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63 of 1973 - A resolution authorizing and providing for the issuance by Salt Lake City of its $480,000 promissory Resolution No. 63 e ;; 1 .' I'. By "ems Irc I + j,Aut&orining and,providing for the issttte I by Shit::l,ake City its$450,400 pxvmiss y j noti bar the purpose of defraying all or ';park parkrf acqu , constructing and in- I atataitirellgetain pollution control equips LL Innaittlij;114rOpertyof ISortlanil Cement Conn Of Utah.within Salt Lake City ;;inirShisht to the`Utah Industrial Facilities •bevel tttsnent Act;said note and all ob-1; i 11,ligations of the City in connection wgth; I I such transaction to be payable solely&I) l P exclusively from the collateral given ad f;security for said note and in no ev' t toi ;I constitute a general oblication or lishil I ity of the City or a charge against;its i j dal credit or taxing powers;art- i' 1;*tiring the execution by the City of a note purchase agreement, agreement of 1 4. as a and assignment in connection with- ' ', J such transaction directing the publican of this Resolattion and repealing all 4" (ordinances, resolutions or portion t e- 'of in conflict with the provision Presented to the Board of Commissioners I f , • - AND PASSED ;, ' NOV 81973 y T I 't The Roard of Ccramissloners of f7alt Lake City, San Lake County, Utah, met in reT,ila-: public session on Ott day oi November, 1973, at the boar of 10 o'clock A.M. at the rogular meeting place at said Hood in the City & County Building, Salt Lal-.e City, Utah. Said rooting was c.alled to order and on 3:011 call the foncw:ing members wera 6etemino0 - ya7esent: E. 3=25 C.ommione.,7 Stehce M ' ., r-,',rcmanissione: Conr-d B. jennin jr. Commiss::onor A.1.50 Present: Human 3, Rcgonsc,n City Recorder Jack 1, Crellin City Attorney Absent: None Attar the cond',2ct ci other bu5iness not pertinent to the following, the f.ollowing resolution was introdinmad written form by Commissioner Phils was renJ in full, and onrsuant to motion made by Coimissioner Phillips was ....d.opted by the toll,owing vote: Aye: Mayor E. J. Garn _csnimissioner jarnes_L_Barker, Jr. Caninusc4nne-,--StephenAll_klarrnsen Commissioner Conrad B. Harrison .C_Omrds_s_kne.rjelmings hLlips, Jr. Nay: NONE The 1-,-.solution was thereupon 11icYnor.1 by the Navor an,d attLctod by the City Recorder and is as follows: . , • • / • A RESOLUTION AUTHORIZING AND PROVIDING FOR THE ISSUANCE BY SALT LANE CITY OF ITS $480,000 PROMISSORY NOTE FOR THE PURPOSE OF DEFRAYING ALL OR A PART OF ACQUIRING, CONSTRUCTING AND INSTALLING CERTAIN POLLUTION CONTROL EQUIPMENT ON PROPERTY OF PORTLAND CEMENT COMPANY OF _ UTAH WITHIN SALT LAKE CITY PURSUANT TO THE UTAH INDUSTRIAL FACILITIES DEVELOP- MENT ACT, SAID NOTE AND ALL OBLIGATIONS OF THE CITY IN CONNECTION WITH SUCH TRANSACTION TO BE PAYABLE SOLELY AND EXCLUSIVELY FROM THE COLLATERAL GIVEN AS SECURITY FOR SAID NOTE AND IN NO EVENT TO CONSTITUTE A GENERAL OBLIGA- TION OR LIABILITY OF THE CITY OR A CHARGE AGAINST ITS GENERAL CREDIT OR TAXING POWERS; AUTHORIZING THE EXECU- TION BY THE CITY OF A NOTE PURCHASE AGREEMENT, AGREEMENT OF SALE AND ASSIGN- MENT IN CONNECTION WITH SUCH TRANSACTION DIRECTING THE .. iria CATiUN Or' '.i'ulb RESOL- UTION AND REPEALING ALL ORDINANCES, RESOLUTIONS OR PORTIONS THEREOF IN CON- FLICT WITH THE PROVISIONS HEREOF. WHEREAS, Portland Cement Company of Utah, a Utah corporation (the "Industry") has proposed to finance, acquire, construct, improve and equip certain industrial pollution control equipment and related equipment_ (the ''Equipment") to be located at its plant which is entirely within the limits of Salt Lake City (the "City") and has requested the City to assist in such financing pursuant to the Utah Industrial Facilities Development Act (the "Act") ; and WHEREAS, pursuant thereto and as authorized by resolution duly adopted by the City on August 7, 1973, the City has entered into a Commitment Agreement by and among Mellon Banh, N.A. (the "Bank") , the Industry and Wheelabratcr Servisystems Corporation (the "Company") ; and WHEREAS, pursuant to such Commitment Agreement it is now appropriate to complete the arrangements contemplated thereby by the execution of certain documents hereinafter described; and -2- WHEREAS, the Act and all documents to be signed by the City provide, inter alia, that the said issue of bonds shall not constitute nor give rise to a general obligation or liability of the City or be a charge against its general credit or taxing powers and that the Note of the City will be secured only by perfected liens on the Equipment, the assignment to the Bank of the proceeds of the sale by the City of the Equipment to the Company (the purchase price tc be represented by a Promissory Note made by the Company pay- able to the City, the amount of which equals the amounts of principal and interest on the Note of the City) the assign- ment to the Bank of all sums due to the City under an assign- ment