Number
010325
Version
SUBSTITUTE 1
Reference
Sponsor
THE CHAIR
Title
Substitute resolution authorizing the issuance of Industrial Development Revenue Bonds (R & B Wagner, Inc. Project).
Analysis
This substitute resolution authorizes the issuance of $5,000,000 of industrial development revenue bonds to finance costs related to the acquisition, renovation, expansion and equipping of a manufacturing facility at 10600 West Brown Deer Road, all of which is to be owned by R & B Wagner, Inc., a manufacturer and distributor of handrail products.
Body
Whereas, The City of Milwaukee, Wisconsin (the "Municipality"), is a municipal corporation organized and existing under and pursuant to the laws of the State of Wisconsin and is authorized by Section 66.1103, Wisconsin Statutes, as amended (the "Act"):
(a) To issue industrial development revenue bonds to finance all or any part of the costs of the construction, equipping, reequipping, acquisition, purchase, installation, reconstruction, rebuilding, rehabilitation, improving, supplementing, maintaining, repairing, enlarging, extending or remodeling of a project which qualifies under the Act and the improvement of the site therefor.
(b) To enter into a revenue agreement with an eligible participant pursuant to which the eligible participant agrees to cause said project to be constructed and to pay the Municipality an amount of funds sufficient to provide for the prompt payment when due of the principal of and interest on said industrial development revenue bonds; and
Whereas, R & B Wagner, Inc., a Wisconsin corporation (the "Borrower"), has heretofore requested the Municipality to issue industrial development revenue bonds to finance a project in the Municipality on behalf of the Borrower as an eligible participant under the Act; and
Whereas, The Common Council of the City of Milwaukee ("Common Council") has heretofore found and determined that said project consisting of the acquisition of certain land (the "Project Site") within the Municipality, the renovation and expansion of an existing manufacturing facility (the "Facility") on the Project Site, and acquisition of certain new machinery and equipment (the "Equipment") and installation of the Equipment in the Facility (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; and
Whereas, At least 30 days prior to entering into the revenue agreement, the Borrower gave notice of intent to enter into the revenue agreement, and provided information on the number of jobs the Borrower expects to be eliminated, created or maintained on the Project Site and elsewhere in this state by the Project, to the Department of Commerce of the State of Wisconsin and to any collective bargaining agent in the State of Wisconsin with whom the Borrower has a collective bargaining agreement; and
Whereas, The Municipality has received from the Department of Commerce of the State of Wisconsin an estimate that the Project will maintain 149 jobs and create 80 new jobs in the Municipality over the next three years; and
Whereas, On November 28, 2000, the Common Council adopted an Initial Resolution pursuant to the Act wherein it was resolved that the Municipality would issue industrial development revenue bonds to finance the Project, subject however, to the satisfaction of certain conditions including the approval by the Common Council of the terms of the bonds and the revenue agreement described in said Initial Resolution; and
Whereas, On December 7, 2000, notice of the adoption of the Initial Resolution was published in accordance with Section (10)(b) of the Act, and notice of adoption of the Waiver Resolution was published in accordance with Section (11)(b)2. of the Act, and no sufficient petition has been filed with the City Clerk requesting a referendum on the question of the issuance of said industrial development revenue bonds; and
Whereas, On June 29, 2001, pursuant to a public notice substantially in the form of Exhibit A, a copy of which is attached to this Common Council File, a public hearing was held in the offices of the Department of City Development, 809 North Broadway, Milwaukee, Wisconsin, and conducted in a manner that provided a reasonable opportunity to be heard for persons with differing views on both the issuance of the revenue bonds and the location and nature of the proposed Facility to be financed with the revenue bonds; and
Whereas, The Borrower has now requested that the Municipality provide for the issuance of $5,000,000 principal amount of industrial development revenue bonds upon the terms set forth in this Resolution (as herein described, the "Bonds"); and
Whereas, In connection therewith the Borrower has presented the Municipality with proposed documentation for the Bonds, as follows:
(a) A Bond Purchase Agreement (the "Bond Purchase Agreement"), to be entered into by and among the Municipality, the Borrower, and Banc One Capital Markets, Inc. (the "Underwriter"), setting forth the terms and conditions on which the Municipality will sell and the Underwriter will purchase the Bonds.
