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HomeMy WebLinkAbout10-273AUGUST 24, 2010 10 -273 RESOLUTION (CARRIED 7 -0 LOST LAID OVER WITHDRAWN ) PURPOSE: INITIAL RESOLUTION REGARDING INDUSTRIAL DEVELOPMENT REVENUE BOND FINANCING TO BENEFIT UW- OSHKOSH FOUNDATION- WITZEL, LLC INITIATED BY: DEPARTMENT OF ADMINISTRATION WHEREAS, Section 66.1103 of the Wisconsin Statutes (the "Act ") authorizes the City of Oshkosh, Wisconsin (the "Issuer "), to authorize the issuance and sale of bonds by the Issuer to construct, equip, re- equip, acquire by gift, lease or purchase, install, reconstruct, rebuild, rehabilitate, improve, supplement, replace, maintain, repair, enlarge, extend or remodel industrial projects; and WHEREAS, UW- Oshkosh Foundation - Witzel, LLC, a Wisconsin limited liability company (the "Borrower ") desires to complete a project consisting of the (i) construction of an approximately 22,000 square foot dry fermentation anaerobic biodigester plant to be located at 755 Dempsey Trail in the City of Oshkosh, Wisconsin which will provide a turnkey energy solution using biomass and organic waste to produce electricity for sale into the grid (the "Facility "), (ii) acquisition and installation of equipment at the Facility and (iii) payment of professional fees and costs, all of which would contribute to the well -being of the City of Oshkosh, Wisconsin; and WHEREAS, the cost of the Project is presently estimated to be greater than $5,000,000, and the amount proposed to be financed with one or more series of tax - exempt and /or taxable industrial development revenue bonds does not exceed $5,000,000; and WHEREAS, the Borrower has requested that the Issuer now approve an initial resolution (the "Initial Resolution ") providing for the financing of the Project in an amount not to exceed $5,000,000; and WHEREAS, completion of the Project will increase the number of people coming to the City for business and recreation; and WHEREAS, the Issuer is a municipality organized and existing under and pursuant to the laws of the State of Wisconsin, and is authorized to enter into revenue agreements with eligible participants with respect to the Project whereby eligible participants agree to cause said Project to be acquired, constructed and renovated and to pay the Issuer an amount of funds sufficient to provide for the prompt payment when due of the principal and interest on said industrial development revenue bonds. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Oshkosh, Wisconsin, as follows: 1. Based upon representations of the Borrower, it is the finding and determination of the City Council that the Project is a qualified "project" within the meaning of the Act and that the Borrower is an "eligible participant" within the meaning of the Act. The Issuer shall: (a) Finance the Project in an amount not to exceed $5,000,000; (b) Issue industrial development revenue bonds in one or more series of tax - exempt and /or taxable bonds (the "Bond(s) "), in an amount not to exceed $5,000,000 in order to finance costs of the Project; and (c) Completion of the Project will increase the number of people coming to the City for business and recreation. 2. The aforesaid plan of financing contemplates, and is conditioned upon, the following: (a) The Bonds shall never constitute an indebtedness of the Issuer within the meaning of any state constitutional provision or statutory limitation; (b) The Bonds shall not constitute or give rise to a pecuniary liability of the Issuer or a charge against its general credit or taxing powers, including but not limited to: 1. Liability for failure to investigate or negligence in the investigation of the financial position or prospects of an eligible participant, a user of the Project or any other person or for failure to consider, or negligence concerning, the adequacy of terms of, or collateral security for, the Bonds or any related agreement to protect interests of holders of the Bonds; and 2. Any liability in connection with the issuance or sale of the Bonds, for representations made, or for the performance of the obligation of any person who is a party to a related transaction or agreement except as specifically provided in the Act or by an express provision of the Bond or a related written agreement to which the Issuer is a party. (c) The Project shall be subject to property taxation in the same amount and to the same extent as though the Project were not financed with industrial development revenue bonds; (d) The Borrower shall find a purchaser for all of the Bonds; (e) The Issuer's out -of- pocket costs, including but not limited to legal fees and Trustee's fees, in connection with the issuance and sale of the Bonds shall be paid by the Borrower; and (f) A notice of public hearing required by federal law for purposes of Section 147(f) of the Internal Revenue Code, as amended, shall be published in a newspaper of general circulation in the City of Oshkosh and a public hearing shall be held to provide interested individuals or parties the opportunity to testify as to the Project and the issuance of the Bonds. 