from the Company of the Basic Rentals payable by the Industry for the lease of the Equipment (which lease is re- ferred to as the "Industry Lease" and which assigned Basic Rentals equal the amounts the Company will be obligated to pay to the City under the aforesaid Promissory Note for the purchase of the Equipment) , and a Guaranty by the Industry to the Bank. of the due and punctual payment of the Basic Rent and Additional Rent payable during the Basic Term of the Industry Lease. NOW THEREFORE BE IT RESOLVED by the Board of Commissioners of Salt Lake City, Salt Lake County, Utah as follows: Section 1. The City is authorized to acquire the Equipment for installation on property of the Industry situated within the City, the same to be acquired not from general funds of the City but solely and exclusively from advances made by the Bank for such purpose. The City is authorized to sell such Equipment to the Company with the understanding that the same will in turn be leased by the Company to the Industry pursuant to the Industry Lease. Section 2. To evidence the limited obligation of the City for the purchase price of the Equipment, the City is authorized and directed to issue its promissory note (the "City Note") to the Bank, to be dated November 9, 1973, to be in the amount of not to exceed $480,000, to bear interest at the rate of 5-1/2% per annum plus or minus 1/2 of the amount of any increase or decrease after June 14, 1973 in the prime rate of interest as defined in the note, said principal and interest to be payable in accordance with the terms of the note commencing November 1, 1974 and maturing on November 1, 1985, if not sooner paid, and with the right to prepay the note in full or in part on any installment payment date without premium or penalty. The City Note shall be in substantially the following form: -3- N O T E $480,000 Pittsburgh, Pennsylvania November 9, 1973 FOR VALUE RECEIVED, THE CITY OF SALT LAKE CITY (hereinafter called the "Undersigned") , a Utah corporation, promises to pay to the order of MELLON BANK, N. A. (hereinafter called the "Payee") , its successors or assigns, in lawful money of the United States of America, the actual sum bor- rowed by the Undersigned, as shown on the Payee's books and records from time to time reflecting that portion of the proceeds of this Note actually disbursed, not to exceed the principal sum of Four Hundred Eighty Thousand Dollars ($480,000) as follows: -A- Interest at the rate set forth in B hereof on outstanding balances of the principal indebt- edness payable on February 1, 1974 and on each May 1, August 1, and November 1 thereafter until November 1, 1975, on which day and on each February 1, May 1, August 1 and November 1 thereafter the Undersigned shall pay or cause to be paid to Payee a sum to be applied first to interest on outstanding balances of the principal amount of the Note at the rate set forth in B hereof and the remainder to the reduction of principal , which installment payments shall he sufficient to fully amortize the Note upon maturity; and any balance of principal or interest remaining unpaid on November 1, 1985 shall become due and payable on said day. 4 - II - The rate of interest referred to in A hereof shall be five and one-half percent (5-1/2%) per annum, (based on a year of 365 or 366 days as the case may be) , plus or minus one-half (1/2) of the amount of any increase or decrease after June 14, 1973 (on which date the prime rate was 7-1/2%) in the prime rate of interest on new 90-day loans to commercial borrowers of substantial size and highest credit rating in effect at Payee from time to time (the "Prime Rate") , such rate to change automatically from time to time effective as of the first day of the first month following the month in which the change in the Prime Rate occurred. Notwithstanding the provisions of the immed- iately preceding paragraph, if, while any part of the principal amount of this Note shall remain outstanding, interest payable hereunder shall be determined not to be, or shall cease to be, excludable for federal income tax purposes from the gross income of the holder hereof, the rate of interest payable hereunder shall, effective as of the date of such determination or cessation, be two percent (2%) above the Prime Rate per annum, such rate to change automatically from time to time effective as of the first day cf the first month following the month in which the change in the Prime Rate occurred. In the event any payment provided for herein shall become overdue, the Undersigned agrees to pay a late charge in an amount equal to 6% of any such overdue payment. All payments hereunder shall be made at the principal office of Payee, Mellon Square, Pittsburgh, Pennsylvania 15230 or elsewhere as shall be directed by any holder hereof. -5- The Undersigned reserves the right to prepay this Note in whole or in part on any installment payment date without premium or penalty. In case