Loading...
264059 WHITE - CITY CLERK PINK - FINANCE GITY OF SAINT PALTL COUI1C11 CANARY -7,�EPARTMENT File NO. �64059 BLlIE - MA�'OR � � -� Council Resolution Presented By � � ���4 � Referred To � � Committee: Date Out of Committee By Date RESOLVED, that pursuant to the authority of Laws 1969, Chapter 1138, the Council of the City of Saint Paul hereby approves and accepts the guarantee of Ellerbe Architects-Engineers-Planners and requests the Mayor to acknowledge this guarantee on behalf of the City. COUIVCILMEIV Requested by Department of: Yeas Nays Christensen Hozza In Favor Levine Rcedler B Sylvester —�-- A gainst Y Tedesco President Hunt ��G O i97►� Form Appr by Cit ttorn Adopted by Council: Date Z � Certifie sse y Council Secretary BY Approve by Mayor: Date Approved by Mayor for Submission to Council By By pUBLiSNED AU G 2 4 �974 '-�.- '� y � �/l(�v/t!l _+.�.. i•' , , ! � - ' � � �64Q59 A G R E E M E N T • THIS AGREEhiENT, entered into this lst day of November , 19 73 , by and between Ell�rbs/Ar .hi . , s/�nri n Prs/P�anners a , hereinafter sometimes referred to as "Guarantor" and the City of Saint Paul, hereinafter sometimes referred to as the "City", WITNESSETH, That, WHEREAS, there has been enacted by the State of Tiinnesota in Chapter 459, Laws 1967, legislation relative to the issuance by the City of bonds to provide f unds to construct, reconstruct, remodel and equip a Civic Center consisting of but not being limited to the ' existing suditorium and [heatre, the existing arena remodeled to a new exhibition hall, concourses, new arena, and associated parking ramps some- times hereinafter collectively referred to as the Civic Center; and WHEREAS, that legislation was amended in 1969 in certain particulars; and, . ' WHEREAS, said legislation in Section 1 thereof as amended in 1969 authorized the issuance and sale by the City of Nine Million Dollars ($9,000,000.00) of general obligation bonds and said legislation in Section 2 thereof authorized the issuance and sale by the City of additional general obligation bonds in an amount not to exceed Ten Million Dollars ($10,000,000.00) ; and, WHEREAS, Section 3 of said legislation as amended provides: "'I'he City shall have power to negotiate and to obtain, and shall obtain, from responsible persons, firms and corporations, non-cumulative guarsntees in an aggregate amount not to exceed $150,000.00 annually for a period of ten years, commencing after i one year of operation of the arena portion of the Civic Center, which �! shall bind each guarantor respectively to pay his pro rata share of the annual principal and interest payments necessary upon the honds a�thor- ized by Section 2 hereof to the extent revc:nues fram the Ci�•ic CentPr are insufficient for such purpose. Provided, however, that guarantors' aggregate obligetions under said non-cumulative annual guarantees of I� $150,000.00 (for any calendar year) shall be furtl�er limited to the amount by which income available f or debt retirement from all parking and concessions associated with the Civic Center f alls below $500,000.00. ' Income available for debt retirement, � with respect to parking faci- lities, means gross receipts minus ell operating, promotional or other expenses; and ' income available for debt retirement' with respect to concessions means the earned income received by the City from the con- cessionaire or if operated by the City means gross receipts minus all operating, promotional or other expenses; both of which shall be subject r. ,..: .., . -- . � �.�-��s�= _ „ . ._ ..> - , . r ,.�,-,,,cs„ � V . 4 • �. -.�� . � �� 2s4�59 to the contrc�l of the Civic Center Cornmission defined herein. "Guarantees shall run frorn the guaran- tor to the City of Saint Paul and shall, upon their acceptance by resolution of t}le City Council , constitute legal and enforceable obliga- tions of the respective guarantors in accordance with tl�e terms thereof, notwithstanding any provision of law which might otherwise declare such guarantees to be ultra vires on the part of the buarantor �>r the City. "The failure of an�• such guarantee, or all of ttlem, shall not affect the City' s resp�nsibility to pay the principai and interest upon the bonds, nor shall any purchaser �f such bonds be required to inquire whether such guarantees have been obtained or given. "The suarantees required hereby shall be obtained prior to the issuance of any bond under Section 1 or Sec- tion 2 hereof." and; ' , WHEREAS, �uarantees in a total amount .