any portion of this Bond shall terminate on November 1, 2029. Installments of principal and interest on this Bond shall be due and payable on November 1 of each year, commencing November 1, 20_ through and including the maturity date (each, a "Bond Payment Date "). The amount of the annual payment of principal and interest due on each Bond Payment Date shall equal the amount set forth on the schedule attached hereto, as adjusted by the City from time to time in accordance with the Bond Resolution and the Development Agreement to reflect actual draws made under this Bond. "Available Tax Increment" means an amount equal to the annual gross tax increment revenues actually received and retained by the City which is generated in the immediately preceding calendar year by improvements made after January 1, 2009 to the Development Site /Parcel (as defined in the Development Agreement), less up to $5,000 for the City's administrative expenses in connection with the Development Agreement and this Bond. Revenues shall be applied first to the payment of any interest due on the Bond Payment Date and then to the payment of any principal due on that Bond Payment Date. If on any Bond Payment Date there shall be insufficient Revenues to pay the principal or interest due on this Bond, the amount due but not paid shall accumulate and be payable on the next Bond Payment Date until the final Bond Payment Date. If on the final Bond Payment Date, there remain amounts outstanding and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance of principal of the Bond shall be deemed paid in full, it being understood that upon the final Bond Payment Date, the obligation of the City to make any further payments on the Bond shall terminate. The City shall have no obligation to pay any amount of principal or interest on this Bond which remains unpaid after the final Bond Payment Date and the owner of this Bond shall have no right to receive payment of such amounts. If for any reason (other than voluntary resolution of the City Council) the TID terminates prior to the final Bond Payment Date, and there remain amounts outstanding and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance of principal of the Bond shall be deemed paid in full, it being understood that upon such termination of the TID, the obligation of the City to make any further payments on the Bond shall also terminate. The City shall have no obligation to pay any amount of principal or interest on the Bond which remains unpaid upon termination of the TID and the owner of the Bond shall have no right to receive payment of such amounts. This Bond is subject to prepayment in whole or from time to time in part at any time, at the option of the City. THE CITY MAKES NO REPRESENTATION OR COVENANT, EXPRESS OR IMPLIED, THAT THE AVAILABLE TAX INCREMENT OR REVENUES WILL BE SUFFICIENT TO PAY, IN WHOLE OR IN PART, THE AMOUNTS WHICH ARE OR MAY BECOME DUE AND PAYABLE HEREUNDER. 2 THE CITY'S PAYMENT OBLIGATIONS HEREUNDER ARE SUBJECT TO FUTURE ANNUAL APPROPRIATION BY THE CITY COUNCIL OF AVAILABLE TAX INCREMENT OR OTHER AMOUNTS TO MAKE PAYMENTS DUE ON THIS BOND. THIS BOND IS A SPECIAL, LIMITED REVENUE OBLIGATION AND NOT A GENERAL OBLIGATION OF THE CITY, AND IS PAYABLE BY THE CITY ONLY FROM THE SOURCES, TO THE EXTENT, AND SUBJECT TO THE QUALIFICATIONS STATED OR REFERENCED HEREIN. THIS BOND IS NOT A GENERAL OBLIGATION OF THE CITY, AND NEITHER THE FULL FAITH AND CREDIT NOR THE TAXING POWERS OF THE CITY ARE PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF THIS BOND, AND NO PROPERTY OR OTHER ASSET OF THE CITY, EXCEPT THE ABOVE - REFERENCED REVENUES, IS OR SHALL BE A SOURCE OF PAYMENT OF THE CITY'S OBLIGATIONS HEREUNDER. This Bond is issued by the City pursuant to and in full conformity with the Constitution and laws of the State of Wisconsin. This Bond may be transferred or assigned only as provided in the Development Agreement. In order to transfer or assign the Bond, the transferee or assignee shall surrender the same to the City either in exchange for a new fully registered bond or for transfer of this Bond on the registration records for the Bond maintained by the City. Each permitted transferee or assignee shall take this Bond subject to the foregoing conditions and subject to all provisions stated or referenced herein. It is hereby certified and recited that all conditions, things and acts required by law to exist or to be done prior to and in connection with the issuance of this Bond have been done, have existed and have been performed in due form and time. IN WITNESS WHEREOF, the City Council of the City of Oshkosh, Winnebago County, Wisconsin, has caused this Bond to be signed on behalf of said City by its duly qualified and acting City