(b) A Loan Agreement, to be dated as of July 1, 2001 (the "Agreement"), to be entered into by and between the Municipality and the Borrower providing for the Municipality's issuance of the Bonds, a loan of the Bond proceeds to the Borrower on repayment terms made to the Municipality through payments to the Trustee (as hereinafter defined) scheduled to provide the Municipality with revenues sufficient to retire the Bonds in accordance with their terms, and the Municipality's assignment to the Trustee in trust of the Municipality's rights under the Agreement and the revenues received.
A Trust Indenture, to be dated as of July 1, 2001 (the "Indenture"), to be entered into between the Municipality and the corporate trustee hereinafter designated (the "Trustee"), providing for the creation of the Bonds, the terms thereof and the security therefor.
A Promissory Note (the "Note"), from the Borrower payable to the order of the Municipality in the principal amount of $5,000,000 as evidence of the borrowing provided for in the Agreement and to be assigned by the Municipality to the Trustee.
An Official Statement (the "Official Statement"), describing the Bonds and the security therefor.
A Letter of Credit to be dated the date of the issuance of the Bonds (the "Letter of Credit"), to be issued by Bank One, Wisconsin (the "Bank"), to provide for the payment of the principal and interest on the Bonds; and
Whereas, In accordance with the Act, this Resolution and the aforesaid instruments and documents, the Bonds and interest thereon shall never constitute an indebtedness of the Municipality within the meaning of any State constitutional provision or statutory limitation, shall not constitute or give rise to a pecuniary liability of the Municipality or a charge against its general credit or taxing powers, and shall not constitute or give rise to any personal liability of any member of the Common Council or of any officials or employees of the Municipality on the Bonds or for any act or omission related to the authorization or issuance of the Bonds; and
Whereas, It is in the public interest of the Municipality to encourage and promote the development of projects such as the Project in order to realize public benefits such as, but not limited to, the provision and retention of gainful employment opportunities for the citizens of the Municipality; the stimulation of the flow of investment capital into the Municipality with resultant beneficial effects on the economy in the Municipality; and the preservation and enhancement of the Municipality's tax base; and
Whereas, It is the finding and determination of the Common Council that the public interest will be served if the Municipality were to encourage and induce the Borrower to undertake the Project in the Municipality; and
Whereas, The development of the Project and the issuance of the Bonds to finance the Project as herein recited will, in the judgment of the Common Council, serve the intended accomplishments of public purpose and in all respects conform to the provisions and requirements of the Act; now, therefore, be it
Resolved, By the Common Council of the City of Milwaukee that:
1. It has been found and determined and is declared:
(a) That the Project is a qualified "project" under and for the purposes of the Act.
(b) That the Borrower is a qualified "eligible participant" under and for the purposes of the Act.
(c) That the Agreement meets the requirements of a "revenue agreement" under and for the purposes of the Act.
(d) That the estimated aggregate cost of providing the Project and paying the costs incident to the financing is not less than $5,000,000.
That the payments required to be made by the Borrower under the Agreement are sufficient in amount to pay when due the principal of, premium, if any, and interest on the Bonds.
That no reserve fund need be established in connection with the retirement of the Bonds or maintenance of the Project.
The Borrower is obligated to cause the Project to be maintained in good repair, working order and condition, and adequately insured as specified in the Agreement.
That the Underwriter is qualified to act as remarketing agent (in such capacity, the "Remarketing Agent") in determining the interest rate on the Bonds as provided in the Indenture.
That all conditions set forth in said Initial Resolution have been satisfactorily met.
2. The Municipality shall borrow, but only in the manner herein recited, a sum not to exceed $5,000,000 for the purpose of financing the Project. Said borrowing shall be accomplished through the sale of the Bonds issued pursuant to the Act. The Municipality shall lend a sum of $5,000,000 to the Borrower pursuant to the terms of the Agreement. The Agreement is approved as necessary to effectuate the purposes of the Act. The Mayor, the City Clerk and the City Comptroller are authorized and directed for and in the name of the Municipality to execute and deliver the Agreement, the Indenture and the assignment of the Note in the forms thereof presented herewith or with such insertions therein or corrections thereto as shall be approved by them consistent with this Resolution, their execution thereof to constitute conclusive evidence of their approval of any such insertions and corrections.
