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HomeMy WebLinkAbout2010-1049-11/22/2010RESOLUTION NO. 2010-1049 RESOLUTION RELATING TO THE ISSUANCE OF NOT TO EXCEED $14,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF MIDWESTERN DISASTER AREA REVENUE BONDS (NEW EMPIRE, LLC PROJECT) SERIES 2010, OF THE CITY OF WATERLOO, IOWA; AND SPECIFICALLY (1) DECLARING INTENT TO REIMBURSE EXPENDITURES FROM PROCEEDS OF SAID BONDS; (2) FIXING A DATE FOR A PUBLIC HEARING ON THE PROPOSAL TO ISSUE SAID BONDS; (3) DIRECTING PUBLICATION OF NOTICE OF INTENTION TO ISSUE SAID BONDS; AND (4) AUTHORIZING THE EXECUTION OF A MEMORANDUM OF AGREEMENT. WHEREAS, the City of Waterloo, Iowa (hereinafter "Issuer"), is authorized and empowered by Chapter 419 of the Code of Iowa, as amended, (hereinafter "Act") to issue revenue bonds or notes and loan the proceeds from the sale of said bonds to one or more parties to be used to defray all or a portion of the cost of acquiring, constructing, and improving land, buildings and improvements for a "project," as that term is defined in the Act, specifically including a project which is suitable for use for a purpose authorized under the Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-185, within or within eight (8) miles of Issuer in order to create jobs and employment opportunities, facilitate recovery from the flooding of2008 and to improve the welfare of the residents of the Issuer and of the State of Iowa; and WHEREAS, the Issuer has been requested by New Empire, LLC an Iowa limited liability company organized under Chapter 489 of the laws of Iowa (hereinafter "Borrower"), to authorize and issue its Midwestern Disaster Area revenue bonds (the "Bonds") pursuant to the provisions of the Act for the purpose of financing all or a portion of the cost of acquiring, constructing and improving land, building and tower and rehabilitate and renovate same (located at 301 Tower Park Road, Waterloo, Iowa); land and building and rehabilitate and renovate same (located at 205 West 4th Street, Waterloo, Iowa); land and building and rehabilitate and renovate same (located at 100 Eddystone Drive, Hudson, Iowa); and acquire, repair, replace and extend 138 or more route miles of communication conduit, fiber and related utility property to complete and expand communication services in Waterloo, Iowa and in areas adjacent but within eight (8) miles of Waterloo, Iowa, (hereinafter "Project"), together with all incidental items and paying the costs of issuance of the Bonds, which Project will be owned and operated by Borrower; and WHEREAS, said Project will provide and induce other public benefits flowing from the conduct of enhanced operations which will add to the welfare and prosperity of the Issuer and its inhabitants; and Resolution No. 2010-1049 Page 2 WHEREAS, the Issuer has determined that the amount necessary to defray all or a portion of the cost of the Project, including necessary expenses incidental thereto, will require the issuance by the Issuer of not to exceed $14,000,000 in aggregate principal amount of its Midwestern Disaster Area Revenue Bonds pursuant to the provisions of the Act and it is proposed that the Issuer loan the amount received from the sale of the Bonds to Borrower under a loan agreement between the Issuer and Borrower pursuant to which loan payments will be made by Borrower in amounts sufficient to pay the principal, interest and premium, if any, on the Bonds when due; and WHEREAS, the Bonds shall be limited obligations of the Issuer and shall not give rise to a pecuniary liability of the Issuer or be a charge against its general credit or taxing powers, and the principal of, interest and premium, if any, on the Bonds shall be payable solely out of the revenues derived from the Project to be financed by the Bonds; and WHEREAS, the Issuer and the Borrower desire to comply with the requirements of Treasury Regulation Section 1.150-2 (the "Regulations") with, respect to the Project prior to or within sixty (60) days of the commencement of acquisition and construction of the Project; and WHEREAS, there has been presented to the City Council (the "Governing Body") a Memorandum of Agreement, attached hereto as Exhibit "A," which sets forth the mutual representations and agreements between the Issuer and Borrower relating to the further processing and issuance of the Bonds, and the Issuer believes it desirable that the Memorandum of Agreement be executed for and on behalf of the Issuer; and WHEREAS, before the Bonds may be issued, it is also necessary to conduct a public hearing on the proposal to issue the Bonds, all as required and provided by Section 419.9 of the Act and Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"); and NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Waterloo, Iowa, as follows: Section 1. A public hearing shall be conducted on December 13, 2010, at 5:30 p.m., before the City Council of the City of Waterloo, Iowa in the Council Room, City Hall, 715 Mulberry Street, Waterloo, Iowa 50703 on the proposal to issue not to exceed $14,000,000 in aggregate principal amount of the Issuer's Midwestern Disaster Area Revenue Bonds (New Empire, LLC Project) Series 2010, pursuant to the provisions of the Act, for the purpose of defraying all or a portion of the cost of acquiring, constructing, and improving the Project, including all necessary incidental expenses, and allowing all local residents who appear at the hearing to be given an opportunity to express their views for or against the proposal to issue the Bonds and at the conclusion of the hearing, the City Council shall adopt a resolution determining whether or not to proceed with the issuance of the Bonds. Resolution No. 2010-1049 Page 3 Section 2. The City Clerk is hereby directed to publish one time, not less than fifteen (15) days prior to the date fixed for the hearing, in The Waterloo Courier, a newspaper published and having a general circulation within the City, a Notice of Intention to issue the Bonds. The Notice shall be in substantially the following form: NOTICE OF PUBLIC HEARING OF INTENTION TO ISSUE MIDWESTERN DISASTER AREA REVENUE BONDS (NEW EMPIRE, LLC PROJECT) SERIES 2010 Notice is hereby given that the City Council of the City of Waterloo, Iowa, (hereinafter "Issuer") will meet on the 13th day of December 2010, in the Council