Manager and City Clerk, and its corporate seal to be impressed hereon, all as of the date of original issue specified above. CITY OF OSHKOSH WINNEBAGO COUNTY, WISCONSIN (SEAL) By City Manager By City Clerk REGISTRATION PROVISIONS This Bond shall be registered in registration records kept by the City Clerk of the City of Oshkosh, Winnebago County, Wisconsin, such registration to be noted in the registration blank below and upon said registration records, and this Bond may thereafter be transferred only upon presentation of this Bond together with a written instrument of transfer approved by the City and duly executed by the Registered Owner or his attorney, such transfer to be made on such records and endorsed hereon. Date of Name of Signature of Registration Registered Owner City Clerk NOVEMBER 25, 2008 08 -459 RESOLUTION (CARRIED LOST LAID OVER WITHDRAWN ) A RESOLUTION AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $2,150,264 TAXABLE TAX INCREMENT REVENUE BOND OF THE CITY OF OSHKOSH, WISCONSIN TO 1900 JACKSON STREET LLC OR ASSIGNS WHEREAS the City of Oshkosh, Wisconsin (the "City ") has created Tax Increment District No. 22 ( "TID No. 22 ") for the purpose of promoting revitalization and mixed -use development in the City; and WHEREAS the commercial and residential development projects in TID No. 22 constitute a revenue - producing enterprise of the City which is operated for a public purpose, and constitute a "public utility" within the meaning of Section 66.0621 of the Wisconsin Statutes; and WHEREAS in order to further its revitalization and mixed -use development efforts in TID No. 22, the City proposes to enter into a Development Agreement with 1900 Jackson Street LLC or its assigns (the "Developer ") in substantial conformity with a Term Sheet dated November 25, 2008 (collectively, the "Development Agreement "); and WHEREAS pursuant to Section 66.0621 of the Wisconsin Statutes and the terms of the Development Agreement, the City is to issue to the Developer a tax increment revenue bond payable solely from certain tax increments generated from the Development Site /Parcel (as defined in the Development Agreement) located within TID No. 22 which are appropriated by the City Council; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Oshkosh, Wisconsin, as follows: Section 1. Authorization of Revenue Bond For the purpose of financing mixed - use development projects in TID No. 22, as provided for under the Development Agreement, the City shall issue its "Taxable Tax Increment Revenue Bond (1900 Jackson Street LLC Project) (the "Bond ") to the Developer in consideration for the obligations undertaken by the Developer under the Development Agreement. The Bond shall be in the principal amount of not to exceed $2,150,264 or such lesser amount as is provided in the Development Agreement. The principal amount evidenced by the Bond may be drawn by the Developer from time to time upon completion of each Phase of the Development Project (as defined in the Development Agreement) and submission by the Developer of documentation sufficient to allow calculation of the Phase NPV (defined below) for the completed Phase. The amount of principal drawn shall equal the Phase NPV for the completed Phase. The Bond shall be dated its date of issuance and shall bear interest at a rate per annum equal to 4.50 %, which interest shall begin to accrue on the date of issuance of the Bond, but only on principal amounts drawn under the Bond. The Bond shall mature and the City's obligation to repay all or any portion of the Bond shall terminate on November 1, 2029. Installments of principal of and interest on the Bond shall be due and payable on November 1 of each year during the term of the Bond, commencing on November 1 of the year interest begins to accrue through and including the maturity date (each, a "Bond Payment Date "). The amount of the annual payment of principal and interest due on each Bond Payment Date shall be equal to the amount set forth on the schedule attached hereto as Attachment I, as adjusted by the City from time to time based on the Phase NPV established for each Phase of the Development Project. Each payment of principal and interest shall be applied first to interest, then to principal. The Bond shall be issued upon final negotiation and execution of the Development Agreement in substantial conformity with the Term Sheet dated November 25, 2008, and shall be held in escrow by the City and delivered to the Developer only upon (i) completion of the Phase I Development Project (as defined in the Development Agreement) by no later than December 31, 2009 and (ii) submission of documentation satisfactory to the City evidencing actual costs expended by the Developer on