3. The Bonds shall be issued in the aggregate principal amount of $5,000,000, shall be dated the date of their original issuance, shall become due and payable on July 1, 2021, and shall be designated
CITY OF MILWAUKEE, WISCONSIN
VARIABLE RATE DEMAND INDUSTRIAL DEVELOPMENT
REVENUE BONDS, SERIES 2001
(R & B Wagner, Inc. Project)
As used herein, the following terms shall have the following respective meanings:
"Business Day" means any day other than (i) a Saturday, (ii) a Sunday, (iii) a day on which banking institutions in the city in which the principal corporate trust office of the Trustee (or its bond registrar, paying agent or tender agent offices) is located or the principal office of the Remarketing Agent is located or the office of the Bank at which action is to be taken to realize moneys under the Letter of Credit are required or authorized by law or executive order to be closed, or (iv) a day on which the New York Stock Exchange is closed.
"Computation Date" means the date on which the Remarketing Agent determines the Fixed Rate, which shall be a Business Day not more than twenty Business Days nor less than five Business Days prior to the Conversion Date.
"Conversion Date" means the Business Day on which the Fixed Rate on the Bonds shall be effective pursuant to Section 204 of the Indenture.
"Fixed Rate" means the interest rate on the Bonds during the Fixed Rate Period established pursuant to Section 203(c) of the Indenture and as described below.
"Fixed Rate Period" means the period from and including the Conversion Date to and including the date of payment in full of the Bonds.
"Issue Date" means the date on which the Bonds are delivered to the purchaser or purchasers thereof upon original issuance.
"J.J. Kenny Index" means, as of any date, the index of 30-day yields on high-grade, tax-exempt municipal bonds as determined by J.J. Kenny Co., Inc. or any successor thereto and published on such date (or, if not published on such date, on the most recent day prior thereto on which such index shall have been so published).
"Municipal Swap Index" means the Bond Market Association Municipal Swap Index as of the most recent date for which such index was published or such other weekly, high-grade index comprised of seven-day, tax-exempt variable rate demand notes produced by Municipal Market Data, Inc. or its successor, or otherwise designated by the Bond Market Association.
"Proposed Conversion Date" means any date designated by the Borrower as the Conversion Date in accordance with Section 204 of the Indenture.
"Variable Rate" means the interest rate on the Bonds during the Variable Rate Period established pursuant to Section 203(b) of the Indenture and as described below.
"Variable Rate Period" means the period from and including the Issue Date to the earlier of (i) the Conversion Date or (ii) the day of payment in full of the Bonds.
During the Variable Rate Period, the Variable Rate shall be determined by the Remarketing Agent on each Wednesday (or the immediately preceding Business Day if such Wednesday is not a Business Day). The Variable Rate of the Bonds shall be the minimum rate necessary (as determined by the Remarketing Agent based on the examination of tax-exempt obligations comparable to the Bonds known to the Remarketing Agent to have been priced or traded under then-prevailing market conditions) for the Remarketing Agent to sell the Bonds on the effective date of such Variable Rate at their principal amount (without regard to accrued interest). The Variable Rate shall not exceed the lesser of 12 percent per annum or the maximum rate permitted by applicable law. The first Variable Rate shall apply to the period beginning on the Issue Date and ending on the next Wednesday. Thereafter, each Variable Rate shall apply to the period beginning on the Thursday of the week in which such Variable Rate is set and ending on the following Wednesday, or if earlier, ending on the Conversion Date. If no Remarketing Agent is serving under the Indenture, or if for any reason the Remarketing Agent has not determined the Variable Rate on a Wednesday (or the immediately preceding Business Day if such Wednesday is not a Business Day), then the Variable Rate on the Bonds shall be equal to the Municipal Swap Index provided that if such index is no longer provided by Municipal Market Data, Inc. or its successor, the rate shall be equal to the J.J. Kenny Index or if such index is not available, such other index (or percentage of an index) deemed appropriate for tax-exempt securities of the nature of the Bonds as the Remarketing Agent may have previously selected.