default be made for the space of 30 days in the payment of any installment of principal or interest, or in the performance by the Undersigned of any of its other obligations under this Note or under a certain Note Purchase Agreement dated the date hereof between the Undersigned and the Payee, or in its performance under any other instrument or document given to evidence, secure cr support the indebted- ness evidenced hereby, the entire unpaid balance of the principal debt, interest thereon and all sums payable by the Undersigned hereunder, under the above-mentioned Note Purchase Agreement or under any other instrument or document given to evidence, secure or support the indebtedness evi- denced hereby shall, at the option of the holder hereof and without notice, become immediately due and payable. This Note does not constitute a general obligation or a liability of the Undersigned or a charge against its general credit or taxing powers, and recourse on this Note -6- and on the instruments and documents executed and delivered by the Undersigned in connection herewith may only be had against the collateral given as security for this Note. Tao Undersigned is not personally liable for the debt evidenced hereby nor for any portion of such debt or interest or other charges in connection therewith, remain- ing unpaid after the liquidation of such collateral. This obligation shall bind the Undersigned and its successors and assigns, and the benefits hereof shall inure to the Payee and its successors and assigns. WITNESS the due execution hereof. THE CITY OF SALT LACE CITY Attest: I By City Rt_s;or11er [CORPORATE SEAL] -7- Section 3. The City Note is to he issued to and made payable to the Bank all in accordance with and pursuant to that certain Note Purchase Agreement (the "Note Purchase Agreement") dated November 9, 1973 between the City and the Bank (a true copy of which has been presented to the Board of Commissioners of the City at the meeting at which this. resolution was adopted and which is also on file at the office of the City Recorder and may there be examined during normal business hours by any interested person) . The Note Purchase Agreement provides for the purchase of the City Note by the Bank at par, for the advance of the purchase price of the City Note solely for the purpose of defraying the cost of acquiring, constructing and installing the Equipment and for expenses incidental thereto, that the Note is to be secured by (a) a prior perfected security interest in the Equipment when the same is acquired, constructed or installed; (b) by an assignment to the Bank of all moneys due and to become due to the City under that certain Agreement of Sale dated November 9, 1973 between the City and the Company (the "Agree- ment of Sale") and under that certain Assignment of Industry Lease Rentals dated November 9, 1973 wherein certain rentals under the Industry Lease are assigned by the Company to the City; (c) by the Note Purchase Agreement and (d) by the Guaranty by the Industry to the Dank of the due and U irnc pa yment n by the Industry of the Basic Rent and Additional Rent payable during the Basic Term of the Industry Lease. The Note Purchase Agreement further provides for certain representations and warranties by the City, for certain conditions precedent to the purchase of the City Note; or certain affirmative and negative covenants, for certa.__n events of default and remedies in connection therewith. The Note Purchase Agreement speci- fically provides that no provision thereof or of the commit- ment between the City, the Bunk, the Company and the Industry, the City Note or any of the other instruments and documents to be delivered by the City pursuant to the Note Purchase Agreement shall constitute or give rise to a general obligation or liability of the City or a charge against its general credit or taxing powers. Recourse on the City Note and on the instru- ments and documents executed and delivered by the City pursuant to the Note Purchase Agreement may be had only against the security for the City Note as provided therein and in said. Note Purchase Agreement. Section 4. The City is authorized and directed to enter into that certain Agreement of Sale (the "Agreement of Sale") to be dated November 9, 1973 between the City and the Company (a true copy of which has been presented to the Board of Commissioners of the City at the meeting at which this resolution was adopted and which is also on file at the office -8- of the City Recorder and may there be examined during normal business hours by any interested person) . The Agreement of Sale provides, among other things, for the sale by the City to the Company of the Equipment with title to the Equipment to vest in the Company upon the execution and delivery of the Agreement of Sale and of the Company's non-recourse promissory note (the "Servisystems Note.") in form attached to the Agree- ment of Sale, and with the Company to have