- in excess of that required by Section 3 of the legislation have already been � delivered to and accepted by the City; and, WHEREAS, the bonds provided for in said legislation have now been issued; and, ` WHEREAS, additional guarantors now wish to deliver their guarantees to the City; and, WHEREAS, the City is agreeable to accepting such additionalguarantees; and, WHEREAS, the Guarantor nok� desires to guarantee to the City. the payment of the principal and interest of the bonds issued pursuant to Sectivn 2 of said legislation in an a:nount and under the teru;s and conditions as sc.t forth herein; and, - WfIEt<EAS, i t is c��nter,�plated that others will also exccute and deliver to the Cit�- their �uarantees in ��arious amounts for the puip ose of guaranteeing to the City the pa�•r.�ent of the principal and interest of the bonds issued pursuant to Section 2 of said legislation under terms and conditions similar to those contained herein. NOW, THEREFORE, in consideration of the promises of others to participate as guarantors, agreement of the City to accept such additional guarantees and the prior issuance of the aforesaid bonds by the City, it is agreed between the parties as follows : 'l. Guarantor hereby agrees that it will and hereby does guarantee to the extent hereinafter set forth for a period 'r . �'Z- -�---��:-�-�------�--- � - , - , � .:... ,.:,�. � , , �• ��: �264059 • of ten (10) years, said period to commence after one ( 1 ) }ear of �peration . of the arena portion of the Ci.�ic Center, the pa��ment of Guarantar's share as hereinafter provided of the annual principal and interest payments necessary upon tYie Ten Plillion Dollars ($10,000,000.00) of bonds authorized by Section 2 of the aforesaid legislation to the extent that revenues from the Civic Center • durin� any calendar year are insufficient for such purpose. References ro the "aret�a portion of the Civic Center" in this guarantee shall inciude all parking facilities associated with the Civic Center. Said buarantee shall be--- in an annual face amount not to exceed pne thousand_dollars and 00�100 ---- Dollars ($ 1 000.00 ) for any calendar year and shall be non-cumulative. Provided, however, that Guarantor's obligations under said non-cumulati��e annual __ - guarantee for an}� calendar year shall be subject to a furtl�er limitation de- termined as follows : � A) There shall first be determined tl�e percentage relationship which the amount of Guarantor' s guarantee as stated above bears to the tocal stated a�nount of �;uar�antees given to the City pursuant to said le�islation. Said percei�tage shall be determined by dividing the amount of Guarantor' s guarantee as stated � above by the total amount of guarantees given to the City pursuant to said legislation. • The total amount of guarantees given to the City pursuant to said legislation shall include ali guarantees previousiy given to the City and accepted by the City, all guarantees given at the time this guarantee-is given and all guarantees which may be given after the date of this guarantee. B) There shall then be determined the amount by which income available for debt retiren�ent from all parking and concessions associated with the Civic Center for the calen- dar year in question falls below either Five Hundred 1'housand Dolla rs ($500,000.00) or the amount required to pay tne annual principal and interest upon the 1en ?lillion Dollars ($10,000,000.00) in bonds au- thorized by Section 2 of the aforesaid legislation whic?lever of these two figures is lesser. Such amount, or the amount by which re:�enues from the Civic Center for the calendar year in questiun are insufficient to �ay the annual principal and interest upon the 7en '•'illiun Dc�llars ($10,000,0U0.00) in bor�ds authorized by Sccti��n 2 of thc: nfc�resaid lec;islation or One Hundred Fifty 'I'hc�usr��ld Dullars ( ;150,U1)p.UU) , w���ich- ever