3. The aforesaid plan of financing shall not be legally binding upon the Issuer nor be finally implemented unless and until: (a) The details and mechanics of the same are authorized and approved by a further resolution of the City Council which shall be solely within the discretion of the City Council; (b) The City Clerk shall cause notice of adoption of this Initial Resolution, in the form attached hereto as Exhibit A , to be published once in a newspaper of general circulation in the City of Oshkosh, and the electors of the City of Oshkosh shall have been given the opportunity to petition for a referendum on the matter of the aforesaid Bond issue, all as required by law; (c) Either no such petition shall be timely filed or such petition shall have been filed and said referendum shall have approved the Bond issue; (d) The City Clerk shall have received an employment impact estimate issued under Section 560.034 of the Wisconsin Statutes; (e) All documents required to consummate the financing have been duly authorized and delivered; and (f) The Issuer and the Borrower have resolved all land use and special use issues with respect to the affected property and the Project. 4. Pursuant to the Act, all requirements that the Project be subject to the contracting requirements contained in Section 66.1103 (11) are waived, the Borrower having represented that it is able to negotiate satisfactory arrangements for completing the Project and that the Issuer's interests are not prejudiced thereby. 5. The City Clerk is directed, following adoption of this Initial Resolution (i) to publish notice of such adoption not less than one time in the official newspaper of the City of Oshkosh, Wisconsin, such notice to be in substantially the form attached hereto as Exhibit A and (ii) to file a copy of this Initial Resolution, together with a statement indicating the date the Notice to Electors was published, with the Secretary of Commerce of the State of Wisconsin within twenty (20) days following the date of publication of such notice. 6. This Initial Resolution is an "initial resolution" within the meaning of the Act and official action toward issuance of the Bonds for purposes of Sections 103 and 144 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder. Furthermore, it is the reasonable expectation of the Issuer that proceeds of the Bonds may be used to reimburse expenditures made on the Project prior to the issuance of the Bonds. The maximum principal amount of debt expected to be issued for the Project on the date hereof is $5,000,000. This statement of official intent is made pursuant to Internal Revenue Code §1.150 -2. Adopted: August 24, 2010. Paul J. Esslinger, Mayor Attest: Pamela Ubrig, City Clerk EXHIBIT A NOTICE TO ELECTORS OF THE CITY OF OSHKOSH, WISCONSIN TAKE NOTICE that the City Council of the City of Oshkosh, Wisconsin (the "Issuer"), at a regular meeting held at City Hall, 215 Church Avenue, Oshkosh, Wisconsin, on August 24, 2010, adopted an Initial Resolution pursuant to Section 66.1103 of the Wisconsin Statutes, as amended, expressing the intention to issue not to exceed $5,000,000 of industrial development revenue bonds of the Issuer (the "Bonds ") on behalf of UW- Oshkosh Foundation - Witzel, LLC, a Wisconsin limited liability company (the "Borrower "). The Bonds are being issued for financing a project consisting of the (i) construction of an approximately 22,000 square foot dry fermentation biodigester plant to be located at 755 Dempsey Trail in the City of Oshkosh, Wisconsin which will provide a turnkey energy solution using biomass and organic waste to produce electricity for sale into the grid (the "Facility "), (ii) acquisition and installation of equipment at the Facility and (iii) payment of professional fees and costs. The Borrower has represented that the net number of full -time equivalent jobs which the Project is expected to create on the Project site is 2. Pursuant to the terms of Section 66.1103 (11) of the Wisconsin Statutes, all requirements that the Project be subject to the contracting requirements contained in Section 66.1103 (11) are waived, the Borrower having represented that it is able to negotiate satisfactory arrangements for completing the Project and that the Issuer's interests are not prejudiced thereby. THE BONDS SHALL NEVER CONSTITUTE AN INDEBTEDNESS OF THE ISSUER, NOR SHALL THE BONDS GIVE RISE TO ANY PECUNIARY LIABILITY OF THE ISSUER, NOR SHALL THE BONDS BE A CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS OF THE ISSUER. RATHER, THE BONDS SHALL BE PAYABLE SOLELY FROM THE REVENUES AND OTHER AMOUNTS TO BE DERIVED PURSUANT TO THE REVENUE AGREEMENT RELATING TO SAID PROJECT TO BE ENTERED INTO BETWEEN THE ISSUER AND THE BORROWER. The Initial Resolution may be inspected in the office of the City Clerk at 215 Church Avenue, Oshkosh, Wisconsin, during business hours. TAKE FURTHER NOTICE THAT THE ELECTORS OF THE CITY OF OSHKOSH MAY PETITION FOR A REFERENDUM ON THE QUESTION OF THE BOND ISSUE. Unless within thirty (30) days from the date of the publication of this Notice a petition signed by not less than five percent (5 %) of the registered electors of the City of Oshkosh is filed with the City Clerk requesting a referendum on the question of the issuance of the Bonds, the Issuer will issue the Bonds without submitting the