Room, at the City Hall, 715 Mulberry Street, Waterloo, Iowa 50703 at 5:30 o'clock p.m., and hold a public hearing on the proposal to issue not to exceed $14,000,000 principal amount of the Issuer's Midwestern Disaster Area Revenue Bonds (New Empire, LLC Project), Series 2010, (hereinafter "Bonds") pursuant to the provisions of Chapter 419 of the Code of Iowa, as amended, and Sections 103 and 141-150 of the Internal Revenue Code of 1986, as amended, for the purpose of defraying all or portion of the cost of acquiring, constructing and improving land, building and tower and rehabilitate and renovate same (located at 301 Tower Park Road, Waterloo, Iowa); land and building and rehabilitate and renovate same (located at 205 West 4th Street, Waterloo, Iowa); land and building and rehabilitate and renovate same (located at 100 Eddystone Drive, Hudson, Iowa); and acquire, repair, replace and extend 138 or more route miles of communication conduit, fiber and related utility property to complete and expand communication services in Waterloo, Iowa and in areas adjacent but within eight (8) miles of Waterloo, Iowa, together with all incidental items and paying the costs of issuance of the Bonds. The facilities will be owned and operated by New Empire, LLC, a limited liability company organized and existing under the laws of the State of Iowa (hereinafter "Borrower"). It is contemplated that a Loan Agreement will be entered into between the Issuer and Borrower wherein the Issuer will loan to Borrower the proceeds from the sale of the Bonds in return for loan payments from Borrower sufficient to pay the principal of, interest and premium, if any, on such Bonds as the same shall become due and payable. Such Bonds, if issued, and the interest thereon will be payable solely out of the Borrower's revenues derived from the Project and shall never constitute an indebtedness of the Issuer within the meaning of any state constitutional provision or statutory limitation and shall not constitute nor give rise to a pecuniary liability of the Issuer or become a charge against its general credit or taxing powers. All local residents who appear at the public hearing or any adjournment thereof, shall be given an opportunity to express their views for or against the above stated proposal and, at the meeting or any adjournment thereof, the City Council of the City Resolution No. 2010-1049 Page 4 of Waterloo, Iowa shall adopt a resolution determining whether or not to proceed with the issuance of the Bonds. Written comments may also be submitted by the time of the above hearing, to the Issuer at City Hall, 715 Mulberry Street, Waterloo, Iowa 50703. 2010. By Order of the City Council this 22nd day of November, Suzy Schares, CMC City Clerk Section 3. Based upon representations of the Borrower, the Issuer declares (a) that the Borrower proposes to undertake the Project, (b) that except for (i) expenditures aggregating no more than the lesser of One Hundred Thousand Dollars ($100,000) or five percent (5%) of the proceeds of the Bonds, (ii) preliminary expenditures (as described in the Regulations) in an amount not to exceed twenty percent (200) of the issue price of the Bonds, (iii) other expenditures made not earlier than sixty (60) days before the date hereof, and (iv) expenditures made within the period of June 13, 2008, to December 31, 2009, no expenditures for the Project have been made by the Borrower and no expenditures will be made by the Borrower until after the date hereof, and (c) the Borrower reasonably expects to reimburse the expenditures made for costs of the Project with the proceeds of the Bonds. This Resolution is a declaration of official intent with respect to the Project as described in the Resolution adopted pursuant to Section 1.150-2 of the Regulations under the Code. Section 4. In order to assure the acquisition, construction, and improvement of the Project in the City, and the resulting public benefits which will flow from the Project, it is deemed necessary and advisable that the Memorandum of Agreement, in the form attached hereto as Exhibit "A," incorporated by reference herein, be approved and that the Mayor or Mayor Pro Tempore of the City Council be and hereby is authorized and directed to execute the Memorandum of Agreement and the City Clerk or her deputy be and hereby is authorized to attest the same and to affix the seal of the Issuer thereto. Section 5. The officials of the Issuer are hereby authorized to take such further action as may be necessary to carry out the intent and purpose of the Memorandum of Agreement. Section 6. This Resolution shall be in full force and affect immediately upon its adoption. Resolution No. 2010-1049 Page 5 PASSED AND ADOPTED this 22nd day of November, 2010. Ernest G. Clark, Mayor ATTEST: `Suzy Sch res, CMC City Clerk Resolution No. 2010-1049 Page 6 CITY CLERK'S CERTIFICATE I, Suzy Schares, do hereby certify that I am the duly appointed, qualified, and acting City Clerk of the City of Waterloo, Iowa, and that I have in my possession or have access to the complete corporate records of the City and its City Council and officers and that I have carefully compared the transcript hereto attached with the official records and that the attached transcript is a true, correct and complete copy of all the corporate records showing action taken by the City Council of the City of Waterloo, Iowa at a meeting open to the public on November 22, 2010, relating to the issuance of not to exceed $14,000,000 aggregate principal amount of Midwestern Disaster Area Revenue Bonds (New Empire, LLC Project) Series 2010, of the City of Waterloo, Iowa, declaring intent to reimburse expenditures from proceeds of said Bonds, setting a date for a public hearing on the proposal to issue the Bonds, directing publication of the Notice of Intention to issue the Bonds and authorizing execution of the Memorandum of Agreement and that the proceedings remain in full force and effect and have not been amended and rescinded in any way; that the meeting and all action thereafter was duly and publicly held in accordance with the notice of meeting and tentative agenda as required pursuant to the rules of the City Council and the provisions of the Code of Iowa. WITNESS my hand and seal of office this 22nd day of November, 2010. SEAL Suzy S res, CMC City Clerk