CITY OF HOMER

HOMER, ALASKA

City Manager/City Attorney

RESOLUTION 05-56(A)

 

LOAN RESOLUTION SECURITY AGREEMENT

 

A RESOLUTION OF THE  CITY OF HOMER, ALASKA, AUTHORIZING AND PROVIDING FOR THE INCURRENCE OF INDEBTEDNESS IN THE PRINCIPAL AMOUNT OF AN ADDITIONAL $500,000.00 TO THE $1,700,000 FOR THE PURPOSE PROVIDING A PORTION OF THE COST OF ACQUIRING AND CONSTRUCTING A PUBLIC LIBRARY, PROVIDING FOR THE COLLECTION, HANDLING, AND DISPOSITION OF REVENUES THEREFROM, AND AUTHORIZING MAKINGS OF PROMISSORY NOTES, SECURITY INSTRUMENTS, AND PLEDGES OF REVENUES TO EVIDENCE AND SECURE THE PAYMENT OF SAID INDEBTEDNESS AND FOR RELATED PURPOSES.

WHEREAS, The City of Homer, (hereinafter referred to as the "City"),  is organized as a first class city under the laws of the state of Alaska and has the power and authority to own and operate a public library, and does intend to construct, equip and operate a new Homer Public Library facility (the "Facility"); and

 

WHEREAS,  The Homer City Council has previously authorized the City to borrow funds from the Government and incur general obligation indebtedness to the Government in the amount of $2,200,00, in Ordinance 04-30(A), Resolution 04-88, and Resolution 05-15(S), and further the voters of the City of Homer, at an election held on October 5, 2004, authorized the City of Homer to borrow funds in an amount not to exceed $2,200,000 of general obligation debt for the purpose of constructing and equipping a new public library; and 

 

WHEREAS, The proposed Facility is to be constructed and in accordance with plans and specifications prepared by ECI/HYER and in order to finance the Facility, the Homer City Council (hereinafter referred to as the "Council") is authorized and empowered, in their discretion, for and in the name of the City, to make application to the United States of America, through the United States Department of Agriculture, (hereinafter referred to as the "Government"), for financial assistance; to cause the execution and delivery of an installment promissory note or notes or other evidence of indebtedness (hereinafter referred to as the "Note"), and appropriate security instruments to secure any loan or loans made or insured by the Government; to comply with any require­ments, terms or conditions prescribed by the Government or by Government regulations; and to execute contracts or enter into agreements and, without limitation, to take any and all other action as may be necessary, incidental or

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appropriate to finance, acquire, construct, complete, or equip the Facility for and on behalf of the City; and

 

WHEREAS, The bids for the New Homer Public Library came in higher than estimated and the additional $500,000.00, as authorized by the voters, is needed to complete the project.

 

NOW THEREFORE, it is hereby resolved by the Council as follows:

 

Section 1. (Determination of Council). That it is necessary to defray a portion of the costs of financing the Facility by obtaining a loan made or insured by the Government in accordance with applicable provisions of the Consolidated Farm and Rural Development Act, it being determined that the City is unable to obtain sufficient credit elsewhere to finance the Facility, taking into consideration prevailing private and cooperative rates and terms currently available.

 

Text Box: -2-Section 2. (Terms of Loan). That the City borrow $2,200,000.00 and issue as evidence thereof Note in the form prescribed by the Government for the full principal amount of the loan. The note shall be signed by the City Manager, attested by the City Clerk and if necessary, have the corporate seal of the City affixed thereto, and shall bear interest from its date, which shall be the date of delivery, at a rate not to exceed 4.5 percent per annum; the principal and interest shall be paid over a period of 30 years in accordance with the payment schedule set forth in the Note, until the principal and interest are fully paid except the final payment of the entire indebtedness, if not sooner paid, shall be due and payable 30 years from the date of the Note. Each payment shall be applied first to the payment of the accrued interest and second to the payment of the principal. Prepayments of any installment may be made in any amount at any time at the option of the City.

 

Section 3. (Assignment and Pledge of Revenue). The indebtedness hereby authorized to be incured, together with the interest thereon, shall be payable from the gross income and revenue to be derived from the operation of the Facility, a sufficient portion of which, to pay the principal and interest as and when the same shall become due, is hereby assigned, and pledged and shall be set aside for that purpose and this assignment and pledge shall extend to and include any assessments that may be levied pursuant to Section 5(d) hereof.