At the option of the Borrower, and upon certain conditions provided for in the Indenture, the interest rate on the Bonds may be converted, in whole and not in part, on a Conversion Date to the Fixed Rate for the Fixed Rate Period. The Fixed Rate for the Bonds shall be determined by the Remarketing Agent on the Computation Date and shall be the rate determined by the Remarketing Agent on the Computation Date to be the rate which, if borne by the Bonds would, in the judgment of the Remarketing Agent having due regard to prevailing market conditions for tax-exempt revenue bonds or other tax-exempt securities comparable to the Bonds, be the interest rate necessary, but would not exceed the interest rate necessary, to enable the Remarketing Agent to remarket the Bonds tendered (or deemed to have been tendered) for purchase at a price of par (exclusive of accrued interest, if any) on the Computation Date; provided, however, that the Fixed Rate on the Bonds shall not exceed the maximum rate permitted by applicable law. If for any reason the Remarketing Agent fails to determine the Fixed Rate by the close of business on the fifth Business Day preceding the Proposed Conversion Date, the Bonds shall continue to bear interest at the Variable Rate as described in Section 204(b) of the Indenture.
The interest on the Bonds shall be computed on the basis of a 365/366-day year, as the case may be, on actual days elapsed prior to the Conversion Date and a 360-day year comprised of twelve 30-day months thereafter.
The Bonds shall be issuable as fully registered bonds in denominations of $100,000 or any multiple of $5,000 in excess thereof, and when issued will be registered in the name of Cede & Co., as registered owner and nominee for The Depository Trust Company, New York, New York ("DTC"). The beneficial owners of the Bonds will not receive physical delivery of bond certificates. Beneficial ownership will be evidenced by book-entry only. Bonds and the interest thereon shall be transferable by and shall be payable to the registered owners thereof in the manner and with the effect provided in the Indenture. The principal of, premium, if any, and interest on the Bonds shall be payable in lawful money of the United States of America at the principal corporate trust office of the Trustee, as paying agent, or the office of any successor or additional paying agent designated by the Municipality and approved by the Borrower.
The Bonds shall be issued in the form thereof as set forth in the Indenture, with such insertions therein as shall be necessary to comply with the terms of this Resolution and with such corrections therein, if any, as the approving bond attorney may require for conformity with the terms of this Resolution, the Indenture and the Act.
4. The Bonds shall be executed on behalf of the Municipality with the facsimile or manual signature of its Mayor and its City Clerk, countersigned with the facsimile or manual signature of its City Comptroller and shall have impressed, imprinted or otherwise reproduced thereon an official seal of the Municipality or a facsimile thereof. No Bond shall be issued unless first authenticated by the Trustee (as fiscal agent and bond registrar), to be evidenced by the manual signature of an authorized signatory of the Trustee on each Bond.
5. The Municipality designates and appoints Banc One Capital Markets, Inc., Chicago, Illinois, to perform the functions of Remarketing Agent and Bank One Trust Company, N.A., Milwaukee, Wisconsin, to perform the functions of Trustee under the Indenture.
6. The Bonds and interest thereon shall never be or be considered a general obligation of the Municipality or an indebtedness of the Municipality within the meaning of any State constitutional provision or statutory limitation and shall not constitute or give rise to a pecuniary liability of the Municipality or a charge against its general credit or taxing powers.
7. The Bonds shall be limited obligations of the Municipality payable by it solely from revenues and income derived by or for the account of the Municipality from or for the account of the Borrower pursuant to the terms of the Agreement and the Indenture; including without limitation: (i) amounts derived pursuant to the Letter of Credit, (ii) payments by the Borrower pursuant to the terms of the Agreement, and (iii) all cash and securities held from time to time in the trust funds created under the Indenture, and the investment earnings thereon; but excluding any amounts derived by the Municipality for its own account pursuant to the terms of the Agreement.
As security for the payment of the principal of, premium, if any, and interest on the Bonds, the Municipality shall pledge and assign to the Trustee all of its right, title and interest (i) in respect of the Agreement (except for Unassigned Rights as defined therein) and the Note and all payments thereon, (ii) in all moneys and securities held by the Trustee for deposit in, or deposited in, the Bond Fund, the Bond Purchase Fund and the Project Fund created under the Indenture and investment earnings thereon described in the Indenture, and (iii) all proceeds of any of the foregoing.
8. The Bonds shall be subject to mandatory and optional redemption prior to maturity, and optional and mandatory tender for purchase, as provided in the Indenture.
9. The trust funds and accounts created under the Indenture to be held in the custody of the Trustee and applied for the uses and purposes provided in the Indenture are authorized and approved.