sole and exclusive use and possession of the Equipment subject to the right of the City to inspect the same from time to time to ascertain compliance with the provisions of the Agreement of Sale. A purchase money security interest is created in the Equipment in favor of the City. The Agreement of Sale provides that the Company will cause the Equipment to be acquired and con- structed and installed on the premises of the Industry with the Company to have the right to request from the Bank on behalf of the City advances of the purchase price of the City Note all in accordance with the provisions of the Note Purchase Agreement and,that if the proceeds of the City Note is not sufficient to defray all costs & expenses of acquiring, constructing and installig the Equipment and all expenses incidental thereto. that the Company will pay all such excess costs and expenses and will acquire, construct and install the Equipment without additional cost to the City. The Agreement of Sale and the Servisystems Note further provide that the Company shall not he personally liable for payment or performance of any obligations under the Servisystems Note, the Agreement of Sale or under the City Note except to the extent of the security granted for the Servisystems Note which security consists of an assignment by the Company to the City of the Basic Rent anal Additional Rent. doe and payable the Company under the Industry Lease (which Basic Rent and Additional Rent are equal in amount to the Company's payment obligations under the Servisystems Note and the Agreement of Sale and are also equal in amount to the City's payment obligations under the City Note and the Note Purchase Agreement) . The Agreement of Sale contains other provisions concerning payment of taxes upon the Equipment, utility ser- vices, maintenance of insurance, maintenance of the Equipment, inspection by the City and by the Bank, condemnation, default, warranties and certain other covenants for which reference is made to the particular provisions of the Agreement of Sale for such items. Section 5. The City is authorized and directed to execute and deliver to the Bank that certain assignment (the "Assignment") to be dated November 9, 1973 (a true copy of • _9- which has been presented to the Board of Commissioners of the City at the meeting at which this resolution was adopted and which is also on file at the office of the City Recorder and may there be examined during normal business hours by any interested person) . By the terms of the Assignment, the City assigns to the Bank (a) the Agreement of Sale including the Servisystems Note and (b) certain rentals payable under the Industry Lease, such rentals having been assigned to the City pursuant to that certain Assignment of Industry Lease Rentals (the "Assignment of industry Lease Rentals") dated November 9, 1973 from the Company as assignor to the City as assignee. Section 6. To evidence the security interest created by the various documents herein contemplated the City is authorized and directed to execute as debtor a financing statement wherein the Bank is the secured party covering the Agreement of Sale, the Servisystems Note, the Assignment of Industry Lease Rentals and all other and fur- ther rights and interests assigned to the Bank under the Assignment. The City is further authorized and directed to execute as secured party a financing statement wherein the Company is the debtor and which financing statement covers the Equipment. Section 7. The Equipment to be acquired, con- structed and installed with the proceeds from the sale of the City Note will constitute a "Project" as defined in the Act and will include the following described personal property: Wheelabrator-Frye continuous automatic Duetu_be dust collectors, ten modules, size 814D, model 264, series HSR including foundations, exhaust stack, I.D. fan and ducts, together with all additions and replacements thereto and all equipment and facilities used in connection therewith or which are or may become necessary for proper operation of such pollution control equipment. The Equipment is to be installed on property of the Industry located in Salt Lake City, more particularly described as follows: A parcel of land upon which the kiln dust collector shall be constructed located in Block 1, Plat C, Salt Lake City Survey and in Salt Lake County, in Range 1 West, Township 1 South, Salt Lake Base and Meridian: -10- Beginning at a point located 135.5 feet South, more or less, and 53 feet West, more or less, from the monument at the intersection of Eighth South Street and Sixth West Street and running thence West 34 feet; thence South 63.5 feet; thence East 34 feet; thence North 63.5 feet to the point of beginning, said parcel containing an area of 2,159 square feet, more or less. The Equipment will be leased by the Company to the Industry under that certain Lease (the "Industry Lease") to be dated November 9, 1973 by the terms of which among others the Industry agrees to ray Basic Rant amounts equal to the pay- ment obligations of the City to the Bank and to pay as Addi- tional Rent all taxes and other charges of a similar nature against the Equipment. In addition, the Industry will guarantee to the Bank the due and punctual payment by the Industry of the Basic Rent and Additional Rent payable during the Basic Term of the Industry Lease all in accordance with that certain Guaranty (the "Guaranty") to be dated November 9, 1973. The Industry Lease further provides that the Industry will pay or cause to be paid all utility and municipal charges, provide certain insurance, keep the Equipment .in good condition and renal _._....