of the three amounts is the luw�st fi�ure s`�.all be hcrcinafter referred to as the "deficienc}�." "Incorne a��ailable for debt retire- n�ent" with respect to parking facilities means gross receipts minus all operating, promotional or other expenses; and "incor�e availa�le for debt retirement" with respect to concessions means the earned income received by the City from the concessionaire, or if operated by the City means gross receipts minus all operating, promotional or other expenses; both of which shall be subject to the conti�ol of the Civic Center Autho- rity. The term debt retirement" inciudes both the annual principal and interest payment upon the Ten `lillion Doliars ($10,000,000.00) in bonds � suthorized by Section 2 of the aforesaid legislation. -3- +.. . � ��� . • - � � . � � . �. 2s4059 C) Always subject to the overall dollar limit of the amount of Guarantor's guarantee stated in Para- graph 1 above, and, except as provided in Subparag,raph D) below, the Guarantor' s obligation under the guarantee provided herein durinR any calendar year shall not exceed the dollar amount deter�uined by multi- plying the deficiency referred to in Subparagraph E) hereof by the percenta�e dete nnined as provi.�ed in Subpara�raph A) liereof. D) If the Citv contends that amounts are owing to it under this guarantee f or any calendar year, tiie City through its Civic Center Authority shall submit a billing statement to the Guarantor within two (2) months after the close of the parti- cular calendar year involved. The statement shall show the amount claimed to be due frc�m Guarantor under this instrument as well as the amounts claimed to be due from all other guarantors under �uaran- tees given b�� them. A copy of the billing statement shall be sub- mitted tu the Saint Paui Area Chamber of Commerce. Pa�•ment �f the • actual amount due the City of Saint Paul shail be mac]e within sixty (60) da��s after the submission of the aforementioned billin� statement • to t:�e Guarantor. In the event one. or more of such other guarantors default in making the requisite payments under their guarantees for any calendar year, Guarantor together with all non- defaulting guarantors, up to the overall dollar limit of Guarantor' s obligation as stated in Paragraph 1 above may be assessed additional amounts on a pro rata basis to make up tl�e amounts resulting from such defaults. The additional dollar amount to be assessed a�ainst Guarantor shall be determined by multiplying the total dollar amc,unt of such defaults by a percentage determined by dividing the amount of Guarantor' s guarantee as stated above by the total amount of non-defaulting guaran- tees given to the City pursuant to said legislation. The City through its Civic Center Authority shall notif the non-defaulti o Y ng buarantors and the Saint Paui Area Chamber of Commerce of such default and of the additional amount to be assessed against the non-defaultin� guaran- tors within ninety (90) da5•s after such amounts in default were due to the City. 'The actual addition8l amount due to the Cit�� s}iali he paid oy the n�n-defaulting �uarantors within thirty �30) dati's thcreefter. ;'he failure of Che City through its Ci.vic Center hutt�urity co �;i��e such notice within such ninety (90) da�� peric�d snall c�ns[i[ute an irrevocable election by the City not to assess and collect the amc�unt of such default from the non-defaulting guarantors. An}• buaran*_or makin€ such additional pro rata pa�•nents as a result of such default or defaults shail be entitled, as a condition of the guarantee agreements executed between the �uarantors and the City, to take such action as they deem appropriate against such defaulting guarantors in order to collect the amount of any such additi�nal amounts paid by them, Nothing in the foregoing shall be construed as precluding the City from exercising its right of action against any defaulting guarantor to the extent of any deficiency in payment to which the City is entitled. v -4- , � . • - + t � � : � � � � � 264059 E) It is probable that the arena portion of the Civic Center will complete one (1) year of operation during 'a calendar year and therefore this