10. Any moneys held as a part of the trust funds held by the Trustee under the Indenture may be invested and reinvested by the Trustee in "Permitted Investments" in accordance with, and as defined in, the Indenture.
11. The terms and provisions of the Agreement, the Indenture, the Letter of Credit, the Bond Purchase Agreement and the Note are hereby approved.
12. The use and distribution of a Preliminary and Final Official Statement by the Underwriter in connection with the sale of the Bonds is hereby approved.
13. The Borrower has negotiated a sale of the Bonds to the Underwriter at a price of one hundred percent of the principal amount of the Bonds. Given the purposes of the financing and the involvement of the Municipality therewith, it is the determination of the Common Council that the Bonds shall be awarded to the Underwriter at the price aforesaid with delivery to follow in the manner, at the time and subject to the conditions set forth in the Bond Purchase Agreement. As evidence thereof the Mayor, the City Clerk and, where appropriate, the City Comptroller are authorized and directed for and in the name of the Municipality to execute, affix with the official seal of the Municipality and deliver the Bond Purchase Agreement in the form presented herewith, or with such insertions therein or corrections thereto as shall be approved by the Mayor and the City Clerk consistent with this Resolution and the terms of the Act, their execution thereof to constitute conclusive evidence of their approval of any such insertions and corrections.
14. The Mayor, the City Clerk and the City Comptroller are authorized for and in the name of the Municipality to execute the Bonds in the manner authorized by paragraph 4 of this Resolution. Subject to the terms and conditions of the Bond Purchase Agreement, the Municipality shall deliver the Bonds to the Underwriter.
15. The Mayor and the City Clerk and the appropriate deputies and officials of the Municipality in accordance with their assigned responsibilities are each authorized to execute, deliver, publish, file and record such other documents, instruments, notices (including, without limitation, the Internal Revenue Service Form 8038) and records and to take such other actions as shall be necessary or desirable to accomplish the purposes of this Resolution and to comply with and perform the obligations of the Municipality under the Bond Purchase Agreement, the Bonds, the Agreement and the Indenture.
In the event that said officials shall be unable by reason of death, disability, absence or vacancy of office to perform in timely fashion any of the duties specified herein (such as the execution of the Bond Purchase Agreement, the Bonds, the Agreement or the Indenture), such duties shall be performed by the officer or official succeeding to such duties in accordance with the law and the rules of the Municipality.
16. This Resolution shall be effective immediately upon its passage and approval. To the extent that any prior Resolution of the Common Council is inconsistent with the provisions hereof, this Resolution shall control and such prior Resolution shall be deemed amended to such extent as may be necessary to bring them in conformity with this Resolution.
17. The Mayor, the City Clerk and the City Comptroller shall not execute and deliver the Agreement or the Indenture as provided in paragraph 2 of this Resolution unless simultaneously with the issuance of the Bonds, the Borrower shall enter into a Disadvantaged Business Enterprise Agreement (the "Business Agreement") with the Municipality, in a form satisfactory to the Municipality, providing for the Borrower to make a "good faith effort," as defined in the Business Agreement, to utilize certified "Disadvantage Business Enterprises," as defined in the Business Agreement, in the construction of the Project.
18. Notice of the sale of the Bonds, in substantially the form of Exhibit B, a copy of which is attached to this Common Council File, shall be published forthwith in the official newspaper of the Municipality as a class 1 notice under Chapter 985 of the Wisconsin Statutes. The City Clerk of the Municipality shall obtain proof in affidavit form, of such publication, and shall compare the notice as printed with the form attached hereto as Exhibit B to ascertain that no mistake has been made therein.
19. The Common Council, on behalf of the Municipality, approves the issuance of the Bonds for the purposes of Section 147(f) of the Internal Revenue Code of 1986, as amended.
20. The Municipality hereby elects to issue the Bonds in an aggregate principal amount exceeding $1,000,000 but not exceeding $10,000,000 as provided in Section 144(a)(4) of the Internal Revenue Code of 1986, as amended.
21. Issuance of the Bonds is expressly conditioned on the Municipality being paid, upon issuance, a fee equal to 0.5 percent of the principal amount of the Bonds issued, less any application fee previously paid to the Municipality.
Drafter
DCD:JS:js
07/10/01