those TO No. 22 project costs for which reimbursement is being provided and documentation satisfactory to the City sufficient to allow calculation of the Phase NPV for the Phase I Development Project. "Available Tax Increment" means an amount equal to the annual gross tax increment revenues actually received and retained by the City which is generated in the immediately preceding calendar year by improvements made after January 1, 2009 to the Development Site /Parcel, less up to $5,000 for the City's administrative expenses in connection with the Development Agreement and the Bond. "Phase NPV" means the net present value, as calculated by the City's financial advisor, of the tax increment revenues projected to be generated during the remaining term of the Bond by the Phase I Site, Phase II Site or Phase III Site, as applicable, based on property values determined by the City's assessor. The Phase NPV calculated for each Phase shall be the principal amount the Developer is entitled to draw on the Bond upon completion of each Phase, and the aggregate of the Phase NPV amounts shall establish the maximum amount of principal that the Developer is entitled to draw on the Bond. The Bond shall be subject to prepayment in whole or from time to time in part at any time, at the option of the City. The schedule of payments on the Bond is found to be such that the amount of annual debt service payments is reasonable in accordance with prudent municipal utility practices. The Bond shall be signed by the manual or facsimile signatures of the City Manager and City Clerk of the City (provided that, unless the City has contracted with a fiscal agent to authenticate the Bond, at least one of such signatures shall be manual), and sealed with the corporate seal of the City, or a facsimile thereof. The Bond, together with interest thereon, shall be payable only out of the Special Redemption Fund hereinafter provided, and shall be a valid claim of the owner thereof 2 only against the Special Redemption Fund and the revenues pledged to such Fund pursuant to this Resolution. Section 2. Form of Bond The Bond shall be in substantially the form set forth on Attachment II hereto. Section 3. Payable Solely From Revenues The Bond, together with interest thereon, shall be payable only out of the Special Redemption Fund as hereinafter provided, and shall be a valid claim of the owner thereof only against the Special Redemption Fund and from the revenues pledged to such fund, and shall be payable solely from Available Tax Increment which has been received and retained by the City in accordance with the provisions of Section 66.1105 of the Wisconsin Statutes, and appropriated by the City Council to the payment of the Bond (hereinafter referred to as "Revenues "). As stated above, the application of Available Tax Increment to payment of the Bond is subject to future annual appropriation by the City Council. However, the City fully expects and anticipates that to the extent Available Tax Increment is generated and received by the City, it will appropriate such Available Tax Increment to the payment of the principal of and interest on the Bond. The City shall have no obligation to make any payments on the Bond while the Developer is in default under the Development Agreement. Section 4. Special Redemption Fund For the purpose of the application and proper allocation of the Revenues, and to secure the payment of the principal of and interest on the Bond, the Special Redemption Fund is hereby created and shall be used solely for the purpose of paying principal of and interest on the Bond in accordance with the provisions of the Bond and this Resolution. Uninvested money in the Special Redemption Fund shall be kept on demand deposit with such bank or banks as may be designated from time to time by the City as public depositories under the laws of Wisconsin. Such deposits of Special Redemption Fund money shall be secured to the fullest extent required by the laws of Wisconsin and the general investment policy of the City. Money in the Special Redemption Fund, if invested, shall be invested in direct obligations of, or obligations guaranteed as to principal and interest by, the United States of America, or in certificates of deposit secured by such obligations and issued by a state or national bank which is a member of the Federal Deposit Insurance Corporation and is authorized to transact business in the State of Wisconsin, maturing not later than the date such money must be transferred to make payments on the Bond, or in the local government pooled- investment fund. All income from such investments shall be deposited in the Special Redemption Fund. Such investments shall be liquidated at any time when it shall be necessary to do so to provide money for any of the purposes for the Special Redemption Fund. All Revenues shall be deposited in the Special Redemption Fund, and no other fund is created by this Resolution. 