guarantee, which covers a ten (10) year period commencing after one (1) year of operation of the arena portion of the Civic Center, will involve at its be- ' ginning and end fractional periods of less than one (1) full calen- dar }•ear. Any amount to be paid under this guarantee for such fractional periods of less than twelve (12) full calendar months � shall be dete nnined by multiplying the dollar amount which would otherwise be due under this guarantee without reference to t�is Sub- paragraph E) for the full calendar year during which the fractional period in question occurs by a percentage obtained by di��iding the nu�nber of full calendar months covered by this guarantee in such calendar }�ear by twelve (12) . The term "full calendar montl�" includes a full munth or any portion vf a month containing sixteen (16) da��s or more; provided, however, that in no event shall the total time involved in the be�inning and ending fractional periods exceed twelve ( 12) months. 2. In the event the City demands pay- ment from Guarantor of any atnounts pursuant to this guarantee, Guarantor shall have the right to inspect through its employees or through an account- ant of its choosing the books and accounts of the Civic Center with respect to revenues from the Civic Center and income available for debt retirement for the fiscal year in question. 3. The validity and enforceability of this guarantee shall be contingent upon i) its acceptance by the City' s Council and the acceptance by the City' s Council of all other guarantees delivered to it by other responsibie guarantors, in a form substantially similar to the form of this guarantee; ii) the creation, construction and operation of the Civic Center provided, however, this shall not be inter- preted as requiring the completion of the pianned remodeling of the existing arena to a new exhibition hall before this guarantee st�ail become valid and ec�forceable; and, iii) the appointment and continued functioning of a Civic Center Authority ail in accordance with the aforesaid legislation. 4. The City hereb�• represents that the �,uarantee contained herein has been accepted by its Council. 'Ihe City furthe� ab:ces to provide Guarantor with a lis[ of all other s�arantees accepted by the Cit�•' s Council listing the name of each guarantor and the face amount of each �uarantee. ' 5. Guarantor hereby appoints and designates the Saint Paul Area Chamber of Commerce as its agent for all purposes except the service of process, and notices to said Saint Paul Area Chamber of Commerce shall be considered to be notice to Guarantor. 6. This agreement shall be binding upon and inure to the benefit of the representatives, successors and assigns of the parties hereto. . . v � —5— . �..,.�.�„�_,�..--.,.,-,�....�,-..n.�-,,...�-,..R-:�._,-.r.:,,��.,�—..-��--.—: � . � 264�59 .t•, ., . , . ,,. , . � ' , • 7, Guarantor agrees that in the event of a def ault on its part in the payment of amount.s due under this guarantee, any other guarantor who pays additional amounts as a result of said default shall be entitled to recover such additional amounts from Guarantor . 8, Notwithstanding any other provision of this guarantee to the contrar��, the liabilit�� c�f tt;e Guarantor under this a�reement for an}' calendar year shall not exceed the amount of Guarantor' s guarantee stated in Paragraph 1 above, and such guarantee shall be non- cumulative. In the event the guarantee in��olves at its begin»ing and end fractional periods of less than one (1) full calendar year, the liability of the Guarantor for the total of both of these fractional periods shall not exceed the aroount of Guarantor's guarantee stated in Paragraph 1 above and such guarantee shall be non-cumulative. t ` � Ellerbe/Archit�cts/EnQineers/Planners • Guarantor ' � t/ �,,,,,,,..�--. .._ f � . ..O"`: '`�°� ' ,{ d' f. � �.� r� �� `.-__�!,�.'..'✓+.�'.h G. ,":M;,�`l� f ,�� i',;.�`� r.:.r--`�y.`° �� �-"`°-�``� Its President By Its CITY OF SAZNT' PAUL By �ayor � ._ �.��- � _-� !. �..� . .__._ .� . Chairman, Ci��ic Center Authority Acting Head, Finance and Accounting Division Approved as to form and execution this day . of � �9 — � Assistant Corporation Counsel . -6- ' ��