proposition for the electors' approval. If such petition is filed as aforesaid, then the Bonds shall not be issued until approved by a majority of the electors of the City of Oshkosh voting thereon at a general or special election. Pamela Ubrig, City Clerk City of Oshkosh, Wisconsin CERTIFICATION BY CITY CLERK I, Pamela Ubrig duly sworn, hereby certify that I am the duly qualified and acting City Clerk of the City of Oshkosh, Wisconsin (the "City "), and as such I have in my possession, or have access to, the complete corporate records of the City and of its City Council; that I have carefully compared the transcript attached hereto with the aforesaid records; and that said transcript attached hereto is a true, correct and complete copy of all the records in relation to the adoption of Resolution No. entitled: INITIAL RESOLUTION REGARDING INDUSTRIAL DEVELOPMENT REVENUE BOND FINANCING TO BENEFIT UW- OSHKOSH FOUNDATION- WITZEL, LLC I hereby further certify as follows: 1. Said Initial Resolution was considered for adoption by the City Council at a meeting held at City Hall, 215 Church Avenue, Oshkosh, Wisconsin, at p.m. on August 24, 2010. Said meeting was a regular meeting of the City Council and was held in open session. 2. Said Initial Resolution was on the agenda for said meeting and public notice thereof was given not less than twenty -four (24) hours prior to the commencement of said meeting in compliance with Section 19.84 of the Wisconsin Statutes, including, without limitation, by posting on the bulletin board in the City Hall, by notice to those news media who have filed a written request for notice of meetings, and by notice to the official newspaper of the City. 3. Said meeting was called to order by , who chaired the meeting. Upon roll, I noted and recorded that the following alderpersons were present: and that the following alderpersons were absent: I noted and recorded that a quorum was present. Various matters and business were taken up during the course of the meeting without intervention of any closed session. One of the matters taken up was said Initial Resolution, which was introduced, and its adoption was moved by and seconded by . Following discussion and after all alderpersons who desired to do so had expressed their views for or against said Initial Resolution, the question was called, and upon roll being called and the continued presence of a quorum being noted, the recorded vote was as follows: AYE: NAY: ABSTAINED: Whereupon the meeting chairperson declared said Initial Resolution adopted, and I so recorded it. IN WITNESS WHEREOF, I have signed my name and affixed the seal of the City hereto on this 24th day of August, 2010. [SEAL] Pamela Ubrig, City Clerk CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, 54903-1130 City of Oshkosh — QIHICC-fH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: August 18, 2010 RE: Initial Resolution Regarding Industrial Development Revenue Bond Financing for UW- Oshkosh Foundation — Witzel, LLC BACKGROUND UW- Oshkosh Foundation — Witzel, LLC is requesting the City of Oshkosh pass an initial resolution regarding Industrial Development Revenue Bond Financing to support the issuance of Industrial Development Revenue Bonds (IDRB's) to finance the proposed construction of a dry fermentation anaerobic biodigester facility. On February 23, 2010, the Common Council approved a conditional use permit for construction of the facility to be located at 755 Dempsey Trail in the City of Oshkosh. ANALYSIS The proposed facility will consist of an approximately 22,000 square foot renewable energy plant that will convert organic waste materials into heat and usable energy. The proposed IDRB's would provide financing for the project in an amount not to exceed $5,000,000 for construction of the facility, acquisition and installation of equipment at the facility, and payment of professional fees and costs associated with the project. Federal and state laws require that the authorization for IDRB's be done by the consideration of an Initial Resolution by the City Council followed by the consideration of a Final Resolution by the City Council. The Initial Resolution is not a commitment to issue bonds, but merely evidences the City's "official intent" to issue bonds on behalf of the borrower pending satisfactory negotiation of the terms of the bonds. The Final Resolution would be considered by the Council at a future meeting after negotiations for the bond issue have been completed. tJ Re: IDRB / UW- Oshkosh Foundation — Witzel, LLC 8/17/10: Page 2 FISCAL IMPACT There is no anticipated fiscal impact from the proposed borrowing. The Initial Resolution would provide the property owner with the opportunity to secure lower interest rate, tax - exempt bonds in support of the proposed projects. The bonds would not be general obligations of the City of Oshkosh and do not count against the City's borrowing capacity. The City of Oshkosh would not be liable for payment of principal or interest on the Bonds and would not have any ongoing responsibilities for monitoring or reporting with regard to the bonds or the proposed projects. Re ectfully Sub fitted, Cyn A. Lorenson City Attorney Approved: Mark A. Rohloff City Manager