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HomeMy WebLinkAbout10-282SEPTEMBER 15, 2010 10 -282 RESOLUTION (CARRIED 6 -0 LOST LAID OVER WITHDRAWN ) PURPOSE: FINAL RESOLUTION REGARDING MIDWESTERN DISASTER AREA REVENUE BOND FINANCING FOR UNIVERSITY OF WISCONSIN OSHKOSH FOUNDATION, INC., AND UW- OSHKOSH FOUNDATION- WITZEL, LLC INITIATED BY: DEPARTMENT OF ADMINISTRATION BE IT RESOLVED by he City Council of the City of Oshkosh, Winnebago County, Wisconsin (the "Issuer"), as follows: Section 1. Recitals. 1.01 Under Wisconsin Statutes, Section 66.1103, as amended (the "Act "), the Issuer is authorized and empowered to issue revenue bonds to finance eligible costs of qualified "projects" (as defined in the Act), and to enter into "revenue agreements" (as defined in the Act) with "eligible participants" (as defined in the Act). 1.02 Pursuant to an Initial Resolution duly adopted on August 24, 2010, the Issuer expressed its intention to issue industrial development revenue bonds of the Issuer in an amount not to exceed $5,000,000, in one or more series (the "Bonds ") to finance a project on behalf of UW- Oshkosh Foundation - Witzel, LLC, a Wisconsin limited liability company, 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. Notice of adoption of the initial resolution adopted on August 24, 2010 was published as provided in the Act, and no petition requesting a referendum upon the question of issuance of the revenue bonds has been filed. 1.03 Pursuant to the Act, the Issuer may finance a project which is located entirely within the geographic limits of the Issuer. 1.04 Drafts of the following documents have been submitted to this City Council and are ordered filed in the office f the City Clerk: (a) a Loan and Bond Purchase Agreement (the "Loan and Bond Purchase Agreement "), proposed to be entered into among the University of Wisconsin Oshkosh Foundation, Inc. and UW- Oshkosh Foundation - Witzel, LLC (collectively, the "Borrower "), and Wells Fargo Securities, LLC, as purchaser (the "Purchaser "); (b) a Promissory Note from the Borrower to the Issuer, and assigned to the Purchaser; and (c) a No Arbitrage Certificate. 1.05 Pursuant to Wisconsin Statutes, Section 66.1103(2)(k)22, the Issuer may finance projects eligible to be financed with qualified Midwestern disaster area bonds under 26 USC 1400N (a), as modified by P.L. 110 -343, title VII, subtitle A, section 702 (d) (intro.) and (1) and it is intended that the Bonds be issued as Midwestern disaster area bonds. Section 2. Findings and Determinations. It is hereby found and determined that: (a) based on representations of the Borrower, the Project constitutes a "project" authorized by the Act; (b) a public hearing has been duly held on September 15, 2010 in accordance with the provisions of Section 147(f) of the Internal Revenue Code of 1986, as amended, at which residents of the City of Oshkosh, Wisconsin were given an opportunity to be heard in regard to the proposed issuance of the Bonds and the nature and location of the proposed Project; (c) the purpose of the Issuer's financing costs of the Project is and the effect thereof will be to promote the public purposes set forth in the Act; (d) it is desirable that two series of revenue bonds in the aggregate principal amount not to exceed $3,700,000 be issued by the Issuer upon the terms set forth in the Loan and Bond Purchase Agreement, under the provisions of which the Issuer's interest in the Loan and Bond Purchase Agreement (except for certain rights as provided therein) and the loan repayments will be assigned to the Purchaser as security for the payment of principal of and interest on and premium, if any, on all the Bonds outstanding under the Loan and Bond Purchase Agreement; (e) the loan payments provided for in the Loan and Bond Purchase Agreement, and the formula set out for revising those payments under the Loan and Bond Purchase Agreement as required under the Act, are sufficient to produce income and revenue to provide for the prompt payment of principal of and interest on and premium, if any, on Bonds issued under the Loan and Bond Purchase Agreement when due; the amount necessary in each year to pay the principal of and interest on the Bonds is the sum of the principal and interest on the Bonds due in such year, whether on a stated payment date, a redemption date, or otherwise; and the Loan and Bond Purchase Agreement provides that the Borrower shall provide for the maintenance of the Project in good repair, keeping it properly insured; and (f) under the provisions of the Act, the Bonds shall be special, limited obligations of the Issuer and the Bonds do not constitute an indebtedness of the Issuer, the State of Wisconsin or any political subdivision thereof, within the meaning of any state constitutional provision or statutory limitation, and do not constitute nor give rise to a charge against the general credit or taxing powers or a pecuniary liability of the Issuer, the State of Wisconsin or any political subdivision thereof. Section 3. Approvals and Authorizations; Parameters Resolution; Authentication of Transcript. 3.01 This resolution shall constitute the approval of the Bonds within the meaning of Section 147 (f) of the Internal Revenue Code of 1986, as amended, and the Bonds are hereby approved. There is hereby approved the issuance by the Issuer of its Midwestern Disaster Area Revenue Bonds (specifically, the Bonds) in an aggregate principal amount not to exceed $3,700,000, for the purpose of financing the Project. 3.02 The City Manager and the City Clerk of the Issuer are authorized and directed to execute, attest and deliver the documents listed in Section 1.04 herein which are hereby approved, together with such subsequent changes as may be requested and approved by bond counsel and the Issuer's attorney, and such other documents, agreements, instruments or certificates as are deemed necessary or desirable by the Issuer's attorney and bond counsel, including an Internal Revenue Service Form 8038. 