�.t 1n c.-, -mot-__ of 4-he r,g _L,ront f, .t tmo to ti by the Company, then City and the Bank, compliance by the Industry with all laws ordinances, regulations and other governmental requirements relating to the Equipment, provi- sions regarding condemnation and damage to or destruction of the Equipment (in none of which events is there any abate- ment or reduction of the Basic Rent and Additional Rent pay- able by the Industry) provisions for default, provisions for extension of the term of the Lease and granting the Industry the. option to purchase the Bqui_nment at the epiratian of the Basic, Term for a price equal to the fair market value of the Equipment, to all of which provisons reference is made to the Industry Lease for a more particular detailing of the terms and conditions thereof. Section 8. The City Note, the Note Purchase Agreement, the Agreement of Sale and the Assignment in the form substantially presented to the Board of Commissioners of the City are hereby approved and adopted in all respects and the Mayor and City Recorder are hereby aurhori>ed to execute each of the same on behalf of the O_.tY and to affix the seal of the City thereto and the acts of the Mayor and City Recorder in so doing are and shall be the act and deed -11- of the Municipality. The Mayor is authorized to execute on behalf of the City each of the aforesaid financing statements and the act of the Mayor in so doing is and shall be the act and deed of the City. The Mayor, City Recorder and all other proper officers and errlogees of the City are hereby authorized and directed to take all steps on behalf of the City to perform and discharge the obligations of the City under each of said instruments. Section 9. Immediately after its passage, this resolution shall be signed by the Mayor and attested by the City Recorder, shall be recorded in a book kept by the City for that purpose and shall be published one time in the Salt Lake Tribune, a newspaper published in and having general circulation in the City. Section 10. Pursuant to Section 11-17-13, Utah Code Annotated 1953, the City includes herein the pledge and undertaking of the State of Utah that the State of Utah will not alter, impair or limit the rights vested hereunder or in the Note Purchase Agreement, Agreement of Sale or any of the documents contemplated hereby until. the City Note, together with all interest thereon, has been fully paid and discharged and all <;;-,;_ c_ation:; ram= ae City thereunder and " Salo under the Note u1 chaS� Agreement andyic„_.._..� .... c.. ._ ...,._ fully performed. Section 11. It is hereby declared that all parts of this resolution are severable and that if any section, paragraph, clause or provision of this resolution shall, for any reason be held to be invalid or unenforceable, the Inval- idity or unenforceability of any such section, paragraph, cirue or prce1tS_oa shall not affect the remaining provisions of this resolution, Section 12. All ordinances, resolutions and regul- ations or parts thereof heretofore adopted or passed which are in conflict with any of the provisions of this resolution are, to the extent of such conflict, hereby repealed. Section 13. This resolution shall become effective immediately upon its adoption by the Board of Connissioners, Passed by the Board of ComniipsionerAf Salt Lake City, Salt Lake County, Utah this day of Qovember, 1973. maltor Attest: �^ �/kip i pr City ecoxuer ea (CITY SEAL) -12- (Here follows othor business not pertinent to the above.) Pursuant to motion duly made and seconded, the Board of Commissioners adjourned. f �! Mayor -....a�.� j. ATTEST - c rder S'U:,T7 OP UTAH ,s. COUNTY OF SALT LARE) I, HERMAN S. HOCENSEN, the duly qualified and actingCity Recorder of Salt- Lake_ City, Utah, Jo hereby certify, according to the records of said City in my offi- cial possession, that the above and foregoing is a true and correct copy of the minutes of a meeting of the Board of Commissioners of said City, including a resolution adopted at said meeting, insofar as said minutes pertain to be matters therein set out. TN WITNESS WHEREOF, I have hereunto subscribed my official signature and impressed hereon the ,l of Salt Lake City, Utah, this - day of , 1973. i Recorder (S E A L)