 

Section 4. (Protection and Disposition of Funds). The City Treasurer  shall be the custodian of all funds of the City. Funds may be deposited in institutions insured by the State or Federal Government or invested in readily marketable securities backed by the full faith and credit of the United States. Any income from these accounts will be considered as revenues of the system.  The  City Treasurer and the Finance Director of the City are  hereby directed to establish the following accounts into which the current funds of the City , Note proceeds, the revenues from the Facility and any other income shall be deposited, which accounts shall be

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continually maintained, except as otherwise provided, so long as the indebtedness hereby authorized remains unpaid:

 

(a) Construction Account.

The proceeds of the Note, hereby authorized not disbursed contemporaneously with loan closing for incurred Facility costs, and at least the amount of $63,633 to be contributed by the City from the collection of membership fees or contributions shall be deposited in an account designated as the Construction Account which shall be established as required by the Government. Withdrawals from the construction account shall be made only on checks signed by the City Treasurer  as authorized by the City Manager from time to time, and with prior concurrence of the Government. At the option of the Government, the construction account may be established as a "supervised bank account". Amounts in the supervised bank account exceeding $100,000 shall be secured by the depository bank in advance in accordance with 31 C.F.R. part 22. Withdrawals from a supervised bank account shall be made only on checks signed by the City Treasurer  and countersigned by an authorized official of the Government. The City's share of any insurance or liquidated damages and other monies paid by defaulting contractors or their sureties will be deposited in the Construction Account to assure completion of the Facility. When all construction costs have been paid in full, any balance remaining in the Construction Account may be applied on the loan or used for other authorized purposes that have been approved by the Government and the Construction Account shall be closed.

 

(b) General Account.

As soon as the Facility becomes revenue producing, all funds received shall be set aside in an account to be designated as the General Account Disbursements and transfers from this account shall be for: debt service, operations and maintenance, and transfers to an account designated as the Reserve Account, Monies deposited in the General Account shall be used only in the manner and order as follows:

 

(1)  Organizations making monthly Government debt service payments shall use the General Account for making such payments plus operating and maintenance expenses. Any remaining funds will be transferred from this account to the Reserve Account in accor­dance with (d) below.

(2)  Borrowers making other than monthly Government debt service payments shall use the General Account to pay operating and maintenance expenses. The other transfers from this account will be made in the following order: (i) To an account designated as the Debt Service Account will be made in accordance with (c) below, (ii) Transfers to the Reserve Account will be made in accordance with (d) below.

 

(c) Debt Service Account

Organizations making other than monthly debt service payments, shall transfer subject to income availability from the General Account to the Debt Service Account, a sum not to Page

exceed the next installment on the note.

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(d) Reserve Account.

 

From the remaining funds in the General Account, after transfers and payments required (b) (1)

or (b) (2) and (c), there shall be set aside into the Reserve Account the sum of $1,118 each month until there is accumulated in that account the sum of $134,180 after which deposits may be suspended, except to replace withdrawals. When necessary, disbursements may be used for payments due on the Note if sufficient funds are not available in the General or Debt Service Account. With the prior written approval of the Government, funds may be withdrawn for:

 

(1)   paying the cost of repairing or replacing any damage to the Facility which may have been caused by catastrophe, or

(2)  making extensions or improvements to the Facility.

 

Whenever disbursements are made from the Reserve Account, monthly deposits shall then be resumed until there is again accumulated the amount $134,180, at which time deposits may be discontinued. Whenever there shall accumulate in the General Account, amounts in excess of those required in subsections (b)(1) and (2), (c), and (d), such excess will be used by the City to make prepayments on the loan or retained in the General Account. The accounts required in subsections (b) (I) and (2), (c) and (d) may be established and maintained as bookkeeping accounts or as separate bank accounts at the election of the City, unless otherwise directed by the Government.

 

Section 5. (Other Covenants and Agreements of the City). The City covenants and agrees that so long as the indebted­ness hereby authorized remains unpaid:

 

(a)      It will indemnify the Government for any payments made or losses suffered by the Government.

 

(b)      I will comply with applicable state laws and regulations and continually operate and maintain the Facility in good condition.

 

(c)      It will impose and collect such rates and charges that gross revenues will, when combined with funds lawfully appropriated by the Council, be sufficient at all times to provide for the payment of the operation and maintenance thereof and the installment payments on the Note and the maintenance of the various accounts herein created. All service rendered by or use of the Facility shall be subject to the full rates prescribed in the rules and regulations of the City.

 

(d) If, for any reason, gross revenues are insufficient, it will cause to be levied and collected such taxes and assessments as may be necessary to operate and maintain the Facility in good condition and meet installment payments on the Note as the same become due.

 

 

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(e) It will (i) establish and maintain such books and records relating to the operation

of the Facility and its financial affairs, (ii) will provide for the annual audit thereof in such manner as may be required by the Government, (iii) will provide the Government without its request a copy of each such audit, and (iv) will make and forward to the government such additional information and reports as it may from time to time require.