3.03 The Issuer shall proceed to issue its not to exceed $3,700,000 City of Oshkosh, Wisconsin Midwestern Disaster Area Revenue Bonds, Series 2010A and 2010B (UW- Oshkosh Foundation - Witzel, LLC Project) in the form and upon the terms set forth in this Resolution and in the Loan and Bond Purchase Agreement, which terms, including without limitation, interest rates, redemption provisions and maturity, are for this purpose incorporated in this resolution and made a part hereof. The City Manager and the City Clerk are authorized and directed to execute, attest and seal the Bonds and to deliver them to the Purchaser (together with a certified copy of this resolution and any other documents required by the Loan and Bond Purchase Agreement) for authentication and delivery to the Purchaser, subject to the parameters outlined below: (a) the weighted average interest rate borne by the Bonds shall not exceed 10 %; (b) the sale of the Bonds shall occur prior to November 1, 2010; (c) the final maturity date of the Bonds shall be no later than 30 years after the date of issuance; and (d) the maximum Bond amount shall not exceed $3,700,000. 3.04 The publication in the official newspaper of the Issuer of the notice for the public hearing referred to in Section 2(b) of this resolution, and such notice of public hearing as so published, are hereby ratified. 3.05 The City Manager, City Clerk, Director of Finance /City Treasurer and other officers of the Issuer are authorized to prepare and furnish to the Purchaser and bond counsel certified copies of all proceedings and records of the Issuer relating to the Bonds, and such other affidavits and certificates as may be required by the Purchaser and bond counsel to show the facts relating to the legality and marketability of the Bonds as such facts appear from the books and records in the officers' custody and control or as otherwise known to them. 3.06 The approval hereby given to the various documents referred to in this resolution includes the approval of such additional details therein as may be necessary and appropriate for their completion and such modifications thereto, deletions therefrom and additions thereto as may be approved by the Issuer's attorney and bond counsel. The execution of any document by the appropriate officer or officers of the Issuer herein authorized shall be conclusive evidence of the approval by the Issuer of such document in accordance with the terms hereof. 3.07 Notice of sale of the Bonds, in the form attached hereto as Exhibit A , shall be published in the official newspaper of the Issuer as a class 1 notice under Chapter 985 of the Wisconsin Statutes. 3.08 The Bonds shall be special, limited obligations of the Issuer payable by it solely from revenues and income derived by or for the account of the Issuer from or for the account of the Borrower pursuant to the Loan and Bond Purchase Agreement. As security for the payment of the principal of, premium, if any, and interest on the Bonds, the Issuer shall pledge and assign to the Purchaser all of its right, title and interest in and to the trust estate described in the Loan and Bond Purchase Agreement. Passed and adopted at a regular meeting of the City Council of the City of Oshkosh this 15 day of September, 2010. APPROVED: Paul J. Esslinger, Mayor ATTEST: Pamela R. Ubrig, City Clerk CERTIFICATION BY CITY CLERK I, Pamela R. Ubrig, being first duly sworn, hereby certify that I am the duly qualified and acting City Clerk of the City of Oshkosh, Wisconsin (the "Issuer "), and as such I have in my possession, or have access to, the complete corporate records of the Issuer 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: FINAL RESOLUTION REGARDING MIDWESTERN DISASTER AREA REVENUE BOND FINANCING FOR UNIVERSITY OF WISCONSIN OSHKOSH FOUNDATION, INC. AND UW- OSHKOSH FOUNDATION- WITZEL, LLC I hereby further certify as follows: 1. Said Resolution was considered for adoption by the City Council of the Issuer at a meeting held at City Hall, 215 Church Avenue, Oshkosh, Wisconsin at 6:00 p.m. on September 15, 2010 at a regular meeting of the City Council and was held in open, public session. 2. Said 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 Issuer. 3. Said meeting was called to order by Paul J. Esslinger, the Mayor, who chaired the meeting. Upon roll, I noted and recorded that the following City Council members were present: and that the following City Council members 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 Resolution, which was introduced, and its adoption was moved by and seconded by . Following discussion and after all City Council members who desired to do so had expressed their views for or against said 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 OR NOT VOTING: Whereupon the meeting chair declared said Resolution adopted, and I so recorded it. IN WITNESS WHEREOF, I have signed my name and affixed the seal of the Issuer hereto on this 15th day of September, 2010. CITY OF OSHKOSH, WISCONSIN [SEAL] Pamela R. Ubrig, City Clerk EXHIBIT A NOTICE TO THE ELECTORS On September 15, 2010, a resolution was offered, read, approved and adopted whereby the City of Oshkosh, Wisconsin authorized the issuance and sale of its Midwestern Disaster Area Revenue Bonds, Series 2010A and 2010B (UW- Oshkosh Foundation - Witzel, LLC Project) in an amount not to exceed $3,700,000 (the "Bonds "). It is anticipated that the closing of this bond sale will be held on or about , 2010. A copy of all proceedings had to date with respect to the authorization and sale of said Bonds is on file and may be examined in the office of the City Clerk, 215 Church Avenue, Oshkosh, Wisconsin. This notice is given pursuant to Section 893.77, Wisconsin Statutes, which provides that an action or proceeding to contest the validity of such financing, for other than constitutional reasons, must be commenced within 30 days after the date of publication of this notice. Pamela R. Ubrig, City Clerk City of Oshkosh, Wisconsin