3 Section 5. Application of Revenues to Payment of the Bond On each Bond Payment Date, the City shall apply to the payment of the principal and interest due on the Bond the Available Tax Increment which has been appropriated by the City Council to the payment of the Bond. Revenues shall be applied first to the payment of any interest due on the Bond Payment Date and then to the payment of principal due on that Bond Payment Date. If on any Bond Payment Date there shall be insufficient Revenues to pay the principal or interest due on the Bond, the amount due but not paid shall accumulate and be payable on the next Bond Payment Date until the final Bond Payment Date. If on the final Bond Payment Date, there remain amounts outstanding and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance of principal of the Bond shall be deemed paid in full, it being understood that upon the final Bond Payment Date, the obligation of the City to make any further payments on the Bonds shall terminate. The City shall have no obligation to pay any amount of principal or interest on the Bond which remains unpaid after the final Bond Payment Date and the owner of the Bond shall have no right to receive payment of such amounts. If for any reason (other then voluntary resolution of the City Council) TID No. 22 terminates prior to the final Bond Payment Date, and there remain amounts outstanding and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance of principal of the Bond shall be deemed paid in full, it being understood that upon such termination of TID No. 22, the obligation of the City to make any further payments on the Bond shall also terminate. The City shall have no obligation to pay any amount of principal or interest on the Bond which remains unpaid upon termination of TID No. 22 and the owner of the Bond shall have no right to receive payment of such amounts. Section 6. Persons Treated as Owners; Transfer of Bond The City Finance Director shall keep books for the registration and for the transfer of the Bond. The person in whose name the Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes and payment of either principal or interest on the Bond shall be made only to the registered owner thereof. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. The Bond may be transferred or assigned by the registered owner thereof only with the consent of the City, by surrender of the Bond at the office of the City Finance Director accompanied by an assignment duly executed by the registered owner or his attorney duly authorized in writing. Upon such transfer or assignment, the City Finance Director shall record the name of the transferee or assignee in the registration book and note such transfer or assignment on the Bond and re -issue the Bond (or a new Bond or Bonds of like aggregate principal amount and maturity). The Bond may be exchanged for a new Bond or Bonds of like aggregate principal amount and maturity. Section 7. General Authorizations The City Manager and City Clerk and the appropriate deputies and officials of the City in accordance with their assigned responsibilities are hereby each authorized to execute, deliver, publish, file and record such other documents, instruments, notices and records and to take such other actions as shall be necessary or desirable to accomplish the purposes of this Resolution and to comply with and perform the obligations of the City under the Development Agreement and the Bond. In the event that said officers shall be unable by reason of death, disability, absence or vacancy of office to perform in timely fashion any of the duties specified herein (such as the execution of the Development Agreement or the Bond), such duties shall be performed by the officer or official succeeding to such duties in accordance with law and the rules of the City. Section 8. Severability of Invalid Provisions If any section, paragraph or provision of this Resolution shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining sections, paragraphs and provisions of this Resolution. Section 9. Effective Date This Resolution shall be effective immediately upon its passage and approval. Adopted this 25th day of November, 2008. Mayor Attest: City Clerk Wi ATTACHMENT I (Schedule of Payments on Bond) ATTACHMENT II (Form of Tax Increment Revenue Bond) UNITED STATES OF AMERICA STATE OF WISCONSIN COUNTY OF WINNEBAGO CITY OF OSHKOSH TAXABLE TAX INCREMENT REVENUE BOND (1900 JACKSON STREET LLC PROJECT) Interest Date of Principal Number Rate Original Issue Amount R -1 4.50% 1 20_ $2,150,264 FOR VALUE RECEIVED, the City of Oshkosh, County, Wisconsin (the "City "), promises to pay to , or registered assigns, but only in the manner, at the times, from the source of revenue and to the extent hereinafter provided, an amount not to exceed the Principal Amount stated above together with interest thereon, but only on principal amounts which have been drawn hereunder, from , 20_, or the most recent payment date to which interest has been paid, to the stated due dates of the principal installments of this Bond, at a rate per annum equal to the Interest Rate stated above. This Bond is issued to finance projects which are a part of the City's mixed -use development utility, pursuant to Article XI, Section 3 of the Wisconsin Constitution and Section 66.0621, Wisconsin Statutes and acts supplementary thereto, and is payable only from the income and revenues herein described, which income and revenues have been set aside as a special fund for that purpose and identified as the "Special Redemption Fund." This Bond is issued pursuant to a resolution adopted on , 2008 by the City Council of the City (the "Bond Resolution ") and the Development Agreement dated , 2008 between the City and (the "Development Agreement "). This Bond does not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation or provision. The principal of and interest on this Bond shall be payable solely from Available Tax Increment (as defined below) received by the City with respect to its Tax Increment District No. 22 (the "TID ") which is appropriated by the City Council to the payment of this Bond (the "Revenues "). Reference is hereby made to said Development Agreement and resolution for a more complete statement of the revenues from which and conditions under which this Bond is payable, and the general covenants and provisions pursuant to which this Bond has been issued. The principal amount evidenced by this Bond may be drawn by the registered owner hereof from time to time in accordance with the Bond Resolution and the Development Agreement. This Bond shall mature and the City's obligation to repay all or any portion of this Bond shall terminate on November 1, 2029. Installments of principal and interest on this Bond shall be due and payable on November 1 of each year, commencing November 1, 20_ through and including the maturity date (each, a "Bond Payment Date "). The amount of the annual payment of principal and interest due on each Bond Payment Date shall equal the amount set forth on the schedule attached hereto, as adjusted by the City from time to time in accordance with the Bond Resolution and the Development Agreement to reflect actual draws made under this Bond. "Available Tax Increment" means an amount equal to the annual gross tax increment revenues actually received and retained by the City which is generated in the immediately preceding calendar year by improvements made after January 1, 2009 to the Development Site /Parcel (as defined in the Development Agreement), less up to $5,000 for the City's administrative expenses in connection with the Development Agreement and this Bond. Revenues shall be applied first to the payment of any interest due on the Bond Payment Date and then to the payment of any principal due on that Bond Payment Date. If on any Bond Payment Date there shall be insufficient Revenues to pay the principal or interest due on this Bond, the amount due but not paid shall accumulate and be payable on the next Bond Payment Date until the final Bond Payment Date. If on the final Bond Payment Date, there remain amounts outstanding and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance of principal of the Bond shall be deemed paid in full, it being understood that upon the final Bond Payment Date, the obligation of the City to make any further payments on the Bond shall terminate. The City shall have no obligation to pay any amount of principal or interest on this Bond which remains unpaid after the final Bond Payment Date and the owner of this Bond shall have no right to receive payment of such amounts. If for any reason (other than voluntary resolution of the City Council) the TID terminates prior to the final Bond Payment Date, and there remain amounts outstanding and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance of principal of the Bond shall be deemed paid in full, it being understood that upon such termination of the TID, the obligation of the City to make any further payments on the Bond shall also terminate. The City shall have no obligation to pay any amount of principal or interest on the Bond which remains unpaid upon termination of the TID and the owner of the Bond shall have no right to receive payment of such amounts. This Bond is subject to prepayment in whole or from time to time in part at any time, at the option of the City. THE CITY MAKES NO REPRESENTATION OR COVENANT, EXPRESS OR IMPLIED, THAT THE AVAILABLE TAX INCREMENT OR REVENUES WILL BE SUFFICIENT TO PAY, IN WHOLE OR IN PART, THE AMOUNTS WHICH ARE OR MAY BECOME DUE AND PAYABLE HEREUNDER. 2 THE CITY'S PAYMENT OBLIGATIONS HEREUNDER ARE SUBJECT TO FUTURE ANNUAL APPROPRIATION BY THE CITY COUNCIL OF AVAILABLE TAX INCREMENT OR OTHER AMOUNTS TO MAKE PAYMENTS DUE ON THIS BOND. THIS BOND IS A SPECIAL, LIMITED REVENUE OBLIGATION AND NOT A GENERAL OBLIGATION OF THE CITY, AND IS PAYABLE BY THE CITY ONLY FROM THE SOURCES, TO THE EXTENT, AND SUBJECT TO THE QUALIFICATIONS STATED OR REFERENCED HEREIN. THIS BOND IS NOT A GENERAL OBLIGATION OF THE CITY, AND NEITHER THE FULL FAITH AND CREDIT NOR THE TAXING POWERS OF THE CITY ARE PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF THIS BOND, AND NO PROPERTY OR OTHER ASSET OF THE CITY, EXCEPT THE ABOVE - REFERENCED REVENUES, IS OR SHALL BE A SOURCE OF PAYMENT OF THE CITY'S OBLIGATIONS HEREUNDER. This Bond is issued by the City pursuant to and in full conformity with the Constitution and laws of the State of Wisconsin. This Bond may be transferred or assigned only as provided in the Development Agreement. In order to transfer or assign the Bond, the transferee or assignee shall surrender the same to the City either in exchange for a new fully registered bond or for transfer of this Bond on the registration records for the Bond maintained by the City. Each permitted transferee or assignee shall take this Bond subject to the foregoing conditions and subject to all provisions stated or referenced herein. It is hereby certified and recited that all conditions, things and acts required by law to exist or to be done prior to and in connection with the issuance of this Bond have been done, have existed and have been performed in due form and time. IN WITNESS WHEREOF, the City Council of the City of Oshkosh, Winnebago County, Wisconsin, has caused this Bond to be signed on behalf of said City by its duly qualified and acting City Manager and City Clerk, and its corporate seal to be impressed hereon, all as of the date of original issue specified above. CITY OF OSHKOSH WINNEBAGO COUNTY, WISCONSIN (SEAL) By City Manager By City Clerk REGISTRATION PROVISIONS This Bond shall be registered in registration records kept by the City Clerk of the City of Oshkosh, Winnebago County, Wisconsin, such registration to be noted in the registration blank below and upon said registration records, and this Bond may thereafter be transferred only upon presentation of this Bond together with a written instrument of transfer approved by the City and duly executed by the Registered Owner or his attorney, such transfer to be made on such records and endorsed hereon. Date of Name of Signature of Registration Registered Owner City Clerk N- J . 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BACKGROUND On October 28 Council approved creation of TID # 22 Fair Acres Development Project Plan and boundaries to facilitate development of the remainder of the Fair Acres shopping center that will include construction of a 54,000 square foot Shopko department store. The Joint Review Board approved the TID on November 3rd. On Tuesday evening Council will have before it a Resolution to provide for the issuance of a $2.15 million Taxable Tax Increment Revenue "Pay Go" Bond that was proposed in the TID #22 Project Plan. _ ANALYSIS The Pay Go Bond; which is essentially a type of promissory note, sets forth a schedule of reimbursement payments that will be paid to the developer from tax increment generated from development occurring on the east side of the Fair Acres site. The bond will be issued in the amount of $2,150,264 (net present value) which accounts for the cash flows generated from the three phases of development that will occur on the parcel where the Shopko store and other retail stores will be constructed. Payments will only be made on development that has occurred, and as subsequent phases of development come online the bond will be reset and a new financial schedule developed to reflect the actual development that has taken place, which will not exceed the amounts in the bond before Council on Tuesday evening. FISCAL IMPACT The Pay Go bond does not obligate the City to reimburse the developer for anything other than positive tax increment generated from development from Phases I, II, and III. If no positive tax increment is generated, the City is not obligated in any way to pay the developer from any funds in the TID. RECOMMENDATION Staff recommends approval of the bond resolution as presented, Approved, City Manager