 

(f) It will provide the Government, at all reasonable times, access to the Facility and all its books and records so that the Government may ascertain that the City is complying with the provisions hereof and with the provisions of other instruments incident to the making or insuring of the loan.

(g) It will maintain at least such insurance and fidelity bond or employee dishonesty coverage as may reasonably be required by the Government.

 

            (h) It will not borrow any money from any source or enter into any contract or agreement or incur any other liabilities in connection with making extensions or improvements to the Facility, exclusive of normal maintenance, without obtaining the prior written consent of the    Govern­ment.

 

(i) It will not cause or permit any voluntary dissolution of the City or merge or consolidate with any other organization, without making legally enforceable provisions for the payment of the indebtedness and the satisfaction of obligations of the City under this Loan Resolution Security Agreement. It will not dispose of, or transfer title to the Facility or any part thereof, including lands and interest in lands by sale, security instrument, lease or other encumbrance, without obtaining the prior written consent of the Government.

(j) It will not modify or amend its organizational documents, including any articles of incorporation or bylaws without the written consent of the Government, but this does not prohibit or require Government consent for (i) local boundary changes approved by the state Local Boundary Commission, (ii) the enactment of additions, revisions, amendments, and deletions and other changes to the City's code of ordinances; or (iii) changes in the classification of the city or the plan of government of the City when accomplished in accordance with law.

(k) It will operate the Facility as a public library open to the general public and provide adequate service to all patrons in accordance with applicable law.

 

(l) All present and future contract rights, accounts receivable, and general intangibles arising in connection with the Facility are pledged as security for the loan.

 

Text Box: -4-(m) It will comply with the measures identified in the Government's environmental impact analysis for this Facility for the purpose of avoiding or reducing the adverse environmental impacts of the Facility's construction or operation.

 

 

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Section 6. (Security Instruments). In order to secure the payment of the

principal and interest of the Note, the City Manager and City Clerk are hereby authorized and directed to execute and deliver good and sufficient lien instruments, where necessary, encumbering the properties and assets, both real and personal, constituting said Facility, as completed, or as the same may be thereafter extended, including an assignment and pledge of revenues and such other instruments as may be prescribed by the Government.

 

Section 7. (Refinancing). If at any time it shall appear to the Government that the City is able to refinance the amount of the indebtedness then outstanding, in whole or in part, by obtaining a loan for such purposes from responsible cooperative or private credit sources, at reasonable rates and terms for loans for similar purposes and periods of time the organizations will, upon request of the Government, apply for, and accept, such loan in sufficient amount to repay the Government and will take all such actions as may

be required in connection with such loan.

 

Section 8. ("Equal Employment Opportunity under Construction Contracts and Nondiscrimination"). The City Manager and the City Clerk be and they are authorized and directed to execute for and on behalf of the City, Form RD 400-I, "Equal Opportunity Agreement", and Form RD 400-4, "Assurance Agreement".

 

Section 9. (Authorization of Officials). In the case of a grant in the sum not to exceed $880,792, the City hereby accepts the grant under the terms as offered by the Government and the that the City Manager and the City Treasurer are hereby authorized and empowered to take all action necessary or appropriate in the execution of all written instruments as may be required in regard to or as evidence of such grant and the City hereby resolves to operate the Facility under the terms as offered in said grant agreements.

 

Section 10. (Cross Default). Default under the provisions of this agreement or any instrument incident to the making or issuing of the loan may be construed by the Government to constitute default under any other instrument held by the Government and executed or assumed by the City, and default under any such instrument may be construed by the Government to constitute default hereunder.

 

Section 11. (Resolution of Contract). The provisions hereof and the provisions of all instruments incident to the making or the insuring of the loan, unless otherwise specifically provided by the terms of such instruments, shall constitute a contract between the City and the Government or assignee so long as the note hereby authorized remains unpaid.

 

 

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Section 12. (Effective Date). This resolution shall take effect and be in force from and after the 9th day of May 2005, being the date of its enactment.

 

The vote was:                                       Yeas –6-   Nays –0-  Absent –0-                                                                         By_____________________________
                                                                                                            Jim Hornaday, Mayor

 

Attest:


______________________________
Mary Calhoun, City Clerk

CERTIFICATION

 

I, the undersigned, as City Clerk of the City of Homer hereby certify that the City Council of such City is composed of six members of whom six, constituting a quorum, were present at a meeting thereof duly called and held on the 9th day of May, 2005, that the foregoing resolution was adopted at such meeting by the vote shown above, and that said resolution has not been rescinded or amended in any way.

 

Dated, this_____ day of___________ , 2005.

__________________